Exhibit 4.1
NINTH SUPPLEMENTAL INDENTURE
between
NORFOLK SOUTHERN CORPORATION
and
U. S. BANK TRUST NATIONAL ASSOCIATION
Dated as of March 11, 2005
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.......................................................3
Section 101 Definition of Terms.................................3
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.......7
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 Notes Redeemable at Option of the Corporation......10
Section 402 No Sinking Fund....................................10
ARTICLE V FORM OF NOTES....................................................10
Section 501 Form of Notes......................................11
ARTICLE VI ORIGINAL ISSUE OF NOTES.........................................11
Section 601 Original Issue of Notes............................11
ARTICLE VII MISCELLANEOUS..................................................11
Section 701 Ratification of Base Indenture.....................11
Section 702 Trustee Not Responsible for Recitals...............11
Section 703 Governing Law......................................11
Section 704 Separability.......................................11
Section 705 Counterparts.......................................12
NINTH SUPPLEMENTAL INDENTURE
between
NORFOLK SOUTHERN CORPORATION
and
U.S. BANK TRUST NATIONAL ASSOCIATION
Dated as of March 11, 2005
NINTH SUPPLEMENTAL INDENTURE, dated as of March 11, 2005 (the "Ninth
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, the Sixth Supplemental
Indenture, dated as of April 30, 2002, between the Corporation and the Trustee,
the Seventh Supplemental Indenture, dated as of April 30, 2002, between the
Corporation and the Trustee and the Eighth Supplemental Indenture, dated as of
September 17, 2004, 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 its Securities to
be known as its 6% Senior Notes due 2105 (the "Notes"), the form and substance
of such series of Notes and the terms, provisions and conditions thereof to be
set forth as provided in the Base Indenture and this Ninth Supplemental
Indenture; and
WHEREAS, (a) the Corporation has requested that the Trustee execute
and deliver this Ninth Supplemental Indenture pursuant to Sections 301 and 801
of the Base Indenture, (b) all requirements necessary to make this Ninth
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 Ninth Supplemental
Indenture has 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 Ninth Supplemental Indenture;
(b) a term defined anywhere in this Ninth Supplemental Indenture has
the same meaning throughout this Ninth 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 Ninth Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in this
Section 101(f):
"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.
"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 Subsidiary, and
(iv) all Capital Lease Obligations of a Restricted Subsidiary.
"Global Note" shall have the meaning set forth in Section 203.
"Indebtedness" means, at any date, without duplication, (i) all
obligations for borrowed money of a Restricted Subsidiary or any other
indebtedness of a Restricted Subsidiary, evidenced by bonds, debentures, notes
or other similar instruments, and (ii) Funded Debt, except such obligations
and other indebtedness of a Restricted Subsidiary and Funded Debt, if any,
incurred as a part of a Securitization Transaction.
"Independent Investment Banker" means Merrill Lynch, Pierce, Fenner &
Smith 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.
"Interest Payment Date" shall have the meaning set forth in Section
204(a).
"Liens" means such pledges, mortgages, security interests and other
liens, including purchase money liens, on property of the Corporation or any
Restricted Subsidiary which secure Funded Debt.
"Maturity Date" shall have the meaning set forth in Section 204(a).
"Note Interest Rate" shall have the meaning set forth in Section
204(b).
"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 Merrill Lynch Government
Securities, Inc. and its successors; provided, however, that if the foregoing
ceases to be a primary U.S. Government securities dealer in New York, New York
(a "Primary Treasury Dealer") or otherwise fails to provide a Reference
Treasury Dealer Quotation, the Corporation will substitute therefor another
Primary Treasury Dealer.
"Reference Treasury Dealer Quotation" means a quotation for a
Comparable Treasury Issue provided by a Reference Treasury Dealer.
"Restricted Subsidiary" means each Subsidiary of the Corporation
other than Securitization Subsidiaries and Subsidiaries of Securitization
Subsidiaries.
"Securitization Subsidiary" means a Subsidiary of the Corporation (i)
which is formed for the purpose of effecting one or more Securitization
Transactions and engaging in other activities reasonably related thereto and
(ii) as to which no portion of the Indebtedness or any other obligations of
which (a) is guaranteed by any Restricted Subsidiary, or (b) subjects any
property or assets of any Restricted Subsidiary, directly or indirectly,
contingently or otherwise, to any lien, other than pursuant to
representations, warranties and covenants (including those related to
servicing) entered into in the ordinary course of business in connection with
a Securitization Transaction and intercompany notes and other forms of capital
or credit support relating to the transfer or sale of Receivables or
asset-backed securities to such Securitization Subsidiary and customarily
necessary or desirable in connection with such transactions.
"Securitization Transaction" means any transaction or series of
transactions that have been or may be entered into by the Corporation or any
of its Subsidiaries in connection with or reasonably related to a transaction
or series of transactions in which the Corporation or any of its Subsidiaries
may sell, convey or otherwise transfer to (i) a Securitization Subsidiary or
(ii) any other Person, or may grant a security interest in, any Receivables or
asset-backed securities or interest therein (whether such Receivables or
securities are then existing or arising in the future) of the Corporation or
any of its Subsidiaries, and any assets related thereto, including, without
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.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 201 Designation and Principal Amount.
There is hereby authorized a new series of Securities designated the
6% Senior Notes due 2105. The aggregate principal amount of the new series of
Securities authorized by this Supplemental Indenture shall be limited to
$300,000,000 (unless the issue of such series of Securities is "reopened"
pursuant to Section 801(10) of the Base Indenture 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 such 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,
the Seventh Supplemental Indenture, the Eighth Supplemental Indenture and this
Ninth 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 Note Interest Rate (as
defined below) from March 11, 2005 until the principal thereof becomes due and
payable on March 15, 2105 (the "Maturity Date"). Interest on the Notes will be
payable semi- annually in arrears on March 15 and September 15 of each year,
commencing September 15, 2005 (each an "Interest Payment Date").
(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 March 1 and September 1, whether or
not a Business Day, immediately preceding the Interest Payment Date. Interest
and principal will be payable in U.S. dollars at the Trustee's New York
corporate trust office, which is located at 100 Wall Street, Suite 1600, New
York, New York 10005.
(c) The interest rate in respect of the Notes will be 6% per annum
(the "Note Interest Rate").
(d) In the event that an Interest Payment Date or Maturity Date, as
the case may be, is not a Business Day, then payment of interest or principal,
as the case may be, 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. Interest on the Notes will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
ARTICLE III
COVENANTS
Section 301 Limitation on Liens on Stock or Indebtedness of Principal
Subsidiaries.
For so long as any Notes issued pursuant to this Ninth Supplemental
Indenture are Outstanding, the Corporation will not, nor will it permit any
Subsidiary to, create, assume, incur or suffer to exist any mortgage, pledge,
lien, encumbrance, charge or security interest of any kind, other than a
Purchase Money Lien, upon any stock or indebtedness, whether owned on the date
any Notes are first issued or thereafter acquired, of any Principal
Subsidiary, to secure any Obligation (other than the Notes) of the
Corporation, any Subsidiary or any other person, without in any such case
making effective provision whereby all of the outstanding Notes shall be
directly secured equally and ratably with such Obligation. This Section 301
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 Ninth Supplemental
Indenture are Outstanding, the Corporation will not permit any Restricted
Subsidiary to incur, issue, guarantee or create any Funded Debt unless, after
giving effect thereto, the sum of the aggregate amount of all outstanding
Funded Debt of the Restricted Subsidiaries would not exceed an amount equal to
15% of Consolidated Net Tangible Assets.
This Section 302 shall not apply to, and there shall be excluded from
Funded Debt in any computation 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 provisions of any statute, (vi) Liens incurred or assumed in connection
with the issuance of revenue bonds the interest on which is exempt from
Federal Income taxation pursuant to Section 103(b) of the Internal Revenue
Code of 1954, as amended; (vii) Liens securing the performance of any contract
or undertaking not directly or indirectly in connection with the borrowing of
money, the obtaining of advances or credit or the securing of Funded Debt, if
made and continuing in the ordinary course of business; (viii) Liens incurred
(no matter when created) in connection with the Corporation's or a Restricted
Subsidiary's engaging in leveraged or single-investor lease transaction;
provided, however, that the instrument creating or evidencing any borrowings
secured by such Lien will provide that such borrowings are payable solely out
of the income and proceeds of the property subject to such Lien and are not a
general obligation of the Corporation or such Restricted Subsidiary; (ix)
Liens under workers' compensation laws, unemployment insurance laws or similar
legislation, or good faith deposits in connection with bids, tenders,
contracts or deposits to secure public or statutory obligations of the
Corporation or any Restricted Subsidiary, or deposits of cash or obligations
of the United States of America to secure surety, repletion and appeal bonds
to which the Corporation or any Restricted Subsidiary is a party or in lieu of
such bonds, or pledges or deposits for similar purposes in the ordinary course
of business, or Liens imposed by law, such as laborers' or other employees',
carriers', warehousemen's, mechanics', materialmen's and vendors' Liens and
Liens arising out of judgments or awards against the Corporation or any
Restricted Subsidiary with respect to which the Corporation or such Restricted
Subsidiary at the time shall be prosecuting an appeal or proceedings for
review and with respect to which it shall have secured a stay of execution
pending such appeal or proceedings for review, or Liens for taxes not yet
subject to penalties for nonpayment or the amount or validity of which is
being in good faith contested by appropriate proceedings by the Corporation or
any Restricted Subsidiary, as the case may be, or minor survey exceptions,
minor encumbrances, easement or reservations of, or rights of others for,
rights of-way, sewers, electric lines, telegraph and telephone lines and other
similar purposes, or zoning or other restrictions or Liens 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 liens proceeding
and existing at the time of the repossession, foreclosure, or like proceeding;
(xiii) Liens on deposits of the Corporation or a Restricted Subsidiary with
banks (in the aggregate, not exceeding $50 million), in accordance with
customary banking practice, in connection with the providing by the
Corporation or a Restricted Subsidiary of financial accommodations to any
Person in the ordinary course of business; or (xiv) any extension, renewal,
refunding or replacement of the foregoing.
ARTICLE IV
REDEMPTION OF THE NOTES
Section 401 Redemption of the Notes at the Option of the Corporation.
(a) The Notes at any time from their date of issuance, are
redeemable, in whole or in part, at the option of the Corporation, upon not
less than (i) 45 days notice to the Trustee (unless a shorter time shall be
acceptable to the Trustee for its convenience) and (ii) 30 nor more than 60
days prior written notice at a Redemption Price as evidenced by an Officer's
Certificate of the Corporation equal to the greater of (i) 100% of their
principal amount or (ii) the sum of the present values of the remaining
scheduled payments of principal and interest thereon discounted to the
Redemption Date, on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months), at the applicable Treasury Yield plus 20 basis points,
together with the accrued interest to the Redemption Date; provided, however,
that interest installments due on an Interest Payment Date which is on or
prior to the Redemption Date will be payable to those Holders who are Holders
of record of the Notes (or one or more predecessor Notes) as of the close of
business on the regular record date preceding such Interest Payment Date.
(b) If the Notes are only partially redeemed pursuant to this Section
401, such Notes will be redeemed pro rata or by lot or by any other method
utilized by the Security Registrar; provided, that if at the time of
redemption, the Notes are registered as a Global Note, the Depositary shall
determine, in accordance with its procedures, the principal amount of such
Notes beneficially held by each Holder of Notes to be redeemed.
Section 402 No Sinking Fund.
The Notes are not entitled to the benefit of any sinking fund.
ARTICLE V
FORM OF NOTES
Section 501 Form of Notes.
The Notes, along with the Trustee's Certificate of Authentication to
be endorsed thereon, are to be substantially in the form attached hereto as
Exhibit A.
ARTICLE VI
ORIGINAL ISSUE OF NOTES
Section 601 Original Issue of Notes.
Notes in the initial aggregate principal amount of $300,000,000 may,
upon execution of this Ninth 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 of Base Indenture.
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, the Seventh Supplemental Indenture and the Eight
Supplemental Indenture as supplemented by this Ninth Supplemental Indenture,
are in all respects ratified and confirmed, and this Ninth 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 Ninth Supplemental Indenture.
Section 703 Governing Law.
This Ninth 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 Ninth
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 Ninth
Supplemental Indenture or of the Notes, but this Ninth 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 Ninth 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 Ninth
Supplemental Indenture to be duly executed and attested, as of the day and
year first above written.
NORFOLK SOUTHERN CORPORATION
By: /s/ William J. Romig
-----------------------------
Name: William J. Romig
Title: Vice President and
Treasurer
Attest:
By: /s/ Dezora M. Martin
------------------------
Name: Dezora M. Martin
Title: Corporate Secretary
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
By: /s/ P.J. Crowley
------------------------------
Name: P.J. Crowley
Title: Vice President
Attest:
By: /s/ Ignazio Tamburello
-------------------------
Name: Ignazio Tamburello
Title: Assistant Vice President
EXHIBIT A
(FORM OF FACE OF NOTE)
This Note is a Global Note within the meaning of the Base Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Note is exchangeable for Notes registered in the
name of a person other than the Depositary or its nominee only in the limited
circumstances described in the Base Indenture, and no transfer of this Note
(other than a transfer of this Note as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary) may be registered except in limited
circumstances.
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York Corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange or payment, and any Note issued
is registered in the name of Cede & Co. or in such other name as is requested
by an authorized representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co.,
has an interest herein.
No. ______ CUSIP No. [ ]
NORFOLK SOUTHERN CORPORATION
NOTE
DUE MARCH 15, 2105
NORFOLK SOUTHERN CORPORATION, a corporation organized under the laws
of the Commonwealth of Virginia (herein called the "Corporation", which term
includes any successor corporation under the Base Indenture hereinafter
referred to), for value received, hereby promises to pay to
___________________, or registered assigns, the principal sum of
________________ Dollars ($________) on March 15, 2105 and to pay interest
thereon from March 11, 2005 or from the most recent interest payment date to
which interest has been paid or duly provided for, semi-annually in arrears on
March 15 and September 15 of each year, commencing September 15, 2005, at a
rate of 6% per annum until the principal hereof is paid or made available for
payment, and on any overdue principal and premium, if any, at a rate of 6% per
annum and (without duplication and to the extent that payment of such interest
is enforceable under applicable law) on any overdue installment of interest at
a rate of 6% per annum compounded semi-annually. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date (as defined
below) shall be calculated as provided in the Base Indenture. In the event
that any date on which interest is payable on this Note is not a Business Day,
then payment of interest payable on such date will be made on the next
succeeding day that is a Business Day, with the same force and effect as if
made on such date and no interest shall accrue on the amount so payable from
the period from and after such Interest Payment Date or Maturity Date, as the
case may be (each date on which interest is actually payable, an "Interest
Payment Date"). The interest installment so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the Base
Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Security, as defined in said Base Indenture) is registered at the
close of business on the regular record date for such interest installment,
which shall be the close of business on the March 1 and September 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 this Note may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Base Indenture. The principal of
(and premium, if any) and the interest on this Note shall be payable at the
office or agency of the Trustee maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that
payment of interest may be made, at the option of the Corporation and upon
prior notice to the Trustee, by check mailed to the registered Holder at such
address as shall appear in the Security Register or by wire transfer to an
account designated by a Holder in writing not less than 10 days prior to the
date of payment.
The indebtedness evidenced by this Note is, to the extent provided in
the Base Indenture, equal in right of payment with all other unsecured and
unsubordinated indebtedness of the Corporation, and this Note is issued
subject to the provisions of the Base Indenture, the First Supplemental
Indenture, the Second Supplemental Indenture, the Third Supplemental
Indenture, the Fourth Supplemental Indenture, the Fifth Supplemental
Indenture, the Sixth Supplemental Indenture, the Seventh Supplemental
Indenture, the Eighth Supplemental Indenture and the Ninth 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, the Seventh
Supplemental Indenture, the Eighth Supplemental Indenture and the Ninth
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, the Seventh
Supplemental Indenture, the Eighth Supplemental Indenture or the Ninth
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
(FORM OF CERTIFICATE OF AUTHENTICATION)
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, the Seventh Supplemental Indenture, dated as of
April 30, 2002 (the "Seventh Supplemental Indenture") between the Corporation
and the Trustee, the Eighth Supplemental Indenture dated as of September 17,
2004 (the "Eighth Supplemental Indenture") between the Corporation and the
Trustee and the Ninth Supplemental Indenture, dated as of March 11, 2005 (the
"Ninth 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, Seventh Supplemental
Indenture, Eighth Supplemental Indenture and Ninth 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
Ninth 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 Ninth 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
aggregate 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 the consent of the Holders,
or 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, the Seventh Supplemental
Indenture, the Eighth Supplemental Indenture or the Ninth 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, the Seventh
Supplemental Indenture, the Eighth Supplemental Indenture or the Ninth
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, the Seventh
Supplemental Indenture, the Eighth Supplemental Indenture or the Ninth
Supplemental Indenture shall have the meanings assigned to them therein.
THE BASE INDENTURE, THE FIRST SUPPLEMENTAL INDENTURE, THE SECOND
SUPPLEMENTAL INDENTURE, THE THIRD SUPPLEMENTAL INDENTURE, THE FOURTH
SUPPLEMENTAL INDENTURE, THE FIFTH SUPPLEMENTAL INDENTURE, THE SIXTH
SUPPLEMENTAL INDENTURE, THE SEVENTH SUPPLEMENTAL INDENTURE, THE EIGHTH
SUPPLEMENTAL INDENTURE, THE NINTH SUPPLEMENTAL INDENTURE AND THE NOTES SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK.