Exhibit 4.1
THIRD SUPPLEMENTAL INDENTURE
between
NORFOLK SOUTHERN CORPORATION
and
U. S. BANK TRUST NATIONAL ASSOCIATION
Dated May 23, 2000
THIRD SUPPLEMENTAL INDENTURE , dated May 23, 2000 (the "Third
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 and the Second Supplemental
Indenture, dated as of April 26, 1999, 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 two new separate
series of Securities designated its 8 3/8% Senior Notes due 2005 (the "2005
Notes") and 8 5/8% Senior Notes due 2010 (the "2010 Notes" and, together
with the 2005 Notes, 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 Third Supplemental Indenture;
WHEREAS, (a) the Corporation has requested that the Trustee
execute and deliver this Third Supplemental Indenture pursuant to Sections
301 and 801 of the Base Indenture, (b) all requirements necessary to make
this Third 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 Third 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 Third Supplemental Indenture;
(b) a term defined anywhere in this Third Supplemental
Indenture has the same meaning throughout this Third 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 Third 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 (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 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 Xxxxxx Xxxxxxx & Co.
Incorporated 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.
"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 Xxxxxxx Xxxxx
Government Securities Inc. and Xxxxxx Xxxxxxx & Co. Incorporated 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 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 successful 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 May 17, 2000, of the Corporation, together with the
Pricing Agreement, dated May 17, 2000, among the Corporation and Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxx
Xxxxxxx & Co. Incorporated.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 201 Designation and Principal Amount.
There shall be two new separate series of Securities
designated its 8 3/8% Senior Notes due 2005 and 8 5/8% Senior Notes due
2010. The aggregate principal amount of the two new separate series of
Securities authorized by this Supplemental Indenture shall be limited to
$600,000,000, with the aggregate principal amount of the respective
Securities limited to $300,000,000 for the 2005 Notes and $300,000,000 for
the 2010 Notes (unless the issue of either 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) Each series of 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 that series (each, a
"Global Note" and together, the "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 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 and this Third 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 Rates (as
defined below) from May 23, 2000, until the principal thereof becomes due
and payable. Interest on the Notes, will be payable semi-annually in
arrears on November 15 and May 15 of each year, commencing November 15,
2000, 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 November 1 and May 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 November 1 and May 1 prior to the applicable Interest Payment
Date.
(b) The interest rate in respect of the 2005 Notes will be 8
3/8% per annum and the interest rate in respect of the 2010 Notes will be 8
5/8% per annum (collectively, 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 Third
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 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 Third
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 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 lien 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 2010 Notes at the Option of the Corporation.
(a) The 2010 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 such 2010 Notes (or one or more predecessor
2010 Notes) as of the close of business on the regular record date
preceding such Interest Payment Date.
(b) If the 2010 Notes are only partially redeemed pursuant
to this Section 401, such 2010 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 2010 Notes are registered as a Global Note,
the Depositary shall determine, in accordance with its procedures, the
principal amount of such 2010 Notes beneficially held by each Holder of
2010 Notes to be redeemed.
Section 402 No Redemption of the 2005 Notes.
The Corporation may not redeem the 2005 Notes.
Section 403 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 2005 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. The 2010 Notes, along with the Trustee's
Certificate of Authentication to be endorsed thereon, are to be
substantially in the form attached hereto as Exhibit B.
ARTICLE VI
ORIGINAL ISSUE OF NOTES
Section 601 Original Issue of Notes.
The 2005 Notes in the aggregate principal amount of
$300,000,000 may, upon execution of this Third 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 $300,000,000.
The 2010 Notes in the aggregate principal amount of
$300,000,000 may, upon execution of this Third 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 $300,000,000.
ARTICLE VII
MISCELLANEOUS
Section 701 Ratification of Base Indenture, First Supplemental Indenture and
Second Supplemental Indenture.
The Base Indenture, the First Supplemental Indenture and the
Second Supplemental Indenture, as supplemented by this Third Supplemental
Indenture, are in all respects ratified and confirmed, and this Third
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 Third Supplemental Indenture.
Section 703 Governing Law.
This Third 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
Third 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 Third Supplemental Indenture or of the Notes, but this Third
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 Third 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
Third 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/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Attest:
By: /s/ K. Xxxxx Xxxxx
------------------------------
Name: K. Xxxxx Xxxxx
Title: Vice President
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 AM 0
NORFOLK SOUTHERN CORPORATION
NOTE
DUE MAY 15, 2005
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 Three Hundred
Million Dollars ($300,000,000) on May 15, 2005 and to pay interest thereon
from May 23, 2000 or from the most recent interest payment date to which
interest has been paid or duly provided for, semi- annually in arrears on
November 15 and May 15 of each year, commencing November 15, 2000, at a
rate of 8 3/8% 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 8 3/8% 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 8 3/8% 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 November 1 and May
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, the Second Supplemental Indenture and the Third
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 and the Third 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 and the Third 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 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:______________________
(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 April 26, 1999 (the "Second Supplemental
Indenture") between the Corporation and the Trustee and the Third
Supplemental Indenture, dated May 23, 2000 (the "Third Supplemental
Indenture") between the Corporation and the Trustee to which Base
Indenture, First Supplemental Indenture, Second Supplemental Indenture and
Third 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 Third Supplemental Indenture.
This Note may not be redeemed by the Corporation.
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 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, Second Supplemental Indenture or Third Supplemental
Indenture and no provision of this Note or of the Base Indenture, First
Supplemental Indenture, Second Supplemental Indenture or Third 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 $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, the Second Supplemental
Indenture or the Third 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 AND THE
NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
EXHIBIT B
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 AN 8
NORFOLK SOUTHERN CORPORATION
NOTE
DUE MAY 15, 2010
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 Three Hundred
Million Dollars ($300,000,000) on May 15, 2010 and to pay interest thereon
from May 23, 2000 or from the most recent interest payment date to which
interest has been paid or duly provided for, semi- annually in arrears on
November 15 and May 15 of each year, commencing November 15, 2000, at a
rate of 8 5/8% 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 8 5/8% 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 8 5/8% 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 November 1 and May
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, the Second Supplemental Indenture and the Third
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 and the Third 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 and the Third 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 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:______________________
(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 April 26, 1999 (the "Second Supplemental
Indenture") between the Corporation and the Trustee and the Third
Supplemental Indenture , dated May 23, 2000 (the "Third Supplemental
Indenture") between the Corporation and the Trustee to which Base
Indenture, First Supplemental Indenture, Second Supplemental Indenture and
Third 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 Third 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 Third
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 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, Second Supplemental Indenture or Third Supplemental
Indenture and no provision of this Note or of the Base Indenture, First
Supplemental Indenture, Second Supplemental Indenture or Third 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 $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, the Second Supplemental
Indenture or the Third 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 AND THE
NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
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 2010 Notes at the Option
of the Corporation....................................10
Section 402 No Redemption of the 2005 Notes.......................11
Section 403 No Sinking Fund.......................................11
ARTICLE V
FORMS OF NOTES......................................................11
Section 501 Form of Notes.........................................11
ARTICLE VI
ORIGINAL ISSUE OF NOTES.............................................11
Section 601 Original Issue of Notes...............................11
ARTICLE VII
MISCELLANEOUS.......................................................12
Section 701 Ratification of Base Indenture, First Supplemental
Indenture and Second Supplemental Indenture...........12
Section 702 Trustee Not Responsible for Recitals..................12
Section 703 Governing Law.........................................12
Section 704 Separability..........................................12
Section 705 Counterparts..........................................13
