Exhibit 99.7
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated as of August
25, 1998 between CONSOLIDATED RAIL CORPORATION, a Pennsylvania corporation
(hereinafter called the "Issuer"), having its principal executive office at 2001
Market Street, Philadelphia, PA 19101, and THE FIRST NATIONAL BANK OF CHICAGO, a
national banking association, as trustee (hereinafter called the "Trustee"),
having its principal corporate trust office in the city of Chicago.
RECITALS OF THE COMPANY
WHEREAS, the Issuer and the Trustee have entered into an Indenture dated
as of May 1, 1990 (the "Indenture"), providing for the issuance from time to
time of unsecured debentures, notes or other evidences of indebtedness of the
Company (hereinafter called the "Securities") to be issued in one or more series
as provided for in the Indenture;
WHEREAS, $250,000,000 in aggregate principal amount of 7-7/8% Debentures
due May 15, 2043 (the "7-7/8% Debentures") have been issued as a series of
Securities pursuant to the Indenture and are Outstanding;
WHEREAS, $250,000,000 in aggregate principal amount of 9-3/4% Notes due
June 1, 2000 (the "9-3/4% Notes") have been issued as a series of Securities
pursuant to the Indenture and are Outstanding;
WHEREAS, $550,000,000 in aggregate principal amount of 9-3/4% Debentures
due June 15, 2020 (the "9-3/4% Debentures") have been issued as a series of
Securities pursuant to the Indenture and are Outstanding;
WHEREAS, pursuant to Section 8.2 of the Indenture, the Issuer has
requested the Trustee to enter into this Supplemental Indenture; and
WHEREAS, the Holders of not less than a majority of the aggregate
principal amount of each series of Securities Outstanding under the Indenture,
each series voting separately as a single class, have consented to the execution
and delivery of this Supplemental Indenture by the Trustee.
NOW, THEREFORE, for consideration, the adequacy and sufficiency of which
are hereby acknowledged by the parties hereto, each party agrees, for the
benefit of the other parties and for the equal and proportionate benefit of all
Holders of the Securities, as follows:
ARTICLE 1
AMENDMENTS
SECTION 1.1. Article I of the Indenture is hereby amended by adding the
following definitions to Section 1.1 in the appropriate alphabetic position:
""Excluded Conveyance" means any conveyance, lease, transfer or
sublease which is described in or contemplated by the Transaction
Agreement dated as of June 10, 1997 among Conrail Inc., the Issuer, CSX
Corporation, CSX Transportation, Inc., Norfolk Southern Corporation,
Norfolk Southern Railway Company and CRR Holdings LLC, as the same may be
amended, modified or supplemented from time to time.
"Indebtedness" means, as to any Person at any date of determination,
any obligation of such Person to the extent that such obligation should be
reflected in "Short Term Debt" or "Long Term Debt" on the consolidated
balance sheet or statement of financial position of such Person at such
date in accordance with generally accepted accounting principles, other
than all such obligations in existence immediately after giving effect to
the Excluded Conveyances, and to all renewals, refinancings and extensions
thereof that do not increase the principal amount thereof.
"LLC" means New York Central Lines LLC or Pennsylvania Lines LLC, or
any successor to either thereof."
SECTION 1.2. Article III of the Indenture is hereby amended by adding the
following:
"SECTION 3.10. Limitation upon LLC Indebtedness. The Issuer shall not
permit any LLC to incur, create, issue, assume, guarantee or otherwise become
liable for or with respect to, or become responsible for, the payment of,
contingently or otherwise, any Indebtedness."
SECTION 1.3. Article VIII of the Indenture is hereby amended by deleting
the first sentence of Section 8.2 and replacing it with the following:
"With the consent (evidenced as provided in Article Seven) of the Holders
of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of all series affected by such
supplemental indenture (voting as one class), including, without
limitation, the 7-7/8% Debentures due May 15, 2043, the 9-3/4% Notes due
June 1, 2000 and the 9-3/4% Debentures due June 15, 2020, the Issuer when
authorized by a resolution of its Board of Directors (which resolution may
provide general terms or parameters for such action and may provide that
the specific terms of such action may be determined in accordance with or
pursuant to an Issuer Order), and the Trustee may, from time to time and
at any time, enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act of 1939
as in force at the date of execution thereof) for the purpose of adding
any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Securities of each such series or of the Coupons appertaining to such
Securities; provided that no such supplemental indenture shall (a) extend
the final maturity of any Security, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption thereof, or make the
principal thereof (including any amount in respect of original issue
discount), or interest thereon payable in any coin or currency other than
that provided in the Securities and Coupons or in accordance with the
terms thereof, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of
the maturity thereof pursuant to Section 5.1 or the amount thereof
provable in bankruptcy pursuant to Section 5.2, or alter the provisions of
Section 11.11 or 11.12 or impair or affect the right of any Securityholder
to institute suit for the payment thereof or, if the Securities provide
therefor, any right of repayment at the option of the Securityholder, in
each case without the consent of the Holder of each Security so affected,
or (b) reduce the aforesaid percentage of Securities of any series, the
consent of the Holders of which is required for any such supplemental
indenture, without the consent of the Holders of each Security so
affected."
SECTION 1.4. Article IX of the Indenture is hereby amended by deleting
Sections 9.1 and 9.2 thereof in their entirety and replacing them with the
following:
"SECTION 9.1 Issuer May Consolidate, Etc., Only on Certain Terms. The
Issuer shall not consolidate with or merge into any other corporation or convey,
lease or transfer its properties and assets substantially as an entirety to any
Person, unless:
(1) the corporation formed by such consolidation or into which the
Issuer is merged or the Person which acquires by conveyance, lease or
transfer the properties and assets of the Issuer substantially as an
entirety shall be a corporation organized and existing under the laws of
the United States of America or any State or the District of Columbia, and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the
Issuer's obligation for the due and punctual payment of the principal of
and interest on all the Securities and Coupons, if any, according to their
tenor and the performance of every covenant of this Indenture on the part
of the Issuer to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Issuer has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance, lease or transfer and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for,
including without limitation the
conditions specified in Section 9.3, relating to such transaction have
been complied with;
provided, however, that any Excluded Conveyance may be made without compliance
with the foregoing clauses (1) - (3).
Clauses (1) - (3) of this Section shall only apply to a merger or
consolidation in which the Issuer is not the surviving corporation and to
conveyances, leases and transfers by the Issuer as transferor or lessor.
SECTION 9.2 Successor Corporation Substituted. Upon any consolidation or
merger by the Issuer with or into any other corporation, or any conveyance or
transfer by the Issuer of its properties and assets substantially as an entirety
to any Person, in accordance with clauses (1) - (3) of Section 9.1, the
successor corporation formed by such consolidation or into which the Issuer is
merged or to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Issuer under
this Indenture with the same effect as if such successor corporation had been
named as the Issuer herein; and in the event of any such conveyance or transfer,
the issuer (which term shall for this purpose mean the Person named as the
"Issuer" in the first paragraph of this Indenture or any successor corporation
which shall theretofore become such in the manner described in Section 9.1),
except in the event of a conveyance by way of lease, shall be discharged from
all obligations and covenants under this Indenture and the Securities and may be
dissolved and liquidated. Such successor corporation may cause to be signed, and
may issue either in its own name or in the name of the Issuer prior to such
succession any or all of the Securities Issuable hereunder which together with
any Coupons appertaining thereto theretofore shall not have been signed by the
Issuer and delivered to the Trustee; and, upon the order of such successor
corporation, instead of the Issuer, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
deliver any Securities together with any Coupons appertaining thereto which
previously shall have been signed and delivered by the officers of the Issuer to
the Trustee for authentication, and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to the Trustee for
that purpose. All of the Securities so issued together with any Coupons
appertaining thereto shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had
been issued at the date of the execution thereof.
In case of any consolidation, merger, conveyance or transfer subject to
clauses (1) - (3) of Section 9.1, such changes in phrasing and form (but not in
substance) may be made in the Securities and Coupons thereafter to be issued as
may be appropriate."
ARTICLE 2
MISCELLANEOUS
SECTION 2.1. This Supplemental Indenture is executed and shall be
construed as an indenture supplemental to the Indenture with respect to the
Securities and, as provided in the Indenture, this Supplemental Indenture forms
a part thereof with respect to the Securities. Except as herein modified, the
Indenture is in all respects ratified and confirmed with respect to the
Securities and all the terms, provisions and conditions thereof shall be and
remain in full force and effect with respect to the Securities and every Holder
of Securities shall be bound hereby. Except as herein expressly otherwise
defined, the use of the terms and expressions herein is in accordance with the
definitions, uses and constructions contained in the Indenture.
SECTION 2.2. If any provision of this Supplemental Indenture limits,
qualifies or conflicts with any other provision hereof or of the Indenture which
provision is required to be included in the Indenture by any of the provisions
of the TIA, such required provision shall control.
SECTION 2.3. Capitalized terms used herein without definition have the
meanings specified therefor in Section 1.1 of the Indenture as amended hereby.
SECTION 2.4. Except as amended hereby, the Indenture is in all respects
ratified and confirmed, and all of the terms, provisions and conditions thereof
shall be and remain in full force and effect.
SECTION 2.5. If any provision of this 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 2.6. This Supplemental Indenture shall be construed in accordance
with and governed by the laws of the State of New York.
SECTION 2.7. This Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be executed as of the day and year first above written.
CONSOLIDATED RAIL CORPORATION
by /s/ Thomas J. McFadden
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Name: Thomas J. McFadden
Title: Treasurer
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
by
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Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be executed as of the day and year first above
written.
CONSOLIDATED RAIL CORPORATION
By:
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Name: Thomas J. McFadden
Title: Treasurer
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
by: /s/ Barbara G. Grosse
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Name: Barbara G. Grosse
Title: Vice President and
Assistant Secretary