Exhibit 99.2
ELEVENTH SUPPLEMENTAL INDENTURE
between
NORFOLK SOUTHERN CORPORATION
and
U. S. BANK TRUST NATIONAL
ASSOCIATION
Dated as of May 17, 2005
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS...................................................................................7
Section 101 Definition of Terms..............................................................7
ARTICLE II GENERAL TERMS AND CONDITIONS OF THE NOTES....................................................10
Section 201 Designation and Principal Amount................................................10
Section 202 Place of Payment; Security Register for Notes...................................11
Section 203 Global Note.....................................................................11
Section 204 Interest........................................................................11
ARTICLE III COVENANTS...................................................................................12
Section 301 Limitation on Liens on Stock or Indebtedness of Principal Subsidiaries..........12
Section 302 Limitations on Funded Debt......................................................12
ARTICLE IV REDEMPTION OF THE NOTES......................................................................14
Section 401 Notes Redeemable at Option of the Corporation...................................14
Section 402 No Sinking Fund.................................................................14
ARTICLE V FORM OF NOTES.................................................................................14
Section 501 Form of Notes...................................................................15
ARTICLE VI ORIGINAL ISSUE OF NOTES......................................................................15
Section 601 Original Issue of Notes.........................................................15
ARTICLE VII MISCELLANEOUS...............................................................................15
Section 701 Ratification of Base Indenture..................................................15
Section 702 Trustee Not Responsible for Recitals............................................15
Section 703 Governing Law...................................................................15
Section 704 Separability....................................................................15
Section 705 Counterparts....................................................................16
ELEVENTH SUPPLEMENTAL INDENTURE
between
NORFOLK SOUTHERN CORPORATION
and
U.S. BANK TRUST NATIONAL ASSOCIATION
Dated as of May 17, 2005
ELEVENTH SUPPLEMENTAL INDENTURE, dated as of May 17, 2005 (the
"Eleventh Supplemental Indenture"), between Norfolk Southern Corporation, a
Virginia corporation (the "Corporation"), and U.S. Bank Trust National
Association, formerly known as First Trust of New York National Association, as
successor trustee (the "Trustee"), under the Indenture, dated as of January 15,
1991, between the Corporation and the Trustee (as amended or supplemented as of
the date hereof, the "Base Indenture").
WHEREAS, the Corporation executed and delivered the Base Indenture to
the Trustee to provide for the future issuance of the Corporation's unsecured
debt securities (the "Securities") to be issued from time to time in one or
more series as might be determined by the Corporation under the Base Indenture,
in an unlimited aggregate principal amount which may be authenticated and
delivered as provided in the Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the Corporation
desires to provide for the establishment of a new series of its Securities to
be known as its 5.64% Notes due 2029 (the "Notes"), the form and substance of
such series of Notes and the terms, provisions and conditions thereof to be set
forth as provided in the Base Indenture and this Eleventh Supplemental
Indenture; and
WHEREAS, (a) the Corporation has requested that the Trustee execute
and deliver this Eleventh Supplemental Indenture pursuant to Sections 301 and
801 of the Base Indenture, (b) all requirements necessary to make this Eleventh
Supplemental Indenture a valid instrument in accordance with its terms, and to
make the Notes, when executed by the Corporation and authenticated and
delivered by the Trustee, the valid obligations of the Corporation, have been
performed, and (c) the execution and delivery of this Eleventh Supplemental
Indenture has been duly authorized in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance of the
Notes by the Holders thereof, and for the purpose of setting forth, as provided
in the Base Indenture, the form and substance of the Notes and the terms,
provisions and conditions thereof, the Corporation covenants and agrees with
the Trustee as follows:
ARTICLE I
DEFINITIONS
Section 101 Definition of Terms.
-------------------
Unless the context otherwise requires:
(a) a term defined in the Base Indenture has the same meaning when
used in this Eleventh Supplemental Indenture;
(b) a term defined anywhere in this Eleventh Supplemental Indenture
has the same meaning throughout this Eleventh Supplemental Indenture;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of
this Eleventh Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in this
Section 101(f):
"Business Day" means any day except a Saturday, a Sunday or a legal
holiday in the City of New York on which banking institutions are authorized or
required by law, regulation or executive order to close.
"Capital Lease Obligation" means any obligation arising out of any
lease of property which is required to be classified and accounted for by the
lessee as a capitalized lease on a balance sheet of such lessee under generally
accepted accounting principles.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having a maturity most
comparable to the remaining term of the Notes that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of maturity comparable to the
remaining term of the Notes.
"Comparable Treasury Price" means (1) the average of five Reference
Treasury Dealer Quotations for such Redemption Date, after excluding the
highest and lowest Reference Treasury Dealer Quotations, or (2) if the
Independent Investment Banker obtains fewer than five such Reference Treasury
Dealer Quotations, the average of all such quotations.
"Consolidated Net Tangible Assets" means, at any date, the total
assets appearing on the most recent consolidated balance sheet of the
Corporation and Restricted Subsidiaries as at the end of the fiscal quarter of
the Corporation ending not more than 135 days prior to such date, prepared in
accordance with generally accepted accounting principles, less (i) all current
liabilities (due within one year) as shown on such balance sheet, (ii)
applicable reserves, (iii) investments in and advances to Securitization
Subsidiaries and Subsidiaries of Securitization Subsidiaries that are
consolidated on the consolidated balance sheet of the Corporation and its
Subsidiaries, and (iv) Intangible Assets and liabilities relating thereto.
"Depositary", with respect to the Notes, means The Depository Trust
Company or any successor thereto.
"Funded Debt" means (i) any indebtedness of a Restricted Subsidiary
maturing more than 12 months after the time of computation thereof, (ii)
guarantees by a Restricted Subsidiary of Funded Debt or of dividends of others
(except guarantees in connection with the sale or discount of accounts
receivable, trade acceptances and other paper arising in the ordinary course of
business), (iii) all preferred stock of such Restricted Subsidiary, and (iv)
all Capital Lease Obligations of a Restricted Subsidiary.
"Global Note" shall have the meaning set forth in Section 203.
"Indebtedness" means, at any date, without duplication, (i) all
obligations for borrowed money of a Restricted Subsidiary or any other
indebtedness of a Restricted Subsidiary, evidenced by bonds, debentures, notes
or other similar instruments, and (ii) Funded Debt, except such obligations and
other indebtedness of a Restricted Subsidiary and Funded Debt, if any, incurred
as a part of a Securitization Transaction.
"Independent Investment Banker" means Deutsche Bank Securities Inc.
or, if such firm is unwilling or unable to select the Comparable Treasury
Issue, an independent investment banking institution of national standing in
the United States appointed by the Trustee after consultation with the
Corporation.
"Intangible Assets" means at any date, the value (net of any
applicable reserves) as shown on or reflected in the most recent consolidated
balance sheet of the Corporation and the Restricted Subsidiaries as at the end
of the fiscal quarter of the Corporation ending not more than 135 days prior to
such date, prepared in accordance with generally accepted accounting
principles, of: (i) all trade names, trademarks, licenses, patents, copyrights,
service marks, goodwill and other like intangibles; (ii) organizational and
development costs; (iii) deferred charges (other than prepaid items, such as
insurance, taxes, interest, commissions, rents, deferred interest waiver,
compensation and similar items and tangible assets being amortized); and (iv)
unamortized debt discount and expense, less unamortized premium.
"Interest Payment Date" shall have the meaning set forth in Section
204(a).
"Liens" means such pledges, mortgages, security interests and other
liens, including purchase money liens, on property of the Corporation or any
Restricted Subsidiary which secure Funded Debt.
"Maturity Date" shall have the meaning set forth in Section 204(a).
"Note Interest Rate" shall have the meaning set forth in Section
204(c).
"Obligation" shall mean any indebtedness for money borrowed or
indebtedness evidenced by a bond, note, debenture or other evidence of
indebtedness.
"Principal Subsidiary" shall mean Norfolk Southern Railway Company.
"Purchase Money Lien" shall mean any mortgage, pledge, lien,
encumbrance, charge or security interest of any kind upon any indebtedness of
any Principal Subsidiary acquired after the date any Notes are first issued if
such Purchase Money Lien is for the purpose of financing, and does not exceed,
the cost to the Corporation or any Subsidiary of acquiring the indebtedness of
such Principal Subsidiary and such financing is effected concurrently with, or
within 180 days after, the date of such acquisition.
"Receivables" mean any right of payment from or on behalf of any
obligor, whether constituting an account, chattel paper, instrument, general
intangible or otherwise, arising, either directly or indirectly, from the
financing by the Corporation or any Subsidiary of the Corporation of property
or services, monies due thereunder, security interests in the property and
services financed thereby and any and all other related rights.
"Reference Treasury Dealer" means Deutsche Bank Securities Inc. and
its successors; provided, however, that if the foregoing ceases to be a primary
U.S. Government securities dealer in New York, New York (a "Primary Treasury
Dealer") or otherwise fails to provide a Reference Treasury Dealer Quotation,
the Corporation will substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotation" means a quotation for a
Comparable Treasury Issue provided by a Reference Treasury Dealer.
"Restricted Subsidiary" means each Subsidiary of the Corporation
other than Securitization Subsidiaries and Subsidiaries of Securitization
Subsidiaries.
"Securitization Subsidiary" means a Subsidiary of the Corporation (i)
which is formed for the purpose of effecting one or more Securitization
Transactions and engaging in other activities reasonably related thereto and
(ii) as to which no portion of the Indebtedness or any other obligations of
which (a) is guaranteed by any Restricted Subsidiary, or (b) subjects any
property or assets of any Restricted Subsidiary, directly or indirectly,
contingently or otherwise, to any lien, other than pursuant to representations,
warranties and covenants (including those related to servicing) entered into in
the ordinary course of business in connection with a Securitization Transaction
and intercompany notes and other forms of capital or credit support relating to
the transfer or sale of Receivables or asset-backed securities to such
Securitization Subsidiary and customarily necessary or desirable in connection
with such transactions.
"Securitization Transaction" means any transaction or series of
transactions that have been or may be entered into by the Corporation or any of
its Subsidiaries in connection with or reasonably related to a transaction or
series of transactions in which the Corporation or any of its Subsidiaries may
sell, convey or otherwise transfer to (i) a Securitization Subsidiary or (ii)
any other Person, or may grant a security interest in, any Receivables or
asset-backed securities or interest therein (whether such Receivables or
securities are then existing or arising in the future) of the Corporation or
any of its Subsidiaries, and any assets related thereto, including, without
limitation, all security interests in the property or services financed
thereby, the proceeds of such Receivables or asset- backed securities and any
other assets which are sold in respect of which security interests are granted
in connection with securitization transactions involving such assets.
"Subsidiary" shall mean an entity a majority of the outstanding
voting stock of which is owned, directly or indirectly, by the Corporation or
one or more subsidiaries, but does not include Conrail Inc.
"Treasury Yield" means, with respect to any Redemption Date, (1) the
yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical release
designated "H.15(519)" or any successor publication which is published weekly
by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to
constant maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Comparable Treasury Issue (if no maturity is
within three months before or after the Remaining Life yields for the two
published maturities most closely corresponding to the Comparable Treasury
Issue will be determined and the Treasury Yield will be interpolated or
extrapolated from such yields on a straight line basis, rounding to the nearest
month) or (2) if such release (or any successor release) is not published
during the week preceding the calculation date or does not contain such yields,
the rate per annum equal to the semi-annual equivalent yield-to-maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price of such redemption date. The Treasury Yield will be
calculated on the third Business Day preceding the redemption date.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 201 Designation and Principal Amount.
--------------------------------
There is hereby authorized a new series of Securities designated the
5.64% Senior Notes due 2029. The aggregate principal amount of the new series
of Securities authorized by this Supplemental Indenture shall be limited to
$350,000,000 (unless the issue of such series of Securities is "reopened"
pursuant to Section 801(10) of the Base Indenture by issuing additional debt
Securities of such series), in an amount or amounts and registered in the names
of such Persons as shall be set forth in any written order of the Corporation
for the authentication and delivery of Notes pursuant to Section 303 of the
Base Indenture.
Section 202 Place of Payment; Security Register for Notes.
---------------------------------------------
The Corporation selects New York, New York as the Place of Payment
for the Notes and hereby appoints the Trustee as Security Registrar for the
Notes.
Section 203 Global Note.
-----------
(a) The Notes shall be issued in the form of one or more global Notes
in an aggregate principal amount equal to the aggregate principal amount of all
outstanding Notes of such series (each, a "Global Note" and together, the
"Global Notes"), to be registered in the name of the Depositary, or its
nominee, and delivered by the Trustee to or upon the order of the Depositary
for crediting to the accounts of its participants pursuant to the instructions
of the Corporation. The Corporation upon any such presentation shall execute
one or more Global Notes in such aggregate principal amount and deliver the
same to the Trustee for authentication and delivery in accordance with the Base
Indenture and this Eleventh Supplemental Indenture. Payments on Notes issued as
one or more Global Notes will be made to the Depositary.
(b) A Global Note may be transferred, in whole but not in part, only
to another nominee of the Depositary, or to a successor Depositary selected or
approved by the Corporation or to a nominee of such successor Depositary.
Section 204 Interest.
---------
(a) The Notes will bear interest at the Note Interest Rate (as
defined below) from May 17, 2005 until the principal thereof becomes due and
payable on May 17, 2029 (the "Maturity Date"). Interest on the Notes will be
payable semi- annually in arrears on May 17 and November 17 of each year,
commencing November 17, 2005 (each an "Interest Payment Date").
(b) The interest payable on any Interest Payment Date, subject to the
Base Indenture, will be paid to the Person in whose name the Note is registered
at the close of business on the May 3 and November 3, whether or not a Business
Day, immediately preceding the Interest Payment Date. Interest and principal
will be payable in U.S. dollars at the Trustee's New York corporate trust
office, which is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
(c) The interest rate in respect of the Notes will be 5.64% per annum
(the "Note Interest Rate").
(d) In the event that an Interest Payment Date or Maturity Date, as
the case may be, is not a Business Day, then payment of interest or principal,
as the case may be, payable on such date will be made on the next succeeding
day which is a Business Day, with the same force and effect as if made on such
date, and no interest shall accrue on the amount so payable from the period
from and after such Interest Payment Date or Maturity Date, as the case may be.
Interest on the Notes will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
ARTICLE III
COVENANTS
Section 301 Limitation on Liens on Stock or Indebtedness of
-----------------------------------------------
Principal Subsidiaries.
----------------------
For so long as any Notes issued pursuant to this Eleventh
Supplemental Indenture are Outstanding, the Corporation will not, nor will it
permit any Subsidiary to, create, assume, incur or suffer to exist any
mortgage, pledge, lien, encumbrance, charge or security interest of any kind,
other than a Purchase Money Lien, upon any stock or indebtedness, whether owned
on the date any Notes are first issued or thereafter acquired, of any Principal
Subsidiary, to secure any Obligation (other than the Notes) of the Corporation,
any Subsidiary or any other person, without in any such case making effective
provision whereby all of the outstanding Notes shall be directly secured
equally and ratably with such Obligation. This Section 301 shall not (i) apply
to any mortgage, pledge, lien, encumbrance, charge or security interest on any
stock or indebtedness of a corporation existing at the time such corporation
becomes a Subsidiary, (ii) restrict any other property of the Corporation or
its Subsidiaries, or (iii) restrict the sale by the Corporation or any
Subsidiary of any stock or indebtedness of any Subsidiary.
Section 302 Limitations on Funded Debt.
--------------------------
For so long as any Notes issued pursuant to this Eleventh
Supplemental Indenture are Outstanding, the Corporation will not permit any
Restricted Subsidiary to incur, issue, guarantee or create any Funded Debt
unless, after giving effect thereto, the sum of the aggregate amount of all
outstanding Funded Debt of the Restricted Subsidiaries would not exceed an
amount equal to 15% of Consolidated Net Tangible Assets.
This Section 302 shall not apply to, and there shall be excluded from
Funded Debt in any computation hereto, Funded Debt secured by: (i) Liens on
real or physical property of any corporation existing at the time such
corporation becomes a Subsidiary; (ii) Liens on real or physical property
existing at the time of acquisition thereof incurred within 180 days of the
time of acquisition thereof (including, without limitation, acquisition through
merger or consolidation) by the Corporation or any Restricted Subsidiary; (iii)
Liens on real or physical property thereafter acquired (or constructed) by the
Corporation or any Restricted Subsidiary and created prior to, at the time of,
or within 270 days after such acquisition (including, without limitation,
acquisition through merger or consolidation) (or the completion of such
construction or commencement of commercial operation of such property,
whichever is later) to secure or provide for the payment of all or any part of
the purchase price (or the construction price) thereof; (iv) Liens in favor of
the Corporation or any Restricted Subsidiary; (v) Liens in favor of the United
States of America, any State thereof or the District of Columbia, or any
agency, department or other instrumentality thereof, to secure partial,
progress, advance or other payments pursuant to any contract or provisions of
any statute, (vi) Liens incurred or assumed in connection with the issuance of
revenue bonds the interest on which is exempt from Federal Income taxation
pursuant to Section 103(b) of the Internal Revenue Code of 1954, as amended;
(vii) Liens securing the performance of any contract or undertaking not
directly or indirectly in connection with the borrowing of money, the obtaining
of advances or credit or the securing of Funded Debt, if made and continuing in
the ordinary course of business; (viii) Liens incurred (no matter when created)
in connection with the Corporation's or a Restricted Subsidiary's engaging in
leveraged or single-investor lease transaction; provided, however, that the
instrument creating or evidencing any borrowings secured by such Lien will
provide that such borrowings are payable solely out of the income and proceeds
of the property subject to such Lien and are not a general obligation of the
Corporation or such Restricted Subsidiary; (ix) Liens under workers'
compensation laws, unemployment insurance laws or similar legislation, or good
faith deposits in connection with bids, tenders, contracts or deposits to
secure public or statutory obligations of the Corporation or any Restricted
Subsidiary, or deposits of cash or obligations of the United States of America
to secure surety, repletion and appeal bonds to which the Corporation or any
Restricted Subsidiary is a party or in lieu of such bonds, or pledges or
deposits for similar purposes in the ordinary course of business, or Liens
imposed by law, such as laborers' or other employees', carriers',
warehousemen's, mechanics', materialmen's and vendors' Liens and Liens arising
out of judgments or awards against the Corporation or any Restricted Subsidiary
with respect to which the Corporation or such Restricted Subsidiary at the time
shall be prosecuting an appeal or proceedings for review and with respect to
which it shall have secured a stay of execution pending such appeal or
proceedings for review, or Liens for taxes not yet subject to penalties for
nonpayment or the amount or validity of which is being in good faith contested
by appropriate proceedings by the Corporation or any Restricted Subsidiary, as
the case may be, or minor survey exceptions, minor encumbrances, easement or
reservations of, or rights of others for, rights of-way, sewers, electric
lines, telegraph and telephone lines and other similar purposes, or zoning or
other restrictions or Liens on the use of real properties which Liens,
exceptions, encumbrances, easements, reservations, rights and restrictions do
not, in the opinion of the Corporation, in the aggregate materially detract
from the value of said properties or materially impair their use in the
operation of the business of the Corporation and its Restricted Subsidiaries;
(x) Liens incurred to finance construction, alteration or repair of any real or
physical property and improvements thereto prior to or within 270 days after
completion of such construction, alteration or repair; (xi) Liens incurred (no
matter when created) in connection with a Securitization Transaction; (xii)
Liens on property (or any Receivable arising in connection with the lease
thereof) acquired by the Corporation or a Restricted Subsidiary through
repossession, foreclosure or liens proceeding and existing at the time of the
repossession, foreclosure, or like proceeding; (xiii) Liens on deposits of the
Corporation or a Restricted Subsidiary with banks (in the aggregate, not
exceeding $50 million), in accordance with customary banking practice, in
connection with the providing by the Corporation or a Restricted Subsidiary of
financial accommodations to any Person in the ordinary course of business; or
(xiv) any extension, renewal, refunding or replacement of the foregoing.
ARTICLE IV
REDEMPTION OF THE NOTES
Section 401 Redemption of the Notes at the Option of the
------------------------------------------
Corporation.
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(a) The Notes at any time from their date of issuance, are
redeemable, in whole or in part, at the option of the Corporation, upon not
less than (i) 45 days notice to the Trustee (unless a shorter time shall be
acceptable to the Trustee for its convenience) and (ii) 30 nor more than 60
days prior written notice at a Redemption Price as evidenced by an Officer's
Certificate of the Corporation equal to the greater of (i) 100% of their
principal amount or (ii) the sum of the present values of the remaining
scheduled payments of principal and interest thereon discounted to the
Redemption Date, on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months), at the applicable Treasury Yield plus 20 basis points,
together with the accrued interest to the Redemption Date; provided, however,
that interest installments due on an Interest Payment Date which is on or prior
to the Redemption Date will be payable to those Holders who are Holders of
record of the Notes (or one or more predecessor Notes) as of the close of
business on the regular record date preceding such Interest Payment Date.
(b) If the Notes are only partially redeemed pursuant to this Section
401, such Notes will be redeemed pro rata or by lot or by any other method
utilized by the Security Registrar; provided, that if at the time of
redemption, the Notes are registered as a Global Note, the Depositary shall
determine, in accordance with its procedures, the principal amount of such
Notes beneficially held by each Holder of Notes to be redeemed.
Section 402 No Sinking Fund.
---------------
The Notes are not entitled to the benefit of any sinking fund.
ARTICLE V
FORM OF NOTES
Section 501 Form of Notes.
-------------
The Notes, along with the Trustee's Certificate of Authentication to
be endorsed thereon, are to be substantially in the form attached hereto as
Exhibit A.
ARTICLE VI
ORIGINAL ISSUE OF NOTES
Section 601 Original Issue of Notes.
-----------------------
Notes in the initial aggregate principal amount of $350,000,000 may,
upon execution of this Eleventh Supplemental Indenture, be executed by the
Corporation and delivered to the Trustee for authentication as provided in
Sections 301 and 303 of the Base Indenture.
ARTICLE VII
MISCELLANEOUS
Section 701 Ratification of Base Indenture.
-------------------------------
The Base Indenture as further supplemented by this Eleventh
Supplemental Indenture, is in all respects ratified and confirmed, and this
Eleventh Supplemental Indenture shall be deemed part of the Base Indenture in
the manner and to the extent herein and therein provided.
Section 702 Trustee Not Responsible for Recitals.
-------------------------------------
The recitals herein contained are made by the Corporation and not by
the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this Eleventh Supplemental Indenture.
Section 703 Governing Law.
-------------
This Eleventh Supplemental Indenture and the Notes shall be construed
in accordance with and governed by the laws of the State of New York.
Section 704 Separability.
------------
In case any one or more of the provisions contained in this Eleventh
Supplemental Indenture or in the Notes shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Eleventh
Supplemental Indenture or of the Notes, but this Eleventh Supplemental
Indenture and the Notes shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
Section 705 Counterparts.
------------
This Eleventh Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Eleventh
Supplemental Indenture to be duly executed and attested, as of the day and year
first above written.
NORFOLK SOUTHERN CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
Attest:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Corporate Secretary
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇
Title: Vice President
Attest:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
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(FORM OF FACE OF NOTE)
This Note is a Global Note within the meaning of the Base Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Note is exchangeable for Notes registered in the
name of a person other than the Depositary or its nominee only in the limited
circumstances described in the Base Indenture, and no transfer of this Note
(other than a transfer of this Note as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary) may be registered except in limited
circumstances.
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York Corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or
to such other entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ AX 6
NORFOLK SOUTHERN CORPORATION
NOTE
DUE May 17, 2029
NORFOLK SOUTHERN CORPORATION, a corporation organized under the laws
of the Commonwealth of Virginia (herein called the "Corporation", which term
includes any successor corporation under the Base Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of Three Hundred Fify Million Dollars
($350,000,000) on May 17, 2029 and to pay interest thereon from May 17, 2005 or
from the most recent interest payment date to which interest has been paid or
duly provided for, semi-annually in arrears on May 17 and November 17 of each
year, commencing November 17, 2005, at a rate of 5.64% per annum until the
principal hereof is paid or made available for payment, and on any overdue
principal and premium, if any, at a rate of 5.64% per annum and (without
duplication and to the extent that payment of such interest is enforceable
under applicable law) on any overdue installment of interest at a rate of 5.64%
per annum compounded semi-annually. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date (as defined below)
shall be calculated as provided in the Base Indenture. In the event that any
date on which interest is payable on this Note is not a Business Day, then
payment of interest payable on such date will be made on the next succeeding
day that is a Business Day, with the same force and effect as if made on such
date and no interest shall accrue on the amount so payable from the period from
and after such Interest Payment Date or Maturity Date, as the case may be (each
date on which interest is actually payable, an "Interest Payment Date"). The
interest installment so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Base Indenture, be paid to
the Person in whose name this Note (or one or more Predecessor Security, as
defined in said Base Indenture) is registered at the close of business on the
regular record date for such interest installment, which shall be the close of
business on the May 3 and November 3 next preceding such Interest Payment Date.
Any such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered Holders on such regular record
date and may be paid to the Person in whose name this Note (or one or more
Predecessor Security) is registered at the close of business on a special
record date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered Holders of Notes not
less than 10 days prior to such special record date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which this Note may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the Base
Indenture. The principal of (and premium, if any) and the interest on this Note
shall be payable at the office or agency of the Trustee maintained for that
purpose in any coin or currency of the United States of America that at the
time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made, at the option of the
Corporation and upon prior notice to the Trustee, by check mailed to the
registered Holder at such address as shall appear in the Security Register or
by wire transfer to an account designated by a Holder in writing not less than
10 days prior to the date of payment.
The indebtedness evidenced by this Note is, to the extent provided in
the Base Indenture, equal in right of payment with all other unsecured and
unsubordinated indebtedness of the Corporation, and this Note is issued subject
to the provisions of the Base Indenture as further supplemented by the Eleventh
Supplemental Indenture with respect thereto. Each Holder of this Note, by
accepting the same, agrees to and shall be bound by such provisions, and
authorizes and directs the Trustee on his or her behalf to be bound by such
provisions. Each Holder hereof, by his or her acceptance hereof, hereby waives
all notice of the acceptance of the provisions contained herein and in the Base
Indenture as further supplemented by the Eleventh Supplemental Indenture by
each Holder of unsecured and unsubordinated indebtedness of the Corporation,
whether now outstanding or hereafter incurred, and waives reliance by each such
Holder or creditor upon said provisions.
This Note shall not be entitled to any benefit under the Base
Indenture or the Eleventh Supplemental Indenture hereinafter referred to, or be
valid or become obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by or on behalf of the Trustee.
The provisions of this Note are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
executed.
NORFOLK SOUTHERN CORPORATION
By:
---------------------------------
Name:
Title:
Attest:
By:
-------------------------------
Name:
Title: Secretary or Assistant Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities (as defined below) of the
series designated therein referred to in the within-mentioned Base Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee
By:__________________________
Authorized Officer
Dated:_______________________
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of securities of
the Corporation (herein sometimes referred to as the "Security"), issued or to
be issued in one or more series under and pursuant to an Indenture dated as of
January 15, 1991 (as amended or supplemented as of the date hereof, the "Base
Indenture"), duly executed and delivered between the Corporation and U.S. Bank
Trust National Association, formerly known as First Trust of New York National
Association, as successor trustee (the "Trustee"), as further supplemented by
the Eleventh Supplemental Indenture, dated as of May 17, 2005 (the "Eleventh
Supplemental Indenture"), between the Corporation and the Trustee, to which
Base Indenture and the Eleventh Supplemental Indenture reference is hereby made
for a description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Corporation and the Holders of the
Security. By the terms of the Base Indenture, the Securities are issuable in
series that may vary as to amount, date of maturity, rate of interest and in
other respects as provided in the Base Indenture. This Security is the series
designated on the face hereof (the "Notes") and is limited in aggregate
principal amount as specified in said Eleventh Supplemental Indenture.
This Note may be redeemed in whole at any time or in part
from time to time, at the Corporation's option, at a redemption price equal to
the greater of (1) 100% of its principal amount or (2) the sum of the present
values of the remaining scheduled payments of principal and interest on the
Note to be redeemed discounted to the date of redemption on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the applicable
Treasury Yield, as defined in the Eleventh Supplemental Indenture, plus 20
basis points for the Note, plus, accrued and unpaid interest on the principal
amount being redeemed to the Redemption Date.
In case an Event of Default, as defined in the Base
Indenture, shall have occurred and be continuing, the principal of all of the
Notes may be declared due and payable, in the manner, with the effect and
subject to the conditions provided in the Base Indenture.
The Base Indenture contains provisions permitting the
Corporation and the Trustee, with the consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Security of each
series affected to execute supplemental indentures for the purpose of adding
any provisions to the Base Indenture or of modifying in any manner the rights
of the Holders of the Security; provided, however, that no such supplemental
indenture shall (i) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or any premium payable upon the redemption thereof or
the rate of interest thereon, or to reduce the amount of principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502 of
the Base Indenture, or change any Place of Payment where, or the coin or
currency in which, any Security (or premium, if any, thereon) or the interest
thereon is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date); or (ii) reduce the percentage in
principal amount of the Outstanding Security of any series, the Holders of
which are required to consent to any such supplemental indenture or to waive
certain defaults thereunder and their consequences provided for in the Base
Indenture; or (iii) modify any of the provisions of the Base Indenture relating
to supplemental indentures that require the consent of the Holders, or the
waiver of past defaults or the waiver of certain covenants, except to increase
any such percentage or to provide that certain other provisions of the Base
Indenture cannot be modified or waived, without the consent of the Holders of
each Outstanding Security affected thereby. The Base Indenture also contains
provisions permitting the Holders of not less than a majority in principal
amount of the Outstanding Security of any series affected thereby, on behalf of
all of the Holders of the Security of such series, to waive any past Default
under the Base Indenture, and its consequences, except a Default in the payment
of the principal of, premium, if any, or interest on any Security of such
series or a Default in respect of a covenant or provision of the Base Indenture
which cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected. Any such consent or waiver by the
registered Holder of this Note (unless revoked as provided in the Base
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this Note and of any Note issued in exchange therefor or
in place hereof (whether by registration of transfer or otherwise),
irrespective of whether or not any notation of such consent or waiver is made
upon this Note.
No reference herein to the Base Indenture or the Eleventh
Supplemental Indenture and no provision of this Note or of the Base Indenture
or the Eleventh Supplemental Indenture shall alter or impair the obligation of
the Corporation, which is absolute and unconditional, to pay the principal of
and premium, if any, and interest on this Note at the time and place and at the
rate and in the money herein prescribed.
As provided in the Base Indenture and subject to certain
limitations therein set forth, this Note is transferable by the registered
Holder hereof on the Security Register of the Corporation, upon surrender of
this Note for registration of transfer at the office or agency of the Trustee
in New York, New York duly endorsed by the registered Holder hereof or
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Corporation and the Security Registrar duly executed by the
registered Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of this series of authorized denominations and
for the same aggregate principal amount will be issued to the designated
transferee or transferees.
No service charge will be made for any such transfer, but the
Corporation may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment of this Note for registration of
transfer of this Note, the Corporation, the Trustee, and any agent of the
Corporation or the Trustee may treat the registered Holder hereof as the owner
hereof (whether or not this Note shall be overdue) and neither the Corporation,
the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Note, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Base Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Corporation or of any predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
The Notes are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. This
Global Note is exchangeable for Notes in definitive form only under certain
limited circumstances set forth in the Base Indenture. Notes so issued are
issuable only in registered form without coupons in denominations of $1,000 and
any integral multiple thereof. As provided in the Base Indenture and subject to
certain limitations herein and therein set forth, Notes of this series so
issued are exchangeable for a like aggregate principal amount of Notes of a
different authorized denomination, as requested by the Holder surrendering the
same.
All terms used in this Note that are defined in the Base
Indenture or the Eleventh Supplemental Indenture shall have the meanings
assigned to them therein.
THE BASE INDENTURE, THE ELEVENTH SUPPLEMENTAL INDENTURE AND
THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.