[LOGO]
Xxxxxx X. Xxxxxxx
Senior Vice President
Corporate Services
December 13, 1999
Xx. Xxxxxxx X. Xxxxxxx
Sea-Land Service, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Dear Xxxxx:
I am writing you concerning your Employment Agreement with CSX Corporation,
Dated February 1, 1995 ("Agreement"). Under the Agreement, you would be eligible
for the benefits of the Agreement if your employment with CSX terminates within
three (3) years of the closing of the Maersk transaction.
As we have discussed, you and CSX have agreed to modify the Agreement to:
(I) not required your termination of employment within the aforementioned three
(3) year period; (ii) protect the Agreements benefits for your estate should you
die prior to your receipt of benefits under the Agreement.
CSX hereby agrees that whenever you terminate your employment with CSX,
whether voluntarily, involuntarily or as a result of your retirement or death,
you (or your estate in the event of your death) will be eligible to receive the
benefits provided in Section 6a. of the Agreement. [Section 6a. of the Agreement
recites the Obligations of the Company upon Termination for Good Reason or
Constructive Termination; Other than for Cause, Death or Disability].
Additionally, CSX agrees to loan to you the after-tax amount of your
Agreement. In order to accomplish this, you must execute a Promissory Note.
I believe that we have addressed the matters you raised for consideration.
Please signify your agreement to the terms set forth by signing below.
Very truly yours,
/s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx
o Post Office Box 85629, Richmond, Virginia 23285-5629
o Fax (000) 000-0000 e-mail xxxxxx_xxxxxxx@xxx.xxx o
PROMISSORY NOTE
Richmond, Virginia
December 14, 1999
The undersigned borrower ("Borrower") is entitled to certain benefits
pursuant to an Employment Agreement with CSX Corporation, a Virginia corporation
("CSX"), dated February 1, 1995 ("Agreement") which are payable upon Borrower's
termination of employment with CSX. The Borrower desires to borrow the after-tax
value of such benefits at this time. In order to induce CSX to extend such
credit to the Borrower, the Borrower is willing to execute a promissory note in
favor of CSX evidencing Borrower's obligations to CSX. Accordingly, the parties
hereto agree as follows:
FOR VALUE RECEIVED the Borrower promises to pay to the order of CSX the
principal sum of One Million Five Hundred Thirty Four Thousand and no/100
($1,534,000.00) with zero (0) percent interest thereon, said principal being
negotiable and payable, without offset, at the offices of CSX Corporation, One
Xxxxx Center, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention:
Treasurer, or at such other place as the holder may designate in writing.
ARTICLE I
THE LOAN
Section 1.1 The Loan and the Note. CSX has agreed, upon the terms and
subject to the conditions contained in this Promissory Note, to lend to the
Borrower certain funds which shall be evidenced by the Borrower's note of even
date (the "Promissory Note").
Section 1.2. Term. The principal of the Promissory Note shall be due and
payable on the day Borrower's employment with CSX is terminated, as defined in
the Agreement.
Section 1.3. Prepayment. The principal of the Promissory Note may be
prepaid, in whole or in part, without penalty of any time.
Section 1.4. Repayment of the Principal. Within ten Business Days after the
maturity date of the Promissory Note (whether by acceleration or otherwise), or
on the date as of which the Borrower elects to prepay the Promissory Note as
provided in Section 1.3 hereof, the Borrower shall repay in full the then unpaid
principal balance of the Promissory Note and applicable federal and state
withholding taxes and costs.
ARTICLE II
DEFAULT
Section 2.1. Event of Default. Any of the following shall constitute an
event of default ("Event of Default"): (i) the failure to pay
this Promissory Note when due; (ii) the insolvency of
o Post Office Box 85629, Richmond, Virginia 23285-5629
o Fax (804) 783-1380e-mail xxxxxx_xxxxxxx@xxx.xxx o
the Borrower, the application for the appointment of a receiver for the
Borrower, the filing of a petition under any provision of the federal bankruptcy
law by or against the Borrower, or the making of any assignment for the benefit
of creditors by the Borrower; or (iii) the breach by the Borrower of any
representations, warranties or covenants contained in the Agreement between
Borrower and CSX. Upon the happening of an Event of Default the entire unpaid
principal balance of this Promissory Note shall, at the option of the holder,
immediately become due and payable. Any failure of the holder to exercise such
option shall not be deemed a waiver of the right to exercise the same in the
event of any subsequent event of default.
ARTICLE III
COVENANTS
Section 3.1. Filing; Further Assurances. The Borrower agrees that so long
as any amounts now or hereafter payable by the Borrower to CSX under the
Promissory Note (all such indebtedness, obligations and liabilities being herein
called the "Obligations") the Borrower will, in such manner and form as CSX may
require, execute, deliver, file and record any financing statement, specific
assignment or other paper and take any other action that may be necessary or
desirable, or that CSX may request, in order to enable CSX to exercise and
enforce its rights hereunder.
ARTICLE IV
GENERAL AUTHORITY
Section 4.1. General Authority. The Borrower hereby irrevocably appoints
CSX and any officer or agent thereof, with full power of substitution, as his
true and lawful attorney-in-fact, in the name of the Borrower or its own name,
for the sole use and benefit of CSX, but at the Borrower's expense, at any time
and from time to time, to take any and all appropriate action and to execute any
and all documents and instruments which may be necessary or desirable to carry
out the terms of this Promissory Note.
ARTICLE V
MISCELLANEOUS
Section 5.1. Notices. All notices, requests and other communications to any
party hereunder shall be in writing and shall be given to such party at its
address set forth on the signature page hereof or to such other address as such
party may hereafter specify for the purpose by notice to the other. Each such
notice, request or other communication shall be effective (i) two business days
after such communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid or (ii) if given by any other means, when
delivered at the address specified in this Section. Rejection or refusal to
accept, or the inability to deliver because of a changed address of which no
notice was given shall not affect the validity of notice given in accordance
with this Section
Section 5.2. Waivers; Non-Exclusive Remedies. No failure on the part of CSX
to exercise, no delay in exercising, and no course of dealing with respect to,
any right under this Promissory Note shall operate as a waiver thereof; nor
shall any single or partial exercise by CSX of any such right preclude any other
or further exercise thereof or the exercise of any other right.
o Post Office Box 85629, Richmond, Virginia 23285-5629
o Fax (000) 000-0000 e-mail xxxxxx_xxxxxxx@xxx.xxx o
The rights of CSX under this Promissory Note are cumulative and are not
exclusive of any other remedies provided under other agreements or by law.
Section 5.3. Successors and Assigns. This Promissory Note is for the
benefit of CSX and its successors and assigns, and in the event of an assignment
of all or any of the Obligations, the rights hereunder, to the extent applicable
to the indebtedness so assigned, may be transferred with such indebtedness. This
Promissory Note and rights and obligations hereunder may not be assigned by
Xxxxxxxx.
Section 5.4. Amendments and Waivers. Any provision of this Promissory Note
may be amended or waived, if, but only if, such amendment or waiver is in
writing and is signed by the Borrower and CSX.
Section 5.5. Delivery and Virginia Law. Delivery and Virginia Law. This
Promissory Note has been delivered in Virginia and shall be governed by and
construed in accordance with the laws of the Commonwealth of Virginia. Any
action to collect this Promissory Note or any part hereof may be instituted and
maintained in a court having appropriate jurisdiction and located in the City of
Richmond, Virginia.
Section 5.6. Limitation by Law; Severability.
(a) All rights, remedies and powers provided in this Promissory Note may be
exercised only to the extent that the exercise thereof does not violate any
applicable provision of law, and all the provisions of this Promissory Note are
intended to be subject to all applicable mandatory provisions of law which may
be controlling and be limited to the extent necessary so that they will not
render this Promissory Note invalid, unenforceable in whole or in part, or not
entitled to be recorded, registered or filed under the provisions of any
applicable law.
(b) If any provision hereof is invalid and unenforceable in any
jurisdiction, then to the fullest extent permitted by law, (i) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in favor of CSX and in order to carry out the
intentions of the parties hereto as nearly as may be possible; and (ii) the
invalidity of unenforceability of any provision hereof in any jurisdiction shall
not affect the validity or enforceability of such provision in any other
jurisdiction.
Section 5.7. Counterparts; Effectiveness. This Promissory Note may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Promissory Note shall become effective when CSX shall have
received counterparts hereof signed by itself and the Borrower.
Section 5.8. Waiver; Collection Expenses. To the fullest extent permitted
by law, Borrower (i) waives presentment, protest and notice of dishonor; (ii)
waives the benefit of any exemption as to the debt evidenced by this Promissory
Note; (iii) waives any right which the Borrower may have to require the holder
to proceed against any other person or assets; (iv) agrees that, without notice,
and without affecting the Borrower's liability, the holder may, at any time or
times, grant extensions of time for payment, permit the renewal of this
Promissory Note and add
o Post Office Box 85629, Richmond, Virginia 23285-5629
o Fax (000) 000-0000 e-mail xxxxxx_xxxxxxx@xxx.xxx o
or release a party; (v) agrees to pay all collection expense including
reasonable attorney" fees and court costs incurred in the collection of this
Promissory Note or any part hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Promissory Note to
be duly executed.
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Xxxxxxx X. Xxxxxxx
Address:
CSX Corporation
By:
---------------------------
One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
o Post Office Box 85629, Richmond, Virginia 23285-5629
o Fax (000) 000-0000 e-mail xxxxxx_xxxxxxx@xxx.xxx o
