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SECOND SUPPLEMENTAL INDENTURE
between
NORFOLK SOUTHERN CORPORATION
and
U.S. BANK TRUST NATIONAL ASSOCIATION
Dated April 26, 1999
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS ................................................................1
SECTION 101 Definition of Terms.......................................1
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES ..................................6
SECTION 201 Designation and Principal Amount..........................6
SECTION 202 Place of Payment; Security Register
for Notes ................................................6
SECTION 203 Global Note...............................................6
SECTION 204 Interest..................................................6
ARTICLE III
COVENANTS ..................................................................7
SECTION 301 Limitation on Liens on Stock or Indebtedness of
Principal Subsidiaries....................................7
SECTION 302 Limitations on Funded Debt................................7
ARTICLE IV
REDEMPTION OF THE NOTES ....................................................9
SECTION 401 Redemption of the Notes at the Option of the
Corporation...............................................9
SECTION 402 No Sinking Fund..........................................10
ARTICLE V
FORMS OF NOTES ............................................................10
SECTION 501 Form of Notes............................................10
ARTICLE VI
ORIGINAL ISSUE OF NOTES ...................................................10
SECTION 601 Original Issue of Notes..................................10
ARTICLE VII
AMENDMENT .................................................................11
SECTION 701 Amendment to Base Indenture..............................11
ARTICLE VIII
MISCELLANEOUS .............................................................11
SECTION 801 Ratification of Base Indenture and First
Supplemental Indenture...................................11
SECTION 802 Trustee Not Responsible for Recitals.....................11
SECTION 803 Governing Law............................................12
SECTION 804 Separability.............................................12
SECTION 805 Counterparts.............................................12
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SECOND SUPPLEMENTAL INDENTURE, dated April 26, 1999 (the
"Second Supplemental Indenture"), between Norfolk Southern Corporation, a
Virginia corporation (the "Corporation"), and U.S. Bank Trust National
Association, as successor trustee (the "Trustee"), under the Indenture, dated as
of January 15, 1991 between the Corporation and the Trustee (the "Base
Indenture"), as supplemented by the First Supplemental Indenture, dated as of
May 19, 1997 between the Corporation and the Trustee.
WHEREAS, the Corporation executed and delivered the Base
Indenture to the Trustee to provide for the future issuance of the Corporation's
unsecured debt securities to be issued from time to time in one or more series
as might be determined by the Corporation under the Base Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the
Corporation desires to provide for the establishment of one new series of its
Securities to be known as its 6.20% Notes due 2009 (the "Notes"), the form and
substance of the Notes and the terms, provisions and conditions thereof to be
set forth as provided in the Base Indenture and this Second Supplemental
Indenture;
WHEREAS, (a) the Corporation has requested that the Trustee
execute and deliver this Second Supplemental Indenture pursuant to Sections 301
and 801 of the Base Indenture, (b) all requirements necessary to make this
Second Supplemental Indenture a valid instrument in accordance with its terms,
and to make the Notes, when executed by the Corporation and authenticated and
delivered by the Trustee, the valid obligations of the Corporation, have been
performed, and (c) the execution and delivery of this Second Supplemental
Indenture have been duly authorized in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance
of the Notes by the Holders thereof, and for the purpose of setting forth, as
provided in the Base Indenture, the form and substance of the Notes and the
terms, provisions and conditions thereof, the Corporation covenants and agrees
with the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 101 Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Base Indenture has the same meaning
when used in this Second Supplemental Indenture;
(b) a term defined anywhere in this Second Supplemental
Indenture has the same meaning throughout this Second Supplemental Indenture;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or
Article of this Second Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the following terms have the meanings given to them in
this Section 101(f):
"Capital Lease Obligation" means any obligation arising out of
any lease of property which is required to be classified and accounted for by
the lessee as a capitalized lease on a balance sheet of such lessee under
generally accepted accounting principles.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Independent Investment Banker as having a maturity most
comparable to the remaining term of the Notes that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Notes.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
on the third business day preceding such redemption date, as set forth in the
daily statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for US
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, the average of
the Reference Treasury Dealer Quotations for such redemption date. "Reference
Treasury Dealer Quotations" means, with respect to each Reference Treasury
Dealer and any redemption date, the average, as determined by the Trustee, of
the bid and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to the Trustee
by such Reference Treasury Dealer at 5:00 p.m., New York, New York time, on the
third business day preceding such redemption date.
"Consolidated Net Tangible Assets" means, at any date, the
total assets appearing on the most recent consolidated balance sheet of the
Corporation and Restricted Subsidiaries as at the end of the fiscal quarter of
the Corporation ending not more than 135 days prior to such date, prepared in
accordance with generally accepted accounting principles, less (i) all current
liabilities (due within one year) as shown on such balance sheet, (ii)
applicable reserves, (iii)
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investments in and advances to Securitization Subsidiaries and Subsidiaries of
Securitization Subsidiaries that are consolidated on the consolidated balance
sheet of the Corporation and its Subsidiaries, and (iv) Intangible Assets and
liabilities relating thereto.
"Depositary", with respect to the Notes, means The Depository
Trust Company or any successor thereto.
"Funded Debt" means (i) any indebtedness of a Restricted
Subsidiary maturing more than 12 months after the time of computation thereof,
(ii) guarantees by a Restricted Subsidiary of Funded Debt or of dividends of
others (except guarantees in connection with the sale or discount of accounts
receivable, trade acceptances and other paper arising in the ordinary course of
business), (iii) all preferred stock of such Restricted Subsidiary, and (iv) all
Capital Lease Obligations of a Restricted Subsidiary.
"Global Note" shall have the meaning set forth in Section 203.
"Indebtedness" means, at any date, without duplication, (i)
all obligations for borrowed money of a Restricted Subsidiary or any other
indebtedness of a Restricted Subsidiary, evidenced by bonds, debentures, notes
or other similar instruments, and (ii) Funded Debt, except such obligations and
other indebtedness of a Restricted Subsidiary and Funded Debt, if any, incurred
as a part of a Securitization Transaction.
"Independent Investment Banker" means X.X. Xxxxxx Securities
Inc. or Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or, if such firm is
unwilling or unable to select the Comparable Treasury Issue, an independent
investment banking institution of national standing in the United States
appointed by the Trustee after consultation with the Corporation.
"Intangible Assets" means at any date, the value (net of any
applicable reserves) as shown on or reflected in the most recent consolidated
balance sheet of the Corporation and the Restricted Subsidiaries as at the end
of the fiscal quarter of the Corporation ending not more than 135 days prior to
such date, prepared in accordance with generally accepted accounting principles,
of: (i) all trade names, trademarks, licenses, patents, copyrights, service
marks, goodwill and other like intangibles; (ii) organizational and development
costs; (iii) deferred charges (other than prepaid items, such as insurance,
taxes, interest, commissions, rents, deferred interest waiver, compensation and
similar items and tangible assets being amortized); and (iv) unamortized debt
discount and expense, less unamortized premium.
"Liens" means such pledges, mortgages, security interests and
other liens, including purchase money liens, on property of the Corporation or
any Restricted Subsidiary which secure Funded Debt.
"Obligation" shall mean any indebtedness for money borrowed or
indebtedness evidenced by a bond, note, debenture or other evidence of
indebtedness.
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"Principal Subsidiary" shall mean Norfolk Southern Railway
Company.
"Purchase Money Lien" shall mean any mortgage, pledge, lien,
encumbrance, charge or security interest of any kind upon any indebtedness of
any Principal Subsidiary acquired after the date any Notes are first issued if
such Purchase Money Lien is for the purpose of financing, and does not exceed,
the cost to the Corporation or any Subsidiary of acquiring the indebtedness of
such Principal Subsidiary and such financing is effected concurrently with, or
within 180 days after, the date of such acquisition.
"Receivables" mean any right of payment from or on behalf of
any obligor, whether constituting an account, chattel paper, instrument, general
intangible or otherwise, arising, either directly or indirectly, from the
financing by the Corporation or any Subsidiary of the Corporation of property or
services, monies due thereunder, security interests in the property and services
financed thereby and any and all other related rights.
"Reference Treasury Dealer" means each of X.X. Xxxxxx
Securities Inc. and Xxxxxxx Xxxxx Government Securities Inc. and their
respective successors; provided, however, that if one of the foregoing ceases to
be a primary U.S. Government securities dealer in New York, New York (a "Primary
Treasury Dealer") or otherwise fails to provide a Reference Treasury Dealer
Quotation, the Corporation will substitute therefor another Primary Treasury
Dealer.
"Restricted Subsidiary" means each Subsidiary of the
Corporation other than Securitization Subsidiaries and Subsidiaries of
Securitization Subsidiaries.
"Securitization Subsidiary" means a Subsidiary of the
Corporation (i) which is formed for the purpose of effecting one or more
Securitization Transactions and engaging in other activities reasonably related
thereto and (ii) as to which no portion of the Indebtedness or any other
obligations of which (a) is guaranteed by any Restricted Subsidiary, or (b)
subjects any property or assets of any Restricted Subsidiary, directly or
indirectly, contingently or otherwise, to any lien, other than pursuant to
representations, warranties and covenants (including those related to servicing)
entered into in the ordinary course of business in connection with a
Securitization Transaction and intercompany notes and other forms of capital or
credit support relating to the transfer or sale of Receivables or asset-backed
securities to such Securitization Subsidiary and customarily necessary or
desirable in connection with such transactions.
"Securitization Transaction" means any transaction or series
of transactions that have been or may be entered into by the Corporation or any
of its Subsidiaries in connection with or reasonably related to a transaction or
series of transactions in which the Corporation or any of its Subsidiaries may
sell, convey or otherwise transfer to (i) a Securitization Subsidiary or (ii)
any other Person, or may grant a security interest in, any Receivables or
asset-backed securities or interest therein (whether such Receivables or
securities are then existing or arising in the future) of the Corporation or any
of its Subsidiaries, and any assets related thereto, including, without
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limitation, all security interests in the property or services financed thereby,
the proceeds of such Receivables or asset-backed securities and any other assets
which are sold in respect of which security interests are granted in connection
with securitization transactions involving such assets.
"Subsidiary" shall mean an entity a majority of the
outstanding voting stock of which is owned, directly or indirectly, by the
Corporation or one or more subsidiaries, but does not include Conrail Inc.
"Treasury Yield" means, with respect to any redemption date,
the rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price of the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Underwriting Agreement" shall mean the Underwriting
Agreement, dated April 21, 1999, of the Corporation, together with the Pricing
Agreement, dated April 21, 1999, among the Corporation and X.X. Xxxxxx
Securities Inc. and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 201 Designation and Principal Amount.
There is hereby authorized a series of Securities designated
the 6.20% Notes due 2009, limited in aggregate principal amount to $400,000,000
(unless the issue of securities is "reopened" pursuant to Section 801(10) of the
Base Indenture (as set forth herein) by issuing additional debt Securities of
such series), in an amount or amounts and registered in the names of such
Persons as shall be set forth in any written order of the Corporation for the
authentication and delivery of Notes pursuant to Section 303 of the Base
Indenture.
SECTION 202 Place of Payment; Security Register for Notes.
The Corporation selects New York, New York as the Place of Payment for
the Notes and hereby appoints the Trustee as Security Registrar for the Notes.
SECTION 203 Global Note.
(a) This series of Notes shall be issued in the form of one or
more global Notes in an aggregate principal amount equal to the aggregate
principal amount of all outstanding Notes of this series (each, a "Global
Note"), to be registered in the name of the Depositary, or its nominee, and
delivered by the Trustee to or upon the order of the Depositary for crediting to
the accounts of its participants pursuant to the instructions of the
Corporation. The Corporation
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upon any such presentation shall execute one or more Global Notes in such
aggregate principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with the Base Indenture, the First
Supplemental Indenture and this Second Supplemental Indenture. Payments on Notes
issued as one or more Global Notes will be made to the Depositary.
(b) A Global Note may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a successor Depositary
selected or approved by the Corporation or to a nominee of such successor
Depositary.
SECTION 204 Interest.
(a) Each Note will bear interest at the Interest Rate (as
defined below) from April 26, 1999 until the principal thereof becomes due and
payable. Interest on the Notes, will be payable semi-annually in arrears on
October 15 and April 15 of each year, commencing October 15, 1999, to the Person
in whose name any such Note or any predecessor Note is registered, at the close
of business on the regular record date for such interest installment, which, in
the case of a Global Note, shall be the close of business on the October 1 and
April 1 next preceding such Interest Payment Date. Notwithstanding the foregoing
sentence, if the Notes are no longer in book-entry only form, the regular record
dates for the Notes, shall be the October 1 and April 1 prior to the applicable
Interest Payment Date.
(b) The interest rate in respect of the Notes will be 6.20%
per annum (the "Interest Rate").
(c) In the event that any date on which interest is payable on
the Notes is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a Business Day, with the same
force and effect as if made on such date, and no interest shall accrue on the
amount so payable from the period from and after such Interest Payment Date or
Maturity Date, as the case may be (each date on which interest is actually
payable, an "Interest Payment Date").
ARTICLE III
COVENANTS
SECTION 301 Limitation on Liens on Stock or Indebtedness of Principal
Subsidiaries.
(a) For so long as any Notes issued pursuant to this Second
Supplemental Indenture are Outstanding, the Corporation will not, nor will it
permit any Subsidiary to, create, assume, incur or suffer to exist any mortgage,
pledge, lien, encumbrance, charge or security interest of any kind, other than a
Purchase Money Lien, upon any stock or indebtedness, whether owned on the date
any Notes are first issued or thereafter acquired, of any Principal Subsidiary,
to secure any Obligation (other than the Notes) of the Corporation, any
Subsidiary or any other
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person, without in any such case making effective provision whereby all of the
outstanding Notes shall be directly secured equally and ratably with such
Obligation. This restriction does not apply to any mortgage, pledge, lien,
encumbrance, charge or security interest on any stock or indebtedness of a
corporation existing at the time such corporation becomes a Subsidiary. This
provision does not restrict any other property of the Corporation or its
Subsidiaries. This provision does not restrict the sale by the Corporation or
any Subsidiary of any stock or indebtedness of any Subsidiary.
SECTION 302 Limitations on Funded Debt.
For so long as any Notes issued pursuant to this Second
Supplemental Indenture are Outstanding, the Corporation will not permit any
Restricted Subsidiary to incur, issue, guarantee or create any Funded Debt
unless, after giving effect thereto, the sum of the aggregate amount of all
outstanding Funded Debt of the Restricted Subsidiaries would not exceed an
amount equal to 15% of Consolidated Net Tangible Assets.
The limitation on Funded Debt will not apply to, and there will be
excluded from Funded Debt in any computation under such restriction, Funded Debt
secured by: (i) Liens on real or physical property of any corporation existing
at the time such corporation becomes a Subsidiary; (ii) Liens on real or
physical property existing at the time of acquisition thereof incurred within
180 days of the time of acquisition thereof (including, without limitation,
acquisition through merger or consolidation) by the Corporation or any
Restricted Subsidiary; (iii) Liens on real or physical property thereafter
acquired (or constructed) by the Corporation or any Restricted Subsidiary and
created prior to, at the time of, or within 270 days after such acquisition
(including, without limitation, acquisition through merger or consolidation) (or
the completion of such construction or commencement of commercial operation of
such property, whichever is later) to secure or provide for the payment of all
or any part of the purchase price (or the construction price) thereof; (iv)
Liens in favor of the Corporation or any Restricted Subsidiary; (v) Liens in
favor of the United States of America, any State thereof or the District of
Columbia, or any agency, department or other instrumentality thereof, to secure
partial, progress, advance or other payments pursuant to any contract or
provisions of any statute, (vi) Liens incurred or assumed in connection with the
issuance of revenue bonds the interest on which is exempt from Federal Income
taxation pursuant to Section 103(b) of the Internal Revenue Code of 1954, as
amended; (vii) Liens securing the performance of any contract or undertaking not
directly or indirectly in connection with the borrowing of money, the obtaining
of advances or credit or the securing of Funded Debt, if made and continuing in
the ordinary course of business; (viii) Liens incurred (no matter when created)
in connection with the Corporation's or a Restricted Subsidiary's engaging in
leveraged or single-investor lease transaction; provided, however, that the
instrument creating or evidencing any borrowings secured by such Lien will
provide that such borrowings are payable solely out of the income and proceeds
of the property subject to such Lien and are not a general obligation of the
Corporation or such Restricted Subsidiary; (ix) Liens under workers'
compensation laws, unemployment insurance laws or similar legislation, or good
faith deposits in connection with bids, tenders, contracts or deposits to secure
public or statutory
7
obligations of the Corporation or any Restricted Subsidiary, or deposits of cash
or obligations of the United States of America to secure surety, repletion and
appeal bonds to which the Corporation or any Restricted Subsidiary is a party or
in lieu of such bonds, or pledges or deposits for similar purposes in the
ordinary course of business, or Liens imposed by law, such as laborers' or other
employees', carriers', warehousemen's, mechanics', materialmen's and vendors'
Liens and Liens arising out of judgments or awards against the Corporation or
any Restricted Subsidiary with respect to which the Corporation or such
Restricted Subsidiary at the time shall be prosecuting an appeal or proceedings
for review and with respect to which it shall have secured a stay of execution
pending such appeal or proceedings for review, or Liens for taxes not yet
subject to penalties for nonpayment or the amount or validity of which is being
in good faith contested by appropriate proceedings by the Corporation or any
Restricted Subsidiary, as the case may be, or minor survey exceptions, minor
encumbrances, easement or reservations of, or rights of others for,
rights-of-way, sewers, electric lines, telegraph and telephone lines and other
similar purposes, or zoning or other restrictions or Liens as the use of real
properties which Liens, exceptions, encumbrances, easements, reservations,
rights and restrictions do not, in the opinion of the Corporation, in the
aggregate materially detract from the value of said properties or materially
impair their use in the operation of the business of the Corporation and its
Restricted Subsidiaries; (x) Liens incurred to finance construction, alteration
or repair of any real or physical property and improvements thereto prior to or
within 270 days after completion of such construction, alteration or repair;
(xi) Liens incurred (no matter when created) in connection with a Securitization
Transaction; (xii) Liens on property (or any Receivable arising in connection
with the lease thereof) acquired by the Corporation or a Restricted Subsidiary
through repossession, foreclosure or liens proceeding and existing at the time
of the repossession, foreclosure, or like proceeding; (xiii) Liens on deposits
of the Corporation or a Restricted Security with banks (in the aggregate, not
exceeding $50 million), in accordance with customary banking practice, in
connection with the providing by the Corporation or a Restricted Subsidiary of
financial accommodations to any Person in the ordinary course of business; or
(xiv) any extension, renewal, refunding or replacement of the foregoing.
ARTICLE IV
REDEMPTION OF THE NOTES
SECTION 401 Redemption of the Notes at the Option of the Corporation.
(a) The Notes at any time from their date of issuance, are
redeemable, in whole or in part, at the option of the Corporation, upon not less
than (i) 45 days notice to the Trustee (unless a shorter time shall be
acceptable to the Trustee for its convenience) and (ii) 30 nor more than 60 days
prior written notice at a redemption price as evidenced by an Officer's
Certificate of the Corporation equal to the greater of (i) 100% of their
principal amount or (ii) the sum of the present values of the remaining
scheduled payments of principal and interest thereon discounted, on a
semi-annual basis, at the Treasury Yield plus 20 basis points, together with the
accrued interest to the date of redemption; provided, however, that interest
installments due on an Interest
8
Payment Date which is on or prior to the date of redemption will be payable to
those Holders who are Holders of record of such Notes (or one or more
predecessor Notes) as of the close of business on the regular record date
preceding such Interest Payment Date.
(b) If the Notes are only partially redeemed pursuant to this
Section 401, such Notes will be redeemed pro rata or by lot or by any other
method utilized by the Security Registrar; provided, that if at the time of
redemption the Notes are registered as a Global Note, the Depositary shall
determine, in accordance with its procedures, the principal amount of such Notes
beneficially held by each Holder of Notes to be redeemed.
SECTION 402 No Sinking Fund.
The Notes are not entitled to the benefit of any sinking fund.
ARTICLE V
FORMS OF NOTES
SECTION 501 Form of Notes.
The Notes, along with the Trustee's Certificate of
Authentication to be endorsed thereon, are to be substantially in the form
attached hereto as Exhibit A.
ARTICLE VI
ORIGINAL ISSUE OF NOTES
SECTION 601 Original Issue of Notes.
Notes in the aggregate principal amount of $400,000,000 may,
upon execution of this Second Supplemental Indenture, be executed by the
Corporation and delivered to the Trustee for authentication as provided in
Sections 301 and 303 of the Base Indenture, in the maximum principal amount of
$400,000,000.
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ARTICLE VII
AMENDMENT
SECTION 701 Amendment to Base Indenture.
The following subsection 801(9) of the Base Indenture is
revised as follows:
To cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the interests of the
Holders of Securities of any series in any material respect; or
The following paragraph is hereby added to Section 801 of the
Base Indenture as Sub-Section 801(10) immediately following Sub-Section 801(9)
in the Base Indenture:
(10) to establish the form and terms of the Securities of any
series as permitted in Sections 201 and 301, or to authorize
the issuance of additional Securities of a series previously
authorized or to add to the conditions, limitations or
restrictions on the authorized amount, terms or purposes of
issue, authentication or delivery of the Securities of any
series, as herein set forth, or other conditions, limitations
or restrictions thereafter to be observed.
ARTICLE VIII
MISCELLANEOUS
SECTION 801 Ratification of Base Indenture and First Supplemental
Indenture.
The Base Indenture and the First Supplemental Indenture, as
supplemented by this Second Supplemental Indenture, is in all respects ratified
and confirmed, and this Second Supplemental Indenture shall be deemed part of
the Base Indenture in the manner and to the extent herein and therein provided.
SECTION 802 Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Corporation and
not by the Trustee, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representation as to the validity or
sufficiency of this Second Supplemental Indenture.
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SECTION 803 Governing Law.
This Second Supplemental Indenture and the Notes shall be
construed in accordance with and governed by the laws of the State of New York.
SECTION 804 Separability.
In case any one or more of the provisions contained in this
Second Supplemental Indenture or in the Notes shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Second
Supplemental Indenture or of the Notes, but this Second Supplemental Indenture
and the Notes shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
SECTION 805 Counterparts.
This Second 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed and attested, as of the day and year
first above written.
NORFOLK SOUTHERN CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and
Treasurer
Attest:
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Corporate Secretary
U.S. BANK TRUST
NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Attest:
By: /s/ Xxxxxxx X. Xxxxx
----------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Secretary
EXHIBIT A
(FORM OF FACE OF NOTE)
This Note is a Global Note within the meaning of the Base
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee of a Depositary. This Note is exchangeable for Notes registered in
the name of a person other than the Depositary or its nominee only in the
limited circumstances described in the Base Indenture, and no transfer of this
Note (other than a transfer of this Note as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary) may be registered except in limited
circumstances.
Unless this Note is presented by an authorized representative
of The Depository Trust Company, a New York Corporation ("DTC"), to the issuer
or its agent for registration of transfer, exchange or payment, and any Note
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
No. CUSIP No. 655844 AL 2
NORFOLK SOUTHERN CORPORATION
NOTE
DUE APRIL 15, 2009
NORFOLK SOUTHERN CORPORATION, a corporation organized under
the laws of the Commonwealth of Virginia (herein called the "Corporation", which
term includes any successor corporation under the Base Indenture hereinafter
referred to), for value received, hereby promises to pay to
______________________, or registered assigns, the principal sum of
_____________ Dollars ($___________) on April 15, 2009 and to pay interest
thereon from April 26, 1999, or from the most recent interest payment date to
which interest has been paid or duly provided for, semi-annually in arrears on
October 15 and April 15 of each year, commencing October 15, 1999, at a rate of
6.20% per annum until the principal hereof is paid or made available for
payment, and on any overdue principal and premium, if any, at a rate of 6.20%
per annum and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at a rate of 6.20% per annum compounded semi-annually. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
(as defined below) shall be calculated as provided in the Base Indenture. In the
event that any date on which interest is payable on this Note is not a Business
Day, then payment of interest payable on such date will be made on the next
succeeding
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day that is a Business Day, with the same force and effect as if made on such
date and no interest shall accrue on the amount so payable from the period from
and after such Interest Payment Date or Maturity Date, as the case may be (each
date on which interest is actually payable, an "Interest Payment Date"). The
interest installment so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Base Indenture, be paid to
the Person in whose name this Note (or one or more Predecessor Security, as
defined in said Base Indenture) is registered at the close of business on the
regular record date for such interest installment, which shall be the close of
business on the October 1 and April 1 next preceding such Interest Payment Date.
Any such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered Holders on such regular record
date and may be paid to the Person in whose name this Note (or one or more
Predecessor Security) 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 registered Holders of Notes 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 Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Base Indenture. The
principal of and premium, if any, and the interest on this Note shall be payable
at the office or agency of the Trustee maintained for that purpose in any coin
or currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made, at the option of the Corporation and upon prior notice
to the Trustee, by check mailed to the registered Holder at such address as
shall appear in the Security Register or by wire transfer to an account
designated by a Holder in writing not less than ten days prior to the date of
payment.
The indebtedness evidenced by this Note is, to the extent
provided in the Base Indenture, equal in right of payment with all other
unsecured and unsubordinated indebtedness of the Corporation, and this Note is
issued subject to the provisions of the Base Indenture, the First Supplemental
Indenture and the Second Supplemental Indenture with respect thereto. Each
Holder of this Note, by accepting the same, agrees to and shall be bound by such
provisions, and authorizes and directs the Trustee on his or her behalf to be
bound by such provisions. Each Holder hereof, by his or her acceptance hereof,
hereby waives all notice of the acceptance of the provisions contained herein
and in the Base Indenture, the First Supplemental Indenture and the Second
Supplemental Indenture by each Holder of unsecured and unsubordinated
indebtedness of the Corporation, whether now outstanding or hereafter incurred,
and waives reliance by each such Holder or creditor upon said provisions.
This Note shall not be entitled to any benefit under the Base
Indenture, the First Supplemental Indenture and the Second Supplemental
Indenture hereinafter referred to, or be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed by
or on behalf of the Trustee.
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The provisions of this Note are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Corporation has caused this instrument
to be executed.
NORFOLK SOUTHERN CORPORATION
By:
--------------------------------
Name:
Title:
Attest:
By:
-------------------------------
Name:
Title: Secretary or Assistant Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Security (as defined below) of the series
designated therein referred to in the within-mentioned Base Indenture.
U.S. Bank Trust National Association,
as Trustee
By:
--------------------------
Authorized Officer
Dated:
-----------------------
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(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of securities of
the Corporation (herein sometimes referred to as the "Security"), issued or to
be issued in one or more series under and pursuant to an Indenture, dated as of
January 15, 1991 (the "Base Indenture"), duly executed and delivered between the
Corporation and U.S. Bank Trust National Association, as Trustee (the
"Trustee"), as supplemented by the First Supplemental Indenture dated as of May
19, 1997 (the "First Supplemental Indenture"), between the Corporation and the
Trustee, and the Second Supplemental Indenture, dated April 26, 1999 (the
"Second Supplemental Indenture"), between the Corporation and the Trustee to
which Base Indenture, First Supplemental Indenture and Second Supplemental
Indenture reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the
Corporation and the Holders of the Security. By the terms of the Base Indenture,
the Securities are issuable in series that may vary as to amount, date of
maturity, rate of interest and in other respects as provided in the Base
Indenture. This Security is the series designated on the face hereof (the
"Notes") and is limited in aggregate principal amount as specified in said
Second Supplemental Indenture.
In case an Event of Default, as defined in the Base Indenture,
shall have occurred and be continuing, the principal of all of the Notes may be
declared due and payable, in the manner, with the effect and subject to the
conditions provided in the Base Indenture.
The Base Indenture contains provisions permitting the
Corporation and the Trustee, with the consent of the Holders of not less than a
majority in principal amount of the Outstanding Security of each series affected
to execute supplemental indentures for the purpose of adding any provisions to
the Base Indenture or of modifying in any manner the rights of the Holders of
the Security; provided, however, that no such supplemental indenture shall (i)
change the Stated Maturity of the principal of, or any installment of principal
of or interest on, any Security, or reduce the principal amount thereof or any
premium payable upon the redemption thereof or the rate of interest thereon, or
to reduce the amount of principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 of the Base Indenture, or change any Place of
Payment where, or the coin or currency in which, any Security (or premium, if
any, thereon) or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date); or (ii) reduce the percentage in principal amount of the Outstanding
Security of any series, the Holders of which are required to consent to any such
supplemental indenture or to waive certain defaults thereunder and their
consequences provided for in the Base Indenture; or (iii) modify any of the
provisions of the Base Indenture relating to supplemental indentures that
require consent of Holders, the waiver of past defaults, or the waiver of
certain covenants, except to increase any such percentage or to provide that
certain other provisions of the Base Indenture cannot be modified or waived,
without the consent of the Holders of each Outstanding Security
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affected thereby. The Base Indenture also contains provisions permitting the
Holders of not less than a majority in principal amount of the Outstanding
Security of any series affected thereby, on behalf of all of the Holders of the
Security of such series, to waive any past Default under the Base Indenture, and
its consequences, except a Default in the payment of the principal of, premium,
if any, or interest on any of the Security of such series or a Default in
respect of a covenant or provision of the Base Indenture which cannot be
modified or amended without the consent of the Holder of each Outstanding
Security of such series affected. Any such consent or waiver by the registered
Holder of this Note (unless revoked as provided in the Base Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this Note and of any Note issued in exchange therefor or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Note.
No reference herein to the Base Indenture, First Supplemental
Indenture or Second Supplemental Indenture and no provision of this Note or of
the Base Indenture, First Supplemental Indenture or Second Supplemental
Indenture shall alter or impair the obligation of the Corporation, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the money
herein prescribed.
As provided in the Base Indenture and subject to certain
limitations therein set forth, this Note is transferable by the registered
Holder hereof on the Security Register of the Corporation, upon surrender of
this Note for registration of transfer at the office or agency of the Trustee in
New York, New York duly endorsed by the registered Holder hereof or accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Corporation and the Security Registrar duly executed by the registered Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes of this series of authorized denominations and for the same aggregate
principal amount will be issued to the designated transferee or transferees.
No service charge will be made for any such transfer, but the
Corporation may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment of this Note for registration of
transfer of this Note, the Corporation, the Trustee, and any agent of the
Corporation or the Trustee may treat the registered Holder hereof as the owner
hereof (whether or not this Note shall be overdue) and neither the Corporation,
the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Note, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Base Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Corporation or of any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or
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penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
The Notes are issuable only in registered form without coupons
in denominations of $100,000 and any integral multiple thereof. This Global Note
is exchangeable for Notes in definitive form only under certain limited
circumstances set forth in the Base Indenture. Notes so issued are issuable only
in registered form without coupons in denominations of $100,000 and any integral
multiple thereof. As provided in the Base Indenture and subject to certain
limitations herein and therein set forth, Notes of this series so issued are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
All terms used in this Note that are defined in the Base
Indenture, the First Supplemental Indenture or the Second Supplemental Indenture
shall have the meanings assigned to them therein.
THE BASE INDENTURE, THE FIRST SUPPLEMENTAL INDENTURE, THE
SECOND SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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