UNITED
STATES
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):
October 22, 2012 ( October 18, 2012 )
________________________________
NORFOLK SOUTHERN CORPORATION
(Exact name of registrant as specified in its charter)
________________________________
Virginia |
1-8339 |
52-1188014 |
(State or Other Jurisdiction
|
(Commission File Number) |
(IRS Employer
|
|
|
|
Three Commercial Place |
|
(757) 629-2680 |
Norfolk, Virginia 23510-9241 |
|
(Registrant's telephone number, including area code) |
(Address of principal executive offices) |
|
|
No Change
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b))
[ ] Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement
Effective as of October 18, 2012, the Registrant and certain of its subsidiaries entered into Amendment No. 9 to Transfer and Administration Agreement, attached hereto as Exhibit 99 (the "Amendment"), renewing the Registrant's receivables securitization facility (the “Facility”). Please see Exhibit 99 to the Registrant's Form 8-K dated November 14, 2007; Exhibit 10.1 to the Registrant's Form 10-Q for the quarterly period ended March 30, 2008; Exhibit 99 to the Registrant's Form 8-K dated October 23, 2008; Exhibit 99 to the Registrant's Form 8-K dated October 22, 2009; Exhibit 99 to the Registrant's Form 8-K dated October 22, 2010; and Exhibit 99 to the Registrant's Form 8-K dated October 20, 2011.
The parties to the Amendment are the Registrant; Norfolk Southern Railway Company ("NSR"), the Registrant's wholly-owned operating subsidiary, as Originator and as Servicer; Thoroughbred Funding, Inc., a wholly-owned subsidiary of NSR; the Conduit Investors from time to time party thereto; the Committed Investors from time to time party thereto; the Managing Agents from time to time party thereto; and The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch (“BTMU”), as the Administrative Agent for the Investors and as a Managing Agent. BTMU has assumed the duties of Administrative Agent from JPMorgan Chase Bank, N.A., who has resigned from that position and ceased its participation in the Facility upon mutual agreement with the Registrant.
With respect to the other parties to the Amendment, the Registrant has or may have had customary banking relationships based on the provision of a variety of financial services, including pension fund, cash management, investment banking, and equipment financing and leasing services, none of which are material individually or in the aggregate with respect to any individual party.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits
The following exhibit is furnished as part of this Current Report on Form 8-K:
Exhibit Number |
Description |
99 |
Amendment No. 9 to Transfer and Administration Agreement dated as of October 18, 2012. |
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
SIGNATURES
NORFOLK SOUTHERN CORPORATION
(Registrant)
/s/ Howard D. McFadden
Name:
Howard D. McFadden
Title:
Corporate Secretary
Date: October 22, 2012
EXHIBIT INDEX
Exhibit Number |
Description |
99 |
Amendment No. 9 to Transfer and Administration Agreement dated as of October 18, 2012. |
AMENDMENT NO. 9 TO
TRANSFER AND ADMINISTRATION AGREEMENT
THIS AMENDMENT NO. 9 TO TRANSFER AND ADMINISTRATION AGREEMENT (this “ Amendment ”), dated as of October 18, 2012, is by and among Thoroughbred Funding , Inc . , a Virginia corporation (the “ SPV ”), Norfolk Southern Railway Company , a Virginia corporation, as originator (in such capacity, the “ Originator ”), and as servicer (in such capacity, the “ Servicer ”), the “Conduit Investors” party hereto, the “Committed Investors” party hereto, the “Managing Agents” party hereto, THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH , as the Administrative Agent for the Investors, CRC FUNDING, LLC (“ CRC Funding ”), CAFCO, LLC (“ CAFCO ”), CHARTA, LLC (“ CHARTA ”), CIESCO, LLC (“ CIESCO ” and, together with CRC Funding, CAFCO and CHARTA, collectively the “ Citi Conduits ” and each a “ Citi Conduit ”) and CITIBANK, N.A. (“ Citi ”). Capitalized terms used herein and not otherwise defined herein shall have the meaning given to such terms in the Transfer and Administration Agreement (defined below).
WHEREAS, the SPV, the Servicer, NSC, the Conduit Investors, the Committed Investors, the Managing Agents and the Administrative Agent are parties to that certain Transfer and Administration Agreement dated as of November 8, 2007 (as amended, supplemented or otherwise modified as of the date hereof, the “ Transfer and Administration Agreement ”); and
WHEREAS, the parties to the Transfer and Administration Agreement have agreed to amend the Transfer and Administration Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
“ Alternate Rate ” means (i) with respect to the Investor Group for which Bank of America, N.A. is the Managing Agent for each day during any Rate Period for any Portion of Investment, an interest rate per annum equal to the LIBO Rate for such day plus the Used Fee Rate (as defined in the Fee Letter); provided, that , notwithstanding the foregoing, on any day during any Rate Period that any Portion of Investment is funded or maintained by one or more Committed Investors in any other Investor Group, the “Alternate Rate” under this clause (i) shall be the interest rate per annum set forth in clause (ii) hereof, and (ii) with respect to any other Investor Group for any Rate Period for any Portion of Investment, an interest rate per annum equal to the LIBO Rate plus 2.00%.
“ Commitment Termination Date ” means October 17, 2013, or such later date to which the Commitment Termination Date may be extended by the Committed Investors (in their sole discretion).
“ CP Rate ” means, for any Conduit Investor for any Rate Period for any Portion of Investment, the rate equivalent to the rate (or if more than one rate, the weighted average of the rates) of interest or discount accruing on all Commercial Paper issued by such Conduit Investor during such Rate Period plus if not included in the calculation of the foregoing rate or discount, any and all applicable issuing and paying agent fees and commissions of placement agents and commercial paper dealers in respect of such Commercial Paper and other costs associated with funding small or odd-lot amounts; provided , however , that if the rate (or rates) as agreed between any such agent or dealer and such Conduit Investor is a discount rate (or rates), the “CP Rate” for such Conduit Investor for such Rate Period shall be the rate (or if more than one rate, the weighted average of the rates) resulting from the related Managing Agent’s converting such discount rate (or rates) to an interest-bearing equivalent rate per annum. On the fifth Business Day of each calendar month, each Managing Agent shall calculate the CP Rate for the most recently ended Rate Period and shall notify the SPV and the Servicer of such CP Rate.
All amounts to be paid or deposited by the SPV or the Servicer hereunder shall be paid or deposited in accordance with the terms hereof no later than 11:00 a.m. (New York City time) on the day when due in immediately available funds; if such amounts are payable to the Administrative Agent or any Managing Agent (whether on behalf of any Investor or otherwise) such amounts shall be paid or deposited in the account indicated for the Administrative Agent or such Managing Agent, as applicable, under the heading “Payment Information” on Schedule 11.3 hereto , until otherwise notified by the Administrative Agent or such Managing Agent, as applicable.
(a) If after the Closing Date, any Regulatory Requirement:
(b) If any Indemnified Party shall have determined that after the date hereof, any Regulatory Requirement, has or would have the effect of reducing the rate of return on capital or assets of such Indemnified Party (or its parent) as a consequence of such Indemnified Party's obligations hereunder or with respect hereto to a level below that which such Indemnified Party (or its parent) could have achieved but for such Regulatory Requirement (taking into consideration its policies with respect to capital adequacy) by an amount deemed by such Indemnified Party to be material, then from time to time, within ten (10) days after demand by such Indemnified Party through the Administrative Agent, the SPV shall pay to the Administrative Agent, for the benefit of such Indemnified Party, such additional amount or amounts as will compensate such Indemnified Party (or its parent) for such reduction.
As used herein, “Regulatory Requirement” shall mean (i) the adoption after the Closing Date of any applicable Law (including any Law regarding capital adequacy or liquidity coverage) or any change therein after the Closing Date or (ii) any change after the Closing Date in the interpretation or administration of any applicable Law or compliance with any request or directive (whether or not having the force of law) of any Official Body charged with the interpretation or administration thereof, or compliance with any request or directive (whether or not having the force of law) of any such Official Body; provided , that for purposes of this definition (x) the United States bank regulatory rule titled Risk-Based Capital Guidelines; Capital Adequacy Guidelines; Capital Maintenance; Regulatory Capital; Impact of Modification to Generally Accepted Accounting Principles; Consolidation of Asset-Backed Commercial Paper Programs; and Other Related Issues adopted on December 15, 2009, (y) the Dodd-Frank Wall Street Reform and Consumer Protection Program Act and all requests, rules, guidelines or directives thereunder, issued in connection therewith or in implementation thereof, and (z) all requests, rules, guidelines and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, shall in each case be deemed to be a “Regulatory Requirement”, regardless of the date enacted, adopted, issued or implemented.
[Signature pages follow.]
In Witness Whereof , the parties hereto have executed and delivered this Amendment as of the date first written above.
THOROUGHBRED FUNDING, INC. ,
as SPV
By: /s/ Marta R. Stewart
Name: Marta R. Stewart
Title: Chairman and President
NORFOLK SOUTHERN RAILWAY COMPANY ,
as Originator and as Servicer
By: /s/ Marta R. Stewart
Name: Marta R. Stewart
Title: Vice President and Treasurer
NORFOLK SOUTHERN CORPORATION
By: /s/ Marta R. Stewart
Name: Marta R. Stewart
Title: Vice President and Treasurer
Signature Page to Amendment No. 9 to
Transfer and Administration Agreement
JPMORGAN CHASE BANK, N.A. ,
as a Managing Agent and a Committed Investor
By: /s/ Corina Mills
Name: Corina Mills
Title: Executive Director
CHARIOT FUNDING LLC ,
as a Conduit Investor
By: JPMorgan Chase Bank, N.A.,
its Attorney-in-Fact
By: /s/ Corina Mills
Name: Corina Mills
Title: Executive Director
Signature Page to Amendment No. 9 to
Transfer and Administration Agreement
BANK OF AMERICA, NATIONAL ASSOCIATION ,
as a Managing Agent and a Committed Investor
By: /s/ Christopher Haynes
Name: Christopher Haynes
Title: Vice President
Signature Page to Amendment No. 9 to
Transfer and Administration Agreement
Victory Receivables Corporation ,
as a Conduit Investor
By: /s/ David V. DeAngelis
Name: David V. DeAngelis
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
NEW YORK BRANCH ,
as Administrative Agent and a Managing Agent
By: /s/ Christopher Pohl
Name: Christopher Pohl
Title: Managing Director
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
NEW YORK BRANCH ,
as a Committed Investor
By: /s/ Charles Stewart
Name: Charles Stewart
Title: Director
Signature Page to Amendment No. 9 to
Transfer and Administration Agreement
CRC FUNDING, LLC , as a Conduit Investor
By: Citibank, N.A.,
its attorney-in-fact
By: /s/ Steffen Lunde
Name: Steffen Lunde
Title: Vice President
CAFCO, LLC , as a Conduit Investor
By: Citibank, N.A.,
its attorney-in-fact
By: /s/ Steffen Lunde
Name: Steffen Lunde
Title: Vice President
CHARTA, LLC , as a Conduit Investor
By: Citibank, N.A.,
its attorney-in-fact
By: /s/ Steffen Lunde
Name: Steffen Lunde
Title: Vice President
CIESCO, LLC , as a Conduit Investor
By: Citibank, N.A.,
its attorney-in-fact
By: /s/ Steffen Lunde
Name: Steffen Lunde
Title: Vice President
CITIBANK, N.A. ,
as a Managing Agent and a Committed Investor
By: /s/ Steffen Lunde
Name: Steffen Lunde
Signature Page to Amendment No. 9 to
Transfer and Administration Agreement
Schedule I to Amendment No. 9 to
Transfer and Administration Agreement
SCHEDULE II
Investor Groups
BTMU Investor Group
Conduit Investor: Victory Receivables Corporation
Committed Investor: The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch
Commitment of The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch: $116,666,667
Managing Agent: The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch
Bank of America Investor Group
Conduit Investor: N/A
Committed Investor: Bank of America, N.A.
Commitment of Bank of America, N.A.: $116,666,667
Managing Agent: Bank of America, N.A.
Citi Investor Group
Conduit Investors: CRC Funding, LLC, CAFCO, LLC, CHARTA, LLC and CIESCO, LLC
Committed Investor: Citibank, N.A.
Commitment of Citibank, N.A.: $116,666,666
Managing Agent: Citibank, N.A.
Schedule II to Amendment No. 9 to
Transfer and Administration Agreement
Schedule IV
Special Concentration
Limits
Obligor Name |
Concentration Limit |
J.B. Hunt Transport Service, Inc. |
6.00% |
Duke Energy Corporation |
5.00% |
Archer Daniels Midland Company |
5.00% |
Schedule III to Amendment No. 9 to
Transfer and Administration Agreement
SCHEDULE 11.3
Address
and Payment Information
Schedule IV to Amendment No. 9 to
Transfer and Administration Agreement
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