FOURTH SUPPLEMENTAL INDENTURE
between
NORFOLK SOUTHERN CORPORATION
and
U.S. BANK TRUST NATIONAL ASSOCIATION
Dated February 6, 2001
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 2011 Notes at the Option
of the Corporation....................................10
Section 402 Redemption of the 2031 Notes at the Option
of the Corporation....................................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...........................................12
Section 601 Original Issue of Notes...............................12
ARTICLE VII
MISCELLANEOUS.....................................................12
Section 701 Ratification of Base Indenture, First Supplemental
Indenture, Second Supplemental Indenture and Third
Supplemental Indenture................................12
Section 702 Trustee Not Responsible for Recitals..................12
Section 703 Governing Law.........................................13
Section 704 Separability..........................................13
Section 705 Counterparts..........................................13
FOURTH SUPPLEMENTAL INDENTURE, dated February 6, 2001 (the "Fourth
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, and the Third Supplemental Indenture, dated as of May 23, 2000,
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 6 3/4% Senior Notes due 2011 (the "2011
Notes") and 7 1/4% Senior Notes due 2031 (the "2031 Notes" and, together
with the 2011 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 Fourth Supplemental Indenture; and
WHEREAS, (a) the Corporation has requested that the Trustee
execute and deliver this Fourth Supplemental Indenture pursuant to Sections
301 and 801 of the Base Indenture, (b) all requirements necessary to make
this Fourth 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 Fourth 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 Fourth Supplemental Indenture;
(b) a term defined anywhere in this Fourth Supplemental
Indenture has the same meaning throughout this Fourth 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 Fourth Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation; and
(f) the following terms have the meanings given to them in this
Section 101(f):
"Capital Lease Obligation" means any obligation arising out of
any lease of property which is required to be classified and accounted for
by the lessee as a capitalized lease on a balance sheet of such lessee
under generally accepted accounting principles.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Independent Investment Banker as having a maturity
most comparable to the remaining term of the Notes that would be utilized,
at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of maturity
comparable to the remaining term of the Notes.
"Comparable Treasury Price" means (1) the average of five
Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest Reference Treasury Dealer Quotations, or
(2) if the Independent Investment Banker obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Consolidated Net Tangible Assets" means, at any date, the
total assets appearing on the most recent consolidated balance sheet of the
Corporation and Restricted Subsidiaries as at the end of the fiscal quarter
of the Corporation ending not more than 135 days prior to such date,
prepared in accordance with generally accepted accounting principles, less
(i) all current liabilities (due within one year) as shown on such balance
sheet, (ii) applicable reserves, (iii) investments in and advances to
Securitization Subsidiaries and Subsidiaries of Securitization Subsidiaries
that are consolidated on the consolidated balance sheet of the Corporation
and its Subsidiaries, and (iv) Intangible Assets and liabilities relating
thereto.
"Depositary," with respect to the Notes, means The Depository
Trust Company or any successor thereto.
"Funded Debt" means (i) any indebtedness of a Restricted
Subsidiary maturing more than 12 months after the time of computation
thereof, (ii) guarantees by a Restricted Subsidiary of Funded Debt or of
dividends of others (except guarantees in connection with the sale or
discount of accounts receivable, trade acceptances and other paper arising
in the ordinary course of business), (iii) all preferred stock of such
Restricted Subsidiaries, and (iv) all Capital Lease Obligations of a
Restricted Subsidiary.
"Global Note" shall have the meaning set forth in Section 203.
"Indebtedness" means, at any date, without duplication, (i) all
obligations for borrowed money of a Restricted Subsidiary or any other
indebtedness of a Restricted Subsidiary, evidenced by bonds, debentures,
notes or other similar instruments, and (ii) Funded Debt, except such
obligations and other indebtedness of a Restricted Subsidiary and Funded
Debt, if any, incurred as a part of a Securitization Transaction.
"Independent Investment Banker" means 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 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.
"Reference Treasury Dealer Quotation" means a quotation for a
Comparable Treasury Issue provided by a Reference Treasury Dealer.
"Restricted Subsidiary" means each Subsidiary of the
Corporation other than Securitization Subsidiaries and Subsidiaries of
Securitization Subsidiaries.
"Securitization Subsidiary" means a Subsidiary of the
Corporation (i) which is formed for the purpose of effecting one or more
Securitization Transactions and engaging in other activities reasonably
related thereto and (ii) as to which no portion of the Indebtedness or any
other obligations (a) is guaranteed by any Restricted Subsidiary, or (b)
subjects any property or assets of any Restricted Subsidiary, directly or
indirectly, contingently or otherwise, to any lien, other than pursuant to
representations, warranties and covenants (including those related to
servicing) entered into in the ordinary course of business in connection
with a Securitization Transaction and inter-company notes and other forms
of capital or credit support relating to the transfer or sale of
Receivables or asset-backed securities to such Securitization Subsidiary
and customarily necessary or desirable in connection with such
transactions.
"Securitization Transaction" means any transaction or series of
transactions that have been or may be entered into by the Corporation or
any of its Subsidiaries in connection with or reasonably related to a
transaction or series of transactions in which the Corporation or any of
its Subsidiaries may sell, convey or otherwise transfer to (i) a
Securitization Subsidiary or (ii) any other Person, or may grant a security
interest in, any Receivables or asset-backed securities or interest therein
(whether such Receivables or securities are then existing or arising in the
future) of the Corporation or any of its Subsidiaries, and any assets
related thereto, including, without limitation, all security interests in
the property or services financed thereby, the proceeds of such Receivables
or asset-backed securities and any other assets which are sold in respect
of which security interests are granted in connection with securitization
transactions involving such assets.
"Subsidiary" shall mean an entity a majority of the outstanding
voting stock of which is owned, directly or indirectly, by the Corporation
or one or more subsidiaries, but does not include Conrail Inc.
"Treasury Yield" means, with respect to any redemption date,
(1) the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor publication
which is published weekly by the Board of Governors of the Federal Reserve
System and which establishes yields on actively traded United States
Treasury securities adjusted to constant maturity under the caption
"Treasury Constant Maturities," for the maturity corresponding to the
Comparable Treasury Issue (if no maturity is within three months before or
after the Remaining Life yields for the two published maturities most
closely corresponding to the Comparable Treasury Issue will be determined
and the Treasury Yield will be interpolated or extrapolated from such
yields on a straight line basis, rounding to the nearest month) or (2) if
such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the
rate per annum equal to the semi-annual equivalent yield-to-maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to
the Comparable Treasury Price of such redemption date. The Treasury Yield
will be calculated on the third Business Day preceding the redemption date.
"Underwriting Agreement" shall mean the Underwriting Agreement,
dated February 1, 2001, of the Corporation, together with the Pricing
Agreement, dated February 1, 2001, 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 6 3/4% Senior Notes due 2011 and 7 1/4% Senior Notes due 2031. The
aggregate principal amount of the two new separate series of Securities
authorized by this Supplemental Indenture shall be limited to
$1,000,000,000, with the aggregate principal amount of the respective
Securities limited to $300,000,000 for the 2011 Notes and $700,000,000 for
the 2031 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 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 and this Fourth 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 February 6, 2001, until the principal thereof becomes
due and payable. Interest on the Notes, will be payable semi-annually in
arrears on August 15 and February 15 of each year, commencing August 15,
2001, 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 August 1 and February 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 August 1 and February 1 prior to the applicable
Interest Payment Date.
(b) The interest rate in respect of the 2011 Notes will be 6
3/4% per annum and the interest rate in respect of the 2031 Notes will be 7
1/4% 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 Fourth
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 Fourth
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 2011 Notes at the Option of the Corporation.
(a) The 2011 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 2011 Notes (or one or more predecessor
2011 Notes) as of the close of business on the regular record date
preceding such Interest Payment Date.
(b) If the 2011 Notes are only partially redeemed pursuant to
this Section 401, such 2011 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 2011 Notes are registered as a Global Note, the
Depositary shall determine, in accordance with its procedures, the
principal amount of such 2011 Notes beneficially held by each Holder of
2011 Notes to be redeemed.
Section 402 Redemption of the 2031 Notes at the Option of the Corporation.
(a) The 2031 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 25 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 2031 Notes (or one or more predecessor
2031 Notes) as of the close of business on the regular record date
preceding such Interest Payment Date.
(b) If the 2031 Notes are only partially redeemed pursuant to
this Section 402, such 2031 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 2031 Notes are registered as a Global Note, the
Depositary shall determine, in accordance with its procedures, the
principal amount of such 2031 Notes beneficially held by each Holder of
2031 Notes to be redeemed.
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 2011 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 2031 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 2011 Notes in the aggregate principal amount of
$300,000,000 may, upon execution of this Fourth 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 2031 Notes in the aggregate principal amount of
$700,000,000 may, upon execution of this Fourth 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 $700,000,000.
ARTICLE VII
MISCELLANEOUS
Section 701 Ratification of Base Indenture, First Supplemental Indenture,
Second Supplemental Indenture and Third Supplemental Indenture.
The Base Indenture, the First Supplemental Indenture, the
Second Supplemental Indenture and the Third Supplemental Indenture, as
supplemented by this Fourth Supplemental Indenture, are in all respects
ratified and confirmed, and this Fourth 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 Fourth Supplemental Indenture.
Section 703 Governing Law.
This Fourth 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
Fourth 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 Fourth Supplemental Indenture or of the Notes, but this Fourth
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 Fourth 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 Fourth
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/ Xxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Assistant Secretary
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
Attest:
By: /s/ Xxxxxxx Xxxxx
---------------------------
Name: Xxxxxxx 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 AP 3
--------------------
NORFOLK SOUTHERN CORPORATION
NOTE
DUE FEBRUARY 15, 2011
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 15, 2011 and to pay interest thereon from
February 6, 2001 or from the most recent interest payment date to which
interest has been paid or duly provided for, semi-annually in arrears on
August 15 and February 15 of each year, commencing August 15, 2001, at a
rate of 6 3/4% per annum until the principal hereof is paid or made
available for payment, and on any overdue principal and premium, if any, at
a rate of 6 3/4% per annum and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any
overdue installment of interest at a rate of 6 3/4% 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 August 1 and
February 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, the Third
Supplemental Indenture and the Fourth 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 and the Fourth 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 or the Fourth 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 April 26, 1999 (the "Second Supplemental
Indenture") between the Corporation and the Trustee, the Third Supplemental
Indenture, dated May 23, 2000 (the "Third Supplemental Indenture") between
the Corporation and the Trustee, and the Fourth Supplemental Indenture,
dated February 6, 2001 (the "Fourth Supplemental Indenture") between the
Corporation and the Trustee to which Base Indenture, First Supplemental
Indenture, Second Supplemental Indenture, Third Supplemental Indenture and
Fourth 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 Fourth 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 Fourth
Supplemental Indenture, plus 20 basis points for the Note, plus, accrued
and unpaid interest on the principal amount being redeemed to the
Redemption Date.
In case an Event of Default, as defined in the Base Indenture,
shall have occurred and be continuing, the principal of all of the Notes
may be declared due and payable, in the manner, with the effect and subject
to the conditions provided in the Base Indenture.
The Base Indenture contains provisions permitting the
Corporation and the Trustee, with the consent of the Holders of not less
than a majority in principal amount of the Outstanding Security of each
series affected, to execute supplemental indentures for the purpose of
adding any provisions to the Base Indenture or of modifying in any manner
the rights of the Holders of the Security; provided, however, that no such
supplemental indenture shall (i) change the Stated Maturity of the
principal of, or any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or any premium payable
upon the redemption thereof or the rate of interest thereon, or to reduce
the amount of principal of an Original Issue Discount Security that would
be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 of the Base Indenture, or change any Place
of Payment where, or the coin or currency in which, any Security (or
premium, if any, thereon) or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date); or (ii) reduce the percentage in principal amount of the
Outstanding Security of any series, the Holders of which are required to
consent to any such supplemental indenture or to waive certain defaults
thereunder and their consequences provided for in the Base Indenture; or
(iii) modify any of the provisions of the Base Indenture relating to
supplemental indentures that require consent of Holders, the waiver of past
defaults or the waiver of certain covenants, except to increase any such
percentage or to provide that certain other provisions of the Base
Indenture cannot be modified or waived, without the consent of the Holders
of each Outstanding Security affected thereby. The Base Indenture also
contains provisions permitting the Holders of not less than a majority in
principal amount of the Outstanding Security of any series affected
thereby, on behalf of all of the Holders of the Security of such series, to
waive any past Default under the Base Indenture, and its consequences,
except a Default in the payment of the principal of, premium, if any, or
interest on any Security of such series or a Default in respect of a
covenant or provision of the Base Indenture which cannot be modified or
amended without the consent of the Holder of each Outstanding Security of
such series affected. Any such consent or waiver by the registered Holder
of this Note (unless revoked as provided in the Base Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and
owners of this Note and of any Note issued in exchange therefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this
Note.
No reference herein to the Base Indenture, First Supplemental
Indenture, Second Supplemental Indenture, Third Supplemental Indenture or
Fourth Supplemental Indenture and no provision of this Note or of the Base
Indenture, First Supplemental Indenture, Second Supplemental Indenture,
Third Supplemental Indenture or Fourth 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 or the Fourth Supplemental
Indenture shall have the meanings assigned to them therein.
THE BASE INDENTURE, THE FIRST SUPPLEMENTAL INDENTURE, THE
SECOND SUPPLEMENTAL INDENTURE, THE THIRD SUPPLEMENTAL INDENTURE, THE FOURTH
SUPPLEMENTAL INDENTURE 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 AQ 1
--------------------
NORFOLK SOUTHERN CORPORATION
NOTE
DUE FEBRUARY 15, 2031
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 15, 2031 and to pay interest thereon from
February 6, 2001 or from the most recent interest payment date to which
interest has been paid or duly provided for, semi-annually in arrears on
August 15 and February 15 of each year, commencing August 15, 2001, at a
rate of 7 1/4% 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 7 1/4% 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 7 1/4% 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 August 1 and
February 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, the Third
Supplemental Indenture and the Fourth 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 and the Fourth 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 or the Fourth 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 April 26, 1999 (the "Second Supplemental
Indenture") between the Corporation and the Trustee, the Third Supplemental
Indenture, dated May 23, 2000 (the "Third Supplemental Indenture") between
the Corporation and the Trustee, and the Fourth Supplemental Indenture,
dated February 6, 2001 (the "Fourth Supplemental Indenture") between the
Corporation and the Trustee to which Base Indenture, First Supplemental
Indenture, Second Supplemental Indenture, Third Supplemental Indenture and
Fourth 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 Fourth 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 Fourth
Supplemental Indenture, plus 25 basis points for the Note, plus, accrued
and unpaid interest on the principal amount being redeemed to the
Redemption Date.
In case an Event of Default, as defined in the Base Indenture,
shall have occurred and be continuing, the principal of all of the Notes
may be declared due and payable, in the manner, with the effect and subject
to the conditions provided in the Base Indenture.
The Base Indenture contains provisions permitting the
Corporation and the Trustee, with the consent of the Holders of not less
than a majority in principal amount of the Outstanding Security of each
series affected, to execute supplemental indentures for the purpose of
adding any provisions to the Base Indenture or of modifying in any manner
the rights of the Holders of the Security; provided, however, that no such
supplemental indenture shall (i) change the Stated Maturity of the
principal of, or any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or any premium payable
upon the redemption thereof or the rate of interest thereon, or to reduce
the amount of principal of an Original Issue Discount Security that would
be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 of the Base Indenture, or change any Place
of Payment where, or the coin or currency in which, any Security (or
premium, if any, thereon) or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date); or (ii) reduce the percentage in principal amount of the
Outstanding Security of any series, the Holders of which are required to
consent to any such supplemental indenture or to waive certain defaults
thereunder and their consequences provided for in the Base Indenture; or
(iii) modify any of the provisions of the Base Indenture relating to
supplemental indentures that require consent of Holders, the waiver of past
defaults or the waiver of certain covenants, except to increase any such
percentage or to provide that certain other provisions of the Base
Indenture cannot be modified or waived, without the consent of the Holders
of each Outstanding Security affected thereby. The Base Indenture also
contains provisions permitting the Holders of not less than a majority in
principal amount of the Outstanding Security of any series affected
thereby, on behalf of all of the Holders of the Security of such series, to
waive any past Default under the Base Indenture, and its consequences,
except a Default in the payment of the principal of, premium, if any, or
interest on any Security of such series or a Default in respect of a
covenant or provision of the Base Indenture which cannot be modified or
amended without the consent of the Holder of each Outstanding Security of
such series affected. Any such consent or waiver by the registered Holder
of this Note (unless revoked as provided in the Base Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and
owners of this Note and of any Note issued in exchange therefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this
Note.
No reference herein to the Base Indenture, First Supplemental
Indenture, Second Supplemental Indenture, Third Supplemental Indenture or
Fourth Supplemental Indenture and no provision of this Note or of the Base
Indenture, First Supplemental Indenture, Second Supplemental Indenture,
Third Supplemental Indenture or Fourth 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 or the Fourth Supplemental
Indenture shall have the meanings assigned to them therein.
THE BASE INDENTURE, THE FIRST SUPPLEMENTAL INDENTURE, THE
SECOND SUPPLEMENTAL INDENTURE, THE THIRD SUPPLEMENTAL INDENTURE, THE FOURTH
SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
