EXHIBIT 4.3
EXECUTION COPY
CSX CORPORATION
AND
THE CHASE MANHATTAN BANK,
Trustee
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SECOND SUPPLEMENTAL
INDENTURE
Dated as of May 6, 1997
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Senior Securities
SECOND SUPPLEMENTAL INDENTURE, dated as of May 6, 1997 between CSX
Corporation, a Virginia corporation (the "Company"), and The Chase Manhattan
Bank, a New York banking corporation, Trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the
Trustee a certain indenture, dated as of August 1, 1990 and supplemented by the
First Supplemental Indenture, dated as of June 15, 1991 (herein called the
"Indenture"), pursuant to which one or more series of unsecured debentures,
securities or other evidences of indebtedness of the Company (herein called the
"Securities") may be issued from time to time;
WHEREAS, Section 901 of the Indenture provides that the Company, when
authorized by a Board Resolution, and the Trustee may at any time and from time
to time enter into an indenture supplemental to the Indenture for the purpose,
among other things, of (i) changing or eliminating any of the provisions of the
Indenture, provided that such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision, (ii) establishing the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301, (iii) making any
other provisions with respect to matters or questions arising under the
Indenture, provided that such action shall not adversely affect the interests of
the Holders of Securities of any series or any related
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coupons in any material respect or (iii) to establish the form of Securities of
any series and any related coupons pursuant to Sections 201 and 301;
WHEREAS, the Company, pursuant to the foregoing authority, proposes in
and by this Second Supplemental Indenture to amend the Indenture in certain
respects with respect to the following Securities: $350,000,000 of its 7.05%
Debentures Due 2002 (the "2002 Debentures"), $300,000,000 of its 7.25%
Debentures Due 2004 (the "2004 Debentures"), $450,000,000 of its 7.45%
Debentures Due 2007 (the "2007 Debentures"), $400,000,000 of its 7.90%
Debentures Due 2017 (the "2017 Debentures"), $500,000,000 of its 7.95%
Debentures Due 2027 (the "7.95% 2027 Debentures"), $100,000,000 of its 6.95%
Debentures Due 2027 (the "6.95% 2027 Debentures"), $250,000,000 of its 7.25%
Debentures Due 2027 (the "7.25% 2027 Debentures") and $150,000,000 of its 8.30%
Debentures Due 2032 (the "2032 Debentures" and, collectively with the 2002
Debentures, the 2004 Debentures, the 2007 Debentures, the 2017 Debentures, the
7.95% 2027 Debentures, the 6.95% ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and the 7.25% 2027 Debentures,
the "May 1997 Securities" or the "Initial Securities"); and
WHEREAS, all things necessary to make this Second Supplemental
Indenture a valid agreement of the Company and the Trustee and a valid amendment
of and supplement to the Indenture have been done.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the May 1997 Securities, as
follows:
ARTICLE ONE
Solely with respect to the May 1997 Securities, and not with respect
to any other Securities previously established, the Indenture is hereby amended
and supplemented as specified below.
Section 1.1 Definitions. Section 101 of the Indenture is hereby
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amended and supplemented by adding the following definitions:
"Agent Member" has the meaning provided in Section 312.
"Depositary" means The Depository Trust Company, its nominees and
successors.
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"Exchange Offer" means the offer by the Company to the Holders of the
Initial Securities to exchange all of the Initial Securities for Exchange
Securities, as provided in the Registration Rights Agreement.
"Exchange Securities" refers to any Security containing terms
substantially identical to the Initial Securities (except that (i) such Exchange
Securities shall not contain terms with respect to transfer restrictions and
shall be registered under the Securities Act, and (ii) certain provisions
relating to an increase in the stated rate of interest thereon shall be
eliminated) that are issued and exchanged for the Initial Securities in
accordance with the Exchange Offer, as provided in the Registration Rights
Agreement and this Indenture.
"Initial Purchasers" means Salomon Brothers Inc, Credit Suisse First
Boston Corporation, Chase Securities Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated and NationsBanc Capital Markets, Inc.
"Initial Securities" has the meaning stated in the recitals to this
Indenture.
"Issue Date" means, with respect to a Securitiy, the date on which the
Trustee authenticated such Security.
"Offshore Securities Exchange Date" has the meaning provided in
Section 201.
"Non-U.S. Person" means a person who is not a U.S. person, as defined
in Regulation S.
"Permanent Offshore Physical Securities" has the meaning provided in
Section 201.
"Physical Securities" has the meaning provided in Section 201.
"Principal Subsidiary" means CSX Transportation, Inc. ("CSXT"), Sea-
Land Service, Inc. ("Sea-Land") and American Commercial Lines, Inc. ("ACL").
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of May 6, 1997 among the Company and the Initial Purchasers
and certain permitted assigns specified therein.
"Registration Statement" means the Registration Statement as defined
and described in the Registration Rights Agreement.
"Regulation S" means Regulation S under the Securities Act.
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"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to such Security.
"Restricted Period" has the meaning provided in Regulation S.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933.
"Temporary Offshore Global Securities" has the meaning provided in
Section 201.
"U.S. Global Securities" has the meaning provided in Section 201.
"U.S. Physical Securities" has the meaning provided in Section 201.
Section 1.2 Forms Generally. Section 201 of the Indenture is amended
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by adding the following four paragraphs to that Section:
Initial Securities offered and sold in reliance on Rule 144A may be
issued in the form of one or more permanent global securities
substantially in the form set forth in Annex I hereto (the "U.S.
Global Securities") deposited with the Trustee, as custodian for the
Depositary, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount of the
U.S. Global Securities may from time to time be increased or decreased
by adjustments made on the records of the Security Registrar, as
custodian for the Depositary or the Trustee, as hereinafter provided.
Initial Securities offered and sold in reliance on Regulation S shall
be issued initially in the form of temporary global Securities in
registered form substantially in the form set forth in Annex I hereto
(the "Temporary Offshore Global Securities"). The Temporary Offshore
Global Securities will be registered in the name of, and held by, a
temporary certificate holder designated by the Initial Purchasers
until the later of the completion of the distribution of the Initial
Securities and the termination of the Restricted Period with respect
to the offer and sale of the Initial Securities (the "Offshore
Securities Exchange Date"). At any time following the Offshore
Securities Exchange Date, upon receipt by the Trustee and the Company
of a certificate substantially in the form set forth in Section 205,
the Company shall execute, and the Trustee shall execute and deliver,
one or more permanent certificated Securities substantially in the
form set forth in Annex I hereto (the "Permanent
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Offshore Physical Securities") in exchange for the Temporary Offshore
Global Securities of like tenor and amount.
Initial Securities offered and sold other than as described in the
preceding two paragraphs shall be issued in the form of permanent
certificated Securities in Registered form in substantially the same
form set forth in Annex I hereto (the "U.S. Physical Securities"). The
Temporary Offshore Global Securities, Permanent Offshore Physical
Securities and U.S. Physical Securities are sometimes collectively
herein referred to as the "Physical Securities".
Section 1.3 Restrictive Legends. The Indenture is amended and
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supplemented by adding the following Section 204 to read as follows:
Section 204. Restrictive Legends.
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Unless and until (i) an Initial Security is sold under an effective
Registration Statement or (ii) an Initial Security is exchanged for an Exchange
Security in connection with an effective Registration Statement, in each case
pursuant to the Registration Rights Agreement, each such U.S. Global Security,
Temporary Offshore Global Security and U.S. Physical Security shall bear the
following legend (the "Private Placement Legend") on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY OTHER
APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
SUCH REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY PRIOR TO THE DATE
(THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR
ANY PREDECESSOR OF THIS SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO
A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
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TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3)
OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR
SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE TRUSTEE
AND THE COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO
CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND
(ii) PURSUANT TO CLAUSE (E), TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE
TRUSTEE A LETTER FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A
TO THE OFFERING MEMORANDUM DATED MAY 1, 1997. SUCH HOLDER FURTHER AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS SECURITY WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH HEREON RELATING TO THE
MANNER OF SUCH TRANSFER AND SUBMIT THIS SECURITY TO THE TRUSTEE. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE FOREGOING
RESTRICTIONS.
Each U.S. Global Security, whether or not an Initial Security, shall
also bear the following legend on the face thereof:
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE
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DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT
IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 313 OF THE INDENTURE.
Section 1.4 Form of Certificate to Delivered upon Termination of
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Restricted Period. The Indenture is amended and supplemented by adding the
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following Section 205 to read as follows:
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Section 205. Form of Certificate to Be Delivered in Connection with
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Transfers Pursuant to Regulation S upon Termination of Restricted Period.
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The following certificate, to be dated on or after expiration of the
Restricted Period, shall be delivered by a Holder in connection with transfers
pursuant to Regulation S.
THE CHASE MANHATTAN BANK
Global Trust Services
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: CSX Corporation (the "Company")
___% Securities due May 1, 20__ (the "Securities")
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Ladies and Gentlemen:
This letter relates to U.S. $_________ principal amount of Securities
represented by a temporary global security certificate (the "Temporary
Certificate") which bears a legend outlining restrictions upon transfer of such
Temporary Certificate. Pursuant to Section 201 of the Indenture dated as of
August 1, 1990, as supplemented and amended by the First Supplemental Indenture
dated as of June 15, 1991 and the Second Supplemental Indenture dated as of May
6, 1997 relating to the Securities (the "Indenture"), we hereby certify that we
are (or we will hold such Securities on behalf of) a person outside the United
States to whom the Securities could be transferred in accordance with Rule 904
of Regulation S promulgated under the U.S. Securities Act of 1933, as amended.
Accordingly, you are hereby requested to exchange the Temporary Certificate for
an unlegended certificate representing an identical principal amount of
Securities, all in the manner provided for in the Indenture.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
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Authorized Signature
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Section 1.5 Form of Security. The Security Form attached as Exhibit A
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to the Indenture is amended to read in its entirety as set forth in Annex I to
this Second Supplemental Indenture.
Section 1.6 Book-Entry Provisions for U.S. Global Security. The
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Indenture is amended and supplemented by adding the following Section 312 to
read as follows:
Section 312. Book-Entry Provisions for U.S. Global Security.
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(a) The U.S. Global Security initially shall (i) be registered in the
name of the Depositary for such global Security or the nominee of such
Depositary, (ii) be delivered to the Trustee as custodian for such Depositary
and (iii) bear legends as set forth in Section 204.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any U.S. Global Security
held on their behalf by the Depositary, or the Trustee as its custodian, or
under the U.S. Global Security, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of such U.S. Global Security for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or shall
impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(b) Transfers of the U.S. Global Security shall be limited to
transfers of such U.S. Global Security in whole, but not in part, to the
Depositary, its successors or their respective nominees. Interests of beneficial
owners in the U.S. Global Security may be transferred in accordance with the
rules and procedures of the Depositary and the provisions of Section 313. U.S.
Physical Securities shall be transferred to all beneficial owners in exchange
for their beneficial interests in the U.S. Global Security if (i) the Depositary
notifies the Company that it is unwilling, unable or ineligible to continue as
Depositary for the U.S. Global Security or if at any time the Depositary ceases
to be a clearing agency registered under the Exchange Act, (ii) the Company in
its sole discretion determines that the U.S. Global Security shall be
exchangeable for U.S. Physical Securities, or (iii) any event shall have
happened and be continuing which, after notice or lapse of time, or both, would
become an Event of Default with respect to such Securities.
(c) In connection with any transfer of a portion of the beneficial
interest in the U.S. Global Security pursuant to subsection (b) of this Section
to beneficial owners who are required to hold U.S. Physical Securities, the
Security Registrar shall reflect on its books and records the date and a
decrease in the principal amount of the U.S. Global Security in an amount equal
to the principal amount of the beneficial interest in the U.S. Global Security
to
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be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more U.S. Physical Securities of like tenor and
amount.
(d) In connection with the transfer of the entire U.S. Global
Security to beneficial owners pursuant to subsection (b) of this Section, the
U.S. Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial interest in the U.S. Global Security, an equal aggregate
principal amount of U.S. Physical Securities of authorized denominations.
(e) Any U.S. Physical Security delivered in exchange for an interest
in the U.S. Global Security pursuant to subsection (c) or subsection (d) of this
Section shall, except as otherwise provided by paragraph (a)(i)(x) and paragraph
(f) of Section 313, bear the applicable legend regarding transfer restrictions
applicable to the U.S. Physical Security set forth in Section 204.
(f) The registered holder of the U.S. Global Security may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Indenture or the Securities.
Section 1.7 Special Transfer Provisions. The Indenture is amended
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and supplemented by adding the following Section 313 to read as follows:
Section 313. Special Transfer Provisions.
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Unless and until (i) an Initial Security is sold under an effective
Registration Statement, or (ii) an Initial Security is exchanged for an Exchange
Security in connection with an effective Registration Statement, in each case
pursuant to the Registration Rights Agreement, the following provisions shall
apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
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following provisions shall apply with respect to the registration of any
proposed transfer of an Initial Security to any institutional "accredited
investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act) which is not a QIB (excluding Non-U.S. Persons):
(i) The Security Registrar shall register the transfer of any
Initial Security, whether or not such Initial Security bears the
Private Placement Legend, if (x) the requested transfer is at
least two years after the original issue date of the Initial
Security or (y) the proposed transferee has delivered to the
Security Registrar a certificate substantially in the form set
forth in Section 314.
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interest in the U.S. Global Security, upon receipt by the Security Registrar of
(x) the documents, if any, required by paragraph (i) and (y) instructions given
in accordance with the Depositary's and the Security Registrar's procedures
therefor, the Security Registrar shall reflect on its books and records the date
and a decrease in the principal amount of the U.S. Global Security in an amount
equal to the principal amount of the beneficial interest in the U.S. Global
Security to be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more U.S. Physical Securities of like tenor and
amount.
(b) Transfers to QIBs. The following provisions shall apply with
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respect to the registration of any proposed transfer of an Initial Security to a
QIB (excluding Non-U.S. Persons):
(i) If the Security to be transferred consists of U.S. Physical
Securities, Temporary Offshore Global Securities or Permanent
Offshore Physical Securities, the Security Registrar shall
register the transfer if such transfer is being made by a
proposed transferor who has checked the box provided for on the
form of Initial Security stating, or has otherwise advised the
Company and the Security Registrar in writing, that the sale has
been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the
form of Initial Security stating, or has otherwise advised the
Company and the Security Registrar in writing, that it is
purchasing the Initial Security for its own account or an
account with respect to which it exercises sole investment
discretion and that it, or the person on whose behalf it is
acting with respect to any such account, is a QIB within the
meaning of Rule 144A, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, and the Initial
Security to be transferred consists of U.S. Physical Securities,
Temporary Offshore Global Securities or Permanent Offshore
Physical Securities, upon receipt by the Security Registrar of
instructions given in accordance with the Depositary's and the
Security Registrar's procedures therefor, the Security Registrar
shall reflect on its books and records the date and an increase
in the principal amount of the U.S. Global Security in an amount
equal to the principal amount of the U.S. Physical Securities,
Temporary Offshore Global Securities or Permanent
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Offshore Physical Securities, as the case may be, to be
transferred, and the Trustee shall cancel the Physical Security
so transferred.
(c) Transfers by Non-U.S. Persons Prior to Expiration of the
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Restricted Period. The following provisions shall apply with respect to
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registration of any proposed transfer of an Initial Security by a Non-U.S.
Person prior to expiration of the Restricted Period:
(i) The Security Registrar shall register the transfer of any
Initial Security (x) if the proposed transferee is a Non-U.S.
Person and the proposed transferor has delivered to the Security
Registrar a certificate substantially in the form set forth in
Section 315 or (y) if the proposed transferee is a QIB and the
proposed transferor has checked the box provided for on the form
of Initial Security stating, or has otherwise advised the
Company and the Security Registrar in writing, that the sale has
been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the
form of Initial Security stating, or has otherwise advised the
Company and the Security Registrar in writing, that it is
purchasing the Initial Security for its own account or an
account with respect to which it exercises sole investment
discretion and that it, or the person on whose behalf it is
acting with respect to any such account, is a QIB within the
meaning of Rule 144A, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A. Unless clause
(ii) below is applicable, the Company shall execute, and the
Trustee shall authenticate and deliver, one or more Temporary
Offshore Global Securities of like tenor and amount.
(ii) If the proposed transferee is an Agent Member, upon receipt by
the Security Registrar of instructions given in accordance with
the Depositary's and the Security Registrar's procedures
therefor, the Security Registrar shall reflect on its books and
records the date and an increase in the principal amount of the
U.S. Global Security in an amount equal to the principal amount
of the Temporary Offshore Global Security to be transferred, and
the Security Registrar shall cancel the Temporary Offshore
Global Securities so transferred.
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(d) Transfers by Non-U.S. Persons on or After Expiration of the
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Restricted Period. The following provisions shall apply with respect to any
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transfer of an Initial Security by a Non-U.S. Person on or after expiration of
the Restricted Period:
(i) (x) If the Initial Security to be transferred is a Permanent
Offshore Physical Security, the Security Registrar shall
register such transfer, (y) if the Initial Security to be
transferred is a Temporary Offshore Global Security, upon
receipt of a certificate substantially in the form set forth in
Section 315 from the proposed transferor, the Security Registrar
shall register such transfer and (z) in the case of either
clause (x) or (y), unless clause (ii) below is applicable, the
Company shall execute, and the Trustee shall authenticate and
deliver, one or more Permanent Offshore Physical Securities of
like tenor and amount.
(ii) If the proposed transferee is an Agent Member, upon receipt by
the Security Registrar of instructions given in accordance with
the Depositary's and the Security Registrar's procedures
therefor, the Security Registrar shall reflect on its books and
records the date and an increase in the principal amount of the
U.S. Global Security in an amount equal to the principal amount
of the Temporary Offshore Global Security or of the Permanent
Offshore Physical Security to be transferred, and the Trustee
shall cancel the Global Security so transferred.
(e) Transfers to Non-U.S. Persons on or After Expiration of the
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Restricted Period. The following provisions shall apply with respect to any
-----------------
transfer of an Initial Security to a Non-U.S. Person:
(i) Prior to expiration of the Restricted Period, the Security
Registrar shall register any proposed transfer of an Initial
Security to a Non-U.S. Person upon receipt of a certificate
substantially in the form set forth in Section 315 from the
proposed transferor and the Company shall execute, and the
Trustee shall authenticate and make available for delivery, one
or more Temporary Offshore Physical Securities.
(ii) On and after expiration of the Restricted Period, the Security
Registrar shall register any proposed transfer to any Non-U.S.
Person (w) if the Initial Security to be transferred is a
Permanent Offshore Physical Security, (x) if the Initial
Security to be transferred is a Temporary Offshore Global
Security, upon receipt of a certificate substantially in the
form set forth in Section 315 from the proposed transferor, (y)
if the Initial Security to be transferred is a U.S. Physical
Security or an interest in the U.S. Global Security, upon
receipt of a certificate
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substantially in the form set forth in Section 315 from the
proposed transferor and (z) in the case of either clause (w),
(x) or (y), the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Permanent Offshore
Physical Securities of like tenor and amount.
(iii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Security, upon receipt by
the Security Registrar of (x) the document, if any, required by
paragraph (i), and (y) instructions in accordance with the
Depositary's and the Security Registrar's procedures therefor,
the Security Registrar shall reflect on its books and records
the date and a decrease in the principal amount of the U.S.
Global Security in an amount equal to the principal amount of
the beneficial interest in the U.S. Global Security to be
transferred and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Permanent Offshore
Physical Securities of like tenor and amount.
(f) Private Placement Legend. Upon the transfer, exchange or
------------------------
replacement of Securities not bearing the Private Placement Legend, the Security
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Security Registrar shall deliver only Securities
that bear the Private Placement Legend unless either (i) the circumstances
contemplated by the fifth paragraph of Section 201 (with respect to Permanent
Offshore Physical Securities) or paragraph (a)(i)(x), (d)(i) or (e)(ii) of this
Section 313 exist or (ii) there is delivered to the Security Registrar an
Opinion of Counsel reasonably satisfactory to the Company and the Trustee to the
effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act.
(g) General. By its acceptance of any Security bearing the Private
-------
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Security Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 312 or this Section
313. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Security Registrar.
15
Section 1.8 Form of Certificate to Be Delivered in Connection with
------------------------------------------------------
Transfers to Non-QIB Institutional Accredited Investors. The Indenture is
-------------------------------------------------------
amended and supplemented by adding the following Section 314 to read as follows:
Section 314. Form of Certificate to Be Delivered in Connection with
------------------------------------------------------
Transfers to Non-QIB Institutional Accredited Investors.
-------------------------------------------------------
[date]
THE CHASE MANHATTAN BANK
Global Trust Services
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: CSX Corporation (the "Company")
___% Securities due May 1, 20__ (the "Securities")
--------------------------------------------------
Ladies and Gentlemen:
1. We understand that the _____% Securities due May 1, ____, (the
"Offered Securities") of CSX Corporation (the "Company") have not been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
or any state securities laws, and may not be offered or sold except as permitted
in the following sentence. We agree on our own behalf and on behalf of any
investor account for which we are purchasing the Offered Securities that, if,
prior to the date which is two years after the later of the date of original
issue of the Offered Securities and the last date on which the Company or any
affiliate of the Company was the owner of such Offered Securities (the "Resale
Restriction Termination Date"), we decide to offer, sell or otherwise transfer
any such Offered Securities, such offer, sale or transfer will be made only (a)
to the Company, (b) pursuant to an effective registration statement under the
Securities Act, (c) so long as the Offered Securities are eligible for resale
pursuant to Rule 144A under the Securities Act, to a person we reasonably
believe is a qualified institutional buyer under Rule 144A (a "QIB") that
purchases for its own account or for the account of a QIB and to whom notice is
given that the transfer is being made in reliance on Rule 144A, (d) to an
institutional "accredited investor" within the meaning of subparagraph (a)(1),
(2), (3) or (7) of Rule 501 under the Securities Act that is acquiring Offered
Securities for its own account or for the account of such an institutional
accredited investor for investment purposes and not with a view to, or for offer
or sale in connection with, any distribution thereof in violation of the
Securities Act, (e) pursuant to offers and sales to non-U.S. persons that occur
outside the United States within the meaning of Regulation S under the
Securities Act or (f) pursuant to another available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirements of law that the disposition of our property
or the property of such investor account or accounts be at all times within our
or their control and to compliance with any applicable state securities laws.
The foregoing restrictions on resale will
16
not apply subsequent to the Resale Restriction Termination Date. If any resale
or other transfer of the Offered Securities is proposed to be made pursuant to
clause (d) above prior to the Resale Restriction Termination Date, the
transferor shall deliver a letter from the transferee substantially in the form
of this letter to the Trustee, which shall provide as applicable, among other
things, that the transferee is an institutional "accredited investor" within the
meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities
Act that is acquiring such Offered Securities for investment purposes and not
for distribution in violation of the Securities Act. We acknowledge on our
behalf and on behalf of any investor account for which we are purchasing Offered
Securities that the Company and the Trustee reserve the right prior to any
offer, sale or other transfer pursuant to clause (d), (e) or (f) prior to the
Resale Restriction Termination Date of the Offered Securities to require the
delivery of any opinion of counsel, certifications and/or other information
satisfactory to the Company and the Trustee. We understand that the
certificates for any Offered Security that we receive will bear a legend
substantially to the effect of the foregoing.
2. We are an institutional "accredited investor" within the meaning
of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act
purchasing for our own account or for the account of such an institutional
"accredited investor," and we are acquiring the Offered Securities for
investment purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act and we have such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Offered Securities, and
we and any account for which we are acting are each able to bear the economic
risks of our or its investment.
3. We are acquiring the Offered Securities purchased by us for our
own account (or for one or more accounts as to each of which we exercise sole
investment discretion and have authority to make, and do make, the statements
contained in this letter) and not with a view to any distribution of the Offered
Securities, subject, nevertheless, to the understanding that the disposition of
our property will at all times be and remain within our control.
4. We acknowledge that (a) none of the Company, or the Initial
Purchasers (as defined in the Offering Memorandum dated May 1, 1997 relating to
the Offered Securities (the "Final Memorandum")) nor any person acting on behalf
of the Company or the Initial Purchasers has made any representation to us with
respect to the Company or the offer or sale of any Offered Securities and (b)
any information we desire concerning the Company and the Offered Securities or
any other matter relevant to our decision to purchase the Offered Securities
(including a copy of the Final Memorandum) is or has been made available to us.
5. We acknowledge that the Company, the Trustee, Initial Purchasers
and others will rely upon the truth and accuracy of the foregoing
acknowledgements, representations,
17
warranties and agreements and agree that if any of the acknowledgements,
representations, warranties and agreements made by us herein with respect to our
purchase of the Offered Securities are no longer accurate, we shall promptly
notify the Initial Purchasers.
Very truly yours,
---------------------------
(Name of Purchaser)
By:
------------------------
Date:
----------------------
Upon transfer, the Offered Securities would be registered in the name
of the new beneficial owner as follows:
Name:
--------------------------------------------------------------------
Address:
-----------------------------------------------------------------
Taxpayer ID Number:
------------------------------------------------------
Section 1.9 Form of Certificate to Delivered in Connection with Transfers
-------------------------------------------------------------
Pursuant to Regulation S. The Indenture is amended and supplemented by adding
------------------------
the following Section 315 to read as follows:
Section 315. Form of Certificate to Be Delivered in Connection with
------------------------------------------------------
Transfers Pursuant to Regulation S.
-----------------------------------
[date]
THE CHASE MANHATTAN BANK
Global Trust Services
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: CSX Corporation (the "Company")
___% Securities due May 1, 20__ (the "Securities")
--------------------------------------------------
Ladies and Gentlemen:
18
In connection with our proposed sale of U.S.$__________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended, and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the United
States;
(2) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States;
(3) no directed selling efforts have been made by us, any affiliate of
ours, or any Person acting on our or their behalf, in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S,
as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act of 1933.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
---------------------------------
Authorized Signature
Section 1.10 Covenants. Section 1005 of the Indenture is hereby
---------
amended and supplemented to read as follows:
Section 1005. Limitation on Liens on Stock of the Principal
---------------------------------------------
Subsidiaries.
------------
The Company will not, nor will it permit any Subsidiary to, create,
assume, incur or suffer to exist any Lien upon any stock or indebtedness,
whether owned on the date of this Indenture or hereafter acquired, of any
Principal Subsidiary, to secure any Obligation (other than the Securities) of
the Company, any Subsidiary or any other Person, without in any such case making
effective provision whereby all of the Outstanding Securities shall be directly
secured equally and ratably with such Obligation.
19
Section 1.11 Redemption of Securities. Section 1102 of the Indenture
------------------------
is hereby amended and supplemented to read as follows:
Section 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In the case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company, notify the Trustee of such Redemption Date
and of the principal amount of Securities of such series to be redeemed.
Section 1.12 Repayment at the Option of Holders. The Indenture is
----------------------------------
amended and supplemented by adding the following Article Fifteen:
ARTICLE FIFTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1501. Applicability of Article. Repayment of Securities of
------------------------
any series before their Stated Maturity at the option of Holders thereof shall
be made in accordance with the terms of such Securities and (except as otherwise
specified by the terms of such series established pursuant to Section 301) in
accordance with this Article.
Section 1502. Repayment of Securities. Securities of any series
-----------------------
subject to repayment in whole or in part at the option of the Holders thereof
will, unless otherwise provided in the terms of such Securities, be repaid at a
price equal to the principal amount thereof, together with interest, if any,
thereon accrued to the Repayment Date specified in or pursuant to the terms of
such Securities. The Company covenants that on or before the Repayment Date it
will deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money sufficient to pay the principal (or, if so
provided by the terms of the Securities of any series, a percentage of the
principal) of, and (except if the Repayment Date shall be an Interest Payment
Date) accrued interest on, all the Securities or portions thereof, as the case
may be, to be repaid on such date.
Section 1503. Exercise of Option. Securities of any series subject to
------------------
repayment at the option of the Holders thereof will contain an "Option of Holder
to Elect Purchase" form on such Securities. In order for any Security to be
repaid at the option of the Holder, the Trustee must receive at the Place to
Payment therefor specified in the terms of such Security (or at such other place
or places of which the Company shall from time to time notify the Holders of
such Securities) not earlier than 60 days nor later than 30 days prior to the
Repayment Date (1) the Security so providing for such repayment together with
the "Option of Holder to Elect Purchase" form duly completed by the Holder (or
by the Holder's
20
attorney duly authorized in writing) or (2) a telegram, facsimile transmission
or a letter from a member of a national securities exchange, or the National
Association of Securities Dealers, Inc. ("NASD"), or a commercial bank or trust
company in the United States setting forth the name of the Holder of Security,
the principal amount of the Security, the amount of the Security to be repaid,
the certificate number or a description of the tenor and terms of the Security,
a statement that the option to elect repayment is being exercised thereby and a
guarantee that the Security to be repaid, together with the duly completed form
entitled "Option of Holder to Elect Purchase", will be received by the Trustee
not later than the fifth Business Day after the date of such telegram, facsimile
transmission or letter; provided, however, that such telegram, facsimile
transmission or letter shall only be effective if such Security and form duly
completed are received by the Trustee by such fifth Business Day. If less than
the entire principal amount of such Security is to be repaid in accordance with
the terms of such Security, the principal amount of such Security to be repaid,
in increments of the minimum denomination for Securities of such series, and the
denomination or denominations of the Security or Securities to be issued to the
Holder for the portion of the principal amount of such Security surrendered that
is not to be repaid, must be specified. The principal amount of any Security
providing for repayment at the option of the Holder thereof may not be repaid in
part if, following such repayment, the unpaid principal amount of such Security
would be less than the minimum authorized denomination of Securities of the
series of which such Security to be repaid is a part. Except as otherwise may
be provided by the terms of any Security providing for repayment at the option
of the Holder thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company.
Section 1504. When Securities Presented for Repayment Become Due and
------------------------------------------------------
Payable. If the Securities of any series providing for repayment at the option
-------
of the Holders thereof shall have been surrendered as provided in this Article
and as provided by or pursuant to the terms of such Securities, such Securities
or the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities so to be repaid shall cease to bear interest. Upon surrender of any
such Security for repayment in accordance with such provisions, the principal
amount of such Security so to be repaid shall be paid by the Company, together
with accrued interest, if any, to the Repayment Date; provided that,
installments of interest, if any, whose Stated Maturity is on or prior to the
Repayment Date shall be payable (but without interest thereon, unless the
Company shall default in the payment thereof) to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount (together with
interest, if any,
21
thereon accrued to such Repayment Date) shall, until paid, bear interest from
the Repayment Date at the rate of interest set forth in such Security.
Section 1505. Securities Repaid in Part. Upon surrender of any
-------------------------
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
Section 1506. Compliance with Exchange Act. In connection with any
----------------------------
Repayment of Securities pursuant to this Article, the Company will comply with
the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under
the Securities Exchange Act of 1934, if required, and will file Schedule 13E-4
or any other schedule, if required.
ARTICLE TWO
Section 2.1 Incorporation of Indenture. All the provisions of this
--------------------------
Second Supplemental Indenture shall be deemed to be incorporated in, and made a
part of, the Indenture; and the Indenture, as supplemented by this Second
Supplemental Indenture, shall be read, taken and construed as one and the same
instrument and shall be binding upon all the Holders of Securities.
Section 2.2 Counterparts. This Second Supplemental Indenture may be
------------
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and same instrument.
Section 2.3 Successors and Assigns. All covenants and agreements in
----------------------
this Second Supplemental Indenture by the Company and the Trustee shall bind
their respective successors and assigns, whether so expressed or not.
Section 2.4 Separability Clause. In case any provision in this Second
-------------------
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 2.5 Benefits of Second Supplemental Indenture. Nothing in
-----------------------------------------
this Second Supplemental Indenture, express or implied, shall give any person,
other than the parties hereto and their successors hereunder and the Holders of
the May 1997 Securities, any benefit or any legal or equitable right, remedy or
claim under this Second Supplemental Indenture. This Second Supplemental
Indenture applies only to the May 1997 Securities.
22
Except as expressly supplemented or amended as set forth in this Second
Supplemental Indenture, the Indenture is hereby ratified and confirmed, and all
the terms, provisions and conditions thereof shall be and continue in full force
and effect. The Trustee accepts the trusts created by the Indenture, as amended
and supplemented by this Second Supplemental Indenture, and agrees to perform
the same upon the terms and conditions in the Indenture as amended and
supplemented by this Second Supplemental Indenture.
Section 2.6. Defined Terms. All terms used in this Second
-------------
Supplemental Indenture which are defined in the Indenture and not otherwise
defined herein shall have the meanings assigned to them in the Indenture.
23
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
CSX CORPORATION
[Seal] By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director--Corporate Finance
Attest:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Corporate Secretary
THE CHASE MANHATTAN BANK, as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Second Vice President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Notary Public, State of ▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ Qualified in New York County
County of _________________ss.: Commission Expires, February 24, 1999
On the 6th day of May, 1997, before me personally came ▇▇▇▇▇ ▇. ▇▇▇▇
to me known, who, being by me duly sworn, did depose and say that he is Managing
Director--Corporate Finance of CSX Corporation, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
(Notarial Seal) /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
ANNEX I
-------
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY OTHER
APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER THIS SECURITY PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE
DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY)
ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-
U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501
UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT,
SUBJECT TO THE RIGHT OF THE TRUSTEE AND THE COMPANY PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM AND (ii) PURSUANT TO CLAUSE (E), TO REQUIRE THAT THE TRANSFEROR
DELIVER TO THE TRUSTEE A LETTER FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF
ANNEX A TO THE OFFERING MEMORANDUM DATED MAY 1, 1997. SUCH HOLDER FURTHER
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS SECURITY
2
WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE
BOX SET FORTH HEREON RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
SECURITY TO THE TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION",
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION
S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE
FOREGOING RESTRICTIONS.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 313 OF THE
INDENTURE.
3
=======================
CSX CORPORATION
=======================
$______________________
_____ % DEBENTURE DUE 20__
No. [CUSIP][CINS][____________]
[ISIN] [____________]
This security (the "Security") is one of a duly authorized issue of
securities (herein called the "Securities") of CSX Corporation, a Virginia
corporation (hereinafter called the "Company," which term includes any successor
corporation under the Indenture hereinafter referred to), issued and to be
issued in one or more series under an indenture, unlimited as to aggregate
principal amount, dated as of August 1, 1990 between the Company and The Chase
Manhattan Bank, Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture (as hereinafter defined)), as supplemented
by a First Supplemental Indenture dated as of June 15, 1991 and a Second
Supplemental Indenture dated as of May 6, 1997, to which indenture and all
indentures supplemental thereto (the indenture, as supplemented being herein
called the "Indenture") reference is hereby made for a statement of the
respective rights thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, which series has been issued in an aggregate initial principal
amount of $_____________ ([DOLLARS]). This Security represents an aggregate
initial principal amount of $________________ ([DOLLARS]) (as adjusted from time
to time in accordance with the terms and provisions hereof and as set forth on
Exhibit A hereto, the "Principal Amount") of the Securities of such series, with
the Interest Payment Dates, date of original issuance, and date of Maturity
specified herein and bearing interest on said Principal Amount at the interest
rate specified herein.
The Company, for value received, hereby promises to pay to
_______________ or its registered assigns, the principal sum of $____________
([DOLLARS]) on May 1, 20__, and to pay interest (computed on the basis of a 360-
day year of twelve 30-day months) thereon from the Issue Date or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, or, if the date of this Security is an Interest Payment Date to which
interest has been paid or duly provided for, then from the date hereof,
semiannually in arrears on May 1 and November 1 in each year,
4
commencing November 1, 1997, and at Maturity at the rate of ___% per annum,
until the principal hereof is paid or duly made available for payment. The
Company shall pay interest on overdue principal and premium, if any, and (to the
extent lawful) interest on overdue installments of interest at the rate per
annum borne by the Security. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the April 15 or October 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Except as otherwise provided in the Indenture, any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date and may be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date to be fixed by the
Trustee for the payment of such Defaulted Interest, notice whereof shall be
given to the Holder of this Security not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Security of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in such Indenture. Notwithstanding
the foregoing, interest payable on this Security at Maturity will be payable to
the person to whom principal is payable.
[Additional Interest (the "Special Interest") shall become payable in
respect of the Security as follows, if any of the following events occur with
respect to such Security (each such event in clauses (i) through (iv) below, a
"Registration Default"):
(i) if a registration statement for an exchange offer (the "Exchange
Offer") under the Securities Act with respect to the Securities (an "Exchange
Offer Registration Statement") is not filed with the Commission on or prior to
150 days after the Issue Date;
(ii) if neither the Exchange Offer Registration Statement is declared
effective nor (if the Exchange Offer is not permitted for the reasons described
in the Registration Rights Agreement dated as of May 6, 1997 among the Company
and the Initial Purchasers (the "Registration Rights Agreement")) a shelf
registration statement under the Securities Act with respect to the Securities
(the "Shelf Registration Statement") is filed with the Commission on or prior to
180 Days after the Issue Date;
(iii) if one or more of the Exchange Offers is not consummated with
respect to the Securities of this series or the Shelf Registration Statement is
declared effective on or prior to 210 days after the Issue Date; or
(iv) if, after 210 days after the Issue Date, and after the Shelf
Registration Statement is declared effective, the Company fails to keep the
Shelf Registration Statement effective (except as permitted by the proviso to
Section 3(b) of the Registration Rights
5
Agreement) then from such time as the Shelf Registration Statement is no longer
effective until the earlier of (i) the date that the Shelf Registration
Statement is again deemed effective and (ii) the date that is the earliest of
(x) the second anniversary of the Issue Date (or until the first anniversary of
the effective date of the Shelf Registration Statement if the Shelf Registration
Statement is filed at the request of the Initial Purchaser), (y) the time when
the Security registered under the Shelf Registration Statement can be sold by
non-Affiliates pursuant to Rule 144 under the Act without any limitations under
clauses (c), (e), (f) and (h) of Rule 144, or (z) the date as of which all of
such Securities are sold pursuant to the Shelf Registration Statement.
The holder of this Security is entitled to the benefits of the
Registration Rights Agreement.
Special Interest shall accrue on the Security, over and above the
interest rate set forth in the Indenture applicable to such Security following
the occurrence of each Registration Default set forth in clauses (i), (ii),
(iii) and (iv) above from and including the next day following each such
Registration Default, in each case at a rate equal to 0.25% per annum of the
principal amount of such Security, provided, however, that the aggregate amount
of Special Interest payable will in no event exceed 0.25% per annum of the
principal amount of the Security. The Special Interest attributable to each
Registration Default shall cease to accrue from the date such Registration
Default is cured. Upon (a) the filing of the Exchange Offer Registration
Statement after the period described in clause (i) above, (b) the effectiveness
of the Exchange Offer Registration Statement or the filing of the Shelf
Registration Statement after the period described in clause (ii) above or (c)
the consummation of the Exchange Offer for such Security or the effectiveness of
a Shelf Registration Statement, as the case may be, after the period described
in clause (iii) above, Special Interest payable on such Security as a result of
the applicable Registration Default will cease to accrue. For purposes of the
preceding sentence, the curing of a Registration Default by the means described
in clause (b) above shall constitute a cure of the Registration Defaults
described in clauses (i) and (ii) above, and the curing of a Registration
Default by the means described in clause (c) above shall constitute a cure of
the Registration Defaults described in clauses (i), (ii) and (iii) above.
Any amounts of Special Interest due pursuant to the foregoing
paragraphs will be payable in cash on May 1 and November 1 of each year to the
holders of record on the preceding April 15 and October 15, respectively.]*
This Security is exchangeable in whole or from time to time in part
for definitive Registered Securities of this series only as provided in this
paragraph. If (x) the U.S. Depository with respect to the Securities of this
series (the "U.S. Depository") notifies
-----------------------
* Only for a Security not registered under the Securities Act.
6
the Company that it is unwilling, unable or ineligible to continue as U.S.
Depository for this Security or if at any time the U.S. Depository ceases to be
a clearing agency registered under the Securities Exchange Act of 1934, as
amended, (y) the Company in its sole discretion determines that this Security
shall be exchangeable for definitive Registered Securities and executes and
delivers to the Trustee a Company Order providing that this Security shall be so
exchangeable or (z) there shall have happened and be continuing an Event of
Default or any event which, after notice or lapse of time, or both, would become
an Event of Default with respect to the Securities of the series of which this
Security is a part, this Security or any portion hereof shall, in the case of
clause (x) above, be exchanged for definitive Registered Securities of this
series, and in the case of clauses (y) and (z) above, be exchangeable for
definitive Registered Securities of this series, provided that the definitive
Security so issued in exchange for this Security shall be in authorized
denominations and be of like tenor and of an equal aggregate principal amount as
the portion of the Security to be exchanged, and provided further that, in the
case of clauses (y) and (z) above, definitive Registered Securities of this
series will be issued in exchange for this Security, or any portion hereof, only
if such definitive Registered Securities were requested by written notice to the
Security Registrar by or on behalf of a Person who is a beneficial owner of an
interest herein given through the Holder hereof. Any definitive Registered
Security of this series issued in exchange for this Security, or any portion
hereof, shall be registered in the name or names of such Person or Persons as
the Holder hereof shall instruct the Security Registrar. Except as provided
above, owners of beneficial interests in this Security will not be entitled to
receive physical delivery of Security in definitive form and will not be
considered the Holders thereof for any purpose under the Indenture.
Any exchange of this Security or portion hereof for one or more
definitive Registered Securities of this series will be made at the New York
office of the Security Registrar. Upon exchange of any portion of this Security
for one or more definitive Registered Securities of this series, the Trustee
shall endorse Exhibit A of this Security to reflect the reduction of its
Principal Amount by an amount equal to the aggregate principal amount of the
definitive Registered Securities of this series so issued in exchange, whereupon
the Principal Amount hereof shall be reduced for all purposes by the amount so
exchanged and noted. Except as otherwise provided herein or in the Indenture,
until exchanged in full for one or more definitive Registered Securities of this
series, this Security shall in all respects be subject to and entitled to the
same benefits and conditions under the Indenture as a duly authenticated and
delivered definitive Registered Security of this series.
The principal and any interest in respect of any portion of this
Security payable in respect of an Interest Payment Date or at the Stated
Maturity thereof, in each case occurring prior to the exchange of such portion
for a definitive Registered Security or Securities of this series, will be paid,
as provided herein, to the Holder hereof which will undertake in such
circumstances to credit any such principal and interest received by it in
respect of this Security to the respective accounts of the Persons who are the
beneficial owners of such interests on such Interest Payment Date or at Stated
Maturity. If a definitive
7
Registered Security or Registered Securities of this series are issued in
exchange for any portion of this Security after the close of business at the
office or agency where such exchange occurs on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such office or agency on the related proposed date for payment of Defaulted
Interest, then interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Holder hereof, and the Holder hereof will undertake in such circumstances to
credit such interest to the account or accounts of the Persons who were the
beneficial owners of such portion of this Security on such Regular Record Date
or Special Record Date, as the case may be.
Payment of the principal of and any such interest on this Security
will be made at the offices of The Chase Manhattan Bank, as Paying Agent, in the
Borough of Manhattan, The City of New York, or at such other office or agency of
the Company as may be designated by it for such purpose in the Borough of
Manhattan, The City of New York, in such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts by check mailed to the registered Holders thereof;
provided, however, that at the option of the Holder, payment of interest may be
-------- -------
made by wire transfer of immediately funds to an account of the Person entitled
hereto as such account shall be provided to the Security Registrar and shall
appear in the Security Register.
[The Company may be required to repurchase the Securities of this
series, in whole or in part (the "Put Option"), on May 1, 20__, (the "Put Option
Exercise Date") at a purchase price equal to 100% of the principal amount
tendered by the Holder, plus accrued interest, if any, to the Put Option
Exercise Date. On or before the Put Option Exercise Date, the Company shall
deposit with the Trustee money sufficient to pay the principal of and any
interest accrued on the such Securities to be tendered for repayment. On and
after the Put Option Exercise Date, interest will cease to accrue on such
Securities or any portion thereof tendered for repayment.
In the event of repurchase of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
A holder must provide the Company with notice of its intention to
exercise the Put Option during the period from and including March 1, 20__
through and including April 1, 20__. Such notice, once given, will be
irrevocable unless waived by the Company.]
[The Securities of this series are subject to redemption on or after
May 1, 2007, in whole or in part, at the election of the Company, at the
following Redemption
8
Prices (expressed as percentages of the principal amount): if redeemed during
the 12-month period beginning May 1 of the years indicated,
YEAR REDEMPTION PRICE
---- -----------------
2007 104.150%
2008 103.735
2009 103.320
2010 102.905
2011 102.490
2012 102.075
2013 101.660
2014 101.245
2015 100.830
2016 100.415
2017 and thereafter 100.000
in each case with accrued interest to the Redemption Date; provided, however,
that installments of interest on this Security whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holder of this Security, or
one or more Predecessor Securities, of record at the close of business on the
relevant Regular Record Dates referred to on the face hereof all as provided in
the Indenture. Notice of redemption will be given by mail to Holders of
Securities, not less than 30 nor more than 60 days prior to the date fixed for
redemption, all as provided in the Indenture. In the event of redemption of
this Security in part only, a new Security or Securities of this series and of
like tenor for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.]
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series
(including this Security and the interests represented hereby) may be declared
due and payable in the manner and with the effect provided in the Indenture.
Upon payment (i) of the amount of principal so declared due and payable and (ii)
of interest on any overdue principal and overdue interest (in each case to the
extent that the payment of such interest shall be legally enforceable), all of
the Company's obligations in respect of the payment of the principal of and any
interest on the Securities of this series (including this Security and the
interests represented hereby) shall terminate.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Company on this Security and (b) certain
restrictive covenants and the related defaults and Events of Default, upon
compliance with certain conditions set forth therein, which provisions shall
apply to this Security.
9
The provisions of Article Fourteen of the Indenture apply to
Securities of this series.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding of each series affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of each series at
the time Outstanding on behalf of the Holders of all Securities of such series
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and the Persons
who are beneficial owners of interests represented hereby, and of any Security
issued in exchange herefor or in lieu hereof whether or not notation of such
consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security of this series will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to the Securities of this series, the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of this series shall have made written request, and offered
reasonable indemnity, to the Trustee to institute such proceeding as trustee,
and the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of the Outstanding Securities of this series a
direction inconsistent with such request and shall have failed to institute such
proceeding within 60 days; provided, however, that such limitations do not apply
to a suit instituted by the Holder hereof for the enforcement of payment of the
principal of (and premium, if any) or interest on this Security on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional to pay the principal of (and premium, if any) and
interest on this Security at the time, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, the transfer of Registered Securities of the
series of which this Security is a part may be registered on the Security
Register of the Company, upon surrender of such Securities for registration of
transfer at the office of the Security Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by the Holder thereof or his
attorney duly authorized in
10
writing, and thereupon one or two more new Securities of this Series and of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer
or exchange of Securities as provided above, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Securities of this series of which this Security is a part are
issuable only in registered form without coupons, in denominations of $1,000.00
and any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, the Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
The Securities of this series shall be dated the date of their
authentication.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by
or on behalf of The Chase Manhattan Bank, the Trustee under the Indenture, or
its successor thereunder, by the manual signature of one of its authorized
officers, this Security shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
11
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: May __, 1997
CSX CORPORATION
[Seal] By:
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director--Corporate Finance
Attest:
-----------------------------------
Corporate Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of a series issued under the Indenture
described herein.
THE CHASE MANHATTAN BANK, as Trustee
By:
--------------------------------------------
Authorized Officer
12
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
----------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address including zip code of assignee
--------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
----------------------------------------------------------------------
attorney to transfer said Note on
----------------------------------------------
the books of the Company with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL SECURITIES OTHER THAN EXCHANGE SECURITIES,
OFFSHORE GLOBAL SECURITIES AND
OFFSHORE PHYSICAL SECURITIES]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date of an effective Registration Statement
or (ii) the end of the period referred to in Rule 144(k) under the Securities
Act, the undersigned confirms that without utilizing any general solicitation or
general advertising that:
[Check One]
---------
[ ] (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act of 1933, as amended, provided by Rule 144A
thereunder.
or
--
[ ] (b) this Note is being transferred other than in accordance with (a) above
and documents are being furnished which comply with the conditions of transfer
set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or the Security
Registrar shall not be obligated to register this Note in the name of any Person
other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 313 of the Indenture
shall have been satisfied.
Date:
---------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
13
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
--------------------- -----------------------------------------
NOTICE: To be executed by an executive
officer
14
[OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have all or a portion of this Security purchased by the
Company pursuant to Article Fifteen of the Indenture, state the amount (in
principal amount): $________________.
Date:
-----------------
Your Signature:
-----------------------------------------------------------------
(Sign exactly as your name appears elsewhere on this Security)
Signature Guarantee: ]
----------------------------
EXHIBIT A
---------
Schedule of Exchanges
---------------------
