CROSS-REFERENCE
TABLE
|
TIA
|
|
Indenture
|
|
Section
|
|
Section
|
|
|
|
|
|
310
|
(a)(1)
|
7.10
|
|
|
(a)(2)
|
7.10
|
|
|
(a)(3)
|
N.A.
|
|
|
(a)(4)
|
N.A.
|
|
|
(b)
|
7.08;
|
|
|
|
7.10
|
|
|
(c)
|
N.A.
|
|
311
|
(a)
|
7.11
|
|
|
(b)
|
7.11
|
|
|
(c)
|
N.A.
|
|
312
|
(a)
|
2.06
|
|
|
(b)
|
10.03
|
|
|
(c)
|
10.03
|
|
313
|
(a)
|
7.06
|
|
|
(b)(1)
|
N.A.
|
|
|
(b)(2)
|
7.06
|
|
|
(c)
|
7.06;
|
|
|
|
10.02
|
|
|
(d)
|
7.06
|
|
314
|
(a)
|
4.02;
|
|
|
|
10.02
|
|
|
(b)
|
N.A.
|
|
|
(c)(1)
|
10.04
|
|
|
(c)(2)
|
10.04
|
|
|
(c)(3)
|
N.A.
|
|
|
(d)
|
N.A.
|
|
|
(e)
|
10.05
|
|
|
(f)
|
4.13
|
|
315
|
(a)
|
7.01
|
|
|
(b)
|
7.05;
|
|
|
|
10.02
|
|
|
(c)
|
7.01
|
|
|
(d)
|
7.01
|
|
|
(e)
|
6.11
|
|
316
|
(a)
|
|
|
|
(last
sentence)
|
10.06
|
|
|
(a)(1)(A)
|
6.05
|
|
|
(a)(1)(B)
|
6.04
|
|
|
(a)(2)
|
N.A.
|
|
|
(b)
|
6.07
|
|
317
|
(a)(1)
|
6.08
|
|
|
(a)(2)
|
6.09
|
|
|
(b)
|
2.05
|
|
318
|
(a)
|
10.01
|
N.A. Means Not
Applicable.
Note: This
Cross-Reference Table shall not, for any purposes, be deemed to be part of this
Indenture.
INDENTURE dated as
of April 4, 2008, between NORFOLK SOUTHERN CORPORATION, a Virginia corporation
(the “Company”), and U.S. Bank Trust National Association, a national banking
association duly organized and existing under the laws of the United States, as
trustee (the “Trustee”).
Each party agrees
as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Company’s 5.750% Senior Notes due 2018, to be
issued, from time to time, in one or more series as provided in this Indenture
(the “Initial Securities”) and, if and when issued pursuant to a registered or
private exchange for the Initial Securities, the Company’s 5.750% Senior Notes
due 2018 (the “Exchange Securities” and, together with the Initial Securities,
the “Securities”):
ARTICLE
I
Definitions and
Incorporation by Reference
SECTION
1.01.
Definitions
.
“
Act
,” when used with
respect to any Holder, has the meaning specified in Section 1.05.
“
Affiliate
” of any
specified Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
Person. For the purposes of this definition, “control” when used with respect to
any Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.
“
Below Investment Grade
Ratings Event
” means, with respect to the Securities, on any day within
the 60-day period (which period shall be extended so long as the rating of the
Securities is under publicly announced consideration for a possible downgrade by
any Rating Agency) after the earlier of (1) the occurrence of a Change of
Control; or (2) public notice of the occurrence of a Change of Control or the
intention by the Company to effect a Change of Control, the Securities are rated
below Investment Grade by each and every Rating
Agency. Notwithstanding the foregoing, a Below Investment Grade
Ratings Event otherwise arising by virtue of a particular reduction in rating
shall not be deemed to have occurred in respect of a particular Change of
Control (and thus shall not be deemed a Below Investment Grade Ratings Event for
purposes of the definition of Change of Control Repurchase Event hereunder) if
the Rating Agencies making the reduction in rating to which this definition
would otherwise apply do not announce or publicly confirm or inform the Trustee
in writing at the Company’s request that the reduction was the result, in whole
or in part, of any event or circumstance comprised of or arising as a result of,
or in respect of, the applicable Change of Control (whether or not the
applicable Change of Control shall have occurred at the time of the Below
Investment Grade Ratings Event).
“
Board of Directors
”
means the Board of Directors of the Company or any duly authorized and
constituted committee thereof.
“
Board Resolution
”
means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification, and delivered
to the Trustee.
“
Business Day
” means
any day other than a Saturday, a Sunday or a day on which banking institutions
in The City of New York, New York are authorized or obligated by law,
regulation, executive order or governmental decree 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.
“
Change of Control
”
means the consummation of any transaction (including, without limitation, any
merger or consolidation) the result of which is that any “person” or “group” (as
those terms are used in Section 13(d)(3) of the Exchange Act), other than the
Company or its Subsidiaries, becomes the beneficial owner (as defined in Rules
13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than
50% of the combined voting power of the Company’s Voting Stock or other Voting
Stock into which the Company’s Voting Stock is reclassified, consolidated,
exchanged or changed measured by voting power rather than number of
shares.
“
Change of Control Repurchase
Event
” means the occurrence of both a Change of Control and a Below
Investment Grade Ratings Event with respect to the Securities.
“
Commission
” means the
Securities and Exchange Commission, as from time to time constituted, created
under the Exchange Act, or, if at any time after the execution of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
“
Company
” means the
Person named as the “Company” in the first paragraph of this Indenture until a
successor Person shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter “Company” shall mean such successor Person and,
for purposes of any provision contained herein and expressly required by the
TIA, each other obligor on the indenture securities.
“
Company Request
” or
“
Company Order
”
means a written request or order signed in the name of the Company by an Officer
and by its Treasurer, an Assistant Treasurer, Secretary or an Assistant
Secretary, and delivered to the Trustee.
“
Consolidated Net Tangible
Assets
” means, at any date, the total assets appearing on the most recent
consolidated balance sheet of the Company and Restricted
Subsidiaries as at
the end of the fiscal quarter of the Company ending not more than 135 days prior
to such date, prepared in accordance with generally accepted accounting
principles of the United States, 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 Company and its Subsidiaries, and (iv) Intangible Assets and
liabilities relating thereto.
“
Corporate Trust
Office
” means the principal office of the Trustee in the City of New York
at which at any particular time its corporate trust business shall be
administered.
“
Corporation
” means a
corporation, association, company, limited liability company, joint-stock
company, partnership or business trust.
“
Default
” means any
event which is, or after notice or passage of time or both would be, an Event of
Default.
“
Dollars
” or “
$
” or any similar
reference shall mean the coin or currency of the United States of America as at
the time shall be legal tender for the payment of public and private
debts.
“
Event of Default
” has
the meaning set forth under Section 6.01.
“
Exchange Act
” means
the Securities Exchange Act of 1934.
“
Foreign Government
Securities
” means, with respect to the Securities that are denominated in
a currency other than Dollars, securities that are (i) direct obligations of the
government that issued such currency for the payment of which obligations its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of such government (the
timely payment of which is unconditionally guaranteed as a full faith and credit
obligation of such government) which, in either case under clauses (i) or (ii),
are not callable or redeemable at the option of the issuer thereof.
“
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.
“
Holder
” means the
Person in whose name a Security is registered in the Security
Register.
“
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 part of a Securitization Transaction.
“
Indenture
” means this
instrument as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof including, for all purposes of this
instrument and any such supplemental indenture, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern this instrument and any
such supplemental indenture, respectively.
“
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 Company and the
Restricted Subsidiaries as at the end of the fiscal quarter of the Company
ending not more than 135 days prior to such date, prepared in accordance with
generally accepted accounting principles in the United States, 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.
“
Investment Grade
”
means, with respect to Moody’s, a rating of Baa3 or better (or its equivalent
under any successor rating categories of Moody’s); with respect to S&P, a
rating of BBB- or better (or its equivalent under any successor rating
categories of S&P); and, with respect to any additional Rating Agency or
Rating Agencies selected by the Company, the equivalent investment grade credit
rating.
“
Issue Date
” means the
date on which the Original Securities are initially issued.
“
Liens
” means such
pledges, mortgages, security interests and other liens, including purchase money
liens, on property of the Company or any Restricted Subsidiary which secure
Funded Debt.
“
Maturity
,” when used
with respect to any Security, means the date on which the principal of such
Security or an installment of principal becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, request for repayment or
otherwise.
“
Moody’s
” means
Moody’s Investors Service, Inc., as subsidiary of Moody’s Corporation, and its
successors.
“
Obligation
” means any
indebtedness for money borrowed or indebtedness evidenced by a bond, note,
debenture or other evidence of indebtedness.
“
Officer
” means the
Chief Executive Officer, the President, the Chief Financial Officer, any Vice
President, the Treasurer, the Assistant Treasurer, the Secretary or the
Assistant Secretary of the Company.
“
Officers’
Certificate
” means a certificate signed by two Officers of the Company,
at least one of whom shall be the principal executive officer or principal
financial officer of the Company, and delivered to the Trustee.
“
OID Security
” means
any Security which provides for an amount less than the principal amount thereof
to be due and payable upon a declaration of acceleration of the maturity thereof
pursuant to Section 6.02.
“
Opinion of Counsel
”
means a written opinion from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of or counsel to the
Company.
“
Outstanding
,” when
used with respect to Securities, means, as of the date of determination, all
Securities theretofore authenticated and delivered under this Indenture,
except:
(i) Securities
theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(ii) Securities
for whose payment or redemption money, U.S. Government Obligations or Foreign
Government Securities as contemplated by Section 8.01 in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities
which have been paid pursuant to Section 2.07 or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided
,
however
, that in
determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, (a) the principal amount of an Original
Issue Discount Security that shall be deemed to be Outstanding shall be the
amount of the principal thereof that would be due and payable as of the date of
such determination upon acceleration of the Maturity thereof pursuant to Section
6.02, (b) the principal amount of a Security denominated in a foreign currency
or currencies shall be the Dollar equivalent, determined by the company and set
forth in an Officers’ Certificate on the date of original issuance of such
Security, of the principal amount (or, in the case of an OID Security, the
Dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in (a) above) of such Security, and (c) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company
or
of such other obligor shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
“
Person
” means any
individual, corporation, company (including any limited liability company),
association, partnership, joint venture, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other
entity.
“
Place of Payment
,”
when used with respect to the Securities, means the place or places where the
principal of (and premium, if any) and interest on the Securities are payable as
specified as contemplated by Appendix A.
“
Predecessor Security
”
of any particular Security means every previous Security evidencing all or a
portion of the same debt as that evidenced by such particular Security; and, for
the purposes of this definition, any Security authenticated and delivered under
Section 2.07 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
“
Principal Subsidiary
”
means Norfolk Southern Railway Company.
“
Purchase Money Lien
”
means any mortgage, pledge, lien, encumbrance, charge or security interest of
any kind upon any indebtedness of any Principal Subsidiary acquired after the
date any Securities are first issued if such Purchase Money Lien is for the
purpose of financing, and does not exceed, the cost to the Company 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.
“
Rating Agency
” means
(1) each of Moody’s and S&P; and (2) if either of Moody’s or S&P ceases
to rate the Securities or fails to make a rating of the Notes publicly available
for reasons outside of the Company’s control, a “nationally recognized
statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F)
under the Exchange Act, selected by the Company (as certified by a Board
Resolution) as a replacement agency for Moody’s or S&P, or both of them, as
the case may be.
“
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 Company or any
Subsidiary of the Company of property or services, monies due thereunder,
security interests in the property and services financed thereby and any and all
other related rights.
“
Repurchase Date
”
shall have the meaning set forth in Section 4.12.
“
Repurchase Offer
”
shall have the meaning set forth in Section 4.12.
“
Repurchase Price
”
shall have the meaning set forth in Section 4.12.
“
Responsible Officer
,”
when used with respect to the Trustee, means any vice president, any
assistant vice president, any trust officer or assistant trust officer or any
assistant controller or any other officer of the Trustee customarily performing
functions similar to those performance by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge and familiarity
with the particular subject, and who shall have direct responsibility for the
administration of this Indenture..
“
Restricted
Subsidiary
” means each Subsidiary of the Company other than
Securitization Subsidiaries and Subsidiaries of Securitization
Subsidiaries.
“
S&P
” means
Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies,
Inc., and its successors.
“
Secured Debt
” means
indebtedness for money borrowed which is secured by a mortgage, pledge, lien,
security interest or encumbrance on property of the Company or any Restricted
Subsidiary, but shall not include guarantees arising in connection with the
sale, discount, guarantee or pledge of notes, chattel mortgages, leases,
accounts receivable, trade acceptances and other paper arising, in the ordinary
course of business, out of installment or conditional sales to or by, or
transactions involving title retention with, distributors, dealers or other
customers, of merchandise, equipment or services.
“
Securities Act
” means
the Securities Act of 1933.
“
Securitization
Subsidiary
” means a Subsidiary of the Company (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 Company or any of its Subsidiaries in
connection with or reasonably related to a transaction or series of transactions
in which the Company 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
Company 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.
“
Significant
Subsidiary
” means any Subsidiary that would be a “Significant Subsidiary”
of the Company within the meaning of Rule 1-02 under Regulation S-X
promulgated by the Commission.
“
Standard Securitization
Undertakings
” means representations, warranties, covenants and
indemnities entered into by the Company or any Subsidiary of the Company which
are customary in an accounts receivable securitization transaction involving a
comparable company.
“
Stated Maturity
”
means, with respect to any security, the date specified in such security as the
fixed date on which the payment of principal of such security is due and
payable, including pursuant to any mandatory redemption provision (but excluding
any provision
providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the issuer unless such
contingency has occurred).
“
Subsidiary
” means, in
respect of any Person, any corporation, company (including any limited liability
company), association, partnership, joint venture or other business entity of
which a majority of the total voting power of the Voting Stock is at the time
owned or controlled, directly or indirectly, by:
(a) such
Person;
(b) such Person and
one or more Subsidiaries of such Person; or
(c) one or more
Subsidiaries of such Person.
“
Trust Indenture Act
”
or “
TIA
” means
the Trust Indenture Act of 1939 as in force at the date as of which this
Indenture was executed, except as provided in Section 9.05;
provided
,
however
, that in the
event the Trust Indenture Act of 1939 is amended after such date, “Trust
Indenture Act” means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
“
Trustee
” means the
Person named as the “Trustee” in the first paragraph of this Indenture until a
successor Trustee shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Trustee” shall mean such successor
Trustee.
“
Uniform Commercial
Code
” means the New York Uniform Commercial Code as in effect from time
to time.
“
U.S. Government
Obligations
” means direct obligations of the United States for the
payment of which its full faith and credit is pledged, or obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States and the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
U.S. Government’ obligations or a specific payment of principal of or interest
on any such U.S. Government Obligations held by such custodian for the account
of the holder of such depository receipt, provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligations or the specific payment
of principal of or interest on the U.S. Government Obligations evidenced by such
depository receipt.
“
Vice President
,” when
used with respect to the Company or the Trustee, means any vice president,
whether or not designated by a number or a word or words added before or after
the title “vice president.”
“
Voting Stock
” of any
specified “person” (as that term is used in Section 13(d)(3) of the Exchange
Act) as of any date means the capital stock of such person that is at the time
entitled to vote generally in the election of the board of directors of such
person.
“
Wholly Owned
Subsidiary
” means, in respect of any Person, a Subsidiary with respect to
which such Person owns, directly or indirectly, all of the Voting
Stock. Unless otherwise required by the context, Wholly Owned
Subsidiary shall refer to a Wholly Owned Subsidiary of the Company.
SECTION
1.02.
Other
Definitions
.
|
Term
|
Defined
in
Section
|
|
“Exchange
Security”
|
Appendix
A
|
|
“Global
Security”
|
Appendix
A
|
|
“OID”
|
2.01
|
|
“Original
Securities”
|
2.01
|
|
“Paying
Agent”
|
2.04
|
|
“Registered
Exchange Offer”
|
Appendix
A
|
|
“Registrar”
|
2.04
|
|
“Registration
Agreement”
|
Appendix
A
|
|
“Securities
Custodian”
|
Appendix
A
|
|
“Shelf
Registration Statement”
|
Appendix
A
|
SECTION
1.03.
Incorporation by Reference
of Trust Indenture Act
. This Indenture is subject to the
mandatory provisions of the TIA, which are incorporated by reference in and made
a part of this Indenture. The following TIA terms have the following
meanings:
“Commission” means
the SEC.
“indenture
securities” means the Securities.
“indenture security
holder” means a Holder.
“indenture to be
qualified” means this Indenture.
“indenture trustee”
or “institutional trustee” means the Trustee.
“obligor” on the
indenture securities means the Company and any other obligor on the indenture
securities.
All other TIA terms
used in this Indenture that are defined by the TIA, defined by TIA reference to
another statute or defined by SEC rule have the meanings assigned to them by
such definitions.
SECTION
1.04.
Rules of
Construction
. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires:
(1)
the terms defined in this
Section have the meanings assigned to them in this Section and include the
plural as well as the singular;
(2)
all other terms used
herein which are defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;
(3)
all accounting terms not
otherwise defined herein have the meanings assigned to them in accordance with
United States generally accepted accounting principles, and, except as otherwise
herein expressly provided, the term “generally accepted accounting principles”
with respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted at the date of such
computation;
(4)
the words “herein,”
“hereof,” and “hereunder” and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision; and
(5)
headings are for
convenience of reference only and do not affect interpretation.
SECTION
1.05.
Acts of
Holders
. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the “Act” of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided is this Section.
(b) The
fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgements of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems
sufficient.
(c) At
any time, the ownership of Securities shall be proved by the
Registrar.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other Act
of the Holder of any Security shall bind every future Holder of the same
Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
ARTICLE
II
The
Securities
SECTION
2.01.
Amount of Securities;
Issuable in Series
. (a) The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited. All Securities shall be identical in all
respects other than issue prices and issuance dates. The Securities
may be issued in one or more series;
provided
,
however
, that any
Securities issued with original issue discount (“OID”) for federal income tax
purposes shall not be issued as part of the same series as any Securities that
are issued with a different amount of OID or are not issued with
OID. All Securities of any one series shall be substantially
identical except as to denomination.
(b) Subject
to Section 2.03, the Trustee shall authenticate Securities for original
issue on the Issue Date in the aggregate principal amount of $600,000,000 (the
“Original Securities”). With respect to any Securities issued after
the Issue Date (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, Original
Securities pursuant to Section 2.07, 2.08, 2.09 or 3.06 or
Appendix A), there shall be established in or pursuant to a Board
Resolution, and subject to Section 2.03, set forth, or determined in the
manner provided in an Officers’ Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of such
Securities:
(1)
whether such Securities
shall be issued as part of a new or existing series of Securities and, if issued
as part of a new series, the title of such Securities (which shall distinguish
the Securities of the series from Securities of any other series);
(2)
the aggregate principal
amount of such Securities to be authenticated and delivered under this
Indenture, which may be issued for an unlimited aggregate principal amount
(except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the same series
pursuant to Section 2.07, 2.08, 2.09 or 3.06 or Appendix A and except
for Securities which, pursuant to Section 2.03, are deemed never to have
been authenticated and delivered hereunder);
(3)
the issue price and
issuance date of such Securities, including the date from which interest on such
Securities shall accrue;
(4)
if applicable, that such
Securities shall be issuable in whole or in part in the form of one or more
Global Securities and, in such case, the respective
(5)
depositories for
such Global Securities; the form of any legend or legends that shall be borne by
any such Global Security in addition to or in lieu of that set forth in
Exhibit 1 to Appendix A and any circumstances in addition to or in
lieu of those set forth in Section 2.3 of Appendix A in which any such
Global Security may be exchanged in whole or in part for Securities registered;
and any transfer of such Global Security in whole or in part may be registered
in the name or names of Persons other than the depository for such Global
Security or a nominee thereof; and
(6)
if applicable, that such
Securities shall not be issued in the form of Initial Securities subject to
Appendix A, but shall be issued in the form of Exchange Securities as set forth
in Exhibit A.
SECTION
2.02.
Form and
Dating
. Provisions relating to the Initial Securities of each
series and the Exchange Securities are set forth in Appendix A, which is
hereby incorporated in and expressly made part of this Indenture. The
Initial Securities of each series and the Trustee’s certificate of
authentication shall be substantially in the form of Exhibit 1 to
Appendix A which is hereby incorporated in and
expressly made a
part of this Indenture. The Exchange Securities and the Trustee’s
certificate of authentication shall be substantially in the form of
Exhibit A, which is hereby incorporated in and expressly made a part of
this Indenture. The Securities of each series may have notations,
legends or endorsements required by law, stock exchange rule, agreements to
which the Company is subject, if any, or usage, provided that any such notation,
legend or endorsement is in a form reasonably acceptable to the
Company. Each Security shall be dated the date of its
authentication. The terms of the Securities of each series set forth
in Exhibit 1 to Appendix A and Exhibit A are part of the terms of
this Indenture.
SECTION 2.03.
Execution and
Authentication
. (a) An Officer (and for purposes of
this Section 2.03, the term Officer shall include any Vice President of the
Company authorized by the Board of Directors) shall sign the Securities for the
Company by manual or facsimile signature.
(b) If
an Officer whose signature is on a Security no longer holds that office at the
time the Trustee authenticates the Security, the Security shall be valid
nevertheless.
(c) At
any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a written order of the
Company for the authentication and delivery of such Securities, and the Trustee
in accordance with such written order of the Company shall authenticate and
deliver such Securities. Other than in the case of the Original
Securities, such written order of the Company for the authentication and
delivery of such Securities shall be in the form of an Officers’
Certificate.
(d) A
Security shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
(e) The
Trustee may appoint an authenticating agent reasonably acceptable to the Company
to authenticate the Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication
by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, Paying Agent or agent
for service of notices and demands.
SECTION
2.04.
Registrar and Paying
Agent
. (a) The Company shall maintain an office or
agency in the City of New York where Securities may be presented for
registration of transfer or for exchange (the “Registrar”) and an office or
agency in the City of New York where Securities may be presented for payment
(the “Paying Agent”). The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Company may have
one or more co-registrars and one or more additional paying
agents. The term “Paying Agent” includes any additional paying
agent.
(b) The
Company shall enter into an appropriate agency agreement with any Registrar,
Paying Agent or co-registrar not a party to this Indenture, which shall
incorporate the terms of the TIA. Such agreement shall implement the
provisions of this Indenture that relate to such agent. The Company
shall notify the Trustee in writing of the name and address of any such
agent. If the Company fails to maintain a Registrar or Paying Agent,
the Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 7.07. The Company or any of its
domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent,
Registrar, co-registrar or transfer agent.
(c) The
Company hereby appoints the Trustee as initial Registrar and initial Paying
Agent in connection with the Securities.
SECTION
2.05.
Paying Agent To Hold Money
in Trust
. Prior to each due date of the principal and interest
on any Security, the Company shall deposit with the Paying Agent a sum
sufficient to pay such principal and interest when so becoming
due. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Securities and shall notify the
Trustee of any default by the Company in making any such payment. If
the Company or a Wholly Owned Subsidiary acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a separate trust
fund. The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee and to account for any funds disbursed by the
Paying Agent. Upon complying with this Section 2.05, the Paying Agent
shall have no further liability for the money delivered to the
Trustee.
SECTION
2.06.
Holder
Lists
. The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee, in writing at least five Business Days
before each interest payment date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Holders.
SECTION
2.07.
Replacement
Securities
. (a) If a mutilated Security is
surrendered to the Registrar or if the Holder of a Security claims that such
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met and the Holder
satisfies any other reasonable requirements of the Trustee. Such
Holder shall furnish an indemnity bond sufficient in the judgment of the Company
and the Trustee to protect the Company, the Trustee, the Paying Agent, the
Registrar and any co-registrar from any loss which any of them may suffer if a
Security is replaced. The Company and the Trustee may charge the
Holder for their expenses in replacing a Security.
(b) Every
replacement Security is an additional obligation of the Company.
SECTION
2.08.
Outstanding
Securities
. (a) Securities outstanding at any time
are all Securities authenticated by the Trustee except for those canceled by it,
those delivered to it for cancellation and those described in this
Section 2.08 as not outstanding. A Security does not cease to be
outstanding because the Company or an Affiliate of the Company holds the
Security.
(b) If
a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
(c) If
the Paying Agent segregates and holds in trust, in accordance with this
Indenture, on a redemption date or maturity date money sufficient to pay all
principal and interest payable on that date with respect to the Securities (or
portions thereof) to be redeemed or maturing, as the case may be, then on and
after that date such Securities (or portions thereof) cease to be outstanding
and interest on them ceases to accrue.
SECTION
2.09.
Temporary
Securities
. Until definitive Securities are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Securities. Temporary Securities shall be substantially in the form
of definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive Securities
and deliver them in exchange for temporary Securities.
SECTION
2.10.
Cancellation
. The
Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of transfer,
exchange or payment. The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment or
cancellation and will dispose of all cancelled Securities in accordance with its
customary procedures unless the Company directs the Trustee to deliver canceled
Securities to the Company. The Company may not issue new Securities
to replace Securities it has redeemed, paid or delivered to the Trustee for
cancellation.
SECTION
2.11.
Defaulted
Interest
. If the Company defaults in a payment of interest on
the Securities, the Company shall pay the defaulted interest (plus interest on
such defaulted interest to the extent lawful) in any lawful
manner. The Company may pay the
defaulted interest
to the persons who are Holders on a subsequent special record
date. The Company shall fix or cause to be fixed any such special
record date and payment date to the reasonable satisfaction of the Trustee and
shall promptly mail to each Holder a notice that states the special record date,
the payment date and the amount of defaulted interest to be paid.
SECTION
2.12.
CUSIP
Numbers
. The Company in issuing the Securities may use “CUSIP”
numbers (if then generally in use) and, if so, the Trustee shall use “CUSIP”
numbers in notices of redemption as a convenience to Holders;
provided
,
however
, that neither
the Company nor the Trustee shall have any responsibility for any defect in the
“CUSIP” number that appears on any Security, check, advice of payment or
redemption notice, and any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company shall promptly notify the Trustee in writing of any change in the
CUSIP number(s).
ARTICLE
III
Redemption
SECTION
3.01.
Notices to
Trustee
. (a) If the Company elects to redeem
Securities pursuant to paragraph 5 of the Securities or is required to
redeem Securities pursuant to paragraph 8 of the Securities, it shall
notify the Trustee in writing of the redemption date, the principal amount of
Securities to be redeemed and that such redemption is being made pursuant to
either paragraph 5 or paragraph 8 of the Securities.
(b) The
Company shall give each notice to the Trustee provided for in this Section 3.01
at least 45 days before the redemption date unless the Trustee consents to
a shorter period. Such notice shall be accompanied by an Officers’
Certificate from the Company to the effect that such redemption will comply with
the conditions herein.
SECTION
3.02.
Selection of Securities To
Be Redeemed
. If fewer than all the Securities are to be
redeemed pursuant to paragraph 5 of the Securities, the Trustee shall
select the Securities to be redeemed pro rata or by lot or by a method that
complies with applicable legal and securities exchange requirements, if any, and
that the Trustee considers fair and appropriate and in accordance with methods
generally used at the time of selection by fiduciaries in similar
circumstances. The Trustee shall make the selection from outstanding
Securities not previously called for redemption. The Trustee may
select for redemption portions of the principal of Securities that have
denominations larger than $2,000. Securities and portions of them the
Trustee selects shall be in amounts of $2,000 or a whole multiple of
$1,000. Provisions of this Indenture that apply to Securities called
for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company promptly of the
Securities or portions of Securities to be redeemed.
SECTION
3.03.
Notice of
Redemption
. (a) At least 30 days but not more
than 60 days before a date for redemption of Securities, the Company shall mail
a notice of
redemption by
first-class mail to each Holder of Securities to be redeemed at such Holder’s
registered address. The notice shall identify the Securities
(including CUSIP number(s)) to be redeemed and shall state:
(1)
the redemption
date;
(2)
the redemption
price;
(3)
the name and address of
the Paying Agent;
(4)
that Securities called
for redemption must be surrendered to the Paying Agent to collect the redemption
price;
(5)
if fewer than all the
outstanding Securities are to be redeemed, the identification and principal
amounts of the particular Securities to be redeemed;
(6)
that, unless the Company
defaults in making such redemption payment, interest on Securities (or portion
thereof) called for redemption ceases to accrue on and after the redemption
date, and the only remaining right of the Holders is to receive payment of the
redemption price upon surrender to the Paying Agent; and
(7)
that no representation is
made as to the correctness or accuracy of the CUSIP number, if any, listed in
such notice or printed on the Securities.
(b) At
the Company’s written request, the Trustee shall give the notice of redemption
in the Company’s name and at the Company’s expense. In such event,
the Company shall provide the Trustee with the information required by this
Section 3.03 at least 45 days before the redemption date.
SECTION
3.04.
Effect of Notice of
Redemption
. Once notice of redemption is mailed, Securities
called for redemption become due and payable on the redemption date and at the
redemption price stated in the notice. Upon surrender to the Paying
Agent, such Securities shall be paid at the redemption price stated in the
notice, plus accrued interest, if any, to the redemption date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the related interest payment date that is on or prior to the date of
redemption). Failure to give notice of any defect in the notice to
any Holder shall not affect the validity of the notice to any other
Holder.
SECTION
3.05.
Deposit of Redemption
Price
. Prior to or by 10:00 a.m., New York City time on the
redemption date, the Company shall deposit with the Paying Agent (or, if the
Company or a Wholly Owned Subsidiary is the Paying Agent, shall segregate and
hold in trust) money sufficient to pay the redemption price
of
and accrued interest, if any (subject to the right of Holders of record on the
relevant record date to receive interest due on the related interest payment
date that is on or prior to the date of redemption), on all Securities to be
redeemed on that date other than Securities or portions of Securities called for
redemption that have been delivered by the Company to the Trustee for
cancellation.
SECTION
3.06.
Securities Redeemed in
Part
. Upon surrender of a Security that is redeemed in part,
the Company shall execute and the Trustee shall authenticate for the Holder (at
the Company’s expense) a new Security equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE
IV
Covenants
SECTION
4.01.
Payment of Principal,
Premium and Interest
. The Company covenants and agrees for the
benefit of the Securities that it will duly and punctually pay the principal of
(and premium, if any) and interest on the Securities in accordance with the
terms of the Securities and this Indenture.
SECTION
4.02.
Maintenance of Office or
Agency
. (a) The Company will maintain or cause to
be maintained in each Place of Payment for the Securities an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served, and the Company hereby initially appoints the Corporate
Trust Office of the Trustee as its agent to receive all such presentations,
surrenders, notices and demands. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
(b) The
Company may also from time to time designate one or more other offices or
agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each Place of
Payment for the Securities for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
SECTION
4.03.
Money for Securities
Payments to Be Held in Trust
. (a) If the Company
shall at any time act as its
own Paying Agent
with respect to the Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
(b) Whenever
the Company shall have one or more Paying Agents for the Securities, it will,
prior to each due date of the principal of (and premium, if any) or interest on
any Securities, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to be held
in trust for the benefit of the Persons
entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure so to
act.
(c) The
Company will cause each Paying Agent for the Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1)
hold all sums held by it
for the payment of the principal of (and premium, if any) or interest on
Securities in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(2)
give the Trustee notice
of any default by the Company (or any other obligor upon the Securities) in the
making of any payment of principal (and premium, if any) or interest on the
Securities; and
(3)
at any time during the
continuance of any such default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying
Agent.
(d) The
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such
money.
(e) Any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium, if any) or
interest on any Security and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general
creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease.
SECTION
4.04.
Corporate
Existence
. Subject to Article V, the Company will do or cause
to be done all things necessary to preserve and keep in full force and effect
its corporate existence and that of each Subsidiary and the rights (charter and
statutory) and franchises of the Company and its Subsidiaries; provided,
however, that the Company shall not be required to preserve any such right or
franchise or to retain any Subsidiary if the Company shall determine that the
preservation or retention thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries considered as a whole and that the
loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION
4.05.
Maintenance of
Properties
. The Company will cause all properties deemed by
the Company to be necessary and useful in the conduct of its business or
the
business of any Subsidiary to be maintained and kept in such condition, repair
and working order and supplied with such equipment and will cause to be made
such repairs, renewals, replacements, betterments and improvements thereof, all
as in the judgment of the Company may be necessary or appropriate in the
performance of its business, provided, however, that nothing in this Section
shall prevent the Company from discontinuing the operation and maintenance of
any of such properties, or disposing of any of them, if such discontinuance or
disposal is, in the judgment of the Company or of the Subsidiary concerned,
desirable in the conduct of its business or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION
4.06.
Payment of Taxes and Other
Claims
. The Company will pay or discharge or cause to be paid
or discharged, before the same shall become delinquent, and, in each case, only
if the failure to pay or discharge could be disadvantageous in any material
respect to the Holders (1) all taxes, assessments and governmental charges
levied or imposed upon the Company or any Subsidiary or upon the income, profits
or property of the Company or any Subsidiary, and (2) all lawful claims for
labor, materials and supplies which, if unpaid, might by law become a lien upon
the property of the Company or any Subsidiary; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings or
otherwise and the Company shall have set aside on its books adequate reserves
with respect thereto (if and to the extent required by generally accepted
accounting principles).
SECTION
4.07.
Limitations on Liens on
Stock or Indebtedness of Principal Subsidiary
. For so long as
any Securities issued pursuant to this Indenture are Outstanding, the Company
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 Securities are first
issued or
thereafter acquired, of any Principal Subsidiary, to secure any Obligation
(other than the Securities) of the Company, any Subsidiary or any other person,
without in any such case making effective provision whereby all of the
outstanding Securities shall be directly secured equally and ratably with such
Obligation. This Section 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 Company or its Subsidiaries or (iii) restrict
the sale by the Company or any Subsidiary of any stock or indebtedness of any
Subsidiary.
SECTION
4.08.
Limitations on Funded
Debt
. (a) For so long as any Securities issued
pursuant to this Indenture are Outstanding, the Company 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.
(b) This
Section 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 Company or any Restricted Subsidiary; (iii) Liens on
real or physical property thereafter acquired (or constructed) by the Company 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 Company 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 Company or a
Restricted Subsidiary 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 Company 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 Company 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 Company 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 Company or any
Restricted Subsidiary with respect to which the Company 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 Company 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 Company, in the aggregate materially detract from the
value of said properties or materially impair their use in the operation of the
business of the Company 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 Company
or a Restricted Subsidiary through repossession, foreclosure or like proceeding
and existing at the time of the repossession, foreclosure, or like
proceeding; (xiii)
Liens on deposits of the Company 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 Company 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.
SECTION
4.09.
Waiver of Certain
Covenants
. The Company may omit in any particular instance to
comply with any term, provision or condition set forth in Sections 4.01 and 4.08
of this Indenture with respect to the Securities if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
SECTION
4.10.
Statement as to
Compliance
. The Company will deliver to the Trustee, by May 1
of each year, a written statement, signed by the principal executive officer,
principal financial officer or principal accounting officer of the Company and
by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company, stating, as
to each signer thereof, that
(1)
a review of the
activities of the Company during such year and of performance under this
Indenture has been made under his supervision, and
(2)
to the best of his
knowledge, based on such review, (a) the Company has fulfilled all its
obligations under this indenture throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to him and the nature and status thereof, and (b) no event has occurred
and is continuing which is, or after notice or lapse of time or both would
become, an Event of Default, or, if such an event has occurred and is
continuing, specifying each such event known to him and the nature and status
thereof.
SECTION
4.11.
[
Reserved
]
SECTION
4.12.
Change of
Control
. (a) If a Change of Control Repurchase
Event occurs with respect to the Securities, unless the Company has exercised
its right to redeem the Notes pursuant to paragraph 5 of the Securities, the
Company will make an offer to each Holder of the Securities to repurchase all or
any part (in integral multiples of $1,000) of that Holder’s Securities at a
repurchase price (the “Repurchase Price”) in cash equal to 101% of the aggregate
principal amount of such Securities repurchased plus any accrued and unpaid
interest on the Notes repurchased to, but not including, the Repurchase Date
(defined below). Within 30 days following a Change of Control Repurchase Event
or, at the Company’s option, prior to a Change of Control, but after the public
announcement of a Change of Control, the Company will mail, or cause to be
mailed, a notice to each Holder of the Securities, with a copy to the Trustee,
describing the transaction or transactions that constitute or may constitute the
Change of Control Repurchase Event and offering to repurchase the Securities on
the payment date specified in the
notice (such offer
the “Repurchase Offer” and such date the “Repurchase Date”), which Repurchase
Date will be no earlier than 30 days and no later than 60 days from the date
such notice is mailed. The notice shall, if mailed prior to the date of
consummation of the Change of Control, state that the Repurchase Offer is
conditioned on a Change of Control Repurchase Event occurring on or prior to the
Repurchase Date.
(b) The
Company will comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent those
laws and regulations are applicable in connection with the repurchase of the
Securities as a result of a Change of Control Repurchase Event. To
the extent that the provisions of any securities laws or regulations conflict
with the Change of Control Repurchase Event provisions of the Securities, the
Company will comply with the applicable securities laws and regulations and will
not be deemed to have breached its obligations under the Change of Control
Repurchase Event provisions of the Securities by virtue of such
conflict.
(c) On
the Repurchase Date, the Company will, to the extent lawful:
(1)
accept for payment all
Securities or portions of Securities properly tendered pursuant to the
Repurchase Offer;
(2)
deposit with Paying Agent
an amount equal to the aggregate Repurchase Price for all Securities or portions
of Securities properly tendered; and
(3)
deliver, or cause to be
delivered, to the Trustee the Securities properly accepted, together with an
Officers’ Certificate stating the aggregate principal amount of Securities being
purchased by the Company pursuant to the Repurchase Offer and that all
conditions precedent to the repurchase by the Company of Securities pursuant to
the Repurchase Offer have been complied with.
(d) The
Trustee will promptly mail, or cause the Paying Agent promptly to mail, to each
Holder of Securities, or portions of Securities, properly tendered the
Repurchase Price for such Securities or portions of Securities, and the Trustee
will promptly authenticate and mail (or cause to be transferred by book-entry)
to each Holder a new Note equal in principal amount to any unpurchased portion
of any Securities surrendered, if applicable; provided that each new Note will
be in a principal amount of an integral multiple of $1,000.
(e) The
Company will not be required to make a Repurchase Offer upon a Change of Control
Repurchase Event if a third party makes such an offer in the manner, at the
times and otherwise in compliance with the requirements for such an offer made
by the Company and such third party purchases all Securities or portions of
Securities properly tendered and not withdrawn under its offer.
(f) The
parties acknowledge that the Company may not have sufficient funds to repurchase
all Securities or portions of Securities properly tendered upon a Change of
Control Repurchase Event.
SECTION
4.13.
Calculation of Original
Issue Discount
. The Company shall file with the Trustee promptly at the
end of each calendar year (i) a written notice specifying the amount, if any, of
original issue discount (including daily rates and accrual periods) accrued on
Outstanding Securities as of the end of such year and (ii) such other specific
information relating to such original issue discount as may then be relevant
under the Internal Revenue Code of 1986, as amended from time to
time.
ARTICLE
V
Consolidation, Merger,
Conveyance, Transfer or Lease
SECTION
5.01.
Company May Consolidate,
Etc., Only on Certain Terms
. The Company shall not consolidate
with or merge into any other corporation or convey, transfer or lease its
properties and assets substantially as an entirety to any Person
unless:
(1)
in
case the Company shall consolidate with or merge into another corporation or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety shall be a corporation organized and existing under the laws of the
United States of America, any state thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium, if any) and interest
on all the Securities and the performance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(2)
immediately
after giving effect to such transaction and treating any indebtedness which
becomes an obligation of the Company as a result of such transaction as having
been incurred by the Company at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have happened and be continuing; and
(3)
the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or
lease and, if a supplemental indenture is required with such transaction, such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
SECTION
5.02.
Successor Corporation
Substituted
. Upon any consolidation by the Company with or
merger by the Company into any other corporation or any conveyance, transfer or
lease of the properties and assets of the Company substantially as an entirety
in accordance with Section 5.01, the successor corporation formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall
succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor corporation had
been named as the Company herein, and thereafter, except in the case of a lease,
the predecessor corporation shall be relieved.
ARTICLE
VI
Defaults and
Remedies
SECTION
6.01.
“
Event of Default
”
wherever used herein with respect to a Security, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1)
default
in the payment of any interest upon any Security when it becomes due and
payable, and continuance of such default for a period of 30 days;
or
(2)
default
in the payment of the principal of (or premium, if any, on) any Security at its
Maturity; or
(3)
default
in the performance, or breach, of any covenant or warranty of the Company in
this Indenture, and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least 10%
in principal amount of the Outstanding Securities a written notice specifying
such default or breach and requiring it to be remedied and stating that such
notice is a “Notice of Default” hereunder; or
(4)
a
default under any bond, debenture, note or other evidence of indebtedness for
money borrowed or guaranteed by the Company or any Significant Subsidiary or
under any mortgage, indenture, equipment trust agreement or instrument under
which there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed or guaranteed by the Company or any Significant
Subsidiary (including this indenture and including indebtedness in respect of
capitalized lease obligations), whether such indebtedness now exists or shall
hereafter be created, which, together with all other such defaults, shall have
resulted in such indebtedness, in an aggregate principal amount exceeding
$100,000,000, becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, without such indebtedness
having discharged, or such acceleration having been rescinded or annulled, or a
sum of money sufficient to discharge in full such indebtedness is not deposited
in trust, within a period of 10 days after there shall have been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 10% in principal amount of the
Outstanding Securities a written. notice specifying such
default and
requiring the Company to cause such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating that such notice is a
“Notice of Default” hereunder; provided, however, that, subject to the
provisions of Section 7.02, the Trustee shall not be deemed to have knowledge of
such default unless either (A) a Responsible Officer of the Trustee shall have
actual knowledge of such default or (B) the Trustee shall have received written
notice thereof from the Company, from any Holder, from the holder of any such
indebtedness or from the trustee under any such mortgage, indenture or other
instrument; or
(5)
the
entry by a court having jurisdiction is the premises of (A) a decree or order
for relief in respect of the Company in an involuntary case or proceeding under
any applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company under any
applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a period
of 60 consecutive days; or
(6)
the
commencement by the Company of a voluntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, or the
consent by it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Company or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company in furtherance of
any such action.
SECTION
6.02.
Acceleration
. (a) If
an Event of Default with respect to the Securities at the time Outstanding
occurs and is continuing, then in every such case the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities may declare
the principal amount (or, if the Securities are OID Securities, such portion of
the principal amount as may be specified in the terms of the Securities) of all
of the Securities to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by Holders), and upon any such
declaration such principal amount (or specified amount) shall become immediately
due and payable.
(b) At
any time after such a declaration of acceleration with respect to the Securities
has been made and before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding Securities, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1)
the
Company has paid or deposited with the Trustee a sum sufficient to
pay
(A)
all
defaulted interest on all Securities in accordance with Section
2.11,
(B)
the
principal of (and premium, if any, on) any of the Securities which have become
due otherwise than by such declaration of acceleration and interest thereon at
the rate or rates prescribed therefor in the Securities,
(C)
to
the extent that payment of such interest is lawful, interest upon overdue
interest at the rate or rates prescribed therefor in such Securities,
and
(D)
all
sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel;
and
(2)
all
Events of Default with respect to the Securities, other than the nonpayment of
the principal of Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section
6.04.
No
such rescission shall affect any subsequent Event of Default or impair any right
consequent thereon.
SECTION
6.03.
Other
Remedies
. (a) If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
(b) The
Trustee may maintain a proceeding even if it does not possess any of the
Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No
remedy is exclusive of any other remedy. All available remedies are
cumulative.
SECTION
6.04.
Waiver of Past
Defaults
. The Holders of a majority in aggregate principal
amount of the Securities then Outstanding by notice to the Trustee may waive an
existing Default and its consequences except (i) a Default in the payment
of the principal of, premium, if any, or interest on a Security or (ii) a
Default in respect of a provision
that under Section
9.02 cannot be amended without the consent of each Holder of the
Securities. When a Default is waived, it is deemed cured, but no such
waiver shall extend to any subsequent or other Default or impair any consequent
right.
SECTION
6.05.
Control by
Majority
. The Holders of a majority in aggregate principal
amount of the Securities then outstanding may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee with respect to the
Securities. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture or, subject to Section 7.01, that
the Trustee determines is unduly prejudicial to the rights of other Holders or
would involve the Trustee in personal liability;
provided
,
however
, that the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction.
SECTION
6.06.
Limitation on
Suits
. (a) A Holder of a Security may not pursue
any remedy with respect to this Indenture or the Securities unless:
(1)
such Holder shall have
previously given to the Trustee written notice of a continuing Event of
Default;
(2)
the Holders of at least
25% in aggregate principal amount of the Securities then outstanding shall have
made a written request, and such Holder of or Holders shall have offered
indemnity satisfactory to the Trustee, to the Trustee to pursue a remedy;
and
(3)
the Trustee has failed to
institute such proceeding and has not received from the Holders of at least
a majority in aggregate principal amount of the Securities outstanding a
direction inconsistent with such request, within 60 days after such notice,
request and offer.
(b) The
foregoing limitations on the pursuit of remedies by a Holder shall not apply to
a suit instituted by a Holder for the enforcement of payment of the principal of
or interest on such Security on or after the applicable due date specified in
such Security. A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder (it
being understood that the Trustee does not have an affirmative duty to ascertain
whether or not such actions or forbearances are unduly prejudicial to such
Holders).
SECTION
6.07.
Rights of Holders to Receive
Payment
. Notwithstanding any other provision of this
Indenture, the right of any Holder to receive payment of principal of and
interest on the Securities held by such Holder, on or after the respective due
dates expressed in the Securities, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION
6.08.
Collection Suit by
Trustee
. If an Event of Default specified in
Section 6.01(1) or (2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount then due and owing (together with interest on any unpaid
interest to the extent lawful) and the amounts provided for in
Section 7.07.
SECTION
6.09
Trustee May File Proofs of
Claim
. The Trustee may file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee and the Holders allowed in any judicial proceedings relative to
the Company, its creditors or its property and, unless prohibited by law or
applicable regulations, may vote on behalf of the Holders in any election of a
trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.07.
SECTION
6.10.
Priorities
. (a) If
the Trustee collects any money or property pursuant to this Article VI, it shall
pay out the money or property in the following order:
FIRST: to
the Trustee for amounts due under Section 7.07;
SECOND: to
Holders for amounts due and unpaid on the Securities for principal and interest,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Securities for principal and interest, respectively;
and
THIRD: to
the Company.
(b) The
Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 6.10. At least 15 days before such
record date, the Company shall mail to each Holder and the Trustee a notice that
states the record date, the payment date and amount to be paid.
SECTION
6.11.
Undertaking for
Costs
. In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys’ fees and expenses, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders
of more than 10% in aggregate principal amount of the Securities.
SECTION
6.12.
Waiver of Stay or Extension
Laws
. The Company (to the extent it may lawfully do so) shall
not at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, that may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and shall not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE
VII
Trustee
SECTION
7.01.
Duties of
Trustee
. (a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in the conduct of
such Person’s own affairs.
(b) Except
during the continuance of an Event of Default:
(1)
the Trustee undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2)
in the absence of bad
faith on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, in the case of any such
certificates or opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The
Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act or its own wilful misconduct, except that:
(1)
this paragraph does not
limit the effect of paragraph (b) of this Section 7.01;
(2)
the Trustee shall not be
liable for any error of judgment made in good faith by a Responsible Officer
unless it is proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(3)
the Trustee shall not be
liable with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
6.05.
(d) Every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section 7.01.
(e) The
Trustee shall not be liable for interest on any money received by it except as
the Trustee may agree in writing with the Company.
(f) Money
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.
(g) No
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or powers.
(h) Every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section and to the provisions of the TIA, and the provisions of this
Article VII shall apply to the Trustee in its role as Registrar, Paying Agent
and Securities Custodian.
(i) The
Trustee shall not be deemed to have notice of a Default or an Event of Default
unless (a) the Trustee has received written notice thereof from the Company or
any Holder or (b) a Responsible Officer shall have actual knowledge
thereof.
SECTION
7.02.
Rights of
Trustee
. The Trustee may rely on any document believed by it
to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in
the document. The Trustee may, however, in its discretion make such
further inquiry or investigation into such facts or matters as it may see fit
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney.
(a) Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on the
Officers’ Certificate or Opinion of Counsel.
(b) The
Trustee may act through agents and shall not be responsible for the misconduct
or negligence of any agent appointed with due care and with the consent of the
Company, which consent shall not be unreasonably withheld.
(c) The
Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within its rights or powers;
provided
,
however
, that the
Trustee’s conduct does not constitute wilful misconduct or
negligence.
(d) The
Trustee may consult with counsel of its selection, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such
counsel.
(e) The
permissive rights of the Trustee to do things enumerated in this Indenture shall
not be construed as a duty unless so specified herein.
(f) In
no event shall the Trustee be responsible or liable for special, indirect,
punitive or consequential loss or damage of any kind whatsoever (including, but
not limited to, loss of profit) irrespective of whether the Trustee has been
advised of the likelihood of such loss or damage and regardless of the form of
action.
(g) The
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and
shall be enforceable by, the Trustee in each of its capacities hereunder, and
each agent, custodian and other Person employed to act hereunder.
(h) The
Trustee shall not be required to give any bond or surety in respect of the
performance of its powers and duties hereunder.
SECTION
7.03.
Individual Rights of
Trustee
. The Trustee in its individual or any other capacity
may become the owner or pledgee of Securities and may otherwise deal with the
Company or its Affiliates with the same rights it would have if it were not
Trustee. Any Paying Agent, Registrar or co-registrar may do the same
with like rights. However, the Trustee must comply with Sections 7.10
and 7.11.
SECTION
7.04.
Trustee’s
Disclaimer
. The Trustee shall not be responsible for and makes
no representation as to the validity, priority or adequacy of this Indenture or
the Securities, it shall not be accountable for the Company’s use of the
proceeds from the Securities, and it shall not be responsible for any statement
of the Company in this Indenture or in any document issued in connection with
the sale of the Securities or in the Securities other than the Trustee’s
certificate of authentication.
SECTION
7.05.
Notice of
Defaults
. If a Default or Event of Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Holder notice of the Default or Event of Default within 30 days after it is
known to a Responsible Officer or written notice of it is received by the
Trustee. Except in the case of a Default or Event of Default in
payment of principal of or interest on any Security, the Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of
Holders.
SECTION
7.06.
Reports by Trustee to
Holders
. (a) Within 60 days after May 15
each year beginning with May 15, 2009, the Trustee shall mail to each
Holder a brief report dated as of such May 15 that complies with
TIA § 313(a), if and to the extent required by such
subsection. The Trustee shall also comply
with TIA § 313(b).
(b) A
copy of each report at the time of its mailing to Holders shall be filed with
the Commission and each stock exchange (if any) on which the Securities are
listed. The Company agrees to notify promptly the Trustee in writing
whenever the Securities become listed on any stock exchange and of any delisting
thereof.
SECTION
7.07.
Compensation and
Indemnity
. (a) The Company shall pay to the Trustee
from time to time such compensation for its services as shall be agreed in
writing between the Company and the Trustee. The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee upon request
for all reasonable out-of-pocket expenses incurred or made by it, including
costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and
expenses, disbursements and advances of the Trustee’s agents,
counsel,
accountants and experts. The Company shall indemnify the Trustee
against any and all loss, liability, damages, claim or expense (including
reasonable attorneys’ fees and expenses) incurred by it in connection with the
acceptance and administration of this trust and the performance of its duties
hereunder. The Trustee shall notify the Company promptly of any claim
for which it may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder unless the Company
has been prejudiced thereby. The Company shall defend the claim, and
the Trustee may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Trustee through the Trustee’s own wilful misconduct, negligence or bad
faith. The Company need not pay for any settlement made by the
Trustee without the Company’s consent, such consent not to be unreasonably
withheld. All indemnifications and releases from liability granted
hereunder to the Trustee shall extend to its officers, directors, employees,
agents, successors and assigns.
(b) To
secure the Company’s payment obligations in this Section, the Trustee shall have
a lien prior to the Securities on all money or property held or collected by the
Trustee other than money or property held in trust to pay principal of and
interest on particular Securities.
(c) The
Company’s payment obligations pursuant to this Section 7.07 shall survive the
resignation or removal of the Trustee and the discharge of this
Indenture. When the Trustee incurs expenses after the occurrence of a
Default specified in Section 6.01(5) or (6 with respect to the Company, the
expenses are intended to constitute expenses of administration under Title 11,
United States
Code
, or any similar federal or state law for the relief of
debtors.
SECTION
7.08.
Replacement of
Trustee
. (a) The Trustee may resign at any time by
so notifying the Company. The Holders of a majority in aggregate
principal amount of the Securities the outstanding may remove the Trustee by an
Act so notifying the Trustee and may appoint a successor Trustee,
provided
that so long
as no Default or Event of Default has occurred and is continuing, the Company
shall have the right to consent to the successor Trustee, such consent not to be
unreasonably withheld. The Company shall remove the Trustee
if:
(1)
the Trustee fails to
comply with Section 7.10;
(2)
the Trustee is adjudged
bankrupt or insolvent;
(3)
a receiver or other
public officer takes charge of the Trustee or its property; or
(4)
the Trustee otherwise
becomes incapable of acting.
(b) If
the Trustee resigns or is removed by the Company or by the Holders of a majority
in aggregate principal amount of the Securities then outstanding, and such
Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy
exists in the office of Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly appoint
a successor Trustee.
(c) A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
(d) If
a successor Trustee does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee or the Holders of 10% in
aggregate principal amount of the Securities then outstanding may petition, at
the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee.
(e) If
the Trustee fails to comply with Section 7.10, any Holder who has been a
bona fide Holder of a Security for at least six months may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
(f) Notwithstanding
the replacement of the Trustee pursuant to this Section 7.08, the Company’s
obligations under Section 7.07 shall continue for the benefit of the
retiring Trustee.
SECTION
7.09.
Successor Trustee by
Merger
. (a) If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all its corporate
trust business or assets to, another corporation or banking association, the
resulting, surviving or transferee corporation or banking association without
any further act shall be the successor Trustee.
(b) In
case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of authentication of
any predecessor trustee, and deliver such Securities so authenticated; and in
case at that time any of the Securities shall not have been authenticated, any
such successor to the Trustee may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor to the
Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Securities or in this Indenture provided that the
certificate of the Trustee shall have.
SECTION
7.10.
Eligibility;
Disqualification
. The Trustee shall at all times satisfy the
requirements of TIA § 310(a). The Trustee shall have (or, in the
case of a corporation included in a bank holding company system, the related
bank holding company shall have) a combined capital and surplus of at least
$50,000,000 as set forth in its (or its related bank holding company’s) most
recent published annual report of condition. The Trustee shall comply
with TIA § 310(b), subject to the penultimate paragraph thereof;
provided
,
however
, that there
shall be excluded from the operation of TIA § 310(b)(1) any indenture
or indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA § 310(b)(1) are
met.
SECTION
7.11.
Preferential Collection of
Claims Against Company
. The Trustee shall comply with TIA
§ 311(a), excluding any creditor relationship listed in TIA
§ 311(b). A
Trustee who has resigned or been removed shall be subject to TIA § 311(a)
to the extent indicated.
ARTICLE
VIII
Satisfaction and Discharge
of Indenture
SECTION
8.01.
Satisfaction and Discharge
of Indenture
. (a) This Indenture shall upon Company
Request cease to be of further effect as to all Outstanding Securities or all
Outstanding Securities, as the case may be (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture,
when:
(1)
either:
(A)
all Outstanding
Securities theretofore authenticated and delivered (other than (i) Securities
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.07 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 3.05) have been delivered to the Trustee for cancellation;
or
(B)
the Company has
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust (i) money (either in Dollars or such other currency in which the
Securities may be payable) in an amount or, (ii) U.S. Government Obligations or,
in the case of Securities denominated in a currency other than Dollars, Foreign
Government Securities which through the payment of principal and interest
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment of principal (including any premium) and
interest, if any, under the Securities, money in an amount or (iii) a
combination of (i) and (ii) sufficient in the opinion of the Company’s
independent certified public accountants expressed in a written certification
thereof delivered to the Trustee, without consideration of any reinvestment of
such interest, to pay and discharge the entire indebtedness on all Outstanding
Securities, as the case may be, not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest to the date of
such deposit (in the case of Securities which have become due and payable) or to
the Stated Maturity or redemption date, as the case may be;
(2)
the Company has paid or
caused to be paid all other sums payable hereunder by the Company with respect
to the Securities, as the case may be;
(3)
the Company has delivered
to the Trustee an Opinion of Counsel, reasonably satisfactory to the Trustee, to
effect that, based on federal income tax
laws then in
effect, the Holders of the Securities, as the case may be, will not recognize
income, gain or loss on the Securities, as the case may be, for federal income
tax purposes as a result of the Company’s exercise of its option under this
Section 8.01 and shall be subject to federal income tax in the same amounts and
at the same times as would have been the case if such option had not been
exercised; and
(5)
the Company has delivered
to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture with respect to the Securities have been
complied with.
(b) Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company
to the Trustee under Section 7.07 and, if money, U.S. Government Obligations
and/or Foreign Government Securities shall have been deposited with the Trustee
pursuant to subclause (ii) of clause (1) of this Section, the obligations of the
Trustee under Section 8.02 and the last paragraph of Section 4.03 shall
survive.
SECTION
8.02.
Application of Trust
Money
. Subject to the provisions of Section 4.03(e), all
money, U.S. Government Obligations and Foreign Government Securities deposited
with the Trustee pursuant to Section 8.01 shall be held in trust and applied by
it, in accordance with the provisions of the Securities and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee.
ARTICLE
IX
Supplemental
Indentures
SECTION
9.01.
Supplemental Indentures
Without Consent of Holders
. Without the consent of any
Holders, the Company, when authorized by a Board Resolution, and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form reasonably satisfactory to the Trustee, for any of
the following purposes:
(1)
to evidence the
succession of another corporation to the Company and the assumption by any such
successor of the covenants of the Company herein and in the Securities;
or
(2)
to add to the covenants
of the Company for the benefit of the Holders of all Securities or to surrender
any right or power herein conferred upon the Company; or
(3)
to add any additional
Events of Default; or
(4)
to add to or to change
any of the provisions of this Indenture to such extent as shall be necessary to
permit or facilitate the issuance of Securities in
bearer form,
registrable or not registrable as to principal, and with or without interest
coupons; or
(6)
to change or eliminate
any of the provisions of this Indenture, provided that any such change or
elimination shall become effective only when there is no Security outstanding
created prior to the execution of such supplemental indenture which is entitled
to the benefit of such provision; or
(7)
to secure the Securities:
or
(8)
to establish new series
of Securities as permitted by Section 2.01; or
(9)
to evidence and provide
for the acceptance of appointment hereunder by a successor Trustee with respect
to the Securities; or
(10)
to cure any ambiguity,
to correct or supplement any provision herein which may be inconsistent with any
other provision herein, or to make any other provisions with respect to matters
or questions arising under this Indenture, provided such action shall not
adversely affect the interests of the Holders of Securities in any material
respect.
SECTION
9.02.
Supplemental Indentures with
Consent of Holders
. (a) With the consent of the
Holders of not less than a majority in principal amount of the outstanding the
Securities affected by such supplemental indenture, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to this Indenture
or of modifying in any manner the rights of the Holders of the Securities under
this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected
thereby,
(1)
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 the rate of interest
thereon or any premium payable upon the redemption thereof, or reduce the amount
of the principal of an OID Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 6.02, or
change any Place of Payment where, or the coin or currency in which, any
Security or any premium 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
(2)
reduce the percentage in
principal amount of the outstanding Securities, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3)
modify any of the provisions of this Section, Section 6.04 or Section 4.09,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Security affected thereby, provided, however,
that this clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to “the Trustee” and concomitant changes in
this Section and Section 4.09 or the deletion of this proviso, in accordance
with the requirements of Sections 7.08 and 9.01(8).
(b) A
supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
(c) It
shall not be necessary for any Act of Holders under this Section to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
(d) The
Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to consent to any indenture supplemental
hereto. If a record date is fixed, the Holders on such record date or their duly
designated proxies, and only such Persons, shall be entitled to consent to such
supplemental indenture or to revoke (prior to the requisite percentage for such
consent to become effective having been obtained) any such consent previously
given, whether or not such Holders remain Holders after such record date;
provided, that unless such consent shall have become effective by virtue of such
requisite percentage having been obtained prior to the date which is 90 days
after such record date, such consent shall, automatically and without further
action by the Holder, be canceled and of no further force or
effect.
SECTION
9.03.
Execution of Supplemental
Indentures
. In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee shall
receive, and shall be fully protected in conclusively relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee’s own rights, duties or immunities under this Indenture or
otherwise.
SECTION
9.04.
Effect of Supplemental
Indentures
. Upon the execution of a supplemental indenture
under this Article, this Indenture shall be modified in accordance therewith,
and such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
SECTION
9.05.
Conformity with Trust
Indenture Act
. Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the Trust Indenture Act as
then in effect.
SECTION
9.06
Reference in Securities to
Supplemental Indentures
. Securities authenticated and
delivered
after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities.
ARTICLE
X
Miscellaneous
SECTION
10.01.
Trust Indenture Act
Controls
. If any provision of this Indenture limits, qualifies
or conflicts with another provision that is required to be included in this
Indenture by the TIA, the required provision shall control.
SECTION
10.02.
Notices
. (a) Any
notice, communication or Act shall be in writing and delivered in person or
mailed by first-class mail or sent by facsimile (with a hard copy delivered in
person or by mail promptly thereafter) and addressed as follows:
if
to the Company:
Norfolk Southern
Corporation
Three Commercial
Place
Norfolk, Virginia
23510-2191
facsimile: (757)
629-2381
Attention
of: Vice President and Treasurer
if
to the Trustee:
U.S. Bank Trust
National Association
100 Wall St., Suite
1600
New York, New York
10005
facsimile: (212)
809-4993
Attention
of: Pat Crowley
(b) The
Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
(c) Any
notice or communication mailed to a Holder shall be mailed to the Holder at the
Holder’s address as it appears on the registration books of the Registrar and
shall be sufficiently given if so mailed within the time
prescribed.
(d) Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
SECTION
10.03.
Communication by Holders
with Other Holders
. Holders may communicate pursuant to TIA
§ 312(b) with other Holders with respect to their rights under this
Indenture or the Securities. The Company, the Trustee, the Registrar
and anyone else shall have the protection of TIA § 312(c).
SECTION
10.04.
Certificate and Opinion as
to Conditions Precedent
. Upon any request or application by
the Company to the Trustee to take or refrain from taking any action under this
Indenture, the Company shall furnish to the Trustee:
(1)
except in the cases of
Section 2.01(b) and, in so far as it relates to the authentication of the
Original Securities, Section 2.03 under which, in each case, an Officers’
Certificate will not be required, an Officers’ Certificate in form and substance
reasonably satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2)
except in the case of
Section 3.01 under which an opinion will not be required, an Opinion of Counsel
in form and substance reasonably satisfactory to the Trustee stating that, in
the opinion of such counsel, all such conditions precedent have been complied
with;
provided
,
however
, that
with respect to matters of fact an Opinion of Counsel may rely on an Officers’
Certificate or certificates of public officials.
SECTION
10.05.
Statements Required in
Certificate or Opinion
. Each certificate with respect to
compliance with a covenant or condition provided for in this Indenture shall
include:
(1)
a statement that the
individual making such certificate has read such covenant or
condition;
(2)
a brief statement as to
the nature and scope of the examination or investigation upon which the
statements contained in such certificate are based;
(3)
a statement that, in the
opinion of such individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4)
a statement as to whether
or not, in the opinion of such individual, such covenant or condition has been
complied with.
Each opinion with
respect to compliance with a covenant or condition provided for in this
Indenture shall be in form and substance reasonably satisfactory to the party
requesting such opinion and the party giving such opinion.
SECTION
10.06
When Securities
Disregarded
. In determining whether the Holders of the
required principal amount of Securities have concurred in any direction, waiver
or consent, Securities owned by the Company or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company shall be disregarded and deemed not to be Outstanding,
except that, for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities
that a Responsible Officer of the Trustee actually knows are so owned
shall be so disregarded. Also, subject to the foregoing, only
Securities Outstanding at the time shall be considered in any such
determination.
SECTION
10.07.
Rules by Trustee, Paying
Agent and Registrar
. The Trustee may make reasonable rules for
action by or a meeting of Holders. The Registrar and the Paying Agent
or co-registrar may make reasonable rules for their functions.
SECTION
10.08.
Governing Law
; Waiver of Jury
Trial
. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE
COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE
TRANSACTION CONTEMPLATED HEREBY.
SECTION
10.09.
No Recourse Against
Others
. A director, officer, employee or stockholder, as such,
of the Company shall not have any liability for any obligations of the Company
under the Securities or this Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a
Security, each Holder shall waive and release all such liability. The
waiver and release shall be part of the consideration for the issue of the
Securities.
SECTION
10.10.
Successors
. All
agreements of the Company in this Indenture and the Securities shall bind its
successors. All agreements of the Trustee in this Indenture shall
bind its successors.
SECTION
10.11.
Multiple
Originals
. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION
10.12.
Table of Contents;
Headings
. The table of contents, cross-reference sheet and
headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not intended to be considered a part hereof
and shall not modify or restrict any of the terms or provisions
hereof.
SECTION
10.13.
Force Majeure
. In no
event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or
caused by, directly
or indirectly, forces beyond its control, including, without limitation,
strikes, work stoppages, accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable
efforts which are consistent with accepted practices in the banking industry to
resume performance as soon as practicable under the circumstances.
IN
WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as
of the date first written above.
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NORFOLK
SOUTHERN CORPORATION,
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Name: William
J. Romig
Title:
Vice President and Treasurer
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U.S. BANK
TRUST NATIONAL ASSOCIATION, as Trustee
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By
/s/
Patrick J. Crowley
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Title:
Vice President
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FOR OFFERINGS TO
QUALIFIED INSTITUTIONAL BUYERS PURSUANT TO
RULE 144A, TO
CERTAIN PERSONS IN OFFSHORE TRANSACTIONS IN
RELIANCE ON
REGULATION S AND, SUBJECT TO THE APPLICABLE
PURCHASE AGREEMENT,
TO INSTITUTIONAL ACCREDITED INVESTORS.
PROVISIONS RELATING
TO INITIAL SECURITIES
AND EXCHANGE
SECURITIES
1.
Definitions
1.1
Definitions
For the purposes of
this Appendix A the following terms shall have the meanings indicated
below:
“Definitive
Security” means a certificated Initial Security or Exchange Security or Private
Exchange Security bearing, if required, the restricted securities legend set
forth in Section 2.3(d).
“Depository” means
The Depository Trust Company, its nominees and their respective
successors.
“Exchange
Securities” means the 5.750% Senior Notes due 2018 to be issued pursuant to this
Indenture in connection with a Registered Exchange Offer pursuant to a
Registration Agreement.
“IAI” means an
institutional “accredited investor” as described in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act.
“Initial
Purchaser(s)” means Barclays Capital Inc., Deutsche Bank Securities Inc. and
Merrill Lynch, Pierce, Fenner & Smith Incorporated.
“Initial
Securities” means the 5.750% Senior Notes due 2018, to be issued from time to
time, in one or more series as provided for in this Indenture.
“Original
Securities” means Initial Securities in the aggregate principal amount of
$600,000,000 issued on April 4, 2008.
“Private Exchange”
means the offer by the Company, pursuant to the Registration Agreement, or
pursuant to any similar provision of any other Registration Agreement, to issue
and deliver to certain purchasers, in exchange for the Initial Securities held
by such purchasers as part of their initial distribution, a like aggregate
principal amount of Private Exchange Securities.
“Private Exchange
Securities” means the 5.750% Senior Notes due 2018 to be issued pursuant to this
Indenture in connection with a Private Exchange pursuant to a Registration
Agreement.
“Purchase
Agreement” means the Purchase Agreement, dated April 1, 2008, among the Company
and the Initial Purchaser(s) relating to the Original Securities, or any similar
agreement relating to any future sale of Initial Securities by the
Company.
“QIB” means a
“qualified institutional buyer” as defined in Rule 144A.
“Registered
Exchange Offer” means the offer by the Company, pursuant to a Registration
Agreement, to certain Holders of Initial Securities, to issue and deliver to
such Holders, in exchange for the Initial Securities, a like aggregate principal
amount of Exchange Securities registered under the Securities Act.
“Registration
Agreement” means the Registration Rights Agreement, dated April 4, 2008, among
the Company and the Initial Purchasers relating to the Original Securities,
or any similar agreement relating to any additional Initial
Securities.
“Rule 144A
Securities” means all Initial Securities offered and sold to QIBs in reliance on
Rule 144A.
“Securities” means
the Initial Securities and the Exchange Securities, treated as a single
class.
“Securities Act”
means the Securities Act of 1933, as amended.
“Securities
Custodian” means the custodian with respect to a Global Security (as appointed
by the Depository) or any successor person thereto, who shall initially be the
Trustee.
“Shelf Registration
Statement” means a registration statement issued by the Company in connection
with the offer and sale of Initial Securities or Private Exchange Securities
pursuant to the Registration Agreement.
“Transfer
Restricted Securities” means Definitive Securities and any other Securities that
bear or are required to bear the legend set forth in Section 2.3(c)
hereto.
1.2
Other
Definitions
|
Term
|
Defined in
Section
|
|
“Agent
Members”
|
2.1(b)
|
|
“Global
Security”
|
2.1(a)
|
|
“IAI Global
Security”
|
2.1(a)
|
|
“Regulation
S”
|
2.1
|
|
“Regulation S
Global Security”
|
2.1(a)
|
|
“Rule
144A”
|
2.1
|
|
“Rule 144A
Global Security”
|
2.1(a)
|
2.
The
Securities
2.1
Form and
Dating
The Initial Securities will be offered and sold by the Company, from time to
time, pursuant to one or more Purchase Agreements. The Initial
Securities will be resold initially only to QIBs in reliance on Rule 144A
under the Securities Act (“Rule 144A”) and in reliance on Regulation S under the
Securities Act (“Regulation S”). Initial Securities may thereafter be
transferred to, among others, QIBs, purchasers in reliance on Regulation S and
IAIs under Rule 501(a)(1), (2), (3) or (7) under the Securities Act,
subject to the restrictions on transfer set forth herein.
(a)
Global
Securities.
Initial Securities initially resold pursuant to
Rule 144A shall be issued initially in the form of one or more permanent
global certificates in definitive, fully registered form (collectively, the
“Rule 144A Global Security”), Initial Securities initially resold pursuant
to Regulation S shall be issued initially in the form of one or more global
certificates in definitive, fully registered form (collectively, the “Regulation
S Global Security”) and, subject to Section 2.4 hereof, Initial Securities
transferred subsequent to the initial resale thereof to IAIs shall be issued
initially in the form of one or more permanent global certificates in
definitive, fully registered form (collectively, the “IAI Global Security”), in
each case without interest coupons and with the global securities legend and
restricted securities legend set forth in Exhibit 1 hereto, which shall be
deposited on behalf of the purchasers of the Initial Securities represented
thereby with the Securities Custodian, and registered in the name of the
Depository or a nominee of the Depository, duly executed by the Company and
authenticated by the Trustee as provided in this Indenture. The
Rule 144A Global Security, IAI Global Security, and Regulation S
Global Security are collectively referred to herein as “Global
Securities.” The aggregate principal amount of the Global Securities
may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depository or its nominee as hereinafter
provided.
(b)
Book-Entry
Provisions.
This Section 2.1(b) shall apply only to a
Global Security deposited with or on behalf of the Depository.
The Company shall
execute and the Trustee shall, in accordance with this Section 2.1(b) and
pursuant to an order of the Company, authenticate and deliver initially one or
more Global Securities that (a) shall be registered in the name of the
Depository for such Global Security or Global Securities or the nominee of such
Depository and (b) shall be delivered by the Trustee to such Depository or
pursuant to such Depository’s instructions or held by the Trustee as Securities
Custodian.
Members of, or
participants in, the Depository (“Agent Members”) shall have no rights under
this Indenture with respect to any Global Security held on their behalf by the
Depository or by the Trustee as Securities Custodian or under such Global
Security, and the Depository may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depository or impair, as between the
Depository and its Agent Members, the operation of customary
practices of such
Depository governing the exercise of the rights of a holder of a beneficial
interest in any Global Security.
(c)
Definitive
Securities.
Except as provided in Section 2.3 or 2.4,
owners of beneficial interests in Global Securities will not be entitled to
receive physical delivery of Definitive Securities.
2.2
Authentication.
The
Trustee shall authenticate and deliver: (1) Original Securities
for original issue in an aggregate principal amount of $600,000,000, (2)
additional Initial Securities, if and when issued, in an unlimited aggregate
principal amount, and (3) the Exchange Securities or Private Exchange
Securities for issue only in a Registered Exchange Offer or a Private
Exchange, respectively, pursuant to a Registration Agreement, for a like
principal amount of Initial Securities or Private Exchange Securities, as
applicable, upon a written order of the Company signed by two Officers of the
Company, at least one of whom shall be the principal executive officer or
principal financial officer of the Company. Such order shall specify
the amount of the Securities to be authenticated and the date on which the
original issue of Securities is to be authenticated and whether the Securities
are to be Initial Securities or Exchange Securities.
2.3
Transfer and
Exchange.
(a)
Transfer and Exchange of
Definitive Securities.
When Definitive Securities are
presented to the Registrar or a co-registrar with a request:
(x) to
register the transfer of such Definitive Securities; or
(y) to
exchange such Definitive Securities for an equal principal amount of Definitive
Securities of other authorized denominations,
the Registrar or
co-registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met;
provided
,
however
, that the
Definitive Securities surrendered for transfer or exchange:
(i) shall
be duly endorsed or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Company and the Registrar or co-registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing;
and
(ii) if
such Definitive Securities bear a restricted securities legend, they are being
transferred or exchanged pursuant to an effective registration statement under
the Securities Act or pursuant to clause (A), (B) or (C) below, and are
accompanied by the following additional information and documents, as
applicable:
(A) if
such Definitive Securities are being delivered to the Registrar by a Holder for
registration in the name of such Holder, without transfer, a certification from
such Holder to that effect; or
(B) if
such Definitive Securities are being transferred to the Company, a certification
to that effect; or
(C) if
such Definitive Securities are being transferred pursuant to an exemption from
registration in accordance with Rule 144 under the Securities Act or in
reliance upon another exemption from the registration requirements of the
Securities Act, (i) a certification to that effect (in the form set forth
on the reverse of the Initial Security) and (ii) if the Company so
requests, as provided in the form set forth on the reverse of the Initial
Security, an opinion of counsel or other evidence reasonably satisfactory to it
as to the compliance with the restrictions set forth in the legend set forth in
Section 2.3(c)(i).
(b)
Transfer and Exchange of
Global Securities.
(i) The transfer and exchange of
Global Securities or beneficial interests therein shall be effected through the
Depository, in accordance with this Indenture (including applicable restrictions
on transfer set forth herein, if any) and the procedures of the Depository
therefor. A transferor of a beneficial interest in a Global Security
shall deliver a written order given in accordance with the Depository’s
procedures containing information regarding the participant account of the
Depository to be credited with a beneficial interest in the Global Security, and
such account shall be credited in accordance with such instructions with a
beneficial interest in the Global Security, and the account of the Person making
the transfer shall be debited by an amount equal to the beneficial interest in
the Global Security being transferred. In the case of a transfer of a
beneficial interest in a Global Security to an IAI, the transferee must furnish
a signed letter to the Trustee containing certain representations and agreements
in the form of Exhibit B hereto.
(ii) If
the proposed transfer is a transfer of a beneficial interest in one Global
Security to a beneficial interest in another Global Security, the Registrar
shall reflect on its books and records the date and an increase in the principal
amount of the Global Security to which such interest is being transferred in an
amount equal to the principal amount of the interest to be so transferred, and
the Registrar shall reflect on its books and records the date and a
corresponding decrease in the principal amount of the Global Security from which
such interest is being transferred.
(iii) Notwithstanding
any other provisions of this Appendix A (other than the provisions set forth in
Section 2.4), a Global Security may not be transferred as a whole except by
the Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository or by the Depository or
any such nominee to a successor Depository or a nominee of such successor
Depository.
(iv) In
the event that a Global Security is exchanged for Definitive Securities pursuant
to Section 2.4 prior to the consummation of a Registered Exchange Offer or the
effectiveness of a Shelf Registration Statement with respect to such Securities,
such Securities may be exchanged only in accordance
with such procedures as are substantially consistent with the provisions of this
Section 2.3 (including the certification requirements set forth on the reverse
of the Initial Securities intended to ensure that such transfers comply with
Rule 144A, Regulation S or such other applicable exemption from registration
under the Securities Act, as the case may be) and such other procedures as may
from time to time be adopted by the Company.
(c)
Legend.
(i) Except
as permitted by the following paragraphs (ii), (iii) and (iv), each
certificate evidencing the Global Securities and the Definitive Securities (and
all Securities issued in exchange therefor or in substitution thereof) shall
bear a legend in substantially the following form:
“THIS SECURITY HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR
THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED (X) PRIOR TO THE DATE SIX MONTHS AFTER THE DATE OF
THE ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY HERETO) OR (Y) BY ANY
HOLDER THAT WAS AN “AFFILIATE” (WITHIN THE MEANING OF RULE 144 OF THE SECURITIES
ACT) OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE OF
SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO
THE COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS
INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON
THE REVERSE OF THIS SECURITY), (3) IN AN OFFSHORE TRANSACTION (AS DEFINED
UNDER REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY
THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY),
(4) TO AN INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS
DEFINED IN
RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AS INDICATED BY
THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE
OF THIS SECURITY) THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND
NOT FOR DISTRIBUTION, AND A CERTIFICATE WHICH MAY BE OBTAINED FROM THE COMPANY
OR THE TRUSTEE IS DELIVERED BY THE TRANSFEREE TO THE COMPANY AND TRUSTEE,
(5) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, OR
(6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES. AN INSTITUTIONAL ACCREDITED INVESTOR HOLDING
THIS SECURITY AGREES THAT IT WILL FURNISH TO THE COMPANY AND THE TRUSTEE SUCH
CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM
THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING
RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2) PURCHASING FROM
A PERSON NOT PARTICIPATING IN THE INITIAL DISTRIBUTION OF THIS SECURITY (OR ANY
PREDECESSOR SECURITY), THAT IT IS AN INSTITUTION THAT IS AN “ACCREDITED
INVESTOR” AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND
NOT FOR DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN
THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2)(i)
OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES
ACT.”
Each Definitive
Security will also bear the following additional legend:
“IN CONNECTION WITH
ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH
CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE
TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.”
(ii) Upon any
sale or transfer of a Transfer Restricted Security (including any Transfer
Restricted Security represented by a Global Security) pursuant to Rule 144 under
the Securities Act:
(A) in
the case of any Transfer Restricted Security that is a Definitive Security, the
Registrar shall permit the Holder thereof to exchange such Transfer Restricted
Security for a Security that does not bear the legends set forth above and
rescind any restriction on the transfer of such Transfer Restricted Security;
and
(B) in
the case of any Transfer Restricted Security that is represented by a Global
Security, the Registrar shall permit the Holder thereof to exchange such
Transfer Restricted Security for a Security that does not bear the legends set
forth above and rescind any restriction on the transfer of such Transfer
Restricted Security,
in
either case, if the Holder certifies in writing to the Registrar that its
request for such exchange was made in reliance on Rule 144 (such
certification to be in the form set forth on the reverse of the Initial
Security).
(iii) After
a transfer of any Initial Securities or Private Exchange Securities, as the case
may be, during the period of the effectiveness of a Shelf Registration Statement
with respect to such Initial Securities or Private Exchange Securities, all
requirements pertaining to restricted securities legends on such Initial
Security or such Private Exchange Security will cease to apply, and an Initial
Security or Private Exchange Security, as the case may be, in global form
without restricted security legends will be available to the transferee of the
beneficial interests of such Initial Securities or Private Exchange
Securities. Upon the occurrence of any of the circumstances described
in this paragraph, the Company will deliver an Officers’ Certificate to the
Trustee instructing the Trustee to issue Securities without restricted security
legends.
(iv) Upon
the consummation of a Registered Exchange Offer with respect to the Initial
Securities pursuant to which certain Holders of such Initial Securities are
offered Exchange Securities in exchange for their Initial Securities, Exchange
Securities in global form without the restricted security legends will be
available to Holders or beneficial owners that exchange such Initial Securities
(or beneficial
interests therein)
in such Registered Exchange Offer. Upon the occurrence of any of the
circumstances described in this paragraph, the Company will deliver an Officers’
Certificate to the Trustee instructing the Trustee to issue Securities without
restricted security legends.
(d)
Cancellation or Adjustment
of Global Security.
At such time as all beneficial interests
in a Global Security have either been exchanged for Definitive Securities,
redeemed, repurchased or canceled, such Global Security shall be returned by the
Depository to the Trustee for cancellation or retained and canceled by the
Trustee. At any time prior to such cancellation, if any beneficial
interest in a Global Security is exchanged for Definitive Securities, redeemed,
repurchased or canceled, the principal amount of Securities represented by such
Global Security shall be reduced, and an adjustment shall be made on the books
and records of the Trustee (if it is then the Securities Custodian for such
Global Security) with respect to such Global Security, by the Trustee or the
Securities Custodian, to reflect such reduction.
(e)
Obligations with Respect to
Transfers and Exchanges of Securities.
(i) To
permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Definitive Securities and Global Securities at
the Registrar’s or co-registrar’s request.
(ii) No service
charge shall be made for any registration of transfer or exchange, but the
Company or the Trustee may require payment of a sum sufficient to cover any
transfer tax, assessments, or similar governmental charge payable in connection
therewith (other than any such transfer taxes, assessments or similar
governmental charge payable upon exchange or transfer pursuant to
Sections 3.06, 4.12 and 9.06 of this Indenture).
(iii) The
Registrar or co-registrar shall not be required to register the transfer of or
exchange of any Security for a period beginning 15 days before the mailing of a
notice of redemption or an offer to repurchase Securities or 15 days before an
interest payment date.
(iv) Prior
to the due presentation for registration of transfer of any Security, the
Company, the Trustee, the Paying Agent, the Registrar or any co-registrar may
deem and treat the person in whose name a Security is registered as the absolute
owner of such Security for the purpose of receiving payment of principal of and
interest on such Security and for all other purposes whatsoever, whether or not
such Security is overdue, and none of the Company, the Trustee, the Paying
Agent, the Registrar or any co-registrar shall be affected by notice to the
contrary.
(v) All
Securities issued upon any transfer or exchange pursuant to the terms of this
Indenture shall evidence the same debt and shall be entitled to the same
benefits under this Indenture as the Securities surrendered upon such transfer
or exchange.
(f) No
Obligation of the Trustee.
(i) The
Trustee shall have no responsibility or obligation to any beneficial owner of a
Global Security, a member of, or a participant in the Depository or any other
Person with respect to the accuracy of the records of the Depository or its
nominee or of any participant or member thereof, with respect to any ownership
interest in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depository) of any
notice (including any notice of redemption or repurchase) or the payment of any
amount, under or with respect to such Securities. All notices and
communications to be given to the Holders and all payments to be made to Holders
under the Securities shall be given or made only to the registered Holders
(which shall be the Depository or its nominee in the case of a Global
Security). The rights of beneficial owners in any Global Security
shall be exercised only through the Depository subject to the applicable rules
and procedures of the Depository. The Trustee may conclusively rely
and shall be fully protected in relying upon information furnished by the
Depository with respect to its members, participants and any beneficial
owners.
(ii) The
Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any
Security (including any transfers between or among Depository participants,
members or beneficial owners in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
2.4
Definitive
Securities
(a) A
Global Security deposited with the Depository or with the Trustee as Securities
Custodian pursuant to Section 2.1 shall be transferred to the beneficial
owners thereof in the form of Definitive Securities in an aggregate principal
amount equal to the principal amount of such Global Security, in exchange for
such Global Security, only if such transfer complies with Section 2.3 and
(i) the Depository notifies the Company that it is unwilling or unable to
continue as a Depository for such Global Security or if at any time the
Depository ceases to be a “clearing agency” registered under the Exchange Act,
and a successor Depository is not appointed by the Company within 90 days
of such notice, or (ii) a Default or an Event of Default has occurred and
is continuing or (iii) the Company, in its sole discretion, notifies the Trustee
in writing that it elects to cause the issuance of Definitive Securities under
this Indenture.
(b) Any
Global Security that is transferable to the beneficial owners thereof pursuant
to this Section 2.4 shall be surrendered by the Depository to the Trustee,
to be so transferred, in whole or from time to time in part, without charge, and
the Trustee shall authenticate and deliver, upon such transfer of each portion
of such Global Security,
an
equal aggregate principal amount of Definitive Securities of authorized
denominations. Definitive Securities issued in exchange for any
portion of a Global Security transferred pursuant to this Section shall be
executed, authenticated and delivered only in denominations of $2,000 and any
integral multiple of $1,000 and registered in such names as the Depository shall
direct. Any Definitive Security delivered in exchange for an interest
in the Global Security shall, except as otherwise provided by
Section 2.3(c), bear the restricted securities legend set forth in Exhibit
1 hereto.
(c) The
registered Holder of a Global Security may grant proxies and otherwise authorize
any Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action that a Holder is entitled to take under this
Indenture or the Securities.
(d) In
the event of the occurrence of any of the events specified in
Section 2.4(a)(i), (ii) or (iii), the Company will promptly make
available to the Trustee a reasonable supply of Definitive Securities in
definitive, fully registered form without interest coupons.
[FORM OF FACE OF
INITIAL SECURITY]
[Global Securities
Legend]
UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR 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.
TRANSFERS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON
THE REVERSE HEREOF.
[Restricted
Securities Legend]
THIS SECURITY HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR
THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED (X) PRIOR TO THE DATE SIX MONTHS AFTER THE DATE OF
THE ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY HERETO) OR (Y) BY ANY
HOLDER THAT WAS AN “AFFILIATE” (WITHIN THE MEANING OF RULE 144 OF THE SECURITIES
ACT) OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE OF
SUCH TRANSFER, IN EITHER CASE, OTHER THAN (1) TO
THE COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS
INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON
THE REVERSE OF THIS SECURITY), (3) IN AN OFFSHORE TRANSACTION (AS DEFINED
UNDER REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH
REGULATION S
UNDER THE
SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (4) TO AN INSTITUTION
THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR
ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY) THAT IS
ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A
CERTIFICATE WHICH MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE IS DELIVERED
BY THE TRANSFEREE TO THE COMPANY AND TRUSTEE, (5) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF
APPLICABLE) UNDER THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. AN
INSTITUTIONAL ACCREDITED INVESTOR HOLDING THIS SECURITY AGREES THAT IT WILL
FURNISH TO THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION
AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS
SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS. THE HOLDER HEREOF,
BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE
COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A OR (2) PURCHASING FROM A PERSON NOT PARTICIPATING IN THE INITIAL
DISTRIBUTION OF THIS SECURITY (OR ANY PREDECESSOR SECURITY), THAT IT IS AN
INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY
FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) A NON-U.S. PERSON
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE
REQUIREMENTS OF PARAGRAPH (k)(2)(i) OF RULE 902 UNDER) REGULATION S
UNDER THE SECURITIES ACT.
[Regulation “S”
Legend]
UNTIL THE
EXPIRATION OF THE “40 DAY DISTRIBUTION COMPLIANCE PERIOD” (WITHIN THE MEANING OF
RULE 903(b)(2) OF REGULATION S UNDER THE SECURITIES ACT), BENEFICIAL OWNERSHIP
INTERESTS IN THIS SECURITY MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED THROUGH
EUROCLEAR BANK S.A./N.A., AS OPERATOR OR THE EUROCLEAR SYSTEM, OR CLEARSTREAM
BANKING, SOCIÉTÉ ANONYME. THIS LEGEND WILL BE REMOVED UPON THE EXPIRATION OF
SUCH 40 DAY DISTRIBUTION COMPLIANCE PERIOD.
[Definitive
Securities Legend]
IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
[FORM OF FACE OF
INITIAL SECURITY]
|
No.______
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[Up to]
**
$_________
|
5.750% Senior Note
due 2018
CUSIP No.
________
NORFOLK SOUTHERN
CORPORATION, a Virginia corporation, promises to pay to [Cede & Co.]**,
or registered assigns, the principal sum [of [ ]
Dollars]* [as set forth on the Schedule of Increases or Decreases annexed
hereto]** on April 1, 2018.
Interest Payment
Dates: April 1 and October 1, commencing on October 1,
2008.
Record
Dates: March 15 and September 15.
________________________
* Insert
for Definitive Securities.
**
Insert for Global Securities. If the Security is to be issued in
global form, add the Global Securities Legend from Exhibit 1 to
Appendix A and the attachment from such Exhibit 1 captioned “TO BE
ATTACHED TO GLOBAL SECURITIES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL
SECURITY”.
Additional
provisions of this Security are set forth on the other side of this
Security.
IN
WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
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NORFOLK
SOUTHERN CORPORATION
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By
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Name:
Title
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TRUSTEE’S
CERTIFICATE OF
AUTHENTICATION
Dated:
U.S. BANK TRUST
NATIONAL ASSOCIATION,
as
Trustee, certifies
that this is one
of
the Securities
referred
to
in the Indenture.
By:_________________________
Authorized
Signatory
[FORM OF REVERSE
SIDE OF INITIAL SECURITY]
5.750% Senior Note
due 2018
1.
Interest
(a) NORFOLK
SOUTHERN CORPORATION, a Virginia corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being herein
called the “Company”), promises to pay interest on the principal amount of this
Security at the rate per annum shown above. The Company will pay
interest semiannually on April 1 and October 1 of each year, commencing October
1, 2008. Interest on the Securities will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from
April 4, 2008. Interest shall be computed on the basis of a 360-day
year of twelve 30-day months. The Company shall pay interest on
overdue principal at the rate per annum borne by the Securities, and it shall
pay interest on overdue installments of interest at the rate per annum borne by
the Securities to the extent lawful.
(b)
Special
Interest
. The holder of this Security is entitled to the
benefits of a Exchange and Registration Rights Agreement, dated as of April 1,
2008, among the Company and the Initial Purchasers named therein (the
“Registration Agreement”). Capitalized terms used in this
paragraph (b) but not defined herein have the meanings assigned to them in
the Registration Agreement. In the event that (i) the Exchange Offer
Registration Statement is not filed with the Commission on or prior to the date
which is 180 days following the date of the original issuance of the
Securities, (ii) the Exchange Offer Registration Statement is not declared
effective within 270 days after the original issuance of the Securities,
(iii) if the Exchange Offer Registration Statement is declared effective,
the Registered Exchange Offer is not consummated on or prior to 300 days
after the date of the original issuance of Securities, (iv) if the Company
is required to file the Shelf Registration Statement in accordance with the
Registration Agreement, the Company does not so file the Shelf Registration
Statement on or prior to the 45th day after the Company’s obligation to file
such Shelf Registration Statement arises, (v) if the Company is required to file
the Shelf Registration Statement in accordance with the Registration Agreement,
the Shelf Registration Statement has not been declared effective by the SEC on
or prior to 90 days after the filing obligation arises, or (vi) any
Suspension Periods exceed, in the aggregate, 45 days during any 365-day period
(each such event referred to in clauses (i) through (v), a “Registration
Default”), the Company shall be obligated to pay Additional Interest from and
including the date on which the first such Registration Default shall occur to
but excluding the date on which all Registration Defaults have been cured, at a
rate of 0.25% per annum on the applicable principal amount of Securities held by
such Holder for the first 90-day period immediately following the occurrence of
a Registration Default, and such rate will increase by an additional 0.25% with
respect to each subsequent 90-day period until all Registration Defaults have
been cured,
provided
that the
maximum additional rate may in no event exceed 0.50% per annum.
2. Method
of Payment
The Company will
pay interest on the Securities (except defaulted interest) to the Persons who
are registered Holders at the close of business on the March 15 or September 15
next preceding the interest payment date even if Securities are canceled after
the record date and on or before the interest payment date. Holders
must surrender Securities to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money of the
United States of America that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of the
Securities represented by a Global Security (including principal and interest)
will be made by wire transfer of immediately available funds to the accounts
specified by the Depository. The Company will make all payments in
respect of a Definitive Security (including principal and interest), by mailing
a check to the registered address of each Holder thereof;
provided
,
however
, that
payments on the Securities may also be made, in the case of a Holder of at least
$1,000,000 aggregate principal amount of Securities, by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if
such Holder elects payment by wire transfer by giving written notice to the
Trustee or the Paying Agent to such effect designating such account no later
than 30 days immediately preceding the relevant due date for payment (or
such other date as the Trustee may accept in its discretion).
3.
Paying Agent and
Registrar
Initially, U.S.
Bank Trust National Association, a national banking association (the “Trustee”),
will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent, Registrar or co-registrar without
notice. The Company or any of its domestically incorporated Wholly
Owned Subsidiaries may act as Paying Agent, Registrar or
co-registrar.
4.
Indenture
The Company issued
the Securities under an Indenture, dated as of April 4, 2008 (the “Indenture”),
between the Company and the Trustee. The terms of the Securities
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15
U.S.C.
§§ 77aaa-77bbbb) as in effect on the date of the Indenture (the
“TIA”). Terms defined in the Indenture and not defined in the
Securities have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Holders are referred to the
Indenture and the TIA for a statement of those terms.
The Securities are
unsubordinated, unsecured obligations of the Company. This Security
is one of the Original Securities referred to in the Indenture issued in an
aggregate principal amount of $600,000,000. The Securities include
the Original Securities, an unlimited aggregate principal amount of additional
Initial Securities that may be issued under the Indenture, and any Exchange
Securities issued in exchange for Initial Securities. The Original
Securities, such additional Initial Securities and the Exchange Securities are
treated as a single class of securities under the
Indenture. The
Indenture imposes
certain limitations on the ability of the Company and its Restricted
Subsidiaries to, among other things, create or incur Liens or Funded Debt. The
Indenture also imposes limitations on the ability of the Company to consolidate
or merge with or into any other Person or sell, transfer, assign, lease, convey
or otherwise dispose of all or substantially all of the property of the
Company.
5.
Optional
Redemption
The Securities will
be redeemable as a whole or in part, at the option of the Company at any time,
at a redemption price equal to the greater of (i) 100% of the principal amount
of such Securities and (ii) the sum of the present values of the remaining
scheduled payments of principal and interest thereon (exclusive of interest
accrued to the date of redemption) discounted to the redemption date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate plus 35 basis points, plus in each case accrued interest
thereon to the date of redemption.
“Treasury Rate”
means, with respect to any redemption date, the rate per annum equal to the
semiannual equivalent yield to maturity or interpolated (on a day count basis)
of the Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
“Comparable
Treasury Issue” means the United States Treasury security or securities selected
by an Independent Investment Banker as having an actual or interpolated maturity
comparable to the remaining term of the Securities to be redeemed 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 a comparable
maturity to the remaining term of such Securities.
“Independent
Investment Banker” means one of the Reference Treasury Dealers appointed by the
Trustee after consultation with the Company.
“Comparable
Treasury Price” means, with respect to any redemption date, (A) the average of
the Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(B) if the Trustee obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such quotations.
“Reference Treasury
Dealer Quotations” means, with respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Trustee, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 3:30 p.m. New York time on the third Business Day preceding
such redemption date.
“Reference Treasury
Dealer” means each of Barclays Capital Inc., Deutsche Bank Securities Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated and one other
broker-dealer appointed by the Company; or their respective affiliates
which
are primary U.S.
Government securities dealers, and their respective successors; provided,
however, that if any of the foregoing or their affiliates shall cease to be a
primary U.S. Government securities dealer in The City of New York (a “Primary
Treasury Dealer”) or otherwise fails to provide a Reference Treasury Dealer
Quotation, the Company shall substitute therefor another Primary Treasury
Dealer.
6.
Sinking
Fund
The Securities are
not subject to any sinking fund.
7.
Notice of
Redemption
Notice of
redemption will be mailed by first-class mail at least 30 days but not more
than 60 days before the redemption date to each Holder of Securities to be
redeemed at his or her registered address. Securities in
denominations larger than $2,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price
of and accrued interest on all Securities (or portions thereof) to be redeemed
on the redemption date is deposited with the Paying Agent on or before the
redemption date and certain other conditions are satisfied, on and after such
date interest ceases to accrue on such Securities (or such portions thereof)
called for redemption.
8.
Repurchase of Securities at
the Option of Holders upon Change of Control
If
a Change of Control Repurchase Event occurs with respect to the Securities,
unless the Company has exercised its right to redeem the Securities as described
above, the Company will make an offer to each Holder of the Securities to
repurchase all or any part (in integral multiples of $1,000) of that Holder’s
Securities at a repurchase price (the “Repurchase Price”) in cash equal to 101%
of the aggregate principal amount of such Securities repurchased plus any
accrued and unpaid interest on the Securities repurchased to, but not including,
the Repurchase Date. A “Change of Control Repurchase Event” means the occurrence
of both a Change of Control and a Below Investment Grade Ratings Event with
respect to the Securities, each of which is defined in the Indenture. Within 30
days following a Change of Control Repurchase Event or, at the Company’s option,
prior to a Change of Control, but after the public announcement of a Change of
Control, the Company will mail, or cause to be mailed, a notice to each Holder
of the Securities, with a copy to the Trustee, describing the transaction or
transactions that constitute or may constitute the Change of Control Repurchase
Event and offering to repurchase the Securities on the payment date specified in
the notice (such offer the “Repurchase Offer” and such date the “Repurchase
Date”), which Repurchase Date will be no earlier than 30 days and no later than
60 days from the date such notice is mailed. The notice shall, if mailed prior
to the date of consummation of the Change of Control, state that the Repurchase
Offer is conditioned on a Change of Control Repurchase Event occurring on or
prior to the Repurchase Date.
The Company will
comply with the requirements of Rule 14e-1 under the Exchange Act, and any other
securities laws and regulations thereunder to the extent those laws and
regulations are applicable in connection with the repurchase of the
Securities as a
result of a Change of Control Repurchase Event. To the extent that the
provisions of any securities laws or regulations conflict with the Change of
Control Repurchase Event provisions of the Securities, the Company will comply
with the applicable securities laws and regulations and will not be deemed to
have breached its obligations under the Change of Control Repurchase Event
provisions of the Securities by virtue of such conflict.
On
the Repurchase Date following a Change of Control Repurchase Event, the Company
will, to the extent lawful:
(1) accept
for payment all Securities or portions of Securities properly tendered pursuant
to the Repurchase Offer;
(2) deposit
with the Trustee or with such paying agent as the Trustee may designate (the
“Paying Agent”) an amount equal to the aggregate Repurchase Price for all
Securities or portions of Securities properly tendered; and
(3) deliver,
or cause to be delivered, to the Trustee the Securities properly accepted,
together with an Officers’ Certificate stating the aggregate principal amount of
Securities being repurchased by the Company pursuant to the Repurchase Offer and
that all conditions precedent to the repurchase by the Company of Securities
pursuant to the Repurchase offer have been complied with.
The Trustee will
promptly mail, or cause the Paying Agent promptly to mail, to each Holder of
Securities, or portions of Securities, properly tendered the Repurchase Price
for such Securities, or portions of Securities, and the Trustee will promptly
authenticate and mail (or cause to be transferred by book-entry) to each Holder
a new Security equal in principal amount to any unpurchased portion of any
Securities surrendered, as applicable; provided that each new Security will be
in a principal amount of an integral multiple of $1,000.
The Company will
not be required to make a Repurchase Offer upon a Change of Control Repurchase
Event if a third party makes such an offer in the manner, at the times and
otherwise in compliance with the requirements for such an offer made by the
Company and such third party purchases all Securities or portions of Securities
properly tendered and not withdrawn under its offer.
The Company may not
have sufficient funds to repurchase all Securities or portions of Securities
properly tendered upon a Change of Control Repurchase Event.
9.
Denominations; Transfer;
Exchange
The Securities are
in registered form without coupons in denominations of $2,000 and whole
multiples of $1,000. A Holder may transfer or exchange Securities in
accordance with the Indenture. Upon any transfer or exchange, the
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes required by
law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange any Securities selected for
redemption (except,
in the case of a Security to be redeemed in part, the portion of the Security
not to be redeemed) or to transfer or exchange any Securities for a period of
15 days prior to a selection of Securities to be redeemed or 15 days before
an Interest Payment Date.
10.
Persons Deemed
Owners
The registered
Holder of this Security may be treated as the owner of it for all
purposes.
11.
Unclaimed
Money
If
money for the payment of principal or interest remains unclaimed for two years,
the Trustee or Paying Agent shall pay the money back to the Company at its
written request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must
look only to the Company and not to the Trustee for payment.
12.
Discharge
Subject to certain
conditions, the Company at any time may terminate its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
13.
Amendment,
Waiver
The Indenture
contains provisions permitting the Company and the Trustee, with the consent of
the Holders of not less than a majority in principal amount of the Outstanding
Securities affected, to execute supplemental indentures for the purpose of
adding any provisions to the 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 reduce the amount of principal of an OID
Security that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 6.02 of the 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
Securities, the Holders of which are required to consent to any such
supplemental indenture or to any waiver of compliance with certain provisions or
certain defaults thereunder and their consequences provided for in the
Indenture; or (iii) modify any of the provisions of the 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 Indenture cannot
be modified or waived, without the consent of the
Holders of each
Outstanding Security affected thereby, provided, however, that the consent of
the Holders shall not be required with respect to changes in the references to
“the Trustee” in Sections 9.02 and 4.09 of the Indenture or with respect to the
deletion of this proviso from the Indenture, in accordance with Sections 7.08
and 9.01(b) of the Indenture. The Indenture also contains provisions
permitting the Holders of not less than a majority in principal amount of the
Outstanding Securities affected thereby, on behalf of all of the Holders of the
Securities, to waive any past Default under the Indenture with respect to the
Securities, and its consequences, except a Default in the payment of the
principal of, or premium, if any, or interest on any Security or a Default in
respect of a covenant or provision of the Indenture which cannot be modified or
amended without the consent of the Holder of each Outstanding Security
affected. Any such consent or waiver by the registered Holder of this
Security (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such Holder and upon all future Holders and owners of this Security
and of any Security 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 Security.
14.
Defaults and
Remedies
If
an Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in aggregate principal amount of the Securities then outstanding,
subject to certain limitations, may declare all the Securities to be immediately
due and payable. Certain events of bankruptcy or insolvency are
Events of Default and shall result in the Securities being immediately due and
payable upon the occurrence of such Events of Default without any further act of
the Trustee or any Holder.
Holders of
Securities may not enforce the Indenture or the Securities except as provided in
the Indenture. The Trustee may refuse to enforce the Indenture or the
Securities unless it receives indemnity or security satisfactory to
it. Subject to certain limitations, Holders of a majority in
aggregate principal amount of the Securities then outstanding may direct the
Trustee in its exercise of any trust or power under the
Indenture. The Holders of a majority in aggregate principal amount of
the Securities then outstanding, by written notice to the Company and the
Trustee, may rescind any declaration of acceleration and its consequences if the
rescission would not conflict with any judgment or decree, and if all existing
Events of Default have been cured or waived except nonpayment of principal,
premium or interest that has become due solely because of the
acceleration.
15.
Trustee Dealings with the
Company
Subject to certain
limitations imposed by the TIA, the Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with and collect obligations owed to it by the
Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not
Trustee.
16.
No Recourse Against
Others
A
director, officer, employee or stockholder, as such, of the Company shall not
have any liability for any obligations of the Company under the Securities or
the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the
Securities.
17.
Successors
Subject to certain
exceptions set forth in the Indenture, when a successor assumes all the
obligations of its predecessor under the Securities and the Indenture in
accordance with the terms of the Indenture, the predecessor will be released
from those obligations.
18.
Authentication
This Security shall
not be valid until an authorized signatory of the Trustee (or an authenticating
agent) manually signs the certificate of authentication on the other side of
this Security.
19.
Abbreviations
Customary
abbreviations may be used in the name of a Securityholder or an assignee, such
as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN
(=joint tenants with rights of survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
20.
Governing
Law
THIS SECURITY SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW.
21.
CUSIP
Numbers
Pursuant to a
recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Securities
and has directed the Trustee to use CUSIP numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy
of such numbers either as printed on the Securities or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
The Company will
furnish to any Holder upon written request and without charge to the Holder a
copy of the Indenture which has in it the text of this Security.
ASSIGNMENT
FORM
To
assign this Security, fill in the form below:
I
or we assign and transfer this Security to
(Print or type
assignee’s name, address and zip code)
(Insert assignee’s
soc. sec. or tax I.D. No.)
and irrevocably
appoint as
agent to transfer this Security on the books of the Company. The
agent may substitute another to act for him.
____________________________________________________________________________________________________________________
Date:
________________ Your Signature: _____________________
____________________________________________________________
Sign exactly as
your name appears on the other side of this Security.
In
connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in
Rule 144(d)(1)(i) under the Securities Act after the later of the date
of original issuance of such Securities and the last date, if any, on which such
Securities were owned by the Company or any Affiliate of the Company, the
undersigned confirms that such Securities are being transferred in accordance
with its terms:
CHECK ONE BOX
BELOW
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(2)
|
o
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pursuant to
an effective registration statement under the Securities Act of 1933;
or
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(3)
|
o
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inside the
United States to a “qualified institutional buyer” (as defined in
Rule 144A under the Securities Act of 1933) that purchases for its
own account or for the account of a qualified institutional buyer to whom
notice is given that such transfer is being made in reliance on Rule 144A,
in each case pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
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(4)
|
o
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outside the
United States in an offshore transaction within the meaning of
Regulation S under the Securities Act in compliance with Rule 904
under the Securities Act of 1933;
or
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(5)
|
o
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to an
institutional “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act of 1933) that has furnished to the
Trustee a signed letter containing certain representations and agreements
(the form of which letter can be obtained from the Trustee or the
Company); or
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(6)
|
o
|
pursuant to
another available exemption from registration provided by Rule 144 under
the Securities Act of 1933.
|
Unless one of the
boxes is checked, the Trustee will refuse to register any of the Securities
evidenced by this certificate in the name of any person other than the
registered holder thereof;
provided
,
however
, that if
box (5) or (6) is checked, the Trustee may require, prior to registering
any such transfer of the Securities, such legal opinions, certifications and
other information as the Company has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of
1933.
____________________________
Your Signature
Signature
Guarantee:
|
Date:
________________________
|
____________________________
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Signature
must be guaranteed by a participant in a recognized signature guaranty
medallion program or other signature guarantor acceptable to the
Trustee
|
Signature
of
Signature
Guarantee
|
TO BE COMPLETED BY
PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned
represents and warrants that it is purchasing this Security for its own account
or an account with respect to which it exercises sole investment discretion and
that it and any such account is a “qualified institutional buyer” within the
meaning of Rule 144A under the Securities Act of 1933, and is aware that
the sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned’s foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
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Dated:
_______________________
|
____________________________
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|
Signature
must be guaranteed by a participant in a recognized signature guaranty
medallion program or other signature guarantor acceptable to the
Trustee
|
NOTICE:
|
To be
executed by
an
executive officer
|
[TO BE ATTACHED TO
GLOBAL SECURITIES]
SCHEDULE OF
INCREASES OR DECREASES IN GLOBAL SECURITY
The initial
principal amount of this Global Security is $[ ]. The
following increases or decreases in this Global Security have been
made:
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Date
of
Exchange
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Amount of
decrease in Principal Amount of this Global Security
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Amount of
increase in Principal Amount of this Global Security
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Principal
amount of this Global Security following such decrease or
increase
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Signature of
authorized signatory of Trustee or Securities Custodian
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OPTION OF HOLDER TO
ELECT PURCHASE
If
you want to elect to have this Security purchased by the Company pursuant to
Section 4.12 (Change of Control) of the Indenture, check the
box:
/ /
If
you want to elect to have only part of this Security purchased by the Company
pursuant to Section 4.12 of the Indenture, state the
amount:
$
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Date:
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Your
Signature:
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(Sign exactly
as your name appears on the other side of the Security)
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Signature
Guarantee:
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Signature
must be guaranteed by a participant in a recognized
signature
guaranty medallion program or other signature guarantor acceptable to the
Trustee.
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[FORM OF FACE OF
EXCHANGE SECURITY]
5.750% Senior Note
due 2018
CUSIP No.
________
NORFOLK SOUTHERN
CORPORATION, a Virginia corporation, promises to pay to [Cede &
Co.]
**
, or
registered assigns, the principal sum [of [ ] Dollars]
*
[as set forth on the Schedule of Increases or
Decreases annexed hereto]** on April 1, 2018.
Interest Payment
Dates: April 1 and October 1, commencing on October 1, 2008.
Record
Dates: March 15 and September 15.
_______________
**
Insert
for Global Securities. If the Security is to be issued in global
form, add the Global Securities Legend from Exhibit 1 to Appendix A
and the attachment from such Exhibit 1 captioned “TO BE ATTACHED TO GLOBAL
SECURITIES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL
SECURITY.”
*
Insert
for Definitive Securities.
Additional
provisions of this Security are set forth on the other side of this
Security.
IN
WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
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NORFOLK
SOUTHERN CORPORATION,
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By
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Name:
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Title:
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TRUSTEE’S
CERTIFICATE OF
AUTHENTICATION
Dated:
U.S. BANK TRUST
NATIONAL ASSOCIATION,
as
Trustee, certifies
that this is one
of
the Securities
referred
to
in the Indenture.
By: ________________________
Authorized
Signatory
[FORM OF REVERSE
SIDE OF EXCHANGE SECURITY]
5.750% Senior Note
due 2018
1.
Interest
NORFOLK SOUTHERN
CORPORATION, a Virginia corporation (such corporation, and its successors
and assigns under the Indenture hereinafter referred to, being herein called the
“Company”), promises to pay interest on the principal amount of this Security at
the rate per annum shown above. The Company will pay interest
semiannually on April 1 and October 1 of each year, commencing October 1,
2008. Interest on the Securities will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from
April 4, 2008. Interest shall be computed on the basis of a 360-day
year of twelve 30-day months. The Company shall pay interest on
overdue principal at the rate per annum borne by the Securities, and it shall
pay interest on overdue installments of interest at the rate per annum borne by
the Securities to the extent lawful.
2.
Method of
Payment
The Company will
pay interest on the Securities (except defaulted interest) to the Persons who
are registered Holders at the close of business on the March 15 or September 15
next preceding the interest payment date even if Securities are canceled after
the record date and on or before the interest payment date. Holders
must surrender Securities to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money of the
United States of America that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of the
Securities represented by a Global Security (including principal and interest)
will be made by wire transfer of immediately available funds to the accounts
specified by the Depository. The Company will make all payments in
respect of a Definitive Security (including principal and interest), by mailing
a check to the registered address of each Holder thereof;
provided
,
however
, that
payments on the Securities may also be made, in the case of a Holder of at least
$1,000,000 aggregate principal amount of Securities, by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if
such Holder elects payment by wire transfer by giving written notice to the
Trustee or the Paying Agent to such effect designating such account no later
than 30 days immediately preceding the relevant due date for payment (or
such other date as the Trustee may accept in its discretion).
3.
Paying Agent and
Registrar
Initially, U.S.
Bank Trust National Association, a national banking association (the “Trustee”),
will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent, Registrar or co-registrar without
notice. The Company or any of its domestically incorporated Wholly
Owned Subsidiaries may act as Paying Agent, Registrar or
co-registrar.
4
.
I
ndenture
The Company issued
the Securities under an Indenture, dated as of April 4, 2008 (the “Indenture”),
between the Company and the Trustee. The terms of the Securities
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15
U.S.C.
§§ 77aaa-77bbbb) as in effect on the date of the Indenture (the
“TIA”). Terms defined in the Indenture and not defined in the
Securities have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Holders are referred to the
Indenture and the TIA for a statement of those terms.
The Securities are
unsubordinated, unsecured obligations of the Company. This Security
is one of the Original Securities referred to in the Indenture issued in an
aggregate principal amount of $600,000,000. The Securities include
the Original Securities, an unlimited aggregate principal amount of additional
Initial Securities that may be issued under the Indenture, and any Exchange
Securities issued in exchange for Initial Securities. The Original
Securities, such additional Initial Securities and the Exchange Securities are
treated as a single class of securities under the Indenture. The
Indenture imposes certain limitations on the ability of the Company and its
Restricted Subsidiaries to, among other things, create or incur Liens or Funded
Debt. The Indenture also imposes limitations on the ability of the
Company to consolidate or merge with or into any other Person or sell, transfer,
assign, lease, convey or otherwise dispose of all or substantially all of the
property of the Company.
5.
Optional
Redemption
The Securities will
be redeemable as a whole or in part, at the option of the Company at any time,
at a redemption price equal to the greater of (i) 100% of the principal amount
of such Securities and (ii) the sum of the present values of the remaining
scheduled payments of principal and interest thereon (exclusive of interest
accrued to the date of redemption) discounted to the redemption date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate plus 35 basis points, plus in each case accrued interest
thereon to the date of redemption.
“Treasury Rate”
means, with respect to any redemption date, the rate per annum equal to the
semiannual equivalent yield to maturity or interpolated (on a day count basis)
of the Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
“Comparable
Treasury Issue” means the United States Treasury security or securities selected
by an Independent Investment Banker as having an actual or
interpolated maturity comparable to the remaining term of the Securities to be
redeemed 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 a comparable maturity to the remaining term of such Securities.
“Independent
Investment Banker” means one of the Reference Treasury Dealers appointed by the
Trustee after consultation with the Company.
“Comparable
Treasury Price” means, with respect to any redemption date, (A) the average of
the Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(B) if the Trustee obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such quotations.
“Reference Treasury
Dealer Quotations” means, with respect to each Reference Treasury
Dealer and any redemption date, the average, as determined by the Trustee, of
the bid and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to the Trustee
by such Reference Treasury Dealer at 3:30 p.m. New York time on the third
Business Day preceding such redemption date.
“Reference Treasury
Dealer” means each of Barclays Capital Inc., Deutsche Bank Securities Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated and one other
broker-dealer appointed by the Company or their affiliates which are primary
U.S. Government securities dealers, and their respective successors;
provided, however, that if any of the foregoing or their affiliates shall cease
to be a primary U.S. Government securities dealer in The City of New York (a
“Primary Treasury Dealer”), the Company shall substitute therefor another
Primary Treasury Dealer.
6.
Sinking
Fund
The Securities are
not subject to any sinking fund.
7.
Notice of
Redemption
Notice of
redemption will be mailed by first-class mail at least 30 days but not more
than 60 days before the redemption date to each Holder of Securities to be
redeemed at his or her registered address. Securities in
denominations larger than $2,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price
of and accrued interest on all Securities (or portions thereof) to be redeemed
on the redemption date is deposited with the Paying Agent on or before the
redemption date and certain other conditions are satisfied, on and after such
date interest ceases to accrue on such Securities (or such portions thereof)
called for redemption.
8.
Repurchase of Securities at
the Option of Holders upon Change of Control
If
a Change of Control Repurchase Event occurs with respect to the Securities,
unless the Company has exercised its right to redeem the Securities as described
above, the Company will make an offer to each Holder of the Securities to
repurchase all or any part (in integral multiples of $1,000) of that Holder’s
Securities at a repurchase price (the “Repurchase Price”) in cash equal to 101%
of the aggregate principal amount of such Securities repurchased plus any
accrued and unpaid interest on the Securities repurchased to, but not including,
the Repurchase Date. A “Change of
Control Repurchase
Event” means the occurrence of both a Change of Control and a Below Investment
Grade Ratings Event with respect to the Securities, each of which is defined in
the Indenture. Within 30 days following a Change of Control Repurchase Event or,
at the Company’s option, prior to a Change of Control, but after the public
announcement of a Change of Control, the Company will mail, or cause to be
mailed, a notice to each Holder of the Securities, with a copy to the Trustee,
describing the transaction or transactions that constitute or may constitute the
Change of Control Repurchase Event and offering to repurchase the Securities on
the payment date specified in the notice (such offer the “Repurchase Offer” and
such date the “Repurchase Date”), which Repurchase Date will be no earlier than
30 days and no later than 60 days from the date such notice is mailed. The
notice shall, if mailed prior to the date of consummation of the Change of
Control, state that the Repurchase Offer is conditioned on a Change of Control
Repurchase Event occurring on or prior to the Repurchase Date.
The Company will
comply with the requirements of Rule 14e-1 under the Exchange Act, and any other
securities laws and regulations thereunder to the extent those laws and
regulations are applicable in connection with the repurchase of the Securities
as a result of a Change of Control Repurchase Event. To the extent that the
provisions of any securities laws or regulations conflict with the Change of
Control Repurchase Event provisions of the Securities, the Company will comply
with the applicable securities laws and regulations and will not be deemed to
have breached its obligations under the Change of Control Repurchase Event
provisions of the Securities by virtue of such conflict.
On
the Repurchase Date following a Change of Control Repurchase Event, the Company
will, to the extent lawful:
(1) accept
for payment all Securities or portions of Securities properly tendered pursuant
to the Repurchase Offer;
(2) deposit
with the Trustee or with such paying agent as the Trustee may designate (the
“Paying Agent”) an amount equal to the aggregate Repurchase Price for all
Securities or portions of Securities properly tendered; and
(3) deliver,
or cause to be delivered, to the Trustee the Securities properly accepted,
together with an Officers’ Certificate stating the aggregate principal amount of
Securities being repurchased by the Company pursuant to the Repurchase Offer and
that all conditions precedent to the repurchase by the Company of Securities
pursuant to the Repurchase offer have been complied with.
The Trustee will
promptly mail, or cause the Paying Agent promptly to mail, to each Holder of
Securities, or portions of Securities, properly tendered the Repurchase Price
for such Securities, or portions of Securities, and the Trustee will promptly
authenticate and mail (or cause to be transferred by book-entry) to each Holder
a new Security equal in principal amount to any unpurchased portion of any
Securities surrendered, as applicable; provided that each new Security will be
in a principal amount of an integral multiple of $1,000.
The Company will
not be required to make a Repurchase Offer upon a Change of Control Repurchase
Event if a third party makes such an offer in the manner, at the times and
otherwise in compliance with the requirements for such an offer made by the
Company and such third party purchases all Securities or portions of Securities
properly tendered and not withdrawn under its offer.
The Company may not
have sufficient funds to repurchase all Securities or portions of Securities
properly tendered upon a Change of Control Repurchase Event.
9.
Denominations; Transfer;
Exchange
The Securities are
in registered form without coupons in denominations of $2,000 and whole
multiples of $1,000. A Holder may transfer or exchange Securities in
accordance with the Indenture. Upon any transfer or exchange, the
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes required by
law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange any Securities selected for redemption (except, in
the case of a Security to be redeemed in part, the portion of the Security not
to be redeemed) or to transfer or exchange any Securities for a period of
15 days prior to the mailing of a notice of redemption of Securities to be
redeemed or 15 days before an Interest Payment Date.
10.
Persons Deemed
Owners
The registered
Holder of this Security may be treated as the owner of it for all
purposes.
11.
Unclaimed
Money
If
money for the payment of principal or interest remains unclaimed for two years,
the Trustee or Paying Agent shall pay the money back to the Company at its
written request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must
look only to the Company and not to the Trustee for payment.
12.
Discharge
Subject to certain
conditions, the Company at any time may terminate its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
13.
Amendment,
Waiver
The Indenture
contains provisions permitting the Company and the Trustee, with the consent of
the Holders of not less than a majority in principal amount of the Outstanding
Securities affected, to execute supplemental indentures for the purpose of
adding any provisions to the 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
reduce the amount of principal of an OID Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to Section
6.02 of the 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 Securities, the Holders of which are
required to consent to any such supplemental indenture or to any waiver of
compliance with certain provisions or certain defaults thereunder and their
consequences provided for in the Indenture; or (iii) modify any of the
provisions of the 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 Indenture cannot be modified or waived, without the
consent of the Holders of each Outstanding Security affected thereby, provided,
however, that the consent of the Holders shall not be required with respect to
changes in the references to “the Trustee” in Sections 9.02 and 4.09 of the
Indenture or with respect to the deletion of this proviso from the Indenture, in
accordance with Sections 7.08 and 9.01(b) of the Indenture. The
Indenture also contains provisions permitting the Holders of not less than a
majority in principal amount of the Outstanding Securities affected thereby, on
behalf of all of the Holders of the Securities, to waive any past Default under
the Indenture with respect to the Securities, and its consequences, except a
Default in the payment of the principal of, or premium, if any, or interest on
any Security or a Default in respect of a covenant or provision of the Indenture
which cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected. Any such consent or waiver by the
registered Holder of this Security (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and
owners of this Security and of any Security 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
Security.
14.
Defaults and
Remedies
If
an Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in aggregate principal amount of the Securities then outstanding,
subject to certain limitations, may declare all the Securities to be immediately
due and payable. Certain events of bankruptcy or insolvency are
Events of Default and shall result in the Securities being immediately due and
payable upon the occurrence of such Events of Default without any further act of
the Trustee or any Holder.
Holders of
Securities may not enforce the Indenture or the Securities except as provided in
the Indenture. The Trustee may refuse to enforce the Indenture or the
Securities unless it receives indemnity or security satisfactory to
it. Subject to certain
limitations,
Holders of a majority in aggregate principal amount of the Securities then
outstanding may direct the Trustee in its exercise of any trust or power under
the Indenture. The Holders of a majority in aggregate principal
amount of the Securities then outstanding, by written notice to the Company and
the Trustee, may rescind any declaration of acceleration and its consequences if
the rescission would not conflict with any judgment or decree, and if all
existing Events of Default have been cured or waived except nonpayment of
principal, premium or interest that has become due solely because of the
acceleration.
15.
Trustee Dealings with the
Company
Subject to certain
limitations imposed by the TIA, the Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with and collect obligations owed to it by the
Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not
Trustee.
16.
No Recourse Against
Others
A
director, officer, employee or stockholder, as such, of the Company shall not
have any liability for any obligations of the Company under the Securities or
the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the
Securities.
17.
Successors
Subject to certain
exceptions set forth in the Indenture, when a successor assumes all the
obligations of its predecessor under the Securities and the Indenture in
accordance with the terms of the Indenture, the predecessor will be released
from those obligations.
18.
Authentication
This Security shall
not be valid until an authorized signatory of the Trustee (or an authenticating
agent) manually signs the certificate of authentication on the other side of
this Security.
19.
Abbreviations
Customary
abbreviations may be used in the name of a Securityholder or an assignee, such
as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN
(=joint tenants with rights of survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
20.
Governing
Law
THIS SECURITY SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW.
21.
CUSIP
Numbers
Pursuant to a
recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Securities
and has directed the Trustee to use CUSIP numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy
of such numbers either as printed on the Securities or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
The Company will
furnish to any Holder upon written request and without charge to the Holder a
copy of the Indenture which has in it the text of this Security.
ASSIGNMENT
FORM
To
assign this Security, fill in the form below:
I
or we assign and transfer this Security to
(Print or type
assignee’s name, address and zip code)
(Insert assignee’s
soc. sec. or tax I.D. No.)
and irrevocably
appoint as
agent to transfer this Security on the books of the Company. The
agent may substitute another to act for him.
Date:
________________ Your Signature: _____________________
____________________________________________________________
Sign exactly as
your name appears on the other side of this Security. Signature must
be guaranteed by a participant in a recognized signature guaranty medallion
program or other signature guarantor acceptable to the Trustee.
OPTION OF HOLDER TO
ELECT PURCHASE
If
you want to elect to have this Security purchased by the Company pursuant to
Section 4.12 (Change of Control) of the Indenture, check the box:
/ /
If
you want to elect to have only part of this Security purchased by the Company
pursuant to Section 4.12 of the Indenture, state the
amount:
$
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Date:
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Your
Signature:
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(Sign exactly
as your name appears on the other side of the Security)
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Signature
Guarantee:
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Signature
must be guaranteed by a participant in a recognized signature guaranty
medallion program or other signature guarantor acceptable to the
Trustee.
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EXHIBIT B
Form
of
Transferee Letter
of Representation
[Company]
In
care of
[ ]
[ ]
[ ]
Ladies and
Gentlemen:
This certificate is
delivered to request a transfer of $[ ] principal amount of the
5.750% Senior Notes due 2018 (the “Securities”) of Norfolk Southern Corporation
(the “Company”).
Upon transfer, the
Securities would be registered in the name of the new beneficial owner as
follows:
Name: ________________________
Address: ______________________
Taxpayer ID
Number: _____________
The undersigned
represents and warrants to you that:
1. We
are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act of 1933, as amended (the “Securities Act”)),
purchasing for our own account or for the account of such an institutional
“accredited investor” at least $250,000 principal amount of the Securities, and
we are acquiring the Securities not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities
Act. We have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our investment in
the Securities, and we invest in or purchase securities similar to the
Securities in the normal course of our business. We, and any accounts
for which we are acting, are each able to bear the economic risk of our or its
investment.
2. We
understand that the Securities have not been registered under the Securities Act
and, unless so registered, may not be sold except as permitted in the following
sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Securities to offer, sell or otherwise
transfer such Securities prior to the date that is six months after the later of
the date of original issue and the last date on which the Company or any
affiliate of the Company was the owner of such Securities (or any predecessor
thereto) (the “Resale Restriction Termination Date”) only (a) to the
Company, (b) pursuant to a registration statement that has been declared
effective under the Securities Act, (c) in a transaction complying with the
requirements of Rule 144A under the Securities
Act
(“Rule 144A”), to a person we reasonably believe is a qualified
institutional buyer under Rule 144A (a “QIB”) that is purchasing for its
own account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales that occur outside the United States within the meaning of Regulation S
under the Securities Act, (e) to an institutional “accredited investor”
within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act
that is purchasing for its own account or for the account of such an
institutional “accredited investor,” in each case in a minimum principal amount
of Securities of $100,000, or (f) pursuant to any other available exemption
from the registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property
or the property of such investor account or accounts be at all times within our
or their control and in compliance with any applicable state securities
laws. The foregoing restrictions on resale will not apply subsequent
to the Resale Restriction Termination Date. If any resale or other
transfer of the Securities is proposed to be made pursuant to clause (e)
above prior to the Resale Restriction Termination Date, the transferor shall
deliver a letter from the transferee substantially in the form of this letter to
the Company and the Trustee, which shall provide, among other things, that the
transferee is an institutional “accredited investor” within the meaning of
Rule 501(a)(1), (2), (3) or (7) under the Securities Act and that it is
acquiring such Securities for investment purposes and not for distribution in
violation of the Securities Act. Each purchaser acknowledges that the
Company and the Trustee reserve the right prior to the offer, sale or other
transfer prior to the Resale Restriction Termination Date of the Securities
pursuant to clause (d), (e) or (f) above to require the delivery of an
opinion of counsel, certifications or other information satisfactory to the
Company and the Trustee.
