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NORFOLK SOUTHERN CORPORATION as Issuer U.S. Bank Trust National Association as Trustee
INDENTURE Dated as of June 1, 2009 SENIOR DEBT SECURITIES
ARTICLE I SECTION 1.02. Other Definitions. 8 SECTION 1.03. Incorporation by Reference of Trust Indenture Act 8 SECTION 1.04. Rules of Construction. 9 SECTION 1.05. Acts of Holders. 9 SECTION 2.01. Amount of Securities; Issuable in Series. 10 SECTION 2.02. Form and Dating. 13 SECTION 2.03. Execution and Authentication. 14 SECTION 2.04. Registrar and Paying Agent 15 SECTION 2.05. Paying Agent To Hold Money in Trust 15 SECTION 2.06. Holder Lists. 16 SECTION 2.07. Transfer and Exchange. 16 SECTION 2.08. Replacement Securities. 17 SECTION 2.09. Outstanding Securities. 18 SECTION 2.10. Temporary Securities. 18 SECTION 2.11. Cancellation. 18 SECTION 2.12. Defaulted Interest 19 SECTION 2.13. CUSIP Numbers. 19 SECTION 3.01. Applicability of this Article. 19 SECTION 3.02. Notices to Trustee. 19 SECTION 3.03. Selection of Securities To Be Redeemed. 20 SECTION 3.04. Notice of Redemption. 20 SECTION 3.05. Effect of Notice of Redemption. 21 SECTION 3.06. Deposit of Redemption Price. 21 SECTION 3.07. Securities Redeemed in Part 21 SECTION 4.01. Payment of Principal, Premium and Interest 21 SECTION 4.02. Maintenance of Office or Agency. 21 SECTION 4.03. Money for Securities Payments to Be Held in Trust 22 SECTION 4.04. Corporate Existence. 23 SECTION 4.05. Maintenance of Properties. 23 SECTION 4.06. Payment of Taxes and Other Claims. 23 SECTION 4.07. Limitations on Liens on Stock or Indebtedness of Principal Subsidiary. 24 SECTION 4.08. Limitations on Funded Debt 24 SECTION 4.09. Statement as to Compliance. 26 SECTION 4.10. Calculation of Original Issue Discount 26
ARTICLE V SECTION 5.01. Company May Consolidate, Etc., Only on Certain Terms. 26 SECTION 5.02. Successor Corporation Substituted. 27
ARTICLE VI SECTION 6.01. "Event of Default". 27 SECTION 6.02. Acceleration. 29 SECTION 6.03. Other Remedies. 30 SECTION 6.04. Waiver of Past Defaults. 30 SECTION 6.05. Control by Majority. 30 SECTION 6.06. Limitation on Suits. 30 SECTION 6.07. Rights of Holders to Receive Payment 31 SECTION 6.08. Collection Suit by Trustee. 31 SECTION 6.09. Trustee May File Proofs of Claim.. 31 SECTION 6.11. Undertaking for Costs. 32 SECTION 6.12. Waiver of Stay or Extension Laws. 32 SECTION 7.01. Duties of Trustee. 32 SECTION 7.02. Rights of Trustee. 33 SECTION 7.03. Individual Rights of Trustee. 34 SECTION 7.04. Trustee's Disclaimer 34 SECTION 7.05. Notice of Defaults. 35 SECTION 7.06. Reports by Trustee to Holders. 35 SECTION 7.07. Compensation and Indemnity. 35 SECTION 7.08. Replacement of Trustee. 36 SECTION 7.09. Successor Trustee by Merger 37 SECTION 7.10. Eligibility; Disqualification. 37 SECTION 7.11. Preferential Collection of Claims Against Company. 37
ARTICLE VIII SECTION 8.01. Satisfaction and Discharge of Indenture. 38 SECTION 8.02. Application of Trust Money. 39
ARTICLE IX SECTION 9.01. Amendments and Supplemental Indentures without Consent of Holders. 39 SECTION 9.02. Amendments and Supplemental Indentures with Consent of Holders. 40 SECTION 9.03. Compliance with Trust Indenture Act of 1939. 41 SECTION 9.04. Revocation and Effect of Consents. 41 SECTION 9.05. Notation on or Exchange of Securities. 41 SECTION 9.06. Trustee to Sign Amendments, etc. 41 SECTION 10.01. Trust Indenture Act Controls. 41 SECTION 10.03. Communication by Holders with Other Holders. 42 SECTION 10.04. Certificate and Opinion as to Conditions Precedent 42 SECTION 10.05. Statements Required in Certificate or Opinion. 43 SECTION 10.06. When Securities Disregarded. 43 SECTION 10.07. Rules by Trustee, Paying Agent and Registrar 43 SECTION 10.08. Governing Law; Waiver of Jury Trial 44 SECTION 10.09. No Recourse Against Others. 44 SECTION 10.11. Multiple Originals. 44 SECTION 10.12. Table of Contents; Headings. 44 SECTION 10.13. Force Majeure. 44 CROSS-REFERENCE TABLE TIA Indenture Section Section 310 (a)(1)..................................................................................................................... 7.10 (a)(2)..................................................................................................................... 7.10 (a)(3)..................................................................................................................... N.A. (a)(4)..................................................................................................................... N.A. (b).......................................................................................................................... 7.08; .............................................................................................................................. 7.10 (c)......................................................................................................................... N.A. 311 (a).......................................................................................................................... 7.11 (b).......................................................................................................................... 7.11 (c)......................................................................................................................... N.A. 312 (a).......................................................................................................................... 2.06 (b)........................................................................................................................ 10.03 (c)........................................................................................................................ 10.03 313 (a).......................................................................................................................... 7.06 (b)(1)..................................................................................................................... N.A. (b)(2)...................................................................................................................... 7.06 (c)........................................................................................................................... 7.06; 10.02 (d)............................................................................................................................ 7.06 314 (a)............................................................................................................................. 4.02; 10.02 (b)............................................................................................................................ N.A. (c)(1)....................................................................................................................... 10.04 (c)(2)....................................................................................................................... 10.04 (c)(3)........................................................................................................................ N.A. (d)............................................................................................................................ N.A. (e)........................................................................................................................... 10.05 (f).............................................................................................................................. 4.13 315 (a)............................................................................................................................. 7.01 (b)............................................................................................................................. 7.05; 10.02 (c).............................................................................................................................. 7.01 (d).............................................................................................................................. 7.01 (e).............................................................................................................................. 6.11 316 (a) (a)(1)(A)..................................................................................................................... 6.05 (a)(1)(B)...................................................................................................................... 6.04 (a)(2).......................................................................................................................... N.A. (b)............................................................................................................................... 6.07 317 (a)(1)........................................................................................................................... 6.08 (a)(2)........................................................................................................................... 6.09 (b)................................................................................................................................ 2.05 318 (a)............................................................................................................................... 10.01 N.A. Means Not Applicable. Note: This Cross-Reference Table shall not, for any purposes, be deemed to be part of this Indenture. INDENTURE dated as of June 1, 2009, between NORFOLK SOUTHERN CORPORATION, a Virginia corporation (the "Company"), and U.S. Bank Trust National Association, a national banking association duly organized and existing under the laws of the United States, as trustee (the "Trustee"). Each party agrees as follows for the benefit of the other party and, as to each series of Securities, for the equal and ratable benefit of the Holders of that series of the Company's Securities issued pursuant to this Indenture:
ARTICLE I " Act ," when used with respect to any Holder, has the meaning specified in Section 1.05. " Affiliate " of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. " Bankruptcy Law " means Title 11, United States Code or any similar federal or state law for the relief of debtors " Board of Directors " means the Board of Directors of the Company or any duly authorized and constituted committee thereof. " Board Resolution " means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. " Business Day " means any day other than a Saturday, a Sunday or a day on which banking institutions in The City of New York, New York are authorized or obligated by law, regulation, executive order or governmental decree to close. " Capital Lease Obligation " means any obligation arising out of any lease of property which is required to be classified and accounted for by the lessee as a capitalized lease on a balance sheet of such lessee under generally accepted accounting principles. " Commission " means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time. " Company " means the Person named as the "Company" in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor Person and, for purposes of any provision contained herein and expressly required by the TIA, each other obligor on the indenture securities. " Company Request " or " Company Order " means a written request or order signed in the name of the Company by an Officer and by its Treasurer, an Assistant Treasurer, Secretary or an Assistant Secretary, and delivered to the Trustee. " Consolidated Net Tangible Assets " means, at any date, the total assets appearing on the most recent consolidated balance sheet of the Company and Restricted Subsidiaries as at the end of the fiscal quarter of the Company ending not more than 135 days prior to such date, prepared in accordance with generally accepted accounting principles of the United States, less (i) all current liabilities (due within one year) as shown on such balance sheet, (ii) applicable reserves, (iii) investments in and advances to Securitization Subsidiaries and Subsidiaries of Securitization Subsidiaries that are consolidated on the consolidated balance sheet of the Company and its Subsidiaries, and (iv) Intangible Assets and liabilities relating thereto. " Corporate Trust Office " means the principal office of the Trustee in the City of New York at which at any particular time its corporate trust business shall be administered. " Corporation " means a corporation, association, company, limited liability company, joint-stock company, partnership or business trust. " Custodian " means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law. " Default " means any event which is, or after notice or passage of time or both would be, an Event of Default. " Depositary " means, with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more Global Securities, The Depository Trust Company or such other party as may be designated as Depositary by the Company pursuant to Section 2.01, until a successor Depositary shall have become such pursuant to the applicable provisions hereof, and thereafter "Depositary" shall mean or include each party who is then a Depositary hereunder, and if at any time there is more than one such party, "Depositary" as used in respect of the Securities on any such series shall mean the Depositary with respect to the Securities of that series. " Dollars " or " $ " or any similar reference shall mean the coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private debts. " Event of Default " has the meaning set forth under Section 6.01. " Exchange Act " means the Securities Exchange Act of 1934. " Foreign Government Securities " means, with respect to the Securities that are denominated in a currency other than Dollars, securities that are (i) direct obligations of the government that issued such currency for the payment of which obligations its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of such government (the timely payment of which is unconditionally guaranteed as a full faith and credit obligation of such government) which, in either case under clauses (i) or (ii), are not callable or redeemable at the option of the issuer thereof. " Funded Debt " means (i) any indebtedness of a Restricted Subsidiary maturing more than 12 months after the time of computation thereof, (ii) guarantees by a Restricted Subsidiary of Funded Debt or of dividends of others (except guarantees in connection with the sale or discount of accounts receivable, trade acceptances and other paper arising in the ordinary course of business), (iii) all preferred stock of such Restricted Subsidiary and (iv) all Capital Lease Obligations of a Restricted Subsidiary. " Global Security " means a Security evidencing all or a part of a series of Securities, issued to the Depositary for such series in accordance with Section 2.02, and bearing the legend prescribed in Section 2.02 and the form set forth in Exhibit 1. " Holder " means the Person in whose name a Security is registered in the Security Register. " Indebtedness " means, at any date, without duplication, (i) all obligations for borrowed money of a Restricted Subsidiary or any other indebtedness of a Restricted Subsidiary, evidenced by bonds, debentures, notes or other similar instruments and (ii) Funded Debt, except such obligations and other indebtedness of a Restricted Subsidiary and Funded Debt, if any, incurred as part of a Securitization Transaction. " Indenture " means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. " Intangible Assets " means at any date, the value (net of any applicable reserves) as shown on or reflected in the most recent consolidated balance sheet of the Company and the Restricted Subsidiaries as at the end of the fiscal quarter of the Company ending not more than 135 days prior to such date, prepared in accordance with generally accepted accounting principles in the United States, of: (i) all trade names, trademarks, licenses, patents, copyrights, service marks, goodwill and other like intangibles; (ii) organizational and development costs; (iii) deferred charges (other than prepaid items, such as insurance, taxes, interest, commissions, rents, deferred interest waiver, compensation and similar items and tangible assets being amortized); and (iv) unamortized debt discount and expense, less unamortized premium. " Liens " means such pledges, mortgages, security interests and other liens, including purchase money liens, on property of the Company or any Restricted Subsidiary which secure Funded Debt. " Maturity ," when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, request for repayment or otherwise. " Obligation " means any indebtedness for money borrowed or indebtedness evidenced by a bond, note, debenture or other evidence of indebtedness. " Officer " means the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, the Assistant Treasurer, the Secretary or the Assistant Secretary of the Company. " Officers' Certificate " means a certificate signed by two Officers of the Company, at least one of whom shall be the principal executive officer or principal financial officer of the Company, and delivered to the Trustee. " OID Security " means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 6.02. " Opinion of Counsel " means a written opinion from legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Company. " Outstanding ," when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except: (i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (ii) Securities for whose payment or redemption money, U.S. Government Obligations or Foreign Government Securities as contemplated by Section 8.01 in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and (iii) Securities which have been paid pursuant to Section 2.07 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; provided , however , that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (a) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon acceleration of the Maturity thereof pursuant to Section 6.02, (b) the principal amount of a Security denominated in a foreign currency or currencies shall be the Dollar equivalent, determined by the company and set forth in an Officers' Certificate on the date of original issuance of such Security, of the principal amount (or, in the case of an OID Security, the Dollar equivalent on the date of original issuance of such Security of the amount determined as provided in (a) above) of such Security, and (c) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor. " Person " means any individual, corporation, company (including any limited liability company), association, partnership, joint venture, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity. " Place of Payment ," when used with respect to the Securities, means the place or places where the principal of (and premium, if any) and interest on the Securities are payable. " Predecessor Security " of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security. " Principal Subsidiary " means Norfolk Southern Railway Company. " Purchase Money Lien " means any mortgage, pledge, lien, encumbrance, charge or security interest of any kind upon any indebtedness of any Principal Subsidiary acquired after the date any Securities are first issued if such Purchase Money Lien is for the purpose of financing, and does not exceed, the cost to the Company or any Subsidiary of acquiring the indebtedness of such Principal Subsidiary and such financing is effected concurrently with, or within 180 days after, the date of such acquisition. " Receivables " mean any right of payment from or on behalf of any obligor, whether constituting an account, chattel paper, instrument, general intangible or otherwise, arising, either directly or indirectly, from the financing by the Company or any Subsidiary of the Company of property or services, monies due thereunder, security interests in the property and services financed thereby and any and all other related rights. " Responsible Officer ," when used with respect to the Trustee, means any vice president, any assistant vice president, any trust officer or assistant trust officer or any assistant controller or any other officer of the Trustee customarily performing functions similar to those performance by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge and familiarity with the particular subject, and who shall have direct responsibility for the administration of this Indenture. " Restricted Subsidiary " means each Subsidiary of the Company other than Securitization Subsidiaries and Subsidiaries of Securitization Subsidiaries. " Secured Debt " means indebtedness for money borrowed which is secured by a mortgage, pledge, lien, security interest or encumbrance on property of the Company or any Restricted Subsidiary, but shall not include guarantees arising in connection with the sale, discount, guarantee or pledge of notes, chattel mortgages, leases, accounts receivable, trade acceptances and other paper arising, in the ordinary course of business, out of installment or conditional sales to or by, or transactions involving title retention with, distributors, dealers or other customers, of merchandise, equipment or services. " Securities Act " means the Securities Act of 1933. " Securitization Subsidiary " means a Subsidiary of the Company (i) which is formed for the purpose of effecting one or more Securitization Transactions and engaging in other activities reasonably related thereto and (ii) as to which no portion of the Indebtedness or any other obligations (a) is guaranteed by any Restricted Subsidiary, or (b) subjects any property or assets of any Restricted Subsidiary, directly or indirectly, contingently or otherwise, to any lien, other than pursuant to representations, warranties and covenants (including those related to servicing) entered into in the ordinary course of business in connection with a Securitization Transaction and inter-company notes and other forms of capital or credit support relating to the transfer or sale of Receivables or asset-backed securities to such Securitization Subsidiary and customarily necessary or desirable in connection with such transactions. " Securitization Transaction " means any transaction or series of transactions that have been or may be entered into by the Company or any of its Subsidiaries in connection with or reasonably related to a transaction or series of transactions in which the Company or any of its Subsidiaries may sell, convey or otherwise transfer to (i) a Securitization Subsidiary or (ii) any other Person, or may grant a security interest in, any Receivables or asset-backed securities or interest therein (whether such Receivables or securities are then existing or arising in the future) of the Company or any of its Subsidiaries, and any assets related thereto, including, without limitation, all security interests in the property or services financed thereby, the proceeds of such Receivables or asset-backed securities and any other assets which are sold in respect of which security interests are granted in connection with securitization transactions involving such assets. " Significant Subsidiary " means any Subsidiary that would be a "Significant Subsidiary" of the Company within the meaning of Rule 1‑02 under Regulation S‑X promulgated by the Commission. " Standard Securitization Undertakings " means representations, warranties, covenants and indemnities entered into by the Company or any Subsidiary of the Company which are customary in an accounts receivable securitization transaction involving a comparable company. " Stated Maturity " means, with respect to any security, the date specified in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof upon the happening of any contingency beyond the control of the issuer unless such contingency has occurred). " Subsidiary " means, in respect of any Person, any corporation, company (including any limited liability company), association, partnership, joint venture or other business entity of which a majority of the total voting power of the Voting Stock is at the time owned or controlled, directly or indirectly, by: (a) such Person; (b) such Person and one or more Subsidiaries of such Person; or (c) one or more Subsidiaries of such Person. " Trust Indenture Act " or " TIA " means the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed, except as provided in Section 9.05; provided , however , that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. " Trustee " means the Person named as the "Trustee" in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean such successor Trustee. " Uniform Commercial Code " means the New York Uniform Commercial Code as in effect from time to time. " U.S. Government Obligations " means direct obligations of the United States for the payment of which its full faith and credit is pledged, or obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States and the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any such U.S. Government' obligations or a specific payment of principal of or interest on any such U.S. Government Obligations held by such custodian for the account of the holder of such depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligations or the specific payment of principal of or interest on the U.S. Government Obligations evidenced by such depository receipt. " Vice President ," when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title "vice president." " Voting Stock " of any specified "person" (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date means the capital stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person. " Wholly Owned Subsidiary " means, in respect of any Person, a Subsidiary with respect to which such Person owns, directly or indirectly, all of the Voting Stock. Unless otherwise required by the context, Wholly Owned Subsidiary shall refer to a Wholly Owned Subsidiary of the Company. SECTION 1.02. Other Definitions .
SECTION 1.03. Incorporation by Reference of Trust Indenture Act . This Indenture is subject to the mandatory provisions of the TIA, which are incorporated by reference in and made a part of this Indenture. The following TIA terms have the following meanings: "Commission" means the SEC. "indenture securities" means the Securities. "indenture security holder" means a Holder. "indenture to be qualified" means this Indenture. "indenture trustee" or "institutional trustee" means the Trustee. "obligor" on the indenture securities means the Company and any other obligor on the indenture securities. All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule have the meanings assigned to them by such definitions. SECTION 1.04. Rules of Construction . For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires: (1) the terms defined in this Section have the meanings assigned to them in this Section and include the plural as well as the singular; (2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; (3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with United States generally accepted accounting principles, and, except as otherwise herein expressly provided, the term "generally accepted accounting principles" with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of such computation; (4) the words "herein," "hereof," and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and (5) headings are for convenience of reference only and do not affect interpretation. SECTION 1.05. Acts of Holders . (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided is this Section. (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgements of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient. (c) At any time, the ownership of Securities shall be proved by the Registrar. (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.] SECTION 2.01. Amount of Securities; Issuable in Series . The principal amount of Securities that may be authenticated and delivered and outstanding under this Indenture is not limited. The Securities may be issued in a total principal amount up to that authorized from time to time by or pursuant to relevant Board Resolutions or established in one or more indentures supplemental hereto. The Securities may be issued in one or more series, each of which shall be issued pursuant to a Board Resolution, or established in one or more indentures supplemental hereto, which shall specify: (a) the title of the Securities of that series (which shall distinguish the Securities of that series from Securities of all other series); (b) any limit on the aggregate principal amount of the Securities of that series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration or transfer of, in exchange for or in lieu of other Securities of that series pursuant to Section 2.07, 2.08 or 3.06); (c) the date or dates (or manner of determining the same) on which the principal of the Securities of that series is payable; (d) the rate or rates, or the method to be used in ascertaining the rate or rates (which may be fixed or variable), at which the Securities of that series shall bear interest (if any), the basis upon which interest shall be calculated if other than that of a 360-day year of 12 30-day months, the date or dates from which such interest shall accrue, the interest payment dates on which such interest shall be payable and the record date for the interest payable on any interest payment date; (e) if the trustee of that series is other than the Trustee initially named in this Indenture or any successor thereto, the trustee of that series; (f) the place or places where the principal of and interest, if any, on Securities of that series shall be payable; (g) the period or periods within which, the price or prices at which and the terms and conditions on which Securities of that series may be redeemed, in whole or in part, at the option of the Company; (h) the obligation, if any, of the Company to redeem or purchase Securities of that series pursuant to any sinking fund or analogous provisions or at the option of Holders of Securities of that series, and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of that series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; (i) if denominated in U.S. dollars, and in denominations other than denominations of $1,000 and any multiple of $1,000, the denominations in which Securities of that series shall be issuable; (j) if denominated in other than U.S. dollars, the currency or currencies, including composite currencies, in which the Securities of that series are denominated, and the denominations in which Securities of that series shall be issuable; (k) if other than the currency in which the Securities of that series are denominated, the currency or currencies, including composite currencies, in which payment of the principal of and interest, if any, on Securities of that series shall be payable; (l) if the amount of payments of the principal of and interest, if any, on the Securities of that series may be determined with reference to an index based on a currency or currencies other than that in which the Securities of that series are denominated, the manner in which such amounts shall be determined; (m) if other than the full principal amount, the portion of the principal amount of Securities of that series which shall be payable upon a declaration of acceleration of the maturity pursuant to Section 6.02; (n) if convertible into Securities of another series, or shares of capital stock of the Company, the terms upon which the Securities of that series will be convertible into Securities of such other series or shares of capital stock of the Company; (o) the right, if any, of the Company to redeem all or any part of the Securities of that series before maturity and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of that series may be redeemed; (p) the provisions, if any, restricting defeasance of the Securities of that series; (q) if other than or in addition to the events specified in Section 6.01, events of default with respect to the Securities of that series; (r) if the Securities of that series are to be issued in whole or in part in the form of one or more Global Securities, the Depositary for such Global Security or Global Securities and whether beneficial owners of interests in any such Global Securities may exchange such interests for other Securities of such series in the manner provided in Section 2.07, and the manner and the circumstances under which and the place or places where any such exchanges may occur if other than in the manner provided in Section 2.07, and any other terms of the series relating to the global nature of the Securities of such series and the exchange, registration or transfer thereof and the payment of any principal thereof or interest, if any, thereon; (s) any covenants or other restrictions on the Company's operations; (t) conditions to any merger or consolidation; (u) any other terms of or relating to the Securities of that series; and (v) the form of any notice to be delivered to the Trustee with respect to any such Security. All Securities of any particular series shall be identical as to currency of denomination and otherwise shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the relevant Board Resolution or Resolutions or indentures supplemental hereto. All Securities of any particular series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for issuances of additional Securities of that series, unless otherwise specified in Board Resolutions or one or more indentures supplemental hereto. The Trustee need not authenticate the Securities in any series if their terms impose on the Trustee duties in addition to those imposed on the Trustee by this Indenture. If the Trustee does authenticate any such Securities, the authentication will evidence the Trustee's agreement to comply with any such additional duties. Each Depositary for a Global Security in registered form shall, if required, at the time of its designation and at all times while it serves as a Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation. SECTION 2.02. Form and Dating . The Securities shall be issued substantially in the form or forms (including global form) as shall be established by or pursuant to a Board Resolution or Resolutions or any indenture supplemental hereto, in each case with such appropriate insertions, omissions, substitutions or other variations as are required or permitted by this Indenture. The Securities may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication. Notwithstanding the foregoing, if any Securint of Securities outstanding under the series from time to time endorsed thereon and also may provide that the aggregate amount of Securities outstanding ereby may from time to time be reduced to reflect exchanges. Any endorsement of a Global Security to reflect the amount of Securities outstanding under the series represented thereby shall be made by the Trustee in accordance with the instructions of the Company and in such manner as shall be specified on such Global Security. Any instructions by the Company with respect to a Global Security, after its initial issuance, shall be in writing but need not comply with Section 10.04. Before the first delivery of a Security of any series to the Trustee for authentication, the Company shall deliver to the Trustee the following: the Board Resolution by or pursuant to which the forms and terms of the Security have been approved; an Officers' Certificate of the Company dated the date of delivery stating that all conditions precedent provided for in this Indenture relating to the authentication and delivery of Securities in that series have been complied with and directing the Trustee to authenticate and deliver the Securities to or upon written order of the Company; and an Opinion of Counsel stating that all conditions precedent provided for in this Indenture relating to the authentication and delivery of Securities of that series have been complied with, the form and terms of the series have been established by or pursuant to a Board Resolution or Resolutions in conformity with this Indenture, and that Securities in such form when completed by appropriate insertions and executed by the Company and delivered by the Company to the Trustee for authentication in accordance with this Indenture, authenticated and delivered by the Trustee in accordance with this Indenture within the authorization as to aggregate principal amount established from time to time by the Board of Directors and sold in the manner specified in such Opinion of Counsel will be the legal, valid and binding obligations of the Company entitled to the benefits of this Indenture, subject to applicable bankruptcy, reorganization, insolvency and other similar laws generally affecting creditors rights and to general equity principles, and to such other qualifications as such counsel shall conclude do not materially affect the rights of Holders of Securities of that series or that are customarily included in similar opinions by lawyers experienced in such matters. Notwithstanding the foregoing, if the Company shall establish pursuant to Section 2.01 that the Securities of a series are to be issued in whole or in part in the form of one or more Global Securities, then the Company shall execute and the Trustee shall, in accordance with this Section, Section 2.02 and the authentication order of the Company with respect to such series, authenticate and deliver one or more Global Securities in temporary or permanent form that shall (a) represent and be denominated in an aggregate amount equal to the aggregate principal amount of the Securities of such series to be represented by one or more Global Securities, (b) be registered in the name of the Depositary for such Global Security or Global Securities or the nominee of such Depositary, (c) be delivered by the Trustee to such Depositary or pursuant to such Depositary's instruction, and (d) bear a legend substantially to the following effect: "Unless and until it is exchanged in whole or in part for Securities in definitive form, this Security may not be transferred except 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 or by the Depositary or any nominee to a successor Depositary or a nominee of any successor Depositary." SECTION 2.03. Execution and Authentication . (a) An Officer (and for purposes of this Section 2.03, the term Officer shall include any Vice President of the Company authorized by the Board of Directors) shall sign the Securities for the Company by manual or facsimile signature. (b) If an Officer whose signature is on a Security no longer holds that office at the time the Trustee authenticates the Security, the Security shall be valid nevertheless. (c) At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a written order of the Company for the authentication and delivery of such Securities, and the Trustee in accordance with such written order of the Company shall authenticate and deliver such Securities. Other than in the case of the Original Securities, such written order of the Company for the authentication and delivery of such Securities shall be in the form of an Officers' Certificate. (d) A Security shall not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on the Security. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture. (e) The Trustee may appoint an authenticating agent reasonably acceptable to the Company to authenticate the Securities. Unless limited by the terms of such appointment, an authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as any Registrar, Paying Agent or agent for service of notices and demands. SECTION 2.04. Registrar and Paying Agent . (a) The Company shall maintain an office or agency in the City of New York where Securities may be presented for registration of transfer or for exchange (the "Registrar") and an office or agency in the City of New York where Securities may be presented for payment (the "Paying Agent"). The Registrar shall keep a register of the Securities and of their transfer and exchange. The Company may have one or more co‑registrars and one or more additional paying agents. The term "Paying Agent" includes any additional paying agent. (b) The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent or co-registrar not a party to this Indenture, which shall incorporate the terms of the TIA. Such agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee in writing of the name and address of any such agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.07. The Company or any of its domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent, Registrar, co‑registrar or transfer agent. (c) The Company hereby appoints the Trustee as initial Registrar and initial Paying Agent in connection with the Securities. SECTION 2.05. Paying Agent To Hold Money in Trust . Prior to each due date of the principal and interest on any Security, the Company shall deposit with the Paying Agent a sum sufficient to pay such principal and interest when so becoming due. The Company shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal of or interest on the Securities and shall notify the Trustee of any default by the Company in making any such payment. If the Company or a Wholly Owned Subsidiary acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by the Paying Agent. Upon complying with this Section 2.05, the Paying Agent shall have no further liability for the money delivered to the Trustee. SECTION 2.06. Holder Lists . The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar, the Company shall furnish to the Trustee, in writing at least five Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders. SECTION 2.07. Transfer and Exchange . Where a Security (other than a Global Security except as set forth herein) is presented to the Registrar or a co-registrar with a request to register a transfer, the Registrar shall register the transfer as requested. Where Securities (other than a Global Security except as set forth herein) of any series are presented to the Registrar or a co-registrar with a request to exchange them for an equal principal amount of Securities of other denominations of the same series with identical terms as the Securities exchanged, the Registrar shall make the exchange as requested if the same requirements are met. To permit transfers and exchanges, the Trustee shall authenticate Securities at the Registrar's request. No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 2.10 or 3.06 not involving any transfer. The Company shall not be required to make transfers or exchanges of Securities of any series for a period of 15 days before the mailing of a notice of redemption of Securities of the same series to be redeemed or before an interest payment. &nbs |
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