Exhibit 4.1
SEVENTH 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...................................................6
Section 204 Interest......................................................7
ARTICLE III COVENANTS.......................................................................9
Section 301 Limitation on Liens on Stock or Indebtedness of Principal
Subsidiaries..................................................9
Section 302 Limitations on Funded Debt....................................9
ARTICLE IV REDEMPTION OF THE NOTES........................................................11
Section 401 Redemption of the Notes......................................11
Section 402 No Sinking Fund..............................................11
ARTICLE V FORM OF NOTES..................................................................12
Section 501 Form of Notes................................................12
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
SEVENTH SUPPLEMENTAL INDENTURE, dated April 30, 2002 (the
"Seventh 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, the Fifth Supplemental Indenture,
dated as of July 5, 2001, between the Corporation and the Trustee, and the
Sixth Supplemental Indenture, dated as of April 30, 2002, 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 Floating Rate Senior Notes due February 28, 2005
(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 Seventh Supplemental Indenture; and
WHEREAS, (a) the Corporation has requested that the Trustee
execute and deliver this Seventh Supplemental Indenture pursuant to Sections
301 and 801 of the Base Indenture, (b) all requirements necessary to make this
Seventh 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
Seventh 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 Seventh Supplemental Indenture;
(b) a term defined anywhere in this Seventh Supplemental
Indenture has the same meaning throughout this Seventh 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 Seventh 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):
"Accrued Interest Factor" shall have the meaning set forth
in Section 204(b).
"Business Day" means any day except a Saturday, a Sunday or
a legal holiday in The City of New York on which banking institutions are
authorized or required by law, regulation or executive order to close;
provided, that the day is also a London Business Day.
"Calculation Agent" shall mean U.S. Bank Trust National
Association.
"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.
"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.
"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.
"Interest Payment Date" shall have the meaning set forth in
Section 204(a).
"Interest Period" shall have the meaning set forth in
Section 204(a).
"Interest Rate" shall have the meaning set forth in Section
204(b).
"Interest Reset Date" shall have the meaning set forth in
Section 204(b).
"Interest Determination Date" shall have the meaning set
forth in Section 204(b).
"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.
"London Business Day" means any day on which dealings in
United States dollars are transacted in the London interbank market.
"Maturity Date" shall have the meaning set forth in Section
204(a).
"Moneyline Telerate Page 3750" means the display designated
as "Page 3750" on Moneyline Telerate, or any successor service, for the
purpose of displaying the London interbank rates of major banks for United
States dollars.
"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.
"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.
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 "Floating Rate Senior Notes due February 28, 2005."
The aggregate principal amount of the new series of Securities authorized by
this Supplemental Indenture shall be limited to $100,000,000 (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, the Sixth
Supplemental Indenture and this Seventh 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 quarterly in arrears on
July 30, October 30, January 30, and April 30 of each year, commencing on July
30, 2002 (each an "Interest Payment Date"), and on February 28, 2005 (the
"Maturity Date"). Interest on the Notes will accrue from, and including, April
30, 2002, to, but excluding the first Interest Payment Date and then from, and
including, the immediately preceding Interest Payment Date to which interest
has been paid or duly provided for to, but excluding, the next Interest
Payment Date or the Maturity Date, as the case may be (each an "Interest
Period"). If any of the quarterly Interest Payment Dates listed above falls on
a day that is not a Business Day, the Corporation will postpone the Interest
Payment Date to the next succeeding Business Day unless that Business Day is
in the next succeeding calendar month, in which case the Interest Payment Date
will be the immediately preceding Business Day. Interest on the Notes will be
computed on the basis of a 360-day year for the actual number of days elapsed.
If the Maturity Date of the Notes falls on a day that is not a Business Day,
the Corporation will pay principal and interest on the next succeeding
Business Day, but the Corporation will consider that payment as being made on
the date that the payment was due to the Holder of the Notes. Accordingly, no
interest will accrue on the payment for the period from and after the Maturity
Date to the date the Corporation makes the payment to the Holder of the Notes
on the next succeeding Business Day.
(b) The interest payable on any Interest Payment Date,
subject to the Base Indenture, will be paid to the Person in whose name the
Note is registered at the close of business on the fifteenth calendar day,
whether or not a Business Day, immediately preceding the Interest Payment
Date. However, interest paid on the Maturity Date, will be payable to the
Person to whom the principal will be payable. Interest and principal will be
payable in U.S. dollars at the Trustee's New York corporate trust office,
which is located at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000.
(c) The interest rate on the Notes will be calculated by the
Calculation Agent and will be equal to LIBOR plus .70% (the "Interest Rate").
The Calculation Agent will reset the Interest Rate on each Interest Payment
Date, and on April 26, 2002 (each an "Interest Reset Date"). The second London
Business Day preceding an Interest Reset Date will be the interest
determination date (the "Interest Determination Date") for that Interest Reset
Date. The Interest Rate in effect on each day that is not an Interest Reset
Date will be the Interest Rate determined as of the Interest Determination
Date pertaining to the immediately preceding Interest Reset Date. The Interest
Rate in effect on any day that is an Interest Reset Date will be the
Interest Rate determined as of the Interest Determination Date pertaining to
that Interest Reset Date. The amount of accrued interest payable for any
Interest Period is calculated by multiplying the face amount of the Notes by
an accrued interest factor (the "Accrued Interest Factor"). This Accrued
Interest Factor is computed by adding the interest factor calculated for each
day from April 30, 2002, or from the last date the Corporation paid interest
on the Notes, to the date for which accrued interest is being calculated. The
interest factor for each day is computed by dividing the Interest Rate
applicable to that day by 360.
(d) For the purpose of determining the interest rate on the
Notes, "LIBOR" will be based upon the rate for deposits in U.S. dollars having
a maturity of three months, except in the case of the interest reset date
occurring in January 2005, in which case it will be based upon the rate for
deposits in U.S. dollars having a maturity of one month which will be
determined by the Calculation Agent in accordance with the following
provisions:
(i) With respect to any Interest Determination
Date, LIBOR will be the rate for deposits in United States dollars
having the applicable maturity commencing on the first day of the
applicable Interest Period that appears on Moneyline Telerate Page
3750 as of 11:00 A.M., London time, on that Interest Determination
Date. If no rate appears, LIBOR, in respect to that Interest
Determination Date, will be determined in accordance with the
provisions described in (ii) below.
(ii) With respect to an Interest Determination Date
on which no rate appears on Moneyline Telerate Page 3750, as
specified in (i) above, the Calculation Agent will request the
principal London offices of each of four major reference banks in the
London interbank market, as selected by the Calculation Agent, to
provide the Calcula tion Agent with its offered quotation for
deposits in United States dollars for the applicable maturity,
commencing on the first day of the applicable Interest Period, to
prime banks in the London interbank market at approximately 11:00
A.M., London time, on that Interest Determination Date and in a
principal amount that is representative for a single transaction in
United States dollars in that market at that time. If at least two
quotations are provided, then LIBOR on that Interest Determination
Date will be the arithmetic mean of those quotations. If fewer than
two quotations are provided, then LIBOR on the Interest Determination
Date will be the arithmetic mean of the rates quoted at approximately
11:00 A.M., in The City of New York, on the Interest Determination
Date by three major banks in The City of New York selected by the
Calculation Agent for loans in United States dollars to leading
European banks, having the applicable maturity and in a principal
amount that is representative for a single transaction in United
States dollars in that market at that time; provided, however, that
if the banks selected by the Calculation Agent are not providing
quotations in the manner described by this sentence, LIBOR determined
as of that Interest Determination Date will be LIBOR in effect on
that Interest Determination 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 Seventh
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 Seventh
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.
The Notes may not be redeemed in whole or in part, at any
time, by the Corporation prior to February 28, 2005.
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
$100,000,000 may, upon execution of this Seventh 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, the Fifth Supplemental Indenture and the Sixth
Supplemental Indenture, as supplemented by this Seventh Supplemental
Indenture, are in all respects ratified and confirmed, and this Seventh
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 Seventh Supplemental Indenture.
Section 703 Governing Law.
This Seventh 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
Seventh 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
Seventh Supplemental Indenture or of the Notes, but this Seventh 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 Seventh 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
Seventh 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 AT 5
-------------
NORFOLK SOUTHERN CORPORATION
NOTE
DUE FEBRUARY 28, 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 [__________] Million Dollars
($[__________]) on February 28, 2005 (the "Maturity Date") 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, quarterly in arrears on
July 30, October 30, January 30, and April 30 of each year, commencing on July
30, 2002 (each an "Interest Payment Date"), and on the Maturity Date. Interest
on this Note will accrue from, and including, April 30, 2002, to, but
excluding the first Interest Payment Date and then from, and including, the
immediately preceding Interest Payment Date to which interest has
been paid or duly provided for to, but excluding, the next Interest Payment
Date or the Maturity Date, as the case may be (each an "Interest Period"). If
any of the quarterly Interest Payment Dates listed above falls on a day that
is not a Business Day, the Corporation will postpone the Interest Payment Date
to the next succeeding Business Day unless that Business Day is in the next
succeeding calendar month, in which case the Interest Payment Date will be the
immediately preceding Business Day. Interest on this Note will be computed on
the basis of a 360-day year for the actual number of days elapsed. If the
Maturity Date of this Note falls on a day that is not a Business Day, the
Corporation will pay principal and interest on the next succeeding Business
Day, but the Corporation will consider that payment as being made on the date
that the payment was due to the Holder of this Note. Accordingly, no interest
will accrue on the payment for the period from and after the Maturity Date to
the date the Corporation makes the payment to the Holder of this Note on the
next succeeding Business Day.
The interest installment so payable, and punctually paid or
duly provided for, on any Interest Payment Date will be paid to the Person in
whose name the Note is registered at the close of business on the fifteenth
calendar day, whether or not a Business Day, immediately preceding the
Interest Payment Date. However, interest paid on the Maturity Date, will be
payable to the Person to whom the principal will be payable. 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 interest rate on this Note will be calculated by U.S.
Bank Trust National Association (the "Calculation Agent") and will be equal to
LIBOR plus .70% (the "Interest Rate"). The Calculation Agent will reset the
Interest Rate on each Interest Payment Date, and on April 30, 2002 (each an
"Interest Reset Date"). The second London Business Day preceding an Interest
Reset Date will be the interest determination date (the "Interest
Determination Date") for that Interest Reset Date. The Interest Rate in effect
on each day that is not an Interest Reset Date will be the Interest Rate
determined as of the Interest Determination Date pertaining to the immediately
preceding Interest Reset Date. The Interest Rate in effect on any day that is
an Interest Reset Date will be the Interest Rate determined as of the Interest
Determination Date pertaining to that Interest Reset Date.
The amount of accrued interest payable for any Interest
Period is calculated by multiplying the face amount of this Note by an accrued
interest factor (the "Accrued Interest Factor"). This Accrued Interest Factor
is computed by adding the interest factor calculated for each day from April
30, 2002, or from the last date the Corporation paid interest on this Note, to
the date for which accrued interest is being calculated. The interest factor
for each day is computed by dividing the Interest Rate applicable to that day
by 360. Interest on this Note will be computed on the basis of a 360-day year
for the actual number of days elapsed.
"Business Day" means any day except a Saturday, a Sunday or
a legal holiday in The City of New York on which banking institutions are
authorized or required by law, regulation or executive order to close;
provided, that the day is also a London Business Day. "London Business Day"
means any day on which dealings in United States dollars are transacted in the
London interbank market.
For the purpose of determining the interest rate on the
Notes, "LIBOR" will be based upon the rate for deposits in U.S. dollars having
a maturity of three months, except in the case of the interest reset date
occurring in January 2005, in which case it will be based upon the rate for
deposits in U.S. dollars having a maturity of one month which will be
determined by the Calculation Agent in accordance with the following
provisions:
(a) With respect to any Interest Determination Date, LIBOR
will be the rate for deposits in United States dollars having the applicable
maturity commencing on the first day of the applicable Interest Period that
appears on Moneyline Telerate Page 3750 as of 11:00 A.M., London time, on that
Interest Determination Date. If no rate appears, LIBOR, in respect to that
Interest Determination Date, will be determined in accordance with the
provisions described in (b) below;
(b) With respect to an Interest Determination Date on which
no rate appears on Moneyline Telerate Page 3750, as specified in (a) above,
the Calculation Agent will request the principal London offices of each of
four major reference banks in the London interbank market, as selected by the
Calculation Agent, to provide the Calculation Agent with its offered quotation
for deposits in United States dollars for the applicable maturity, commencing
on the first day of the applicable Interest Period, to prime banks in the
London interbank market at approximately 11:00 A.M., London time, on that
Interest Determination Date and in a principal amount that is representative
for a single transaction in United States dollars in that market at that time.
If at least two quotations are provided, then LIBOR on that Interest
Determination Date will be the arithmetic mean of those quotations. If fewer
than two quotations are provided, then LIBOR on the Interest Determination
Date will be the arithmetic mean of the rates quoted at approximately 11:00
A.M., in The City of New York, on the Interest Determination Date by three
major banks in The City of New York selected by the Calculation Agent for
loans in United States dollars to leading European banks, having the
applicable maturity and in a principal amount that is representative for a
single transaction in United States dollars in that market at that time;
provided, however, that if the banks selected by the Calculation Agent are not
providing quotations in the manner described by this sentence, LIBOR
determined as of that Interest Determination Date will be LIBOR in effect on
that Interest Determination Date.
"Moneyline Telerate Page 3750" means the display designated
as "Page 3750" on Moneyline Telerate, or any successor service, for the
purpose of displaying the London interbank rates of major banks for United
States dollars.
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, the Sixth Supplemental Indenture and the Seventh 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, the Sixth Supplemental Indenture and the Seventh
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, the Sixth Supplemental Indenture
or the Seventh 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, the Sixth Supplemental Indenture
dated as of April 30, 2002 (the "Sixth Supplemental Indenture") between the
Corporation and the Trustee, and the Seventh Supplemental Indenture, dated as
of April 30, 2002 (the "Seventh 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, Sixth
Supplemental Indenture and Seventh 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 Seventh
Supplemental Indenture.
The Corporation may not redeem this Note in whole or in
part, at any time prior to February 28, 2005. The Note is not entitled to the
benefit of any sinking fund.
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, the Sixth Supplemental Indenture or the Seventh
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, the Sixth Supplemental Indenture or the Seventh
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, the Sixth Supplemental Indenture
or the Seventh Supplemental Indenture shall have the meanings assigned to them
therein.
THE BASE INDENTURE, THE FIRST SUPPLEMENTAL INDENTURE, THE
SECOND SUPPLEMENTAL INDENTURE, THE THIRD SUPPLE MENTAL INDENTURE, THE FOURTH
SUPPLEMENTAL INDENTURE, THE FIFTH SUPPLEMENTAL INDENTURE, THE SIXTH
SUPPLEMENTAL INDENTURE, THE SEVENTH SUPPLEMENTAL INDENTURE AND THE NOTES
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK.
