Exhibit 4.1
SIXTH SUPPLEMENTAL INDENTURE
between
NORFOLK SOUTHERN CORPORATION
and
U. S. BANK TRUST NATIONAL ASSOCIATION
Dated April 30, 2002
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS...............................................................................2
Section 101 Definition of Terms.....................................................2
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.............................................................7
Section 204 Interest................................................................7
ARTICLE III
COVENANTS.................................................................................8
Section 301 Limitation on Liens on Stock or Indebtedness of
Principal Subsidiaries..................................................8
Section 302 Limitations on Funded Debt..............................................8
ARTICLE IV
REDEMPTION OF THE NOTES..................................................................10
Section 401 Redemption of the Notes at the Option
of the Corporation.....................................................10
Section 402 No Sinking Fund........................................................11
ARTICLE V
FORM OF NOTES............................................................................11
Section 501 Form of Notes..........................................................11
ARTICLE VI
ORIGINAL ISSUE OF NOTES..................................................................12
Section 601 Original Issue of Notes................................................12
ARTICLE VII
MISCELLANEOUS............................................................................12
Section 701 Ratification...........................................................12
Section 702 Trustee Not Responsible for Recitals...................................12
Section 703 Governing Law..........................................................13
Section 704 Separability...........................................................13
Section 705 Counterparts...........................................................13
SIXTH SUPPLEMENTAL INDENTURE, dated April 30, 2002 (the
"Sixth Supplemental Indenture"), between Norfolk Southern Corporation, a
Virginia corporation (the "Corporation"), and U.S. Bank Trust National
Association, formerly known as First Trust of New York 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, the
Second Supplemental Indenture, dated as of April 26, 1999, between the
Corporation and the Trustee, the Third Supplemental Indenture, dated as of
May 23, 2000, between the Corporation and the Trustee, the Fourth
Supplemental Indenture, dated as of February 6, 2001, between the
Corporation and the Trustee, and the Fifth Supplemental Indenture, dated as
of July 5, 2001 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 (the "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 a new series of
Securities designated its 6% Senior Notes due 2008 (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 Sixth
Supplemental Indenture; and
WHEREAS, (a) the Corporation has requested that the
Trustee execute and deliver this Sixth Supplemental Indenture pursuant to
Sections 301 and 801 of the Base Indenture, (b) all requirements necessary
to make this Sixth 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 Sixth 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 Sixth Supplemental Indenture;
(b) a term defined anywhere in this Sixth Supplemental
Indenture has the same meaning throughout this Sixth 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 Sixth Supplemental Indenture;
(e) headings are for convenience of reference only and do
not affect interpretation; and
(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
maturity comparable to the remaining term of the Notes.
"Comparable Treasury Price" means (1) the average of five
Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest Reference Treasury Dealer Quotations, or
(2) if the Independent Investment Banker obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such quotations.
"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) 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 Subsidiaries, 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 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 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.
"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 Xxxxxxx Xxxxx
Government Securities Inc. and its successors; provided, however, that if
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.
"Reference Treasury Dealer Quotation" means a quotation
for a Comparable Treasury Issue provided by a Reference 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 (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 inter-company 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 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, (1) the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor publication
which is published weekly by the Board of Governors of the Federal Reserve
System and which establishes yields on actively traded United States
Treasury securities adjusted to constant maturity under the caption
"Treasury Constant Maturities," for the maturity corresponding to the
Comparable Treasury Issue (if no maturity is within three months before or
after the Remaining Life yields for the two published maturities most
closely corresponding to the Comparable Treasury Issue will be determined
and the Treasury Yield will be interpolated or extrapolated from such
yields on a straight line basis, rounding to the nearest month) or (2) if
such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate
per annum equal to the semi-annual equivalent yield-to-maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to
the Comparable Treasury Price of such redemption date. The Treasury Yield
will be calculated on the third Business Day preceding the redemption date.
"Underwriting Agreement" shall mean the Underwriting
Agreement, dated April 25, 2002, of the Corporation, together with the
Pricing Agreement, dated April 25, 2002, between the Corporation and
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as
representative of the underwriters named therein.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 201 Designation and Principal Amount.
--------------------------------
There shall be and is hereby authorized a new series of
Securities designated the "6% Senior Notes due 2008." The aggregate
principal amount of the new series of Securities authorized by this
Supplemental Indenture shall be limited to $200,000,000 (unless the issue
of such series 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) The 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 the series (each, a "Global
Note" and together, the "Global Notes"), 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 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, the Second Supplemental Indenture, the Third Supplemental
Indenture, the Fourth Supplemental Indenture, the Fifth Supplemental
Indenture and this Sixth 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) The Notes will bear interest at the Interest Rate (as
defined below) from April 30, 2002, until the principal thereof becomes due
and payable. Interest on the Notes, will be payable semi-annually in
arrears on April 30 and October 30 of each year, commencing October 30,
2002, 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 April 15 and October 15 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 April 15 and October 15 prior to the applicable
Interest Payment Date.
(b) The interest rate in respect of the Notes will be 6%
per annum (the "Interest Rates").
(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
Sixth Supplemental Indenture are Outstanding, the Corporation shall not,
nor shall 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
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 Section 301(a) shall not (i) 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, (ii) restrict any other property of the Corporation or its
Subsidiaries or (iii) 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 Sixth
Supplemental Indenture are Outstanding, the Corporation shall 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.
This Section 302 shall not apply to, and there shall be
excluded from Funded Debt in any computation pursuant hereto, 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 the
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 a 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 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 on 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 lien
proceeding and existing at the time of the repossession, foreclosure, or
like proceeding; (xiii) Liens on deposits of the Corporation or a
Restricted Subsidiary 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 Payment Date which
is on or prior to the date of redemption will be payable to those Holders
who are Holders of record of the 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
FORM 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.
-----------------------
The Notes in the initial aggregate principal amount of
$200,000,000 may, upon execution of this Sixth 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.
ARTICLE VII
MISCELLANEOUS
Section 701 Ratification.
------------
The Base Indenture, the First Supplemental Indenture, the
Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth
Supplemental Indenture, and the Fifth Supplemental Indenture, as
supplemented by this Sixth Supplemental Indenture, are in all respects
ratified and confirmed, and this Sixth Supplemental Indenture shall be
deemed part of the Base Indenture in the manner and to the extent herein
and therein provided.
Section 702 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 Sixth Supplemental Indenture.
Section 703 Governing Law.
-------------
This Sixth Supplemental Indenture and the Notes shall be
construed in accordance with and governed by the laws of the State of New
York.
Section 704 Separability.
------------
In case any one or more of the provisions contained in
this Sixth 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 Sixth Supplemental Indenture or of the Notes, but this
Sixth 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 705 Counterparts.
------------
This Sixth 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
Sixth 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 & Treasurer
Attest:
By: /s/Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant General Attorney
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
By: /s/Xxxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
Attest:
By: /s/Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Trust Officer
EXHIBIT A
FORM ONLY
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 AS 7
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NORFOLK SOUTHERN CORPORATION
NOTE
DUE APRIL 30, 2008
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 Cede & Co., or registered assigns, the principal sum of
[_______________] Million Dollars ($[________]) on April 30, 2008 and to
pay interest thereon from April 30, 2002 or from the most recent interest
payment date to which interest has been paid or duly provided for,
semi-annually in arrears on April 30 and October 30 of each year,
commencing October 30, 2002, at a rate of 6% 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% 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% 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 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 April 15 and October 15 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 this
Note 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 10
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, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth
Supplemental Indenture and the Sixth 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, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth
Supplemental Indenture and the Sixth 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, the Second Supplemental
Indenture, the Third Supplemental Indenture, the Fourth Supplemental
Indenture, the Fifth Supplemental Indenture or the Sixth 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.
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
CERTIFICATE OF AUTHENTICATION
This is one of the Securities (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:______________________
(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, formerly known as First Trust of New York
National Association, as successor 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, the
Second Supplemental Indenture, dated as of April 26, 1999 (the "Second
Supplemental Indenture") between the Corporation and the Trustee, the Third
Supplemental Indenture, dated as of May 23, 2000 (the "Third Supplemental
Indenture") between the Corporation and the Trustee, the Fourth
Supplemental Indenture, dated as of February 6, 2001 (the "Fourth
Supplemental Indenture") between the Corporation and the Trustee, the Fifth
Supplemental Indenture, dated as of July 5, 2001 (the "Fifth Supplemental
Indenture") between the Corporation and the Trustee, and the Sixth
Supplemental Indenture, dated as of April 30, 2002 (the "Sixth Supplemental
Indenture") between the Corporation and the Trustee to which Base
Indenture, First Supplemental Indenture, Second Supplemental Indenture,
Third Supplemental Indenture, Fourth Supplemental Indenture, Fifth
Supplemental Indenture and Sixth 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 Sixth
Supplemental Indenture.
This Note may be redeemed in whole at any time or in part
from time to time, at the Corporation's option, at a redemption price equal
to the greater of (1) 100% of its principal amount or (2) the sum of the
present values of the remaining scheduled payments of principal and
interest on the Note to be redeemed discounted to the date of redemption on
a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the applicable Treasury Yield, as defined in the Sixth
Supplemental Indenture, plus 20 basis points for the Note, plus, accrued
and unpaid interest on the principal amount being redeemed to the
Redemption Date.
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 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 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, the First
Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth
Supplemental Indenture or the Sixth Supplemental Indenture and no provision
of this Note or of the Base Indenture, the First Supplemental Indenture,
the Second Supplemental Indenture, the Third Supplemental Indenture, the
Fourth Supplemental Indenture, the Fifth Supplemental Indenture or the
Sixth 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 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 $1,000 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 $1,000
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, the Second Supplemental
Indenture, the Third Supplemental Indenture, the Fourth Supplemental
Indenture, the Fifth Supplemental Indenture or the Sixth Supplemental
Indenture shall have the meanings assigned to them therein.
THE BASE INDENTURE, THE FIRST SUPPLEMENTAL INDENTURE, THE
SECOND SUPPLEMENTAL INDENTURE, THE THIRD SUPPLEMENTAL INDENTURE, THE FOURTH
SUPPLEMENTAL INDENTURE, THE FIFTH SUPPLEMENTAL INDENTURE, THE SIXTH
SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
