SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (D)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): May 14, 1997
NORFOLK SOUTHERN CORPORATION
----------------------------------------------------
(Exact name of Registrant as specified in its charter)
Virginia 1-8339 52-1188014
---------------------- ------------------- ------------------
(State of Incorporation) (Commission File No.) (IRS Employer
Identification No.)
Three Commercial Place
Norfolk, Virginia 23510-2191
(Address of principal executive offices)
(757) 629-2600
----------------------------
(Registrant's telephone number)
No Change
-----------------------------------------------------------
(Former name or former address, if changed since last report)
ITEM 5. OTHER EVENTS
On May 14, 1997, Norfolk Southern Corporation (the "Corporation")
entered into (i) a Pricing Agreement, dated May 14, 1997, with
J.P. Morgan Securities Inc., for themselves and as
representative of the Underwriters named therein (the
"Underwriters"), which incorporates the provisions of the
Underwriting Agreement of the Corporation, dated May 14, 1997
(the "Underwriting Agreement"), in connection with the proposed
issuance and sale of the Corporation's 6.70% Notes due May 1,
2000, 6.95% Notes due May 1, 2002, 7.70% Note due May 15, 2017
and 7.05% Notes due May 1, 2037 and (ii) a Pricing Agreement,
dated May 14, 1997, with Merrill Lynch & Co., for themselves
and as representative of the Underwriters, which incor-
porates the provisions of the Underwriting Agreement,
in connection with the proposed issuance and sale of the
Corporation's 6.875% Notes due May 1, 2001, 7.35% Notes due May
15, 2007, 7.80% Notes due May 15, 2027 and 7.90% Notes due May
1, 2097.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits:
1.1(a) The Underwriting Agreement of the
Corporation, dated May 14, 1997.
1.1(b) Pricing Agreement, dated May 14,
1997, between the Corporation and J.P. Morgan
Securities Inc.
1.1(c) Pricing Agreement, dated May 14, 1997, between
the Corporation and Merrill Lynch & Co.
1.1(d) First Supplemental Indenture, dated
May 19, 1997, between the Corporation
and First Trust of New York, National Association,
as Trustee.
5.1 Opinion of William A. Noell, Jr.,
Corporate Counsel of the Corporation.
5.2 Opinion of Skadden, Arps, Slate,
Meagher & Flom LLP, special counsel to the Under-
writers.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Dated: May 21, 1997
NORFOLK SOUTHERN CORPORATION
(Registrant)
By: /s/ Dezora M. Martin
Dezora M. Martin
Corporate Secretary
EXHIBIT INDEX
Exhibit
Number Description
1.1(a) The Underwriting Agreement of the Corporation,
dated May 14, 1997.
1.1(b) Pricing Agreement, dated May 14, 1997,
between the Corporation and J.P. Morgan Securities Inc.
1.1(c) Pricing Agreement, dated May 14, 1997, between the
Corporation and Merrill Lynch & Co.
1.1(d) First Supplemental Indenture, dated May
19, 1997, between the Corporation and First
Trust of New York, National Association,
as Trustee.
5.1 Opinion of William A. Noell, Jr., Corporate
Counsel of the Company.
5.2 Opinion of Skadden, Arps, Slate, Meagher &
Flom LLP, special counsel to the Underwriters.
EXHIBIT 1.1(A)
NORFOLK SOUTHERN CORPORATION
Debt Securities
Underwriting Agreement
May 14, 1997
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described
Ladies and Gentlemen:
From time to time Norfolk Southern Corporation, a Virginia
corporation (the "Corporation"), proposes to enter into one or more Pricing
Agreements (each a "Pricing Agreement") substantially in the form of Annex
I hereto, with such additions and deletions as the parties thereto may
determine, and, subject to the terms and conditions stated herein and
therein, to issue and sell to the firms named in Schedule I to the
applicable Pricing Agreement (such firms constituting the "Underwriters"
with respect to such Pricing Agreement and the securities specified
therein) certain of its debt securities (the "Securities") specified in
such Pricing Agreement (with respect to such Pricing Agreement, the
"Designated Securities"). The Designated Securities to be purchased by
the Underwriters are herein sometimes referred to as "Underwriters'
Securities".
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto
and in or pursuant to the indenture (the "Indenture") identified in such
Pricing Agreement.
1. Operation of Agreement. Particular sales of Designated
Securities may be made from time to time to the Underwriters of such
Securities, for whom the firms designated as representatives of the
Underwriters of such Securities in the Pricing Agreement relating thereto
will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to an Underwriter or Underwriters
who act without any firm being designated as its or their representatives.
This Underwriting Agreement shall not be construed as an obligation of
the Corporation to sell any of the Securities or as an obligation of any of
the Underwriters to purchase the Securities. The obligation of the
Corporation to issue and sell any of the Securities and the obligation of
any of the Underwriters to purchase any of the Securities shall be
evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. Each Pricing Agreement shall specify the
aggregate principal amount of such Designated Securities, the initial
public offering price of such Designated Securities, the purchase price
to the Underwriters of such Designated Securities, the names of the
Underwriters of such Designated Securities, the names of the
Representatives of such Underwriters and the principal amount of such
Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities
and payment therefor. The Pricing Agreement shall also specify (to the
extent not set forth in the Indenture and the registration statement and
applicable prospectus) the terms of such Designated Securities. The
obligations of the Underwriters under this Agreement and each Pricing
Agreement shall be several and not joint.
2. Representations and Warranties of Corporation. The Corporation
represents and warrants to, and agrees with, each of the Underwriters that:
(a) Three registration statements on Form S-3 (File No.
333-24051, 33-20203 and 33-38595) in respect of the Securities have
been filed with the Securities and Exchange Commission (the
"Commission"); such registration statements and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such
registration statements, but including all documents incorporated
by reference in the prospectus contained in the latest registration
statement, to the Representatives for each of the other
Underwriters, have been declared effective by the Commission in
such form; no other document with respect to such registration
statements or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission
(other than prospectuses filed pursuant to Rule 424(b) of the rules
and regulations of the Commission under the Securities Act of 1933,
as amended (the "1933 Act"), each in the form heretofore delivered
to the Representatives (other than pricing supplements relating to
the issuance of medium-term notes)); and no stop order suspending
the effectiveness of any such registration statements has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included
in the latest registration statement or filed with the Commission
pursuant to Rule 424(a) under the 1933 Act, is hereinafter called a
"Preliminary Prospectus"); the various parts of the latest
registration statement, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in
such registration statement at the time such part of such
registration statement became effective, but excluding the Forms
T-1 filed as an exhibit to the latest registration statement, each
as amended at the time such part of such registration statement
became effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the
Securities, in the form in which it has most recently been filed,
or transmitted for filing, with the Commission on or prior to the
date of this Agreement, being hereinafter called the "Prospectus";
any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form
under the 1933 Act, as of the date of such Preliminary Prospectus
or Prospectus, as the case may be; any reference to any amendment
or supplement to any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case may
be, under the Securities Exchange Act of 1934, as amended (the
"1934 Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to refer to
and include any annual report of the Corporation filed pursuant to
Sections 13(a) or 15(d) of the 1934 Act after the effective date of
the Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the Prospectus
as amended or supplemented in relation to the applicable Designated
Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the 1933 Act in accordance with
Section 4(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the 1933 Act or the 1934 Act, as applicable,
and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in
the Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the 1933 Act or the 1934 Act, as applicable, and
the rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Corporation by an Under-
writer of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented
relating to such Securities;
(c) The Registration Statement and the Prospectus conform,
and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects
to the requirements of the 1933 Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder, and the Registration
Statement and any further amendment thereto and the Prospectus do
not and will not, as of the effective date of the Registration
Statement and any further amendment thereto, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus and any further
amendment or supplement thereto, as of its date, does not and will
not contain an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Corporation by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has
not been any material adverse change, or any development involving
a prospective material adverse change, in or affecting the general
affairs, management, financial position, shareholders' equity or
results of operations of the Corporation, Norfolk Southern Railway
Company ("NSRC") and North American Van Lines, Inc. ("NAVL")
considered as one enterprise, otherwise than as set forth or
contemplated in the Prospectus;
(e) The Corporation has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the Commonwealth of Virginia, with corporate power and authority
to own its properties and conduct its business as described in the
Prospectus; and the Corporation has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which the
conduct of its business or the ownership of its property requires
such qualification;
(f) The Corporation has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Corporation have been duly and validly authorized and
issued and are fully paid and non-assessable, and all of the issued
shares of capital stock of NSRC and NAVL owned by the Corporation
have been duly and validly authorized and issued and are fully paid
and non-assessable, and (except for directors' qualifying shares)
are owned directly or indirectly by the Corporation, free and clear
of all liens, encumbrances, equities or claims other than
agreements relating to joint venture companies;
(g) The Securities have been duly authorized, and, when
Designated Securities are issued and delivered against payment
therefor pursuant to this Agreement and the Pricing Agreement, such
Designated Securities will have been duly executed, authenticated,
issued and delivered and will constitute valid and binding
obligations of the Corporation, enforceable against the Corporation
in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles, and entitled to the benefits provided by
the Indenture under which such Designated Securities are issued,
which will be substantially in the form filed as an exhibit to the
Registration Statement (the "Indenture"); the Indenture has been
duly authorized and qualified under the Trust Indenture Act and, at
the Time of Delivery for such Designated Securities (as defined in
Section 3 hereof), the Indenture will constitute a valid and
binding instrument of the Corporation, enforceable against the
Corporation in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture
conforms, and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(h) The issue and sale of the Securities and the compliance
by the Corporation with all of the provisions of the Securities,
the Indenture, this Agreement and any Pricing Agreement, and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
of the property or assets of the Corporation, NSRC or NAVL pursuant
to the terms of any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the
Corporation, NSRC or NAVL is a party or by which the Corporation,
NSRC or NAVL is bound or to which any of the property or assets of
the Corporation, NSRC or NAVL is subject, other than those
conflicts, breaches or defaults that would not, individually or on
the aggregate, have a material adverse effect on the condition,
financial or otherwise earnings, business affairs or business
prospects of the Corporation, NSRC and NAVL considered as one
enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), nor will such action result
in any violation of the provisions of the Articles of Incorporation
or By laws of the Corporation or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Corporation, NSRC or NAVL or any of their
properties other than those violations that would not have a
Material Adverse Effect; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Corporation of the
transactions contemplated by this Agreement or any Pricing
Agreement, or the Indenture, except such as have been, or will have
been prior to the Time of Delivery, obtained under the 1933 Act and
the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws or under the laws of
foreign jurisdictions in connection with the purchase and
distribution of the Securities by the Underwriters;
(i) KPMG Peat Marwick LLP, who have certified certain
financial statements of the Corporation and its subsidiaries, are
independent public accountants as required by the 1933 Act and the
rules and regulations of the Commission thereunder; and
(j) There are no legal or governmental proceedings pending
to which any of the Corporation, NSRC or NAVL is a party or of
which any property of the Corporation, NSRC or NAVL is the subject
required to be described in the Registration Statement or the
Prospectus which is not described as required; the legal or
governmental proceedings not so described are proceedings incident
to the kind of business conducted by the Corporation, NSRC or NAVL
which will not individually or in the aggregate have a Material
Adverse Effect; and, to the best of the Corporation's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others; and there is no material
contract or other material document of a character required to be
described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement which is not
described or filed as required.
3. Sale and Delivery to Underwriters; Closing. Underwriters'
Securities to be purchased by each Underwriter pursuant to the Pricing
Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours'
prior notice to the Corporation, shall be delivered by or on behalf of the
Corporation to the Representatives for the account of such Underwriter,
against payment by such Underwriter or on its behalf of the purchase price
therefor by wire transfer or certified or official bank check or checks,
payable to the order of the Corporation in same-day funds, all in the
manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives
and the Corporation may agree upon in writing, such time and date being
herein called the "Time of Delivery" for such Securities.
4. Agreements of the Corporation. The Corporation agrees with each
of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form
approved by the Representatives and to file such Prospectus
pursuant to Rule 424(b) under the 1933 Act not later than the
Commission's close of business on the second business day following
the execution and delivery of the Pricing Agreement relating to the
applicable Designated Securities or, if applicable, such earlier
time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or
Prospectus as amended or supplemented after the date of the Pricing
Agreement relating to such Securities and prior to the Time of
Delivery for such Securities which shall be reasonably disapproved
by the Representatives for such Securities promptly after
reasonable notice thereof; as long as a prospectus is required to
be delivered in connection with transactions in Designated
Securities, to advise the Representatives promptly of any such
amendment or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports
and any definitive proxy or information statements required to be
filed by the Corporation with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the 1934 Act for so long as the
delivery of a prospectus is required in connection with the
offering or sale of such Securities, and during such same period to
advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed with the
Commission, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any prospectus
relating to the Securities, of the suspension of the qualification
of such Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or sup-
plementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the
use of any prospectus relating to the Designated Securities or
suspending any such qualification, to promptly use its best efforts
to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities
for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with
such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of such Securities; provided, that in no
event shall the Corporation be obligated to qualify to do business
in any jurisdiction where it is not now so qualified or to take any
action which would subject it to service of process, other than
service of process arising out of the offer or sale of such
Designated Securities, in any jurisdiction where it is not now so
subject;
(c) Prior to 3:00 p.m., New York, New York time, on the New
York Business Day next succeeding the date of any Pricing Agreement
and from time to time for as long as delivery of a prospectus is
required in connection with transactions in Designated Securities
to furnish the Underwriters with copies of the Prospectus, as
amended or supplemented, in New York, New York in such quantities
as the Representatives may reasonably request, and, if the delivery
of a prospectus is required at any time in connection with the
offering or sale of such Securities and if at such time any event
shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus or to
file under the 1934 Act any document incorporated by reference in
the Prospectus in order to comply with the 1933 Act, the 1934 Act
or the Trust Indenture Act, to notify the Representatives and upon
their request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities
as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect
such compliance;
(d) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen
months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the 1933 Act), an earnings statement
of the Corporation and its subsidiaries (which need not be audited)
complying with Section 11(a) of the 1933 Act and the rules and
regulations of the Commission thereunder (including, at the option
of the Corporation, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the later of (i) the time set forth in the Pricing
Agreement and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise
dispose of any debt securities of the Corporation which mature more
than one year after such Time of Delivery and which are
substantially similar to such Designated Securities, without the
prior written consent of the Representatives; and
(f) So long as any of such Designated Securities are
outstanding, the Corporation will furnish to the Representatives
upon their request (i) as soon as available, a copy of each report
of the Corporation mailed to shareholders or filed with the
Commission and (ii) from time to time such other information
concerning the Corporation as the Representatives may reasonably
request.
5. Payment of Expenses. The Corporation covenants and agrees with
the several Underwriters that the Corporation will pay or cause to be
paid the following: (i) the fees, disbursements and expenses of the
Corporation's counsel and accountants in connection with the registration
of the Securities under the 1933 Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement,
any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any
Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection
with the offering, purchase, sale and delivery of the Securities; (iii) all
expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 4(b)
hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with
the Blue Sky and Legal Investment Surveys; (iv) any fees charged by
securities rating services for rating the Securities; (v) any filing fees
incident to, and the fees and disbursements of counsel for the Underwriters
in connection with, any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities; (vi)
the cost of preparing the Securities; (vii) the fees and expenses of any
Trustee and any agent of any Trustee and the fees and disbursements of
counsel for any Trustee in connection with any Indenture and the
Securities; (viii) the fees and expenses in connection with any listing of
the Designated Securities and registration of the Designated Securities
under the 1934 Act and (ix) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 7 and 10 hereof, the
Underwriters will pay all of their own costs and expenses, including the
fees of their counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they may make.
6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters of any Designated Securities under the Pricing Agreement
relating to such Designated Securities shall be subject, in the discretion
of the Representatives, to the condition that all representations and
warranties and other statements of the Corporation in or incorporated by
reference in the Pricing Agreement relating to such Designated Securities
are, at and as of the date of such Pricing Agreement and as of the Time of
Delivery for such Designated Securities, true and correct, the condition
that the Corporation shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations
under the 1933 Act and in accordance with Section 4(a) hereof; no
stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on
the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated such Time of
Delivery, with respect to the incorporation of the Corporation, the
validity of the Designated Securities being delivered at such Time
of Delivery, the Registration Statement, the Prospectus and such
related matters as you may reasonably request, and such counsel
shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Counsel for the Corporation satisfactory to the
Representatives (it being understood that J. Gary Lane, General
Counsel - Corporate, by virtue thereof, shall be deemed to be
reasonably satisfactory to the Representatives) shall have
furnished to the Representatives their written opinion, dated the
Time of Delivery for such Designated Securities, in form and
substance satisfactory to the Representatives, to the effect
that:
i) The Corporation has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the Commonwealth of Virginia, with corporate power
and authority to own its properties and conduct its business
as described in the Prospectus as amended or supplemented
and the Corporation has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in
which the conduct of its business or the ownership of its
property requires such qualification;
ii) To the best of such counsel's knowledge there are
no legal or governmental proceedings pending to which the
Corporation, NSRC or NAVL is a party or of which any
property of the Corporation, NSRC or NAVL is the subject
required to be described in the Registration Statement or
the Prospectus which is not described as required; to the
best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
iii) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Corporation;
iv) The issuance and sale of the Designated
Securities have been duly authorized by the Corporation; the
Underwriters' Securities have been duly executed, issued and
delivered by the Corporation and when authenticated in
accordance with the terms of the Indenture and paid for by
the Underwriters in accordance with the terms of this
Agreement and the Pricing Agreement, will be valid and
binding obligations of the Corporation enforceable in
accordance with their terms and entitled to the benefits of
the Indenture, except (a) to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other
similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered
in a proceeding at law or in equity) and (b) that such
counsel expresses no opinion as to Section 512 of the
Indenture;
v) The Indenture applicable to the Designated
Securities has been duly authorized, executed and delivered
by the Corporation and is a valid and binding agreement of
the Corporation, enforceable against the Corporation in
accordance with its terms, except (a) to the extent that
enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer
or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered
in a proceeding at law or in equity) and (b) that such
counsel expresses no opinion as to Section 512 of the
Indenture; and the Indenture has been qualified under the
Trust Indenture Act;
vi) The issuance and sale of the Designated
Securities and the compliance by the Corporation with all of
the provisions of the Designated Securities, the Indenture,
this Agreement and the Pricing Agreement with respect to the
Designated Securities and the consummation of the
transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the
Corporation, NSRC or NAVL pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Corporation is a party or by which the Corporation, NSRC or
NAVL is bound or to which any of the property or assets of
the Corporation, NSRC or NAVL is subject, other than those
conflicts, breaches or defaults that would not have a
Material Adverse Effect, nor will such actions result in any
violation of the provisions of the Articles of Incorporation
or Regulations of the Corporation or any statute or any
order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over
the Corporation, NSRC or NAVL or any of their proper-
ties, other than those violations that would not have a
Material Adverse Effect, except that counsel expresses no
opinion with respect to the State securities or Blue Sky
laws or with respects to the rights to indemnity and contri-
bution under the Underwriting Agreement;
vii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and
sale of the Designated Securities or the consummation by the
Corporation of the transactions contemplated by this
Agreement or such Pricing Agreement or the Indenture, except
such as have been obtained under the 1933 Act and the Trust
Indenture Act and such consents, approvals, authorizations,
orders, registrations or qualifications as may be required
under state securities or Blue Sky laws or under the laws of
foreign jurisdictions in connection with the purchase and
distribution of the Designated Securities by the Under-
writers;
viii) The statements set forth in the Prospectus
under the caption "Description of Securities" and under the
caption "Description of Designated Securities" (or
comparable caption) in the Prospectus as amended or
supplemented in respect of the Designated Securities,
insofar as they purport to summarize certain provisions of
the laws and documents referred to therein, fairly summarize
such provisions in all material respects;
ix) The documents incorporated by reference in the
Prospectus as amended or supplemented, when they were filed
with the Commission appeared on their face to be
appropriately responsive in all material respects to the
requirements of the 1934 Act and the rules and regulations
thereunder, except that such counsel expresses no opinion as
to the financial statements, related schedules and other
financial data, and such counsel does not assume any
responsibility for the accuracy, completeness or fairness of
the statements contained in the documents incorporated by
reference in the Prospectus as amended or supplemented; and
x) The Registration Statement, as of its effective
date, and the Prospectus as amended or supplemented, as of
its date, and any further amendments and supplements thereto
made by the Corporation prior to the Time of Delivery for
the Designated Securities, appeared on their face to be
appropriately responsive in all material respects to the
requirements of the 1933 Act and the Trust Indenture Act and
the rules and regulations thereunder, except that in each
case, such counsel expresses no opinion as to the financial
statements, schedules and other financial data, and such
counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement and the Prospectus, except for those
referred to in the opinion in paragraph (viii) of this
Section 6(c);
In addition, such counsel shall state that, although he is
not passing upon and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus, no facts have come to
such counsel's attention that have led him to believe that the
Registration Statement, at the time it became effective, contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that, as of its date and
the Time of Delivery, the Prospectus as amended or supplemented, or
any further amendment or supplement thereto made by the Corporation
prior to the Time of Delivery, contained or contains an untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading, except that such counsel expresses no opinion or belief
with respect to the financial statements, schedules, other
financial data and the Forms T-1 filed as an exhibit to the latest
registration statement;
In rendering the opinion required under this subsection
6(c), counsel to the Corporation need not express any opinion
concerning the laws of any jurisdiction other than those of the
Commonwealth of Virginia and the United States of America, provided
that such counsel states that he is aware of no difference between
the laws of the Commonwealth of Virginia and the laws of the State
of New York which would cause him to believe that his opinion would
be inapplicable if it were furnished in connection with the laws of
the State of New York. In addition, in rendering the opinion
required under this subsection 6(c), such counsel may rely as to
matters of fact, to the extent such counsel deems it proper, on
certificates of responsible officials of the Corporation and
public officials.
(d) On the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for such Designated
Securities, the independent accountants of the Corporation who have
certified the financial statements of the Corporation and its
subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to the Representatives
a letter, dated the date of the Pricing Agreement, and a letter
dated such Time of Delivery, respectively, each to the effect set
forth in Annex II hereto, and with respect to such letter dated
such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(e) Since the respective dates as of which information is
given in the Prospectus as amended or supplemented prior to the
date of the Pricing Agreement relating to the Designated Securities
there shall not have been any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the financial position, shareholders' equity or results
of operations of the Corporation, NSRC or NAVL otherwise than as
set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Agreement relating to
the Designated Securities, the effect of which is in the judgment
of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Underwriters' Securities on the terms and in
the manner contemplated in the Prospectus as first amended or
supplemented relating to the Designated Securities;
(f) On or after the date of the Pricing Agreement relating
to the Designated Securities (i) no downgrading shall have occurred
in the rating accorded the Corporation's debt securities or
preferred stock, if any, by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the 1933 Act, and (ii) no such
organization shall have publicly announced on or after such date
that it has under surveillance or review, with possible negative
implications, its rating of any of the Corporation's debt
securities or preferred stock, if any;
(g) The Corporation shall have complied with the provisions
of Section 4(c) hereof with respect to the furnishing of
prospectuses on the New York Business Day next succeeding the date
of the Pricing Agreement;
(h) The Corporation shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for the
Designated Securities a certificate or certificates of officers of
the Corporation satisfactory to the Representatives as to the
accuracy of the representations and warran-ties of the Corporation
herein at and as of such Time of Delivery, as to the performance by
the Corporation of all of its obligations hereunder to be performed
at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (f) of this Section and as to such other
matters as the Representatives may reasonably request.
7. Indemnification. (a) Indemnification of Underwriters. The
Corporation agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any
amendment thereto) or the omission or alleged omission
therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary
Prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading;
ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation,
or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission; provided
that any such settlement is effected with the written
consent of the Corporation; and
iii) against any and all expenses whatsoever, as
incurred (including the fees and disbursements of counsel
chosen by J.P. Morgan & Co., Merrill Lynch & Co. and Merrill
Lynch, Pierce, Fenner & Smith) (together, the "Lead
Underwriters"), reasonably incurred in investigating,
preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with written
information furnished to the Corporation by any Underwriter through
the Lead Underwriters expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Corporation, Directors and Officers.
Each Underwriter severally agrees to indemnify and hold harmless
the Corporation, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the
Corporation within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in
Section 7(a) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or
any Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Corporation by such Underwriter
through the Lead Underwriters expressly for use in the Registra-
tion Statement (or any amendment thereto) or such Preliminary
Prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall
not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 7(a) hereof, counsel to the
indemnified parties shall be selected by the Lead Underwriters,
and, in the case of parties indemnified pursuant to Section 7(b)
hereof, counsel to the indemnified parties shall be selected by the
Corporation. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition
to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section
7 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from
all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or
an admission of fault, culpability or a failure to act by or on
behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in
this Section 7 is for any reason unavailable to or insufficient to
hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then
each indemnifying party shall contribute to the aggregate amount of
such losses, liabilities, claims, damages and expenses incurred by
such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Corporation on the one hand and the Underwriters on the other hand
from the offering of the Designated Securities pursuant to this
Agreement and the applicable Pricing Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the
relative fault of the Corporation on the one hand and of the
Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Corporation on the one
hand and the Underwriters on the other hand in connection with the
offering of the Designated Securities pursuant to this Agreement
and the applicable Pricing Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the
offering of the Designated Securities pursuant to this Agreement
and the applicable Pricing Agreement (before deducting expenses)
received by the Corporation and the total underwriting discount
received by the Underwriters, in each case as set forth on the
cover of the Prospectus, bear to the aggregate initial public
offering price of the Designated Securities as set forth on such
cover.
The relative fault of the Corporation on the one hand and
the Underwriters on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the
Corporation or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The Corporation and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 7(e)
were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable
considerations referred to above in this Section 7(e). The
aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in
this Section 7(e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or
any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 7(e), no
Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Designated
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any
such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7(e), each person, if any, who
controls an Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights
to contribution as such Underwriter, and each director of the
Corporation, each officer of the Corporation who signed the
Registration Statement, and each person, if any, who controls the
Corporation within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to
contribution as the Corporation. The Underwriters' respective
obligations to contribute pursuant to this Section 7(e) are several
in proportion to the principal amount of Designated Securities set
forth opposite their respective names in Schedule I to the
applicable Pricing Agreement and not joint.
8. Termination of Agreement. (a) Termination; General. The
Representative(s) may terminate a Pricing Agreement, by notice to the
Corporation, at any time at or prior to the Time of Delivery (i) if there
has been, on or after the date of such Pricing Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Corporation and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material
adverse change in the financial markets in the United States, any outbreak
of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Designated Securities or to
enforce contracts for the sale of the Designated Securities, or (iii) if
trading in any securities of the Corporation has been suspended or
materially limited by the Commission or the New York Stock Exchange, or if
trading generally on the American Stock Exchange or the New York Stock
Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or
by such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv)
if a banking moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If any Pricing Agreement shall be terminated
pursuant to this Section 8 (other than as pursuant to clause (a)(i)), the
Corporation shall not then be under any liability to any Underwriter with
respect to the Designated Securities covered by such Pricing Agreement
except as provided in Sections 5 and 7 hereof; but, if for any other reason
Underwriters' Securities are not delivered by or on behalf of the
Corporation as provided herein, the Corporation will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses
approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated
Securities.
9. Default by One or More Underwriters. (a) If any Underwriter
shall default in its obligation to purchase the Underwriters' Securities
which it has agreed to purchase under the Pricing Agreement relating to
such Underwriters' Securities, the Representatives may in their discretion
arrange for themselves or another party or other parties to purchase such
Underwriters' Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives
do not arrange for the purchase of such Underwriters' Securities, then the
Corporation shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to the
Representatives to purchase such Underwriters' Securities on such terms. In
the event that, within the respective prescribed period, the
Representatives notify the Corporation that they have so arranged for the
purchase of such Underwriters' Securities, or the Corporation notifies the
Representatives that it has so arranged for the purchase of such
Underwriters' Securities, the Representatives or the Corporation shall have
the right to postpone the Time of Delivery for such Underwriters'
Securities for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Corporation agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus
which in the opinion of the Representatives may thereby be made necessary.
The term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such
Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Corporation as provided in subsection (a)
above, the aggregate principal amount of such Underwriters' Securities
which remains unpurchased does not exceed one-eleventh of the aggregate
principal amount of the Designated Securities, then the Corporation shall
have the right to require each non-defaulting Underwriter to purchase the
principal amount of Underwriters' Securities which such Underwriter agreed
to purchase under the Pricing Agreement relating to such Designated
Securities and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of Designated
Securities which such Underwriter agreed to purchase under such Pricing
Agreement) of the Underwriters' Securities of such defaulting Underwriter
or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Corporation as provided in subsection (a)
above, the aggregate principal amount of Underwriters' Securities which
remains unpurchased exceeds one-eleventh of the aggregate principal amount
of the Designated Securities, as referred to in subsection (b) above, or if
the Corporation shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase Underwriters'
Securities of a defaulting Underwriter or Underwriters, then the Pricing
Agreement relating to such Designated Securities shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the
Corporation, except for the expenses to be borne by the Corporation and the
Underwriters as provided in Section 5 hereof and the indemnity and
contribution agreements in Section 7 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. Survival of Representations and Warranties. The respective
indemnities, agreements, representations, warranties and other statements
of the Corporation and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or
the Corporation, or any officer or director or controlling person of the
Corporation, and shall survive delivery of and payment for the Securities.
11. Parties Entitled to Rely; Notices. In all dealings hereunder,
the Representatives of the Underwriters of Designated Securities shall
act on behalf of each of such Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement
on behalf of any Underwriter made or given by such Representatives jointly
or by such of the Representatives, if any, as may be designated for such
purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Representatives as
set forth in the Pricing Agreement; and if to the Corporation shall be
delivered or sent by mail, telex or facsimile transmission to the address
of the Corporation set forth in the Registration Statement: Attention: Vice
President and Treasurer; provided, however, that any notice to an
Underwriter pursuant to Section 7(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Corporation by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
12. Parties. This Agreement and each Pricing Agreement shall be
binding upon, and inure solely to the benefit of, the Underwriters, the
Corporation and, to the extent provided in Sections 7 and 9 hereof, the
officers and directors of the Corporation and each person who controls the
Corporation or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire
or have any right under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Securities from any Underwriter shall
be deemed a successor or assign by reason merely of such purchase.
13. Time of the Essence. Time shall be of the essence of each
Pricing Agreement. As used herein, "business day" shall mean any day when
the Commission's office in Washington, D.C. is open for business.
14. Governing Law. This Agreement and each Pricing Agreement shall
be governed by and construed in accordance with the laws of the State of
New York.
15. Counterparts. This Agreement and each Pricing Agreement may be
executed by any one or more of the parties hereto and thereto in any number
of counterparts, each of which shall be deemed to be an original, but all
such respective counterparts shall together constitute one and the same
instrument.
Very truly yours,
NORFOLK SOUTHERN CORPORATION
By: /s/ William J. Romig
Name: William J. Romig
Title: Vice President and Treasurer
ANNEX I
Pricing Agreement
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities Inc.
PaineWebber Incorporated
Donaldson, Lufkin & Jenrette
Securities Corporation
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o [J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10560]
[Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
250 Vesey Street
New York, New York 10281]
May 14, 1997
Ladies and Gentlemen:
Norfolk Southern Corporation, a Virginia corporation (the
"Corporation"), proposes, subject to the terms and conditions stated herein
and in the Underwriting Agreement, dated May 14, 1997 (the "Underwriting
Agreement"), to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities as specified in Schedule I
hereto (the "Designated Securities"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its
entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of
the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that
each representation and warranty which refers to the Prospectus in
Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in
relation to the Prospectus as amended or supplemented relating to the
Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on
behalf of each of the Underwriters of the Designated Securities pursuant to
Section 11 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 11 are set forth at the end of
Schedule I hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Corporation
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the
Corporation, at the time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto, the principal amount of
Designated Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
This Pricing Agreement may be executed in counterparts, and may be
evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted.
If the foregoing is in accordance with your understanding, please
sign and return to us one for the Corporation and each of the
Representatives plus one for each counsel counterparts hereof, and upon
acceptance hereof by you, on behalf of each of the Underwriters, this
letter and such acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by reference, shall constitute a
binding agreement between each of the Underwriters and the Corporation. It
is understood that your acceptance of this letter on behalf of each of the
Underwriters is or will be pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Corporation for examination upon request, but without warranty on the part
of the Representatives as to the authority of the signers thereof.
Very truly yours,
Norfolk Southern Corporation
By:___________________________
Name: William J. Romig
Title: Vice President and
Treasurer
Accepted as of the date hereof:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities Inc.
PaineWebber Incorporated
Donaldson, Lufkin & Jenrette
Securities Corporation
By: [J.P. Morgan Securities Inc.]
[Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated]
By:_____________________________________
Name:
Title:
For themselves and as Representatives of the several
Underwriters named in Schedule I hereto
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
Merrill Lynch & Co. $
J.P. Morgan Securities Inc.
PaineWebber Incorporated
Donaldson, Lufkin & Jenrette
Securities Corporation
[Names of other Underwriters]
Total $
ANNEX II
(i) They are independent certified public accountants with respect
to the Corporation and its subsidiaries within the meaning of the 1933 Act
and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act or the
1934 Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements of the
Corporation for the periods specified in such letter;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus and/or included in the Corporation's quarterly report on Form
10-Q incorporated by reference into the Prospectus; and on the basis of
specified procedures including inquiries of officials of the Corporation
who have responsibility for financial and accounting matters regarding
whether the unaudited condensed consolidated financial statements referred
to in paragraph (vi)(A)(i) below comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the 1934
Act and the related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and
the 1934 Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Corporation for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Corporation's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where applicable)
in the audited consolidated financial statements for five such fiscal years
which were included or incorporated by reference in the Corporation's
Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Corporation and its subsidiaries, inspection of
the minute books of the Corporation and its subsidiaries since the date of
the latest audited financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of the Corporation and
its subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by reference in
the Corporation's Quarterly Reports on Form 10-Q incorporated by reference
in the Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the 1934 Act and the related
published rules and regulations, or (ii) any material modifications should
be made to the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus or included in the Corporation's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus for them
to be in conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding items
in the unaudited consolidated financial statements from which such data and
items were derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial statements
included or incorporated by reference in the Corporation's Annual Report on
Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited income
statement data and balance sheet items included in the Prospectus and
referred to in Clause (B) were not determined on a basis substantially
consistent with the basis for the audited financial statements included or
incorporated by reference in the Corporation's Annual Report on Form 10-K
for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the published rules and regulations
thereunder or the pro forma adjustments, if any, have not been properly
applied to the historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance shares
and upon conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included or
incorporated by reference in the Prospectus) or any increase in the
consolidated long-term debt of the Corporation and its subsidiaries, or
any decreases in consolidated net current assets or stockholders' equity or
other items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with amounts
shown in the latest balance sheet included or incorporated by reference in
the Prospectus, except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in Clause (E) there were any decreases in consolidated net
sales, gross profit, earnings from operations, earnings from continuing
operations or the total or per share amounts of consolidated net income or
other items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in each
case for increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives
which are derived from the general accounting records of the Corporation
and its subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Corporation and
its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed
to refer to the Prospectus (including the documents incorporated by
reference therein) as defined in the Underwriting Agreement as of the date
of the letter delivered on the date of the Pricing Agreement for purposes
of such letter and to the Prospectus as amended or supplemented (including
the documents incorporated by reference therein) in relation to the
applicable Designated Securities for purposes of the letter delivered at
the Time of Delivery for such Designated Securities.
EXHIBIT 1.1(B)
PRICING AGREEMENT
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities Inc.
PaineWebber Incorporated
Donaldson, Lufkin & Jenrette
Securities Corporation
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10560
May 14, 1997
Ladies and Gentlemen:
Norfolk Southern Corporation, a Virginia corporation (the
"Corporation"), proposes, subject to the terms and conditions stated herein
and in the Underwriting Agreement, dated May 14, 1997 (the "Underwriting
Agreement"), to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities as specified in Schedule I
hereto (the "Designated Securities"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety,
and shall be deemed to be a part of this Agreement to the same extent as if
such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have
been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of
the Underwriting Agreement shall be deemed to be a representation or
warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as
of the date of this Pricing Agreement in relation to the Prospectus as
amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives
herein and in the provisions of the Underwriting Agreement so incorporated
by reference shall be deemed to refer to you. Unless otherwise defined
herein, terms defined in the Underwriting Agreement are used herein as
therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 11 of the Underwriting Agreement and the
address of the Representatives referred to in such Section 11 are set forth
at the end of Schedule I hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Corporation
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the
Corporation, at the time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto, the principal amount of
Designated Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
This Pricing Agreement may be executed in counterparts, and may be
evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted.
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Corporation and each of the Representatives
plus one for each counsel counterparts hereof, and upon acceptance hereof
by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement
between each of the Underwriters and the Corporation. It is understood that
your acceptance of this letter on behalf of each of the Underwriters is or
will be pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Corporation for
examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
Norfolk Southern Corporation
By: /s/ William J. Romig
--------------------------
Name: William J. Romig
Title: Vice President and
Treasurer
Accepted as of the date hereof:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities Inc.
PaineWebber Incorporated
Donaldson, Lufkin & Jenrette
Securities Corporation
By: J.P. Morgan Securities Inc.
By: /s/ Thomas F. Hagerstrom
----------------------------
Name: Thomas F. Hagerstrom
Title: Managing Director
For themselves and as Representatives of the several
Underwriters named in Schedule I hereto
===========================================================================
<TABLE>
<CAPTION>
Principal Amount of Notes1 to be Purchased
--------------------------------------------------------------------
2000 Notes 2002 Notes 2017 Notes 2037 Notes
-------------- -------------- -------------- --------------
<S> <C> <C> <C> <C>
Merrill Lynch, Pierce, Fenner
& Smith Incorporated............ $152,000,000 $190,000,000 $209,000,000 $285,000,000
J.P. Morgan Securities Inc...... 152,000,000 190,000,000 209,000,000 285,000,000
PaineWebber Incorporated........ 64,000,000 80,000,000 88,000,000 120,000,000
Donaldson, Lufkin, Jenrette
Securities Corporation.......... 32,000,000 40,000,000 44,000,000 60,000,000
------------ ------------ ------------ ------------
Total................... $400,000,000 $500,000,000 $550,000,000 $750,000,000
</TABLE>
- -------------
1 The Notes are to be issued pursuant to the Indenture, dated January 15,
1991 (the "Base Indenture"), between the Corporation and Morgan Guaranty
Trust Company of New York and the First Supplemental Indenture, dated
May 19, 1997 (together with the Base Indenture, the "Indenture"),
between the Corporation and the First Trust of New York, National
Association.
EXHIBIT 1.1(C)
Pricing Agreement
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities Inc.
PaineWebber Incorporated
Donaldson, Lufkin & Jenrette
Securities Corporation
As Representatives of the several
Underwriters named in Schedule I hereto, c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
250 Vesey Street
New York, New York 10281
May 14, 1997
Ladies and Gentlemen:
Norfolk Southern Corporation, a Virginia corporation (the
"Corporation"), proposes, subject to the terms and conditions stated herein
and in the Underwriting Agreement, dated May 14, 1997 (the "Underwriting
Agreement"), to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities as specified in Schedule I
hereto (the "Designated Securities"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its
entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of
the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that
each representation and warranty which refers to the Prospectus in
Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in
relation to the Prospectus as amended or supplemented relating to the
Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on
behalf of each of the Underwriters of the Designated Securities pursuant to
Section 11 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 11 are set forth at the end of
Schedule I hereto.
An amendment to the Registration Statement, or a supplement
to the Prospectus, as the case may be, relating to the Designated
Securities, in the form heretofore delivered to you is now proposed to be
filed with the Commission.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the
Corporation agrees to issue and sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Corporation, at the time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto, the principal amount of
Designated Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
This Pricing Agreement may be executed in counterparts, and
may be evidenced by an exchange of telegraphic communications or any other
rapid transmission device designed to produce a written record of
communications transmitted.
If the foregoing is in accordance with your understanding,
please sign and return to us one for the Corporation and each of the
Representatives plus one for each counsel counterparts hereof, and upon
acceptance hereof by you, on behalf of each of the Underwriters, this
letter and such acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by reference, shall constitute a
binding agreement between each of the Underwriters and the Corporation. It
is understood that your acceptance of this letter on behalf of each of the
Underwriters is or will be pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Corporation for examination upon request, but without warranty on the part
of the Representatives as to the authority of the signers thereof.
Very truly yours,
Norfolk Southern Corporation
By: /s/ William J. Romig
Name: William J. Romig
Title: Vice President and
Treasurer
Accepted as of the date hereof:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities Inc.
PaineWebber Incorporated
Donaldson, Lufkin & Jenrette
Securities Corporation
By: Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ William S. Susman
Name: William S. Susman
Title: Vice President
For themselves and as Representatives of the several
Underwriters named in Schedule I hereto
<TABLE>
<CAPTION>
Schedule I
Principal Amount of Notes(1) to be Purchased
-----------------------------------------------------------
2001 Notes 2007 Notes 2027 Notes 2097 Notes
-------------- ------------- ------------ ------------
<S> <C> <C> <C> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.............. $ 76,000,000 $285,000,000 $304,000,000 $133,000,000
J.P. Morgan Securities Inc.................. 76,000,000 285,000,000 304,000,000 133,000,000
PaineWebber Incorporated.................... 32,000,000 120,000,000 128,000,000 56,000,000
Donaldson, Lufkin, Jenrette Securities
Corporation............... 16,000,000 60,000,000 64,000,000 28,000,000
------------ ------------ ------------ -------------
Total............................... $200,000,000 $750,000,000 $800,000,000 $350,000,000
</TABLE>
- ------------
1 The Notes are to be issued pursuant to the Indenture, dated January
15, 1991 (the "Base Indenture"), between the Corporation and Morgan
Guaranty Trust Company of New York and the First Supplemental
Indenture, dated May 19, 1997 (together with the Base Indenture, the
"Indenture"), between the Corporation and the First Trust of New York,
National Association.
FIRST SUPPLEMENTAL INDENTURE
between
NORFOLK SOUTHERN CORPORATION
and
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
Dated as of May 19, 1997
FIRST SUPPLEMENTAL INDENTURE, dated as of May 19, 1997
(the "First Supplemental Indenture"), between Norfolk Southern
Corporation, a Virginia corporation (the "Corporation"), and
First Trust of New York, National Association, as successor
trustee (the "Trustee"), under the Indenture, dated as of January
15, 1991 between the Corporation and the Trustee (the "Base
Indenture").
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 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 eight
new series of its Securities to be known as its 6.70% Notes due
2000 (the "2000 Notes"), the 6.875% Notes due 2001 (the "2001
Notes"), the 6.95% Notes due 2002 (the "2002 Notes"), the 7.35%
Notes due 2007 (the "2007 Notes"), the 7.70% Notes due 2017 (the
"2017 Notes"), the 7.80% Notes due 2027 (the "2027 Notes"), the
7.05% Notes due 2037 (the "2037 Notes") and the 7.90% Notes due
2097 (the "2097 Notes" and, together with the 2000 Notes, the
2001 Notes, the 2002 Notes, the 2007 Notes, the 2017 Notes, the
2027 Notes and the 2037 Notes, the "Notes"), the form and
substance of each such series of Notes and the terms, provisions
and conditions thereof to be set forth as provided in the Base
Indenture and this First Supplemental Indenture;
WHEREAS, (a) the Corporation has requested that the
Trustee execute and deliver this First Supplemental Indenture
pursuant to Sections 301 and 801 of the Base Indenture, (b) all
requirements necessary to make this First 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 First 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 First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental
Indenture has the same meaning throughout this First 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 First 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):
"Capital Lease Obligation" means any obligation
arising out of any lease of property which are 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
2017 Notes, the 2027 Notes, the 2037 Notes or the 2097 Notes, as
the case may be, 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 comparable maturity to
the remaining term of the 2017 Notes, the 2027 Notes, the 2037
Notes or the 2097 Notes, as the case may be.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) on the third business day
preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite 3:30
p.m. Quotations for US Government Securities" or (ii) if such
release (or any successor release) is not published or does not
contain such prices on such business day, the average of the
Reference Treasury Dealer Quotations for such redemption date.
"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 5:00 p.m., New York,
New York time, on the third business day preceding such
redemption date.
"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 J.P. Morgan
Securities Inc. or Merrill Lynch, Pierce, Fenner & Smith
Incorporated or, if such firm is unwilling or unable to select
the Comparable Treasury Issue, an independent investment banking
institution of national standing in the United States appointed
by the Trustee after consultation with the Corporation.
"Intangible Assets" means at any date, the value (net
of any applicable reserves) as shown on or reflected in the most
recent consolidated balance sheet of the Corporation and the
Restricted Subsidiaries as at the end of the fiscal quarter of
the Corporation ending not more than 135 days prior to such date,
prepared in accordance with generally accepted accounting
principles, of : (i) all trade names, trademarks, licenses,
patents, copyrights, service marks, goodwill and other like
intangibles; (ii) organizational and development costs; (iii)
deferred charges (other than prepaid items, such as insurance,
taxes, interest, commissions, rents, deferred interest waiver,
compensation and similar items and tangible assets being
amortized); and (iv) unamortized debt discount and expense, less
unamortized premium.
"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.
"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 and North American Van Lines, Inc.
"Purchase Money Lien" shall mean any mortgage, pledge,
lien, encumbrance, charge or security interest of any kind upon
any indebtedness of any Principal Subsidiary acquired after the
date any Notes are first issued if such Purchase Money Lien is
for the purpose of financing, and does not exceed, the cost to
the Corporation or any Subsidiary of acquiring the indebtedness
of such Principal Subsidiary and such financing is effected
concurrently with, or within 180 days after, the date of such
acquisition.
"Receivables" mean any right of payment from or on
behalf of any obligor, whether constituting an account, chattel
paper, instrument, general intangible or otherwise, arising,
either directly or indirectly, from the financing by the
Corporation or any Subsidiary of the Corporation of property or
services, monies due thereunder, security interests in the
property and services financed thereby and any and all other
related rights.
"Reference Treasury Dealer" means each of J.P. Morgan
Securities Inc. and Merrill Lynch Government Securities Inc. and
their respective successors; provided, however, that if one of
the foregoing ceases to be a primary U.S. Government securities
dealer in New York, New York (a "Primary Treasury Dealer") or
otherwise fails to provide a Reference Treasury Dealer Quotation,
the Corporation will substitute therefor another Primary Treasury
Dealer.
"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.
"Tax Event" means that the Corporation shall have
received the written opinion of a nationally recognized
independent tax counsel to the effect that, on or after the date
of the issuance of the 2097 Notes, as a result of (a) any
amendment to, clarification of, or change in any law, or any
regulation thereunder, of the United States, (b) any judicial
decision, official administrative pronouncement, ruling,
regulatory procedure, including any notice or announcement of
intent to adopt or promulgate any ruling, regulatory procedure or
regulation (an "Administrative or Judicial Action"), or (c) any
amendment to, clarification of, or change in the official
position with respect to or any interpretation of such
Administrative or Judicial Action that differs from the
theretofore generally accepted position, in each case, on or
after, the date of the issuance of the 2097 Notes, such change in
tax laws or regulations creates a more than insubstantial risk
that interest paid by the Corporation on the 2097 Notes is not,
or will not be, deductible, in whole or in part, by the Company
for United States federal income tax purposes.
"Treasury Yield" means, with respect to any redemption
date, the rate per annum equal to the semi-annual equivalent
yield to maturity of the Comparable Treasury Issue, assuming a
price of the Comparable Treasury Issue (expressed as a percentage
of its principal amount) equal to the Comparable Treasury Price
for such redemption date.
"Underwriting Agreement" shall mean the Underwriting
Agreement, dated May 14, 1997, of the Corporation, together with
the Pricing Agreement, dated May 14, 1997, among the Corporation
and J.P. Morgan & Co., Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith, PaineWebber Incorporated and Donaldson,
Lufkin & Jenrette Securities Corporation for themselves and as
Representatives of the several Underwriters named therein.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 201 Designation and Principal Amount.
There is hereby authorized eight series of Securities
designated the 6.70% Notes due 2000, the 6.875% Notes due 2001,
the 6.95% Notes due 2002, the 7.35% Notes due 2007, the 7.70%
Notes due 2017, the 7.80% Notes due 2027, the 7.05% Notes due
2037 and the 7.90% Notes due 2097, limited in aggregate principal
amount to $4,300,000,000, in an amount or amounts and registered
in the names of such Persons as shall be set forth in any written
order of the Corporation for the authentication and delivery of
Notes pursuant to Section 303 of the Base Indenture.
SECTION 202 Place of Payment; Security Register for Notes.
The Corporation selects New York, New York as the Place of
Payment for the Notes and hereby appoints the Trustee as Security
Registrar for the Notes.
SECTION 203 Global Note.
(a) Each series of 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"), 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 First 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) Each 2000 Note will bear interest at the 2000 Note
Interest Rate (as defined below); each 2001 Note will bear
interest at the 2001 Note Interest Rate (as defined below); each
2002 Note will bear interest at the 2002 Note Interest Rate (as
defined below); each 2007 Note will bear interest at the 2007
Note Interest Rate (as defined below); each 2017 Note will bear
interest at the 2017 Note Interest Rate (as defined below); each
2027 Note will bear interest at the 2027 Note Interest Rate (as
defined below); each 2037 Note will bear interest of the 2037
Note Interest Rate (as defined below) and each 2097 Note will
bear interest at the 2097 Note Interest Rate (as defined below),
in each case from May 19, 1997 until the principal thereof
becomes due and payable. Interest on the 2000 Notes, the 2001
Notes, the 2002 Notes and the 2037 Notes will be payable semi-
annually in arrears on May 1 and November 1 of each year,
commencing May 19, 1997, to the Person in whose name any such
Note or any predecessor Note is registered, at the close of
business on the regular record date for such interest
installment, which, in the case of a Global Note, shall be the
close of business on the April 15 and October 15 next preceding
such Interest Payment Date. Interest on the 2007 Notes, the 2017
Notes, the 2027 Notes and the 2097 Notes will be payable semi-
annually in arrears on May 15 and November 15 of each year,
commencing May 19, 1997, to the Person in whose name any such
Note or any predecessor Note is registered, at the close of
business on the regular record date for such interest
installment, which, in the case of a Global Note, shall be the
close of business on the May 1 and November 1 next preceding such
Interest Payment Date. Notwithstanding the foregoing sentence,
if the Notes are no longer in book-entry only form, the regular
record dates for the 2000 Notes, the 2001 Notes, the 2002 Notes
and the 2037 Notes shall be the April 15 and October 15 prior to
the applicable Interest Payment Date and the Regular Record dates
for the 2007 Notes, the 2017 Notes, the 2027 Notes and the 2097
Notes will be the May 1 and November 1 prior to the applicable
Interest Payment Date.
(b) The interest rate in respect of the 2000 Notes
will be 6.70% per annum (the "2000 Note Interest Rate"). The
interest rate in respect of the 2001 Notes will be 6.875% per
annum (the "2001 Note Interest Rate"). The interest rate in
respect of the 2002 Notes will be 6.95% per annum (the "2002 Note
Interest Rate"). The interest rate in respect of the 2007 Notes
will be 7.35% per annum (the "2007 Note Interest Rate"). The
interest rate in respect of the 2017 Notes will be 7.70% per
annum (the "2017 Note Interest Rate"). The interest rate in
respect of the 2027 Notes will be 7.80% per annum (the "2027 Note
Interest Rate"). The interest rate in respect of the 2037 Notes
will be 7.05% per annum (the "2037 Note Interest Rate"). The
interest rate in respect of the 2097 Notes will be 7.90% per
annum (the "2097 Note Interest Rate").
(c) In the event that any date on which interest is
payable on the Notes is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding
day which is a Business Day, with the same force and effect as if
made on such date, and no interest shall accrue on the amount so
payable from the period from and after such Interest Payment Date
or Maturity Date, as the case may be (each date on which interest
is actually payable, an "Interest Payment Date").
ARTICLE III
COVENANTS
SECTION 301 Limitation on Liens on Stock or Indebtedness of
Principal Subsidiaries.
(a) For so long as any Notes issued pursuant to this
First 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 restriction does not 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. This
provision does not restrict any other property of the Corporation
or its Subsidiaries. This provision does not 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 First
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.
The limitation on Funded Debt will not apply to, and there
will be excluded from Funded Debt in any computation under such
restriction, 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
as 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 material
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 Security
with banks (in the aggregate, not exceeding $30 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 2000 Notes, 2001 Notes, 2002 Notes and 2007 Notes
Not Redeemable.
The 2000 Notes, 2001 Notes, 2002 Notes and 2007 Notes
are not redeemable prior to maturity.
SECTION 402 Redemption of 2017 Notes, 2027 Notes, 2037 Notes
and 2097 Notes at the Option of the Corporation.
(a) The 2017 Notes, the 2027 Notes and the 2097 Notes,
at any time from their date of issuance, and the 2037 Notes, at
any time on or after May 2, 2004, are redeemable, in whole or in
part, at the option of the Corporation, upon not less than (i) 45
days notice to the Trustee (unless a shorter time shall be
acceptable to the Trustee for its convenience) and (ii) 30 nor
more than 60 days prior written notice at a redemption price as
evidenced by an Officer's Certificate of the Corporation equal to
the greater of (i) 100% of their principal amount or (ii) the sum
of the present values of the remaining scheduled payments of
principal and interest thereon discounted, on a semi-annual
basis, at the Treasury Yield plus 20 basis points, together with
the accrued interest to the date of redemption; provided,
however, that interest installments due on an Interest Payment
Date which is on or prior to the date of redemption will be
payable to those Holders who are Holders of record of such 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 2017 Notes, the 2027 Notes, the 2037 Notes
or the 2097 Notes are only partially redeemed pursuant to this
Section 402, 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 403 Redemption of 2037 Notes on May 1, 2004 at the
Option of the Holders Thereof.
(a) On May 1, 2004, or if such date is not a Business
Day, then the next succeeding Business Day (the "Redemption
Date"), each Holder of 2037 Notes will have the right (the
"Redemption Right") to require the Corporation to redeem all or
any part (equal to $1,000 or an integral multiple thereof) of
such Holder's 2037 Notes for cash at a purchase price equal to
100% of the aggregate principal amount thereof plus accrued and
unpaid interest thereon to the Redemption Date.
(b) On or prior to February 15, 2004, the Corporation
will mail a notice to each Holder of 2037 Notes stating that (a)
in order for a Holder of 2037 Notes to exercise the Redemption
Right, the Holder must surrender the 2037 Notes in respect of
which the Redemption Right is being exercised, together with the
form entitled "Option of Holder to Elect Redemption on May 1,
2004" on the reverse of the 2037 Notes, duly completed, or
transfer such 2037 Notes by book-entry, to the Trustee during the
period from March 1, 2004 and prior to 5:00 p.m., New York, New
York time on April 1, 2004 (or if such date is not a Business
Day, the next succeeding Business Day), (b) any election on the
part of a Holder to exercise the Redemption Right effected in
accordance with the foregoing shall be irrevocable on the part of
the Holder and may not be withdrawn; provided, that if the
Corporation shall have notified the Trustee on or after March 15,
2004 and prior to April 2, 2004 of its intention to exercise its
right of redemption under Section 402 hereof, the Holder's
Redemption Right may be revoked by such Holder upon written
notice to the Trustee received on or prior to April 23, 2004, (c)
Holders whose 2037 Notes are being redeemed only in part will be
issued new 2037 Notes equal in principal amount to the unredeemed
portion of the 2037 Notes surrendered, which unredeemed portion
must be equal to $1,000 in principal amount or an integral
multiple thereof, and (d) unless the Corporation defaults in the
payment of principal and accrued interest on the 2037 Notes will
cease to accrue on the Redemption Date. The Corporation will
comply with the requirements of Rule 14e-1 under the Securities
Exchange Act of 1934, as amended, and any other securities laws
and regulations thereunder to the extent such laws and
regulations are applicable to the redemption of the 2037 Notes
pursuant to the Redemption Right.
(c) On the Redemption Date, the Corporation will, to
the extent lawful, deposit with the Trustee an amount sufficient
to redeem all 2037 Notes or portions thereof being redeemed
(together with accrued interest). Failure by the Corporation to
redeem the 2037 Notes on the Redemption Date shall constitute an
Event of Default under the Base Indenture.
SECTION 404 Advancement of Stated Maturity of the 2097
Notes at the Option of the Corporation Upon the
Occurrence of a Tax Event
(a) Upon the occurrence of the Tax Event, the
Corporation shall have the right, without the consent of the
Holders of the 2097 Notes, to advance the Stated Maturity of all,
but not less than all, of the 2097 Notes to the extent required,
in the written opinion of a nationally recognized independent tax
counsel experienced in such matters, such that, after advancing
the Stated Maturity, interest paid on the 2097 Notes will be
deductible for United States federal income tax purposes.
(b) In the event that the Corporation elects to
exercise its right to advance the Stated Maturity of the 2097
Notes on the occurrence of a Tax Event, the Corporation shall
mail a notice of the advanced Stated Maturity to each Holder
hereof and to the Trustee in the manner provided in the Base
Indenture by first-class mail not more than 60 days after the
occurrence of such Tax Event, stating the new Stated Maturity of
the 2097 Notes. Such notice shall be effective immediately upon
mailing.
SECTION 405 No Sinking Fund.
The Notes are not entitled to the benefit of any
sinking fund.
ARTICLE V
FORMS OF NOTES
SECTION 501 Forms of Notes.
The 2000 Notes, the 2001 Notes, the 2002 Notes, 2007
Notes, the 2017 Notes, the 2027 Notes, the 2037 Notes and the
2097 Notes, along with the Trustee's Certificate of
Authentication to be endorsed thereon in each case, are to be
substantially in the forms attached hereto as Exhibits A, B, C,
D, E, F, G and H respectively.
ARTICLE VI
ORIGINAL ISSUE OF NOTES
SECTION 601 Original Issue of Notes.
Notes in the aggregate principal amount of
$4,300,000,000 may, upon execution of this First Supplemental
Indenture, be executed by the Corporation and delivered to the
Trustee for authentication as provided in Sections 301 and 303 of
the Base Indenture, in the maximum principal amount per series as
follows: 2000 Notes in a maximum amount of $400 million, 2001
Notes in a maximum amount of $200 million, 2002 Notes in a
maximum amount of $500 million, 2007 Notes in a maximum amount of
$750 million, 2017 Notes in a maximum amount of $550 million,
2027 Notes in a maximum amount of $800 million, 2037 Notes in a
maximum amount of $750 million and 2097 Notes in a maximum amount
of $350 million.
ARTICLE VII
MISCELLANEOUS
SECTION 701 Ratification of Base Indenture.
The Base Indenture, as supplemented by this First
Supplemental Indenture, is in all respects ratified and
confirmed, and this First 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 First
Supplemental Indenture.
SECTION 703 Governing Law.
This First Supplemental Indenture and each Note 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 First 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 First Supplemental
Indenture or of the Notes, but this First 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 First 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
First Supplemental Indenture to be duly executed and attested, as
of the day and year first above written.
NORFOLK SOUTHERN CORPORATION
By: /s/ William J. Romig
___________________________
Name: William J. Romig
Title: Vice President and
Treasurer
Attest:
By: /s/ Dezora M. Martin
____________________________
Name: Dezora M. Martin
Title: Corporate Secretary
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION,
as Trustee
By: /s/ Catherine F. Donohue
__________________________
Name: Catherine F. Donohue
Title: Vice President
Attest:
By: /s/ Alfia Monastra
______________________
Name: Alfia Monastra
Title: Assistant Secretary
EXHIBIT A
(FORM OF FACE OF 2000 NOTE)
[IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT - This Note
is a Global Note within the meaning of the Base Indenture
hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Note is
exchangeable for Notes registered in the name of a person other
than the Depositary or its nominee only in the limited
circumstances described in the Base Indenture, and no transfer of
this Note (other than a transfer of this Note as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Note is presented by an authorized
representative of The Depository Trust Company, a New York
Corporation ("DTC"), to the issuer or its agent for registration
of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.]
No. CUSIP No. 655844 AC 2
NORFOLK SOUTHERN CORPORATION
NOTE
DUE MAY 1, 2000
NORFOLK SOUTHERN CORPORATION, a corporation organized
under the laws of the Commonwealth of Virginia (herein called the
"Corporation", which term includes any successor corporation
under the Base Indenture hereinafter referred to), for value
received, hereby promises to pay to _____________________________
_________________________, or registered assigns, the principal
sum of _____________ Dollars ($___________) on May 1, 2000 and to
pay interest thereon from May 19, 1997, or from the most recent
interest payment date to which interest has been paid or duly
provided for, semi-annually in arrears on May 1 and November 1 of
each year, commencing November 1, 1997, at a rate of 6.70% per
annum until the principal hereof is paid or made available for
payment, and on any overdue principal and premium, if any, at a
rate of 6.70% per annum and (without duplication and to the
extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at a rate
of 6.70% 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 April 15 and October 15
next preceding such Interest Payment Date. Any such interest
installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered Holders on such
regular record date and may be paid to the Person in whose name
this Note (or one or more Predecessor Security) is registered at
the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered Holders of Notes not
less than 10 days prior to such special record date, or may be
paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Base Indenture. The
principal of (and premium, if any) and the interest on this Note
shall be payable at the office or agency of the Trustee
maintained for that purpose in any coin or currency of the United
States of America that at the time of payment is legal tender for
payment of public and private debts; provided, however, that
payment of interest may be made, at the option of the Corporation
and upon prior notice to the Trustee, by check mailed to the
registered Holder at such address as shall appear in the Security
Register or by wire transfer to an account designated by a Holder
in writing not less than ten days prior to the date of payment.
The indebtedness evidenced by this Note is, to the
extent provided in the Base Indenture, equal in right of payment
with all other unsecured and unsubordinated indebtedness of the
Corporation, and this Note is issued subject to the provisions of
the Base Indenture and First 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 and First 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 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 Security of the series designated
therein referred to in the within-mentioned Base Indenture.
First Trust of New York, National Association,
as Trustee
By:__________________________
Authorized Officer
Dated:______________________
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of
securities of the Corporation (herein sometimes referred to as
the "Security"), issued or to be issued in one or more series
under and pursuant to an Indenture dated as of January 15, 1991
(the "Base Indenture"), duly executed and delivered between the
Corporation and First Trust of New York, National Association, as
Trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture dated as of May 19, 1997 (the "First
Supplemental Indenture"), between the Corporation and the
Trustee, to which Base Indenture and First 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 Security 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 one of the series designated on the
face hereof (the "Notes") and is limited in aggregate principal
amount as specified in said First Supplemental Indenture.
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 interest (or premium, if
any) 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 or the waiver of defaults, 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 of the 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 First
Supplemental Indenture and no provision of this Note or of the
Base Indenture or First 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 First Supplemental Indenture shall have the
meanings assigned to them therein.
THE BASE INDENTURE, THE FIRST SUPPLEMENTAL INDENTURE
AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK.
EXHIBIT B
(FORM OF FACE OF 2001 NOTE)
[IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT - This Note
is a Global Note within the meaning of the Base Indenture
hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Note is
exchangeable for Notes registered in the name of a person other
than the Depositary or its nominee only in the limited
circumstances described in the Base Indenture, and no transfer of
this Note (other than a transfer of this Note as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Note is presented by an authorized
representative of The Depository Trust Company, a New York
Corporation ("DTC"), to the issuer or its agent for registration
of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.]
No. CUSIP No. 655844 AG 3
NORFOLK SOUTHERN CORPORATION
NOTE
DUE MAY 1, 2001
NORFOLK SOUTHERN CORPORATION, a corporation organized
under the laws of the Commonwealth of Virginia (herein called the
"Corporation", which term includes any successor corporation
under the Base Indenture hereinafter referred to), for value
received, hereby promises to pay to _____________________________
_________________________, or registered assigns, the principal
sum of _____________ Dollars ($___________) on May 1, 2001 and to
pay interest thereon from May 19, 1997, or from the most recent
interest payment date to which interest has been paid or duly
provided for, semi-annually in arrears on May 1 and November 1 of
each year, commencing November 1, 1997, at a rate of 6.875% per
annum until the principal hereof is paid or made available for
payment, and on any overdue principal and premium, if any, at a
rate of 6.875% per annum and (without duplication and to the
extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at a rate
of 6.875% 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 April 15 and October 15
next preceding such Interest Payment Date. Any such interest
installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered Holders on such
regular record date and may be paid to the Person in whose name
this Note (or one or more Predecessor Security) is registered at
the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered Holders of Notes not
less than 10 days prior to such special record date, or may be
paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Base Indenture. The
principal of (and premium, if any) and the interest on this Note
shall be payable at the office or agency of the Trustee
maintained for that purpose in any coin or currency of the United
States of America that at the time of payment is legal tender for
payment of public and private debts; provided, however, that
payment of interest may be made, at the option of the Corporation
and upon prior notice to the Trustee, by check mailed to the
registered Holder at such address as shall appear in the Security
Register or by wire transfer to an account designated by a Holder
in writing not less than ten days prior to the date of payment.
The indebtedness evidenced by this Note is, to the
extent provided in the Base Indenture, equal in right of payment
with all other unsecured and unsubordinated indebtedness of the
Corporation, and this Note is issued subject to the provisions of
the Base Indenture and First 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 and First 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 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 Security of the series designated
therein referred to in the within-mentioned Base Indenture.
First Trust of New York, National Association,
as Trustee
By:__________________________
Authorized Officer
Dated:_______________________
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of
securities of the Corporation (herein sometimes referred to as
the "Security"), issued or to be issued in one or more series
under and pursuant to an Indenture dated as of January 15, 1991
(the "Base Indenture"), duly executed and delivered between the
Corporation and First Trust of New York, National Association, as
Trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture dated as of May 19, 1997 (the "First
Supplemental Indenture"), between the Corporation and the
Trustee, to which Base Indenture and First 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 Security 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 one of the series designated on the
face hereof (the "Notes") and is limited in aggregate principal
amount as specified in said First Supplemental Indenture.
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 interest (or premium, if
any) 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 or the waiver of defaults, 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 of the 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 First
Supplemental Indenture and no provision of this Note or of the
Base Indenture or First 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 First Supplemental Indenture shall have the
meanings assigned to them therein.
THE BASE INDENTURE, THE FIRST SUPPLEMENTAL INDENTURE
AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK.
EXHIBIT C
(FORM OF FACE OF 2002 NOTE)
[IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT - This Note
is a Global Note within the meaning of the Base Indenture
hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Note is
exchangeable for Notes registered in the name of a person other
than the Depositary or its nominee only in the limited
circumstances described in the Base Indenture, and no transfer of
this Note (other than a transfer of this Note as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Note is presented by an authorized
representative of The Depository Trust Company, a New York
Corporation ("DTC"), to the issuer or its agent for registration
of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.]
No. CUSIP No. 655844 AD 0
NORFOLK SOUTHERN CORPORATION
NOTE
DUE MAY 1, 2002
NORFOLK SOUTHERN CORPORATION, a corporation organized
under the laws of the Commonwealth of Virginia (herein called the
"Corporation", which term includes any successor corporation
under the Base Indenture hereinafter referred to), for value
received, hereby promises to pay to _____________________________
_________________________, or registered assigns, the principal
sum of _____________ Dollars ($___________) on May 1, 2002 and to
pay interest thereon from May 19, 1997, or from the most recent
interest payment date to which interest has been paid or duly
provided for, semi-annually in arrears on May 1 and November 1 of
each year, commencing November 1, 1997, at a rate of 6.95% per
annum until the principal hereof is paid or made available for
payment, and on any overdue principal and premium, if any, at a
rate of 6.95% per annum and (without duplication and to the
extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at a rate
of 6.95% 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 April 15 and October 15
next preceding such Interest Payment Date. Any such interest
installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered Holders on such
regular record date and may be paid to the Person in whose name
this Note (or one or more Predecessor Security) is registered at
the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered Holders of Notes not
less than 10 days prior to such special record date, or may be
paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Base Indenture. The
principal of (and premium, if any) and the interest on this Note
shall be payable at the office or agency of the Trustee
maintained for that purpose in any coin or currency of the United
States of America that at the time of payment is legal tender for
payment of public and private debts; provided, however, that
payment of interest may be made, at the option of the Corporation
and upon prior notice to the Trustee, by check mailed to the
registered Holder at such address as shall appear in the Security
Register or by wire transfer to an account designated by a Holder
in writing not less than ten days prior to the date of payment.
The indebtedness evidenced by this Note is, to the
extent provided in the Base Indenture, equal in right of payment
with all other unsecured and unsubordinated indebtedness of the
Corporation, and this Note is issued subject to the provisions of
the Base Indenture and First 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 and First 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 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 Security of the series designated
therein referred to in the within-mentioned Base Indenture.
First Trust of New York, National Association,
as Trustee
By:__________________________
Authorized Officer
Dated:_______________________
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of
securities of the Corporation (herein sometimes referred to as
the "Security"), issued or to be issued in one or more series
under and pursuant to an Indenture dated as of January 15, 1991
(the "Base Indenture"), duly executed and delivered between the
Corporation and First Trust of New York, National Association, as
Trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture dated as of May 19, 1997 (the "First
Supplemental Indenture"), between the Corporation and the
Trustee, to which Base Indenture and First 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 Security 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 one of the series designated on the
face hereof (the "Notes") and is limited in aggregate principal
amount as specified in said First Supplemental Indenture.
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 interest (or premium, if
any) 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 or the waiver of defaults, 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 of the 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 First
Supplemental Indenture and no provision of this Note or of the
Base Indenture or First 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 First Supplemental Indenture shall have the
meanings assigned to them therein.
THE BASE INDENTURE, THE FIRST SUPPLEMENTAL INDENTURE
AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK.
EXHIBIT D
(FORM OF FACE OF 2007 NOTE)
[IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT - This Note
is a Global Note within the meaning of the Base Indenture
hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Note is
exchangeable for Notes registered in the name of a person other
than the Depositary or its nominee only in the limited
circumstances described in the Base Indenture, and no transfer of
this Note (other than a transfer of this Note as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Note is presented by an authorized
representative of The Depository Trust Company, a New York
Corporation ("DTC"), to the issuer or its agent for registration
of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.]
No. CUSIP No. 655844 AH 1
NORFOLK SOUTHERN CORPORATION
NOTE
DUE MAY 15, 2007
NORFOLK SOUTHERN CORPORATION, a corporation organized
under the laws of the Commonwealth of Virginia (herein called the
"Corporation", which term includes any successor corporation
under the Base Indenture hereinafter referred to), for value
received, hereby promises to pay to _____________________________
_________________________, or registered assigns, the principal
sum of _____________ Dollars ($___________) on May 15, 2007 and
to pay interest thereon from May 19, 1997, or from the most
recent interest payment date to which interest has been paid or
duly provided for, semi-annually in arrears on May 15 and
November 15 of each year, commencing November 15, 1997, at a rate
of 7.35% per annum until the principal hereof is paid or made
available for payment, and on any overdue principal and premium,
if any, at a rate of 7.35% per annum and (without duplication and
to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at a rate
of 7.35% 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 November 1 and May 1 next
preceding such Interest Payment Date. Any such interest
installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered Holders on such
regular record date and may be paid to the Person in whose name
this Note (or one or more Predecessor Security) is registered at
the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered Holders of Notes not
less than 10 days prior to such special record date, or may be
paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Base Indenture. The
principal of (and premium, if any) and the interest on this Note
shall be payable at the office or agency of the Trustee
maintained for that purpose in any coin or currency of the United
States of America that at the time of payment is legal tender for
payment of public and private debts; provided, however, that
payment of interest may be made, at the option of the Corporation
and upon prior notice to the Trustee, by check mailed to the
registered Holder at such address as shall appear in the Security
Register or by wire transfer to an account designated by a Holder
in writing not less than ten days prior to the date of payment.
The indebtedness evidenced by this Note is, to the
extent provided in the Base Indenture, equal in right of payment
with all other unsecured and unsubordinated indebtedness of the
Corporation, and this Note is issued subject to the provisions of
the Base Indenture and First 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 and First 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 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 Security of the series designated
therein referred to in the within-mentioned Base Indenture.
First Trust of New York, National Association,
as Trustee
By:__________________________
Authorized Officer
Dated:_______________________
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of
securities of the Corporation (herein sometimes referred to as
the "Security"), issued or to be issued in one or more series
under and pursuant to an Indenture dated as of January 15, 1991
(the "Base Indenture"), duly executed and delivered between the
Corporation and First Trust of New York, National Association, as
Trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture dated as of May 19, 1997 (the "First
Supplemental Indenture"), between the Corporation and the
Trustee, to which Base Indenture and First 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 Security 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 one of the series designated on the
face hereof (the "Notes") and is limited in aggregate principal
amount as specified in said First Supplemental Indenture.
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 interest (or premium, if
any) 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 or the waiver of defaults, 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 of the 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 First
Supplemental Indenture and no provision of this Note or of the
Base Indenture or First 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 First Supplemental Indenture shall have the
meanings assigned to them therein.
THE BASE INDENTURE, THE FIRST SUPPLEMENTAL INDENTURE
AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK.
EXHIBIT E
(FORM OF FACE OF 2017 NOTE)
[IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT - This Note
is a Global Note within the meaning of the Base Indenture
hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Note is
exchangeable for Notes registered in the name of a person other
than the Depositary or its nominee only in the limited
circumstances described in the Base Indenture, and no transfer of
this Note (other than a transfer of this Note as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Note is presented by an authorized
representative of The Depository Trust Company, a New York
Corporation ("DTC"), to the issuer or its agent for registration
of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.]
No. CUSIP No. 655844 AE 8
NORFOLK SOUTHERN CORPORATION
NOTE
DUE MAY 15, 2017
NORFOLK SOUTHERN CORPORATION, a corporation organized
under the laws of the Commonwealth of Virginia (herein called the
"Corporation", which term includes any successor corporation
under the Base Indenture hereinafter referred to), for value
received, hereby promises to pay to _____________________________
_________________________, or registered assigns, the principal
sum of _____________ Dollars ($___________) on May 15, 2017 and
to pay interest thereon from May 19, 1997, or from the most
recent interest payment date to which interest has been paid or
duly provided for, semi-annually in arrears on May 15 and
November 15 of each year, commencing November 15, 1997, at a rate
of 7.70% per annum until the principal hereof is paid or made
available for payment, and on any overdue principal and premium,
if any, at a rate of 7.70% per annum and (without duplication and
to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at a rate
of 7.70% 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 1 and November 1 next
preceding such Interest Payment Date. Any such interest
installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered Holders on such
regular record date and may be paid to the Person in whose name
this Note (or one or more Predecessor Security) is registered at
the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered Holders of Notes not
less than 10 days prior to such special record date, or may be
paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Base Indenture. The
principal of (and premium, if any) and the interest on this Note
shall be payable at the office or agency of the Trustee
maintained for that purpose in any coin or currency of the United
States of America that at the time of payment is legal tender for
payment of public and private debts; provided, however, that
payment of interest may be made, at the option of the Corporation
and upon prior notice to the Trustee, by check mailed to the
registered Holder at such address as shall appear in the Security
Register or by wire transfer to an account designated by a Holder
in writing not less than ten days prior to the date of payment.
The indebtedness evidenced by this Note is, to the
extent provided in the Base Indenture, equal in right of payment
with all other unsecured and unsubordinated indebtedness of the
Corporation, and this Note is issued subject to the provisions of
the Base Indenture and First 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 and First 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.
The First Supplemental Indenture provides for the
redemption by the Corporation of this Note at any time, subject
to the terms and conditions therein. Each Holder of this Note,
by accepting the same, (a) authorizes and directs the Trustee on
his or her behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the limitations so
provided and (b) appoints the Trustee his or her attorney-in-fact
for any and all such purposes.
This Note shall not be entitled to any benefit under
the Base 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 Security of the series designated
therein referred to in the within-mentioned Base Indenture.
First Trust of New York, National Association,
as Trustee
By:__________________________
Authorized Officer
Dated:_______________________
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of
securities of the Corporation (herein sometimes referred to as
the "Security"), issued or to be issued in one or more series
under and pursuant to an Indenture dated as of January 15, 1991
(the "Base Indenture"), duly executed and delivered between the
Corporation and First Trust of New York, National Association, as
Trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture dated as of May 19, 1997 (the "First
Supplemental Indenture"), between the Corporation and the
Trustee, to which Base Indenture and First 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 Security 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 one of the series designated on the
face hereof (the "Notes") and is limited in aggregate principal
amount as specified in said First Supplemental Indenture.
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 interest (or premium, if
any) 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 or the waiver of defaults, 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 of the 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 First
Supplemental Indenture and no provision of this Note or of the
Base Indenture or First 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 First Supplemental Indenture shall have the
meanings assigned to them therein.
THE BASE INDENTURE, THE FIRST SUPPLEMENTAL INDENTURE
AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK.
EXHIBIT F
(FORM OF FACE OF 2027 NOTE)
[IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT - This Note
is a Global Note within the meaning of the Base Indenture
hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Note is
exchangeable for Notes registered in the name of a person other
than the Depositary or its nominee only in the limited
circumstances described in the Base Indenture, and no transfer of
this Note (other than a transfer of this Note as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Note is presented by an authorized
representative of The Depository Trust Company, a New York
Corporation ("DTC"), to the issuer or its agent for registration
of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.]
No. CUSIP No. 655844 AJ 7
NORFOLK SOUTHERN CORPORATION
NOTE
DUE MAY 15, 2027
NORFOLK SOUTHERN CORPORATION, a corporation organized
under the laws of the Commonwealth of Virginia (herein called the
"Corporation", which term includes any successor corporation
under the Base Indenture hereinafter referred to), for value
received, hereby promises to pay to _____________________________
_________________________, or registered assigns, the principal
sum of _____________ Dollars ($___________) on May 15, 2027 and
to pay interest thereon from May 19, 1997, or from the most
recent interest payment date to which interest has been paid or
duly provided for, semi-annually in arrears on May 15 and
November 15 of each year, commencing November 15, 1997, at a rate
of 7.80% per annum until the principal hereof is paid or made
available for payment, and on any overdue principal and premium,
if any, at a rate of 7.80% per annum and (without duplication and
to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at a rate
of 7.80% 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 1 and November 1 next
preceding such Interest Payment Date. Any such interest
installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered Holders on such
regular record date and may be paid to the Person in whose name
this Note (or one or more Predecessor Security) is registered at
the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered Holders of Notes not
less than 10 days prior to such special record date, or may be
paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Base Indenture. The
principal of (and premium, if any) and the interest on this Note
shall be payable at the office or agency of the Trustee
maintained for that purpose in any coin or currency of the United
States of America that at the time of payment is legal tender for
payment of public and private debts; provided, however, that
payment of interest may be made, at the option of the Corporation
and upon prior notice to the Trustee, by check mailed to the
registered Holder at such address as shall appear in the Security
Register or by wire transfer to an account designated by a Holder
in writing not less than ten days prior to the date of payment.
The indebtedness evidenced by this Note is, to the
extent provided in the Base Indenture, equal in right of payment
with all other unsecured and unsubordinated indebtedness of the
Corporation, and this Note is issued subject to the provisions of
the Base Indenture and First 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 and First 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.
The First Supplemental Indenture provides for the
redemption by the Corporation of this Note at any time, subject
to the terms and conditions therein. Each Holder of this Note,
by accepting the same, (a) authorizes and directs the Trustee on
his or her behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the limitations so
provided and (b) appoints the Trustee his or her attorney-in-fact
for any and all such purposes.
This Note shall not be entitled to any benefit under
the Base 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 Security of the series designated
therein referred to in the within-mentioned Base Indenture.
First Trust of New York, National Association,
as Trustee
By:__________________________
Authorized Officer
Dated:_______________________
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of
securities of the Corporation (herein sometimes referred to as
the "Security"), issued or to be issued in one or more series
under and pursuant to an Indenture dated as of January 15, 1991
(the "Base Indenture"), duly executed and delivered between the
Corporation and First Trust of New York, National Association, as
Trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture dated as of May 19, 1997 (the "First
Supplemental Indenture"), between the Corporation and the
Trustee, to which Base Indenture and First 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 Security 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 one of the series designated on the
face hereof (the "Notes") and is limited in aggregate principal
amount as specified in said First Supplemental Indenture.
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 interest (or premium, if
any) 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 or the waiver of defaults, 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 of the 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 First
Supplemental Indenture and no provision of this Note or of the
Base Indenture or First 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 First Supplemental Indenture shall have the
meanings assigned to them therein.
THE BASE INDENTURE, THE FIRST SUPPLEMENTAL INDENTURE
AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK.
EXHIBIT G
(FORM OF FACE OF 2037 NOTE)
[IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT - This Note
is a Global Note within the meaning of the Base Indenture
hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Note is
exchangeable for Notes registered in the name of a person other
than the Depositary or its nominee only in the limited
circumstances described in the Base Indenture, and no transfer of
this Note (other than a transfer of this Note as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Note is presented by an authorized
representative of The Depository Trust Company, a New York
Corporation ("DTC"), to the issuer or its agent for registration
of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.]
No. CUSIP No. 655844 AF 5
NORFOLK SOUTHERN CORPORATION
NOTE
DUE MAY 1, 2037
NORFOLK SOUTHERN CORPORATION, a corporation organized
under the laws of the Commonwealth of Virginia (herein called the
"Corporation", which term includes any successor corporation
under the Base Indenture hereinafter referred to), for value
received, hereby promises to pay to _____________________________
_________________________, or registered assigns, the principal
sum of _____________ Dollars ($___________) on May 1, 2037 and to
pay interest thereon from May 19, 1997, or from the most recent
interest payment date to which interest has been paid or duly
provided for, semi-annually in arrears on May 1 and November 1 of
each year, commencing November 1, 1997, at a rate of 7.05% per
annum until the principal hereof is paid or made available for
payment, and on any overdue principal and premium, if any, at a
rate of 7.05% per annum and (without duplication and to the
extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at a rate
of 7.05% 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 April 15 and October 15
next preceding such Interest Payment Date. Any such interest
installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered Holders on such
regular record date and may be paid to the Person in whose name
this Note (or one or more Predecessor Security) is registered at
the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered Holders of Notes not
less than 10 days prior to such special record date, or may be
paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Base Indenture. The
principal of (and premium, if any) and the interest on this Note
shall be payable at the office or agency of the Trustee
maintained for that purpose in any coin or currency of the United
States of America that at the time of payment is legal tender for
payment of public and private debts; provided, however, that
payment of interest may be made, at the option of the Corporation
and upon prior notice to the Trustee, by check mailed to the
registered Holder at such address as shall appear in the Security
Register or by wire transfer to an account designated by a Holder
in writing not less than ten days prior to the date of payment.
The indebtedness evidenced by this Note is, to the
extent provided in the Base Indenture, equal in right of payment
with all other unsecured and unsubordinated indebtedness of the
Corporation, and this Note is issued subject to the provisions of
the Base Indenture and First 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 and First 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.
The First Supplemental Indenture provides for the
redemption by the Corporation of this Note at any time after May
15, 2004, subject to the terms and conditions therein. Each
Holder of this Note, by accepting the same, (a) authorizes and
directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the
limitations so provided and (b) appoints the Trustee his or her
attorney-in-fact for any and all such purposes.
On May 1, 2004, or if such date is not a Business Day
then the next succeeding business day, each Holder of this Note
will have the right, in accordance with the terms and conditions
of the First Supplemental Indenture, to require the Corporation
to redeem all or any part of such Holder's Notes for cash at a
purchase price equal to 100% of the aggregate principal amount
thereof plus accrued and unpaid interest thereon.
This Note shall not be entitled to any benefit under
the Base 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 Security of the series designated
therein referred to in the within-mentioned Base Indenture.
First Trust of New York, National Association,
as Trustee
By:__________________________
Authorized Officer
Dated:_______________________
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of
securities of the Corporation (herein sometimes referred to as
the "Security"), issued or to be issued in one or more series
under and pursuant to an Indenture dated as of January 15, 1991
(the "Base Indenture"), duly executed and delivered between the
Corporation and First Trust of New York, National Association, as
Trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture dated as of May 19, 1997 (the "First
Supplemental Indenture"), between the Corporation and the
Trustee, to which Base Indenture and First 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 Security 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 one of the series designated on the
face hereof (the "Notes") and is limited in aggregate principal
amount as specified in said First Supplemental Indenture.
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 interest (or premium, if
any) 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 or the waiver of defaults, 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 of the 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 First
Supplemental Indenture and no provision of this Note or of the
Base Indenture or First 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 First Supplemental Indenture shall have the
meanings assigned to them therein.
THE BASE INDENTURE, THE FIRST SUPPLEMENTAL INDENTURE
AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK.
EXHIBIT H
(FORM OF FACE OF 2097 NOTE)
[IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT - This Note
is a Global Note within the meaning of the Base Indenture
hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Note is
exchangeable for Notes registered in the name of a person other
than the Depositary or its nominee only in the limited
circumstances described in the Base Indenture, and no transfer of
this Note (other than a transfer of this Note as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Note is presented by an authorized
representative of The Depository Trust Company, a New York
Corporation ("DTC"), to the issuer or its agent for registration
of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.]
No. CUSIP No. 655844 AK 4
NORFOLK SOUTHERN CORPORATION
NOTE
DUE MAY 15, 2097
NORFOLK SOUTHERN CORPORATION, a corporation organized
under the laws of the Commonwealth of Virginia (herein called the
"Corporation", which term includes any successor corporation
under the Base Indenture hereinafter referred to), for value
received, hereby promises to pay to _____________________________
_________________________, or registered assigns, the principal
sum of _____________ Dollars ($___________) on May 15, 2097 and
to pay interest thereon from May 19, 1997, or from the most
recent interest payment date to which interest has been paid or
duly provided for, semi-annually in arrears on May 15 and
November 15 of each year, commencing November 15, 1997, at a rate
of 7.90% per annum until the principal hereof is paid or made
available for payment, and on any overdue principal and premium,
if any, at a rate of 7.90% per annum and (without duplication and
to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at a rate
of 7.90% 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 1 and November 1 next
preceding such Interest Payment Date. Any such interest
installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered Holders on such
regular record date and may be paid to the Person in whose name
this Note (or one or more Predecessor Security) is registered at
the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered Holders of Notes not
less than 10 days prior to such special record date, or may be
paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Base Indenture. The
principal of (and premium, if any) and the interest on this Note
shall be payable at the office or agency of the Trustee
maintained for that purpose in any coin or currency of the United
States of America that at the time of payment is legal tender for
payment of public and private debts; provided, however, that
payment of interest may be made, at the option of the Corporation
and upon prior notice to the Trustee, by check mailed to the
registered Holder at such address as shall appear in the Security
Register or by wire transfer to an account designated by a Holder
in writing not less than ten days prior to the date of payment.
The indebtedness evidenced by this Note is, to the
extent provided in the Base Indenture, equal in right of payment
with all other unsecured and unsubordinated indebtedness of the
Corporation, and this Note is issued subject to the provisions of
the Base Indenture and First 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 and First 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.
The First Supplemental Indenture provides for the
redemption by the Corporation of this Note at any time, subject
to the terms and conditions therein. Each Holder of this Note,
by accepting the same, (a) authorizes and directs the Trustee on
his or her behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the limitations so
provided and (b) appoints the Trustee his or her attorney-in-fact
for any and all such purposes.
Upon the occurrence of the Tax Event, the Company shall
have the right to advance the Stated Maturity of this Note to the
extent required, in the written opinion of a nationally
recognized independent tax counsel experienced in such matters,
such that, after advancing the Stated Maturity, interest paid on
this Note will be deductible for United States federal income tax
purposes.
In the event that the Company elects to exercise its
right to advance the Stated Maturity of this Note on the
occurrence of a Tax Event, the Company shall mail a notice of the
advanced Stated Maturity to each Holder hereof in the manner
provided in the Base Indenture by first-class mail not more than
60 days after the occurrence of such Tax Event, stating the new
Stated Maturity of this Note. Such notice shall be effective
immediately upon mailing.
This Note shall not be entitled to any benefit under
the Base 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 Security of the series designated
therein referred to in the within-mentioned Base Indenture.
First Trust of New York, National Association,
as Trustee
By:__________________________
Authorized Officer
Dated:_______________________
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of
securities of the Corporation (herein sometimes referred to as
the "Security"), issued or to be issued in one or more series
under and pursuant to an Indenture dated as of January 15, 1991
(the "Base Indenture"), duly executed and delivered between the
Corporation and First Trust of New York, National Association, as
Trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture dated as of May 19, 1997 (the "First
Supplemental Indenture, between the Corporation and the Trustee,
to which Base Indenture and First 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 Security 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 one of the series designated on the
face hereof (the "Notes") and is limited in aggregate principal
amount as specified in said First Supplemental Indenture.
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 interest (or premium, if
any) 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 or the waiver of defaults, 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 of the 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 First
Supplemental Indenture and no provision of this Note or of the
Base Indenture or First 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 First Supplemental Indenture shall have the
meanings assigned to them therein.
THE BASE INDENTURE, THE FIRST SUPPLEMENTAL INDENTURE
AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS . . . . . . . . . . . 2
SECTION 101 Definition of Terms . . . . . . . . . . . 2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES . . . . 6
SECTION 201 Designation and Principal Amount . . . . 6
SECTION 202 Place of Payment; Security Register for
Notes . . . . . . . . . . . . . . . . . . 6
SECTION 203 Global Note . . . . . . . . . . . . . . . 6
SECTION 204 Interest . . . . . . . . . . . . . . . . 7
ARTICLE III
COVENANTS . . . . . . . . . . . . 8
SECTION 301 Limitation on Liens on Stock or
Indebtedness of Principal Subsidiaries . 8
SECTION 302 Limitations on Funded Debt . . . . . . . 9
ARTICLE IV
REDEMPTION OF THE NOTES . . . . . . . . 11
SECTION 401 2000 Notes, 2001 Notes, 2002 Notes and
2007 Notes Not Redeemable . . . . . . . . 11
SECTION 402 Redemption of 2017 Notes, 2027 Notes,
2037 Notes and 2097 Notes at the Option
of the Corporation . . . . . . . . . . . 11
SECTION 403 Redemption of 2037 Notes on May 1, 2004
at the Option of the Holders Thereof . . 11
SECTION 404 Advancement of Stated Maturity of the
2097 Notes at the Option of the
Corporation Upon the Occurrence of a Tax
Event . . . . . . . . . . . . . . . . . . 12
SECTION 405 No Sinking Fund . . . . . . . . . . . . . 13
ARTICLE V
FORMS OF NOTES . . . . . . . . . . 13
SECTION 501 Forms of Notes . . . . . . . . . . . . . 13
ARTICLE VI
ORIGINAL ISSUE OF NOTES . . . . . . . . 13
SECTION 601 Original Issue of Notes . . . . . . . . . 13
ARTICLE VII
MISCELLANEOUS . . . . . . . . . . . 13
SECTION 701 Ratification of Base Indenture . . . . . 13
SECTION 702 Trustee Not Responsible for Recitals . . 14
SECTION 703 Governing Law . . . . . . . . . . . . . . 14
SECTION 704 Separability . . . . . . . . . . . . . . 14
SECTION 705 Counterparts . . . . . . . . . . . . . . 14
Exhibit 5.1
NORFOLK SOUTHERN CORPORATION
LAW DEPARTMENT
THREE COMMERCIAL PLACE
NORFOLK, VIRGINIA 23510-9241
May 19, 1997
Norfolk Southern Corporation
Three Commercial Place
Norfolk, Virginia 23510-2191
Re: Norfolk Southern Corporation
Registration Statement on Form S-3
(Registration No. 333-24051)
Ladies and Gentlemen:
I am Corporate Counsel of Norfolk Southern Corporation, a
Virginia corporation (the "Corporation"), and, as such, I have acted as
counsel to the Corporation in connection with the issuance and sale of
eight series of Notes, in an aggregate principal amount of $4,300,000,000
(collectively, the "Securities") to be issued pursuant to the Underwriting
Agreement of the Corporation, dated May 14, 1997 (the "Base Underwriting
Agreement") and the Pricing Agreement, dated May 14, 1997 (the "Pricing
Agreement" and, together with the Base Underwriting Agreement, the
"Underwriting Agreement") between the Corporation and Merrill Lynch & Co.,
J.P. Morgan & Co., PaineWebber Incorporated and Donaldson, Lufkin &
Jenrette Securities Corporation, as representatives for the several
underwriters (the "Underwriters"), which Pricing Agreement incorporates in
its entirety all the provisions of the Base Underwriting Agreement. The
Securities are to be issued under the Indenture, dated as of January 15,
1991 (the "Base Indenture"), between the Corporation and First Trust of New
York, N.A., as successor trustee (the "Trustee"), as supplemented by a
First Supplemental Indenture, dated as of May 19, 1997 (the "Supplemental
Indenture") between the Corporation and the Trustee.
This opinion is being delivered in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act
of 1933, as amended (the "Securities Act").
In connection with this opinion, I have examined (i) the
Registration Statement on Form S-3 (File No. 33-38595), relating to the
issuance and sale from time to time, pursuant to Rule 415 of the General
Rules and Regulations under the Securities Act, of up to $50,000,000
aggregate principal amount of debt securities of the Corporation, filed
with the Securities and Exchange Commission (the "Commission") on January
23, 1991 under the Securities Act (such registration statement, as so
amended, being hereinafter referred to as the "First Related Registration
Statement"); (ii) the Registration Statement on Form S-3 (File No.
333-20203), relating to the issuance and sale from time to time, pursuant
to Rule 415 of the General Rules and Regulations under the Securities Act,
of up to $1,250,000,000 aggregate principal amount of debt securities,
preferred stock, depositary shares and/or common stock of the Corporation,
filed with the Commission on January 22, 1997 under the Securities Act
(such registration statement, as so amended, being hereinafter referred to
as the "Second Related Registration Statement"); (iii) the Registration
Statement on Form S-3 (File No. 333-24051), relating to the issuance and
sale from time to time, pursuant to Rule 415 of the General Rules and
Regulations under the Securities Act, of up to $3,000,000,000 aggregate
principal amount of debt securities, preferred stock, depositary shares
and/or common stock of the Corporation, filed with the Commission on March
27, 1997 under the Securities Act, Amendment No. 1 thereto filed on May 2,
1997, Amendment No. 2 thereto filed on May 6, 1997, and Amendment No. 3
thereto filed on May 12, 1997 (such registration statement, as so amended,
together with the First Related Registration Statement and the Second
Related Registration Statement, being hereinafter referred to collectively
as the "Registration Statement"); (iv) the Prospectus Supplement, dated May
14, 1997, together with the Base Prospectus, dated May 14, 1997 (together,
the "Prospectus") in the forms thereof filed as part of the Registration
Statement; (v) the Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, on Form T-1 of the Trustee; (vi) the documents
incorporated by reference in the Prospectus through May 14, 1997; (vii) an
executed copy of the Base Indenture; (viii) an executed copy of the
Supplemental Indenture; (ix) the executed Securities; (x) the Base Under-
writing Agreement; (xi) the Pricing Agreement; (xii) the Restated Articles of
Incorporation of the Corporation, as currently in effect; (xiii) the Bylaws
of the Corporation, as currently in effect; and (xiv) resolutions of the
Board of Directors of the Corporation relating to the issuance and sale of
the Securities and related matters. I have also examined originals or
copies, certified or otherwise identified to my satisfaction, of such
records of the Corporation and such agreements, certificates of public
officials, certificates of officers or other representative of the
Corporation and others, and such other documents, certificates and records
as I have deemed necessary or appropriate as a basis for the opinions set
forth herein.
In my examination, I have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to me as originals, the conformity to original
documents of all documents submitted to us as certified, photostatic or
facsimile copies and the authenticity of the originals of such latter
documents. In making my examination of documents executed, or to be
executed, by parties other than the Corporation, I have assumed that such
parties had, or will have, the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and execution
and delivery by such other parties of such documents and the validity and
binding effect thereof. As to any facts material to the opinions expressed
herein which I did not independently establish or verify, I have relied
upon oral or written statements and representations of officers and other
representatives of the Corporation and others.
I am a member of the Bar in the Commonwealth of Virginia,
and I do not express any opinion as to the laws of any other jurisdiction
other than the laws of the United States of America to the extent referred
to specifically herein. Insofar as the opinions set forth below relate to
the Base Indenture and the Securities as valid, binding and enforceable
obligations of the Corporation, I have relied solely upon an opinion letter
of even date herewith from Skadden, Arps, Slate, Meagher & Flom LLP, New
York, New York, with respect to all matters of New York law related
thereto.
Based upon and subject to the foregoing, I am of the opinion
that:
1. The Base Indenture has been duly executed and delivered
by the Corporation and is a valid and binding agreement of the Corporation,
enforceable against the Corporation in accordance with its terms, except
(a) to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity) and (b) I
express no opinion as to Section 512 of the Base Indenture.
2. The Securities have been duly authorized, executed and
authenticated in accordance with the terms of the Base Indenture and the
Supplemental Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, and are valid and
binding obligations of the Corporation entitled to the benefits of the Base
Indenture and Supplemental Indenture and enforceable against the
Corporation in accordance with their terms, except (a) to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws now
or hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity and (b) I express no opinion
as to Section 512 of the Base Indenture.
I hereby consent to the use of my name under the heading
"Legal Matters" in the Prospectus. I also hereby consent to the filing of
this opinion with the Commission as Exhibit 5.1 to the Registration
Statement. In giving this consent, I do not thereby admit that I am in the
category of persons whose consent is required under Section 7 of the
Securities Act or the General Rules and Regulations thereunder. This
opinion is expressed as of the date hereof unless otherwise expressly
stated, and I disclaim any undertaking to advise you of any subsequent
changes of the facts stated or assumed herein or any subsequent changes in
applicable law.
Very truly yours,
/s/ WILLIAM A. NOELL, JR.
Exhibit 5.2
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NEW YORK 10022-3897
May 19, 1997
Norfolk Southern Corporation
Three Commercial Place
Norfolk, Virginia 23510-2191
Re: Norfolk Southern Corporation
Registration Statement on Form S-3
(Registration No. 333-24051)
Ladies and Gentlemen:
This opinion is furnished by us as special counsel for
Norfolk Southern Corporation, a Virginia corporation (the "Corporation"),
in connection with the issuance and sale of eight series of Notes, in an
aggregate principal amount of $4,300,000,000 (collectively, the
"Securities") to be issued pursuant to the Underwriting Agreement, dated
May 14, 1997 (the "Base Underwriting Agreement") and the Pricing Agreement,
dated May 14, 1997 (the "Pricing Agreement" and, together with the Base
Underwriting Agreement, the "Underwriting Agreement") between the
Corporation and Merrill Lynch & Co., J.P. Morgan & Co., PaineWebber
Incorporated and Donaldson, Lufkin & Jenrette Securities Corporation, as
representatives for the several underwriters (the "Underwriters"), which
Pricing Agreement incorporates in its entirety all the provisions of the
Base Underwriting Agreement. The Securities are to be issued under the
Indenture, dated as of January 15, 1991 (the "Base Indenture"), between the
Corporation and First Trust of New York, N.A., as successor trustee (the
"Trustee"), as supplemented by a First Supplemental Indenture, dated as of
May 19, 1997 (the "Supplemental Indenture") between the Corporation and the
Trustee.
This opinion is being delivered in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act
of 1933, as amended (the "Securities Act").
In connection with this opinion, we have examined originals
or copies, certified or otherwise identified to our satisfaction, of (i)
the Registration Statement on Form S-3 (File No. 33-38595), relating to the
issuance and sale from time to time, pursuant to Rule 415 of the General
Rules and Regulations under the Securities Act, of up to $50,000,000
aggregate principal amount of debt securities of the Corporation, filed
with the Securities and Exchange Commission (the "Commission") on January
23, 1991 under the Securities Act (such registration statement, as so
amended, being hereinafter referred to as the "First Related Registration
Statement"); (ii) the Registration Statement on Form S-3 (File No. 333-
20203), relating to the issuance and sale from time to time, pursuant to
Rule 415 of the General Rules and Regulations under the Securities Act, of
up to $1,250,000,000 aggregate principal amount of debt securities,
preferred stock, depositary shares and/or common stock of the Corporation,
filed with the Commission on January 22, 1997 under the Securities Act
(such registration statement, as so amended, being hereinafter referred
to as the "Second Related Registration Statement"); (iii) the Registration
Statement on Form S-3 (File No. 333-24051), relating to the issuance and
sale from time to time, pursuant to Rule 415 of the General Rules and
Regulations under the Securities Act, of up to $3,000,000,000 aggregate
principal amount of debt securities, preferred stock, depositary shares
and/or common stock of the Corporation, filed with the Commission on March
27, 1997 under the Securities Act, Amendment No. 1 thereto filed on May 2,
1997, Amendment No. 2 thereto filed on May 6, 1997, and Amendment No. 3
thereto filed on May 12, 1997 (such registration statement, as so amended,
together with the First Related Registration Statement and the Second
Related Registration Statement, being hereinafter referred to collectively
as the "Registration Statement"); (iv) the Prospectus Supplement, dated
May 14, 1997, together with the Base Prospectus, dated May 14, 1997
(together, the "Prospectus") in the forms thereof filed as part of the
Registration Statement; (v) the Statement of Eligibility under the Trust
Indenture Act of 1939, as amended, on Form T-1 of the Trustee; (vi) the
documents incorporated by reference in the Prospectus through May 14, 1997;
(vii) an executed copy of the Base Indenture; (viii) an executed copy of
the Supplemental Indenture; (ix) the executed Securities; (x) the Base Under-
writing Agreement; (xi) the Pricing Agreement; (xii) the Restated Articles of
Incorporation of the Corporation, as currently in effect; (xiii) the Bylaws
of the Corporation, as currently in effect; and (xiv) resolutions of the
Board of Directors of the Corporation relating to the issuance and sale of
the Securities and related matters. We have also examined originals or
copies, certified or otherwise identified to our satisfaction, of such
records of the Corporation and such agreements, certificates of public
officials, certificates of officers or other representative of the
Corporation and others, and such other documents, certificates and
records as we have deemed necessary or appropriate as a basis for the
opinions set forth herein.
In our examination, we have assumed the legal capacity of
all natural persons, the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified, photostatic or
facsimile copies and the authenticity of the originals of such latter
documents. In making our examination of documents executed, or to be
executed, by parties other than the Corporation, we have assumed that such
parties had, or will have, the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and execution
and delivery by such other parties of such documents and the validity and
binding effect thereof. As to any facts material to the opinions expressed
herein which we did not independently establish or verify, we have relied
upon oral or written statements and representations of officers and other
representatives of the Corporation and others.
We do not express any opinion as to the laws of any
jurisdiction other than the State of New York and the laws of the United
States of America to the extent referred to specifically herein. We have
assumed that (i) the Corporation has duly authorized the issuance of the
Securities and the filing of the Registration Statement under Virginia law;
(ii) the Base Indenture, the Pricing Agreement, the Supplemental Indenture
and the Securities were duly authorized, executed and delivered by the
Corporation under Virginia law; (iii) the choice of New York law in the
Base Indenture is legal and valid under the laws of other applicable
jurisdictions; and (iv) the execution and delivery by the Corporation of
the Pricing Agreement, Base Indenture, Supplemental Indenture and
Securities (collectively, the "Operative Documents") and the performance by
the Corporation of its obligations thereunder do not and will not violate,
conflict with or constitute a default under (A) any agreement or instrument
to which the Corporation or its property is subject (except that we do not
make the assumption set forth in this clause (A) with respect to the
Operative Documents), (B) any law, rule or regulation to which the
Corporation is subject (except that we do not make the assumption set forth
in this clause (B) with respect to those laws, rules and regulations of the
State of New York and the United States of America which, in our
experience, are normally applicable to transactions of the type
contemplated by the Operative Agreements, but without our having made any
special investigation with respect to other laws, rules or regulations),
(C) any judicial or regulatory order or decree of any governmental
authority or (D) any consent, approval, license, authorization or
validation of, or filing, recording or registration with, any governmental
authority. Reference is made to the opinion of William A. Noell, Jr.,
Corporate Counsel to the Corporation, filed as Exhibit 5.1 to the
Registration Statement, with respect to matters under the laws of the
Commonwealth of Virginia, and our opinions set forth herein are subject to
the same limitations, qualifications and assumptions set forth in such
opinion.
Based upon and subject to the foregoing, we are of the
opinion that:
1. The Base Indenture has been duly executed and delivered
by the Corporation under New York law and is a valid and binding agreement
of the Corporation, enforceable against the Corporation in accordance with
its terms, except (a) to the extent that enforcement thereof may be limited
by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law
or in equity) and (b) we express no opinion as to Section 512 of the Base
Indenture.
2. The Securities have been executed and authenticated in
accordance with the terms of the Base Indenture and the Supplemental
Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of the Underwriting Agreement, and are valid and binding
obligations of the Corporation entitled to the benefits of the Base
Indenture and Supplemental Indenture and enforceable against the
Corporation in accordance with their terms, except (a) to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws now
or hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity and (b) we express no
opinion as to Section 512 of the Base Indenture.
William A. Noell, Jr., Corporate Counsel of the Corporation,
is permitted to rely upon this opinion for the purpose of delivering his
opinion to the Corporation in his capacity as counsel to the Corporation in
accordance with the requirements of Item 601(b)(5) of Regulation S-K under
the Securities Act. We hereby consent to the use of our name under the
heading "Legal Matters" in the Prospectus. We also hereby consent to the
filing of this opinion with the Commission as Exhibit 5.2 to the
Registration Statement. In giving this consent, we do not thereby admit
that we are in the category of persons whose consent is required under
Section 7 of the Securities Act or the General Rules and Regulations
thereunder. This opinion is expressed as of the date hereof unless
otherwise expressly stated, and we disclaim any undertaking to advise you
of any subsequent changes of the facts stated or assumed herein or any
subsequent changes in applicable law.
Very truly yours,
