FARMER MAC MORTGAGE SECURITIES CORPORATION as Note Purchaser NATIONAL RURAL UTILITIES COOPERATIVE FINANCE CORPORATION as Borrower FEDERAL AGRICULTURAL MORTGAGE CORPORATION as Guarantor NOTE PURCHASE AGREEMENT Dated as of March 23, 2009
EXECUTION
COPY
XXXXXX
MAC MORTGAGE SECURITIES CORPORATION
as
Note Purchaser
NATIONAL
RURAL UTILITIES
COOPERATIVE
FINANCE CORPORATION
as
Borrower
FEDERAL
AGRICULTURAL MORTGAGE CORPORATION
as
Guarantor
_______________________________
_______________________________
Dated
as of March 23, 2009
|
TABLE
OF CONTENTS
|
|
|
Page
|
|
|
RECITALS
|
1
|
|
ARTICLE
I DEFINITIONS
|
1
|
|
SECTION
1.01. Definitions
|
1
|
|
SECTION
1.02. Principles of Construction
|
4
|
|
ARTICLE
II PURCHASE OF NOTES
|
4
|
|
SECTION
2.01. Purchase of Notes; Minimum Denominations
|
4
|
|
SECTION
2.02. Interest Rates and Payment
|
4
|
|
SECTION
2.03. Maturity
|
6
|
|
SECTION
2.04. Use of Proceeds
|
6
|
|
ARTICLE
III CONDITIONS PRECEDENT
|
6
|
|
SECTION
3.01. Conditions Precedent to the Purchase of Each
Note
|
6
|
|
SECTION
3.02. Certificate of Pledged Collateral
|
7
|
|
ARTICLE
IV REPORTING REQUIRMENTS
|
7
|
|
SECTION
4.01. Annual Reporting Requirements
|
7
|
|
SECTION
4.02. Default Notices
|
7
|
|
ARTICLE
V REPRESENTATIONS OF THE PARTIES
|
8
|
|
SECTION
5.01. Representations of Xxxxxx Mac and the
Purchaser
|
8
|
|
SECTION
5.02. Representations of National Rural
|
8
|
|
ARTICLE
VI SECURITY AND COLLATERAL
|
10
|
|
SECTION
6.01. Security and Collateral
|
10
|
|
ARTICLE
VII EVENTS OF DEFAULT
|
10
|
|
SECTION
7.01. Events of Defaults
|
10
|
|
SECTION
7.02. Acceleration
|
11
|
|
SECTION
7.03. Remedies Not Exclusive
|
11
|
|
ARTICLE
VIII MISCELLANEOUS
|
12
|
|
SECTION
8.01. GOVERNING LAW
|
12
|
|
SECTION
8.02. WAIVER OF JURY TRIAL
|
12
|
|
SECTION
8.03. Notices
|
12
|
|
SECTION
8.04. Benefit of Agreement
|
12
|
|
SECTION
8.05. Entire Agreement
|
12
|
|
SECTION
8.06. Amendments and Waivers
|
12
|
|
SECTION
8.07. Counterparts
|
13
|
|
SECTION
8.08. Termination of Agreement
|
13
|
|
SECTION
8.09. Survival
|
13
|
|
SECTION
8.10. Severability
|
13
|
|
ARTICLE
IX GUARANTEE
|
13
|
|
SECTION
9.01 Guarantee
|
13
|
|
SECTION
9.02 Control by Guarantor
|
14
|
Schedule
I – Addresses for Notices
Schedule
II – Form of Applicable Margin Notice
Schedule
III – Form of Pricing Agreement
Annex A–
Form of Floating Rate Note
Annex B –
Opinion of Counsel to National Rural
Annex C –
Officers’ Certificate
NOTE
PURCHASE AGREEMENT, dated as of March 23, 2009, among XXXXXX MAC MORTGAGE
SECURITIES CORPORATION (the “Purchaser”), a wholly
owned subsidiary of FEDERAL AGRICULTURAL MORTGAGE CORPORATION, a
federally-chartered instrumentality of the United States and an institution of
the Farm Credit System (“Xxxxxx Mac” or the
“Guarantor”);
NATIONAL RURAL UTILITIES COOPERATIVE FINANCE CORPORATION, a cooperative
association existing under the laws of the District of Columbia (“National Rural”); and
Xxxxxx Mac, as Guarantor.
RECITALS
WHEREAS
National Rural wishes from time to time to issue and sell Notes to the
Purchaser, and the Purchaser wishes from time to time to purchase such Notes
from National Rural, in order to refinance the notes issued pursuant to that
certain Note Purchase Agreement between Xxxxxx Mac and National Rural dated as
of March 27, 2008 (the “Original NPA”), all
on the terms and subject to the conditions herein provided; and
WHEREAS
Xxxxxx Mac is an instrumentality of the United States formed to provide for
a secondary marketing arrangement for agricultural real estate mortgages;
National Rural is a non-profit cooperative and Xxxxxx Mac, the Purchaser and
National Rural have agreed that the Notes will be secured by the pledge of notes
for borrowings from National Rural by members of National Rural, as provided
herein.
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, Xxxxxx
Mac, the Purchaser and National Rural agree as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions. As
used in this Agreement, the following terms shall have the following
meanings:
“Agreement” means this
Note Purchase Agreement, as the same may be amended from time to
time.
“Applicable Margin”
means the margin to be added to the LIBOR Rate to determine the rate of interest
payable on the Floating Rate Notes from time to time. The Applicable
Margin shall be communicated in writing by Xxxxxx Mac to National Rural in
accordance with Section 2.02(d) hereof, in the form of Schedule II hereof, and
calculated by Xxxxxx Mac as follows: (i) Xxxxxx Mac’s Cost of Funds (expressed
in relation to the LIBOR Rate), plus 0.75%, minus (ii) the LIBOR
Rate. The Applicable Margin for any Floating Rate Note shall be set
forth in the applicable Pricing Agreement.
“Business Day” means
any day other than a Saturday, a Sunday, or a day on which any of the Federal
Reserve Bank of New York, Xxxxxx Mac’s office in Washington, DC or National
Rural’s office in Virginia is not open for business.
“Certificate of Pledged
Collateral” has the meaning given to that term in the Pledge
Agreement.
“Closing Date” means
the date of the funding of each issuance of Notes hereunder, which date shall be
set forth in the applicable Pricing Agreement.
“Collateral Agent”
means U.S. Bank National Association, or its successor, as collateral agent
under the Pledge Agreement.
“Control Party” means
(i) the Guarantor, so long as no Guarantor Default has occurred and is
continuing, or (ii) the holders of the Notes for so long as a Guarantor Default
has occurred and is continuing.
“Dollar” or “$” means the lawful
money of the United States of America.
“Eligible Member” has
the meaning given to that term in the Pledge Agreement.
“Event of Default” has
the meaning given to that term in Section 7.01.
“Xxxxxx Mac’s Cost of
Funds” means the cost of funds quoted by Xxxxxx Mac to National Rural
based on Xxxxxx Mac’s estimate of the economic cost to obtain cash funds from
the wholesale funding market by issuing unsecured medium-term notes to fully
fund to maturity the Note or Notes purchased by Purchaser from National
Rural.
“Final Maturity Date”
means April 1, 2014.
“Financial
Statements”, in respect of a Fiscal Year, means the consolidated
financial statements (including footnotes) of National Rural for that Fiscal
Year as audited by independent certified public accountants selected by National
Rural.
“Fiscal Year” means
the fiscal year of National Rural, as such may be changed from time to time,
which at the date hereof commences on June 1 of each calendar year and ends on
May 31 of the following calendar year.
“Guarantor Default”
means a default by the Guarantor under its obligations pursuant to Article IX
which is existing and continuing.
“Interest Payment
Date” means the first (1st) day of
each January, April, July and October, unless other dates are agreed by the
parties hereto; provided, however, that if any such date is not a Business Day,
such Interest Payment Date that would otherwise be such date will be the next
Business Day following such date. The Interest Payment Dates will be
set forth in the applicable Pricing Agreement.
“Interest Period
” means,
until all outstanding principal amount of the Notes and interest accrued thereon
have been paid in full, each 3-month period comprising a calendar
2
quarter
from and including the first day of a calendar quarter (i.e., January 1st, April
1st,
July 1st and
October 1st)
(unless another period is agreed by the parties hereto and set forth in the
applicable Pricing Agreement) to and including the last day of the same calendar
quarter (i.e., March 31st, June
30th,
September 30th and
December 31st)
(unless otherwise agreed by the parties hereto and set forth in a Pricing
Agreement);
provided, that the initial Interest Period means the period from and
including the date of issuance to and excluding the first Interest Payment
Date following the date of issuance; provided, further,
that if any Interest Period would end on a day other than a Business Day, then
such Interest Period shall be extended to and include the next succeeding
Business Day and the next Interest Period shall commence on the next succeeding
day.
“LIBOR Rate” shall
mean, for any Interest Period, the rate appearing on Reuters Page LIBOR01 (or on
any successor or substitute page of such service, or if the Reuters service
ceases to be available, any successor to or substitute for such service
providing rate quotations comparable to those currently provided on such page of
such service, as mutually agreed by National Rural and Xxxxxx Mac from time to
time for purposes of providing quotations of interest rates applicable to Dollar
deposits in the London interbank market) as of 11:00 a.m., London time, on the
day that is two London Banking Days prior to the commencement of such Interest
Period, as the rate for the offering of Dollar deposits with a maturity of three
months (unless another maturity is agreed by the parties hereto and set forth in
the applicable Pricing Agreement). Such rate shall apply for the
initial Interest Period for any advance notwithstanding that such initial
Interest Period for an advance may be shorter than three months.
“London Banking Day”
shall mean any day on which commercial banks and foreign exchange markets settle
payments and are open for general business (including dealings in foreign
exchange and foreign currency deposits) in the Dollar, in London,
England.
“Member” shall mean
any Person who is member of National Rural.
“National Rural
Notice” has the meaning given to that term in the Pledge
Agreement.
“Notes” means one or
more noncallable floating rate notes of National Rural payable to the Purchaser,
having the terms provided for in Article II of this Agreement and otherwise in
the form of Annex A attached hereto, except to the extent Xxxxxx Mac and
National Rural may have approved changes therein, or any other notes with terms
determined by the parties pursuant to the terms of a Pricing
Agreement.
“Note Documents” means
the Notes, this Agreement, and the Pledge Agreement.
“Notice of Borrowing”
has the meaning set forth in Section 2.01 hereof.
“Original Note” means
the note in the original principal amount of $400 million issued to Xxxxxx Mac
pursuant to the Original NPA.
“Original
NPA” has the meaning set forth in the Recitals
hereof.
3
“Person” means an
individual, a corporation, a partnership, an association, a trust or any other
entity or organization, including a government or political subdivision or an
agency or instrumentality thereof.
“Pledge Agreement”
means the Pledge Agreement dated as of the date hereof, among National Rural,
the Purchaser, Xxxxxx Mac and the Collateral Agent.
“Pledged Collateral”
has the meaning given to that term in the Pledge Agreement.
“Pledged Securities”
has the meaning given to that term in the Pledge Agreement.
“Pricing Agreement”
means the Pricing Agreement for each issuance of Notes among Xxxxxx Mac, the
Purchaser and National Rural in the form of Schedule III attached
hereto.
SECTION
1.02. Principles of
Construction. Unless
the context shall otherwise indicate, the terms defined in Section 1.01
hereof include the plural as well as the singular and the singular as well as
the plural. The words “hereafter”, “herein”, “hereof”, “hereto” and
“hereunder”, and words of similar import, refer to this Agreement as a
whole. The descriptive headings of the various articles and sections
of this Agreement were formulated and inserted for convenience only and shall
not be deemed to affect the meaning or construction of the provisions
hereof.
ARTICLE
II
PURCHASE
OF NOTES
SECTION
2.01. Purchase of Notes; Minimum
Denominations. The
Purchaser agrees to purchase Notes, at 100% of their principal amount, from time
to time, on or before the Final Maturity Date, as requested by National Rural by
written notice (each, a “Notice of Borrowing”)
to Xxxxxx Mac in an aggregate principal amount, for all Notes outstanding
hereunder at any one time, not in excess of $400 million, subject to
satisfaction of the conditions set forth herein. National Rural may
borrow, repay and reborrow funds at any time or from time to time up to, but not
including, the Final Maturity Date. Each advance under this Agreement
shall be disbursed in a minimum amount of $50 million and additional increments
of $5 million in excess thereof, or such other amounts as agreed to in the
applicable Pricing Agreement. Each advance shall price within 3
Business Days of National Rural providing a Notice of Borrowing to Xxxxxx Mac
and shall close and fund within 3 Business Days of pricing, subject to
satisfaction of the conditions set forth herein and in accordance with the
procedures set forth in Section 2.02(d) hereof, unless otherwise agreed by the
parties hereto and set forth in the applicable Pricing Agreement.
SECTION
2.02. Interest Rates and
Payment.
(a) Each Note
shall bear interest, payable quarterly in arrears unless otherwise agreed by the
parties hereto and set forth in the applicable Pricing Agreement, on the
outstanding principal amount thereof (computed on the basis
4
of a
360-day year and the actual number of days elapsed) from its date of issuance
until final payment on the maturity date thereof or otherwise at a variable rate
per annum equal to the LIBOR Rate for each Interest Period plus the Applicable
Margin. The LIBOR Rate shall reset as of the first day of each
Interest Period. The (i) initial LIBOR Rate and (ii) Applicable
Margin for the term of each Note shall be specified in the applicable Pricing
Agreement. Interest only shall be payable on each Interest Payment
Date. The Interest Payment Dates shall be determined at the time of
an advance and set forth in the applicable Pricing Agreement. The
principal amount of each Note, together with any accrued but unpaid interest,
shall be due and payable on the maturity date for such Note.
(b) Default
Interest. To the extent any payment of interest or principal
is not paid when due, interest shall continue to accrue thereon at the
applicable rate per annum determined as provided above plus one
percent.
(c) Notice of Borrowing;
Determination of Applicable Margin; Procedure
for Pricing.
(i) (i) Each
Notice of Borrowing shall indicate the amount of the Note, the type of Note and
the desired maturity date of such Note that National Rural requests to be
advanced. A Notice of Borrowing may request preliminary pricing
indications for more than one type of Note, with the understanding that only one
type of Note will be issued on any particular Closing Date, unless otherwise
agreed by the parties hereto in a Pricing Agreement. Each Notice of
Borrowing shall also provide name, telephone and email contact information of an
authorized representative of National Rural.
(ii) Upon
receipt of a Notice of Borrowing from National Rural, Xxxxxx Mac shall, within 2
Business Days, provide to National Rural a preliminary indication of the
Applicable Margin applicable to any Notice of Borrowing. Upon an
acceptance of such preliminary indication of pricing by National Rural, the
applicable Note will price within one Business Day (and may price on the day of
the preliminary pricing if the parties so agree) thereafter, unless the parties
otherwise agree to a longer period of time as set forth in the applicable
Pricing Agreement. Xxxxxx Mac shall provide National Rural with
written notice of the final Applicable Margin no later than the time of pricing
of each advance. National Rural shall be deemed to approve of such
pricing so long as the Applicable Margin shall not exceed the preliminary
indication by more than 5 basis points (0.05%). If the final pricing
does exceed the preliminary indication by more than 5 basis points (0.05%), an
authorized representative of National Rural must agree via email confirmation
prior to or simultaneously with the pricing to accept such margin.
(d) Payments and
Prepayments. Each Note shall not be prepayable during the term
of such Note, unless otherwise set forth in the Pricing Agreement.
(e) Payment
Notice. Xxxxxx Mac shall send to National Rural, not later
than the fifth Business Day prior to an Interest Payment Date for any Note, a
5
notice
setting forth the amount of principal and interest, as applicable, due and owing
on the next Interest Payment Date for such Note.
SECTION
2.03. Maturity. The
Notes will mature on the date set forth in the applicable Pricing Agreement and
in any event no later than the Final Maturity Date.
SECTION
2.04. Use of
Proceeds. The proceeds of the Notes issued hereunder shall be
used (i) to repay amounts outstanding under the Original NPA or (ii) for general
corporate purposes; provided, however, that the aggregate principal amount
outstanding under the Original Note and the Notes issued hereunder shall not
exceed $400 million at any time. Notwithstanding anything contained in the
Original NPA, Xxxxxx Mac shall not require that interest on the Original Note be
paid to the next interest payment date under the Original NPA so long as
interest on such Original Note is paid to the Closing Date of the Note being
purchased hereunder.
ARTICLE
III
CONDITIONS
PRECEDENT
SECTION
3.01. Conditions Precedent to the
Purchase of Each Note
. On
each Closing Date, the Purchaser shall be under no obligation to purchase any
Note unless and until the following conditions have been satisfied:
(a) The
Notes. Xxxxxx Mac shall have received the original of such
Notes, duly executed on behalf of National Rural, in the applicable form
attached as Annex A hereto, or otherwise in a form agreed by the
parties.
(b) The Pledge
Agreement. Xxxxxx Mac shall have received an original of the
Pledge Agreement duly executed on behalf of National Rural and the Collateral
Agent.
(c) Opinion of
Counsel. Xxxxxx Mac shall have received an opinion of counsel
to National Rural substantially in the form of Annex B, attached
hereto.
(d) Financial and Other
Information. National Rural shall have provided Xxxxxx Mac
with its most recent Financial Statements and such other information concerning
National Rural as Xxxxxx Mac shall have reasonably requested.
(e) No Material Adverse
Change. National Rural shall have certified to Xxxxxx Mac (in
the manner specified in paragraph (i) of this Section 3.01), and Xxxxxx Mac
shall be satisfied, that no material adverse change shall have occurred in the
financial condition or business of National Rural between the end of National
Rural’s most recently completed Fiscal Year for which Financial Statements have
been made publicly available and the date of the purchase of such Note, which
has not been set forth in documents, certificates or financial information
furnished to Xxxxxx Mac or publicly filed.
6
(f) UCC
Filing. National Rural shall have provided Xxxxxx Mac with
evidence that National Rural has filed the financing statement required pursuant
to Section 2.02(i) of the Pledge Agreement.
(g) No Event of
Default. National Rural shall have certified to Xxxxxx Mac and
Xxxxxx Mac shall be satisfied that no Event of Default shall have occurred and
be continuing.
(h) Certification of Senior
Management. National Rural shall have provided Xxxxxx Mac a
certification by any vice president of National Rural, substantially in the form
of Annex C attached hereto, as to the following: (i) that National Rural is
a lending institution organized as a private, not-for-profit, cooperative
association with the appropriate expertise, experience and qualifications to
make loans to its Members for rural electrification and related purposes; (ii)
the matters to be certified under paragraphs (e) and (g) of this
Section 3.01; and (iii) the representations and warranties of National
Rural.
SECTION
3.02. Certificate of Pledged
Collateral. No
later than three Business Days after each advance hereunder, National Rural
shall provide Xxxxxx Mac and the Collateral Agent a copy of a Certificate of
Pledged Collateral, dated as of the last day of the calendar month most recently
ended at least 10 Business Days prior to such authentication and delivery, or a
more recent date, at National Rural’s option, in accordance with the terms of
the Pledge Agreement.
ARTICLE
IV
REPORTING
REQUIREMENTS
SECTION
4.01. Annual Reporting
Requirements
. So
long as any Notes remain outstanding, National Rural shall provide Xxxxxx Mac
with the following items within 90 days of the end of each Fiscal Year, in each
case, in form and substance satisfactory to Xxxxxx Mac:
(a) the
Financial Statements for such Fiscal Year;
(b) a
Certificate of Pledged Collateral;
(c) a receipt
from the Collateral Agent, or such other evidence as is satisfactory to Xxxxxx
Mac, as to the Pledged Collateral held by the Collateral Agent at the end of
such Fiscal Year; and
(d) such
other information concerning National Rural as is reasonably requested by Xxxxxx
Mac.
SECTION
4.02. Default
Notices. If
an action, occurrence or event shall happen that is, or with notice and the
passage of time would become, an Event of Default, National Rural shall deliver
a National Rural Notice of such action, occurrence or event to
7
Xxxxxx
Mac before 4:00 p.m. (District of Columbia time) on the Business Day
following the date National Rural becomes aware of such action, occurrence or
event, and, if such Event of Default should occur, shall submit to Xxxxxx Mac,
within five days thereafter, a report setting forth its views as to the reasons
for the Event of Default, the anticipated duration of the Event of Default and
what corrective actions National Rural is taking to cure such Event of
Default.
ARTICLE
V
REPRESENTATIONS
OF THE PARTIES
SECTION
5.01. Representations of Xxxxxx
Mac and the Purchaser. Each
of Xxxxxx Mac and the Purchaser jointly and severally represent to National
Rural that on the date hereof and on each date on which the Purchaser purchases
a Note from National Rural:
(a) it has
all necessary authority and has taken all necessary corporate action, and
obtained all necessary approvals, in order for it to execute and deliver all
Note Documents to which it is a party and for its obligations and agreements
under the Note Documents to constitute valid and binding obligations of Xxxxxx
Mac and the Purchaser; and in particular the terms of the transaction, and the
actions taken by Xxxxxx Mac and the Purchaser, are in compliance with and in
satisfaction of the requirements of the Farm Credit Administration, as amended
or waived by the Farm Credit Administration; and
(b) The
Purchaser is purchasing the Notes for its own account and not with a view to the
distribution thereof, provided that the disposition by Xxxxxx Mac or the
Purchaser of their property shall at all times be within their
control. Xxxxxx Mac and the Purchaser each understands that the Notes
have not been registered under the Act and may be resold only if an exemption
from registration is available.
SECTION
5.02. Representations of National
Rural.
National
Rural hereby represents to Xxxxxx Mac and the Purchaser that on the date hereof
and on each date on which the Purchaser purchases a Note from National
Rural:
(a) National
Rural has been duly organized and is validly existing and in good standing as a
cooperative association under the laws of the District of Columbia;
(b) National
Rural has the corporate power and authority to execute and deliver this
Agreement, each of the other Note Documents and the applicable Pricing
Agreement, to consummate the transactions contemplated hereby and thereby and to
perform its obligations hereunder and thereunder;
(c) National
Rural has taken all necessary corporate and other action to authorize the
execution and delivery of this Agreement, each of the other Note Documents and
the applicable Pricing Agreement, the consummation by National
8
Rural of
the transactions contemplated hereby and thereby and the performance by National
Rural of its obligations hereunder and thereunder;
(d) this
Agreement, each of the other Note Documents and the applicable Pricing Agreement
have been duly authorized, executed and delivered by National Rural and
constitute the legal, valid and binding obligations of National Rural,
enforceable against National Rural in accordance with their respective terms,
subject to: (i) applicable bankruptcy, reorganization, insolvency,
moratorium and other laws of general applicability relating to or affecting
creditors’ rights generally; and (ii) the application of general principles
of equity regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(e) no
approval, consent, authorization, order, waiver, exemption, variance,
registration, filing, notification, qualification, license, permit or other
action is now, or under existing law in the future will be, required to be
obtained, given, made or taken, as the case may be, with, from or by any
regulatory body, administrative agency or governmental authority having
jurisdiction over National Rural or any third party under any agreement to which
National Rural is a party to authorize the execution and delivery by National
Rural of this Agreement, any of the other Note Documents or the applicable
Pricing Agreement, or the consummation by National Rural of the transactions
contemplated hereby or thereby or the performance by National Rural of its
obligations hereunder or thereunder;
(f) neither
the execution or delivery by National Rural of this Agreement, any of the other
Note Documents or the applicable Pricing Agreement, nor the consummation by
National Rural of any of the transactions contemplated hereby or thereby nor the
performance by National Rural of its obligations hereunder or thereunder,
including, without limitation, the pledge of the Pledged Securities (as such
term is defined in the Pledge Agreement) to Xxxxxx Mac, conflicts with or will
conflict with, violates or will violate, results in or will result in a breach
of, constitutes or will constitute a default under, or results in or will result
in the imposition of any lien or encumbrance pursuant to any term or provision
of the articles of incorporation or the bylaws of National Rural or any
provision of any existing law or any rule or regulation currently applicable to
National Rural or any judgment, order or decree of any court or any regulatory
body, administrative agency or governmental authority having jurisdiction over
National Rural or the terms of any mortgage, indenture, contract or other
agreement to which National Rural is a party or by which National Rural or any
of its properties is bound;
(g) there is
no action, suit, proceeding or investigation before or by any court or any
regulatory body, administrative agency or governmental authority presently
pending or, to the knowledge of National Rural, threatened with respect to
National Rural, this Agreement, any of the other Note Documents or the
applicable Pricing Agreement, challenging the validity or enforceability of this
Agreement, any of the other Note Documents or the applicable Pricing
9
Agreement,
or seeking to restrain, enjoin or otherwise prevent National Rural from engaging
in its business as currently conducted or the consummation by National Rural of
the transactions contemplated by this Agreement, any of the other Note Documents
or the applicable Pricing Agreement, or which, if adversely determined, would
have a material adverse effect on National Rural’s financial condition or its
ability to perform its obligations under this Agreement, any of the other Note
Documents or the applicable Pricing Agreement;
(h) National
Rural is a lending institution organized as a private, not-for-profit,
cooperative association with the appropriate expertise, experience and
qualifications to make loans to its Members for rural electrification purposes;
and
(i) no
material adverse change has occurred in the financial condition or business of
National Rural between the end of National Rural’s most recently completed
Fiscal Year for which Financial Statements have been made publicly available and
the date this representation is given which has not been set forth in documents,
certificates or financial information furnished to Xxxxxx Mac or publicly
filed.
ARTICLE
VI
SECURITY
AND COLLATERAL
SECTION
6.01. Security and
Collateral.
(a) National
Rural shall cause the Allowable Amount of the Pledged Collateral (as such terms
are defined in the Pledge Agreement) to be at all times not less than 100% of
the aggregate outstanding principal amount of the Notes.
(b) National
Rural shall not create, or permit to exist, any pledge, lien, charge, mortgage,
encumbrance, debenture, hypothecation or other similar security instrument that
secures, or in any way attaches to, such Pledged Collateral, other than the lien
of the Pledge Agreement, without the prior written consent of Xxxxxx
Mac.
(c) The
Pledged Securities will at all times be notes issued to National Rural by
Eligible Members (as defined in the Pledge Agreement).
ARTICLE
VII
EVENTS OF
DEFAULT
SECTION
7.01. Events of
Default. Each
of the following actions, occurrences or events shall, but only (except in the
case of subsections (a), (d) and (e) below) if National Rural does not cure such
action, occurrence or event within 30 days of notice from
10
Xxxxxx
Mac requesting that it be cured, constitute an “Event of Default”
under the terms of this Agreement:
(a) a failure
by National Rural to make a payment of principal or interest on any Note for
more than ten days after the same becomes due and payable;
(b) a
material representation by National Rural to Xxxxxx Mac in connection with this
Agreement, any Note or the Pledge Agreement, or any material information
reported pursuant to Article V, shall prove to be incorrect or untrue in any
material respect when made or deemed made;
(c) a failure
by National Rural to comply with any other material covenant or provision
contained in this Agreement or any of the other Note Documents;
(d) the entry
of a decree or order by a court having jurisdiction in the premises adjudging
National Rural a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of or in
respect of National Rural under the Federal Bankruptcy Act or any other
applicable Federal or State law or law of the District of Columbia, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of National Rural or of any substantial part of its property,
or ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 60 consecutive
days; or
(e) the
commencement by National Rural of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by it to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under the Federal Bankruptcy Act or any other
applicable Federal or State law or law of the District of Columbia, or the
consent by it to the filing of any such petition or to the appointment of
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
National Rural or of any substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the admission by it in writing
of its inability to pay its debts generally as they become due, or the taking of
corporate action by National Rural in furtherance of any such
action.
SECTION
7.02. Acceleration. Upon
the occurrence, and during the continuance, of an Event of Default, Xxxxxx Mac
may, upon notice to that effect to National Rural, declare the entire principal
amount of, and accrued interest on, the Notes at the time outstanding to be
immediately due and payable.
SECTION
7.03. Remedies Not
Exclusive. Upon
the occurrence, and during the continuance, of an Event of Default, Xxxxxx Mac
shall be entitled to take such other action as is provided for by law, in this
Agreement, or in any of the other Note Documents, including injunctive or other
equitable relief.
11
ARTICLE
VIII
MISCELLANEOUS
SECTION
8.01. GOVERNING
LAW. EXCEPT
AS SET FORTH IN SECTION 9.01 HEREOF, THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, FEDERAL LAW. TO THE EXTENT FEDERAL LAW
INCORPORATES STATE LAW, THAT STATE LAW SHALL BE THE LAWS OF THE DISTRICT OF
COLUMBIA APPLICABLE TO CONTRACTS MADE AND PERFORMED THEREIN.
SECTION
8.02. WAIVER OF JURY
TRIAL. EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.02.
SECTION
8.03. Notices. All
notices and other communications hereunder to be made to any party shall be in
writing and shall be addressed as specified in Schedule I attached hereto
as appropriate except as otherwise provided herein. The address,
telephone number, or facsimile number for any party may be changed at any time
and from time to time upon written notice given by such changing party to the
other parties hereto. A properly addressed notice or other
communication shall be deemed to have been delivered at the time it is sent by
facsimile (fax) transmission to the party or parties to which it is
given.
SECTION
8.04. Benefit of
Agreement. This
Agreement shall become effective when it shall have been executed by Xxxxxx Mac,
the Purchaser and National Rural, and thereafter shall be binding upon and inure
to the respective benefit of the parties and their permitted successors and
assigns.
SECTION
8.05. Entire
Agreement. This
Agreement, including the Schedules and Annexes hereto, and the other Note
Documents, constitute the entire agreement between the parties hereto concerning
the matters contained herein and supersede all prior oral and written agreements
and understandings between the parties.
SECTION
8.06. Amendments and
Waivers.
(a) No
provision of this Agreement may be amended or modified except pursuant to an
agreement in writing entered into by Xxxxxx Mac, the Purchaser and National
Rural. No provision of this Agreement may be waived except in writing
by the party or parties receiving the benefit of and under such
provision.
12
(b) No
failure or delay of Xxxxxx Mac, the Purchaser or National Rural in exercising
any power or right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or
power. No waiver of any provision of this Agreement or consent to any
departure by National Rural therefrom shall in any event be effective unless the
same shall be authorized as provided in paragraph (a) of this
Section 8.06, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice
or demand on National Rural in any case shall entitle National Rural to any
other or further notice or demand in similar or other
circumstances.
SECTION
8.07. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be an
original, but all of which together shall constitute one and the same
instrument.
SECTION
8.08. Termination of
Agreement. This
Agreement shall terminate upon the indefeasible payment in full of all amounts
payable hereunder and under the Notes.
SECTION
8.09. Survival. The
representations and warranties of each of the parties hereto contained in this
Agreement and contained in each of the other Note Documents, and the parties’
obligations under any and all thereof, shall survive and shall continue in
effect following the execution and delivery of this Agreement, any disposition
of the Notes and the expiration or other termination of any of the other Note
Documents, but, in the case of each Note Document, shall not survive the
expiration or the earlier termination of such Note Document, except to the
extent expressly set forth in such Note Document.
SECTION
8.10. Severability. If
any term or provision of this Agreement or any Note Document or the application
thereof to any circumstance shall, in any jurisdiction and to any extent, be
invalid or unenforceable, such term or such provision shall be ineffective as to
such jurisdiction to the extent of such invalidity or unenforceability without
invalidating or rendering unenforceable any remaining terms or provisions of
such Note Document or the application of such term or provision to circumstances
other than those as to which it is held invalid or unenforceable.
ARTICLE
IX
GUARANTEE
SECTION
9.01. Guarantee.
(a) The
Guarantor agrees to pay in full to the holder of each Note, the principal of,
and interest on, the Notes when due, whether at maturity, upon redemption or
otherwise (the “Guaranteed
Obligations”), on the applicable due date for such payment.
13
(b) The
Guarantor’s obligations hereunder shall inure to the benefit of and shall be
enforceable by any holder of a Note if, for reason beyond the control of such
holder, such holder shall have failed to receive the interest or principal, as
applicable, payable to such holder any payment date, redemption date or stated
maturity date. The Guarantor hereby irrevocably agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
legality or enforceability of, or any change in or amendment to, this Agreement,
the Pledge Agreement or any Note, the absence of any action to enforce the same,
the waiver or consent by the holder of any Note or by the Collateral Agent with
respect to any provisions of this Agreement or the Pledge Agreement, or any
action to enforce the same or any other circumstance that might otherwise
constitute a legal or equitable discharge or defense of a
guarantor. The Guarantor hereby waives diligence, presentment, demand
of payment, protest or notice with respect to each Note or the interest
represented thereby, and all demands whatsoever, and covenants that the
guarantee will not be discharged except upon complete irrevocable payment of the
principal and interest obligations represented by the Notes.
(c) The
Guarantor shall be subrogated to and is hereby assigned all rights of the holder
of the Notes against National Rural and the proceeds of the Pledged Collateral,
all in respect of any amounts paid by the Guarantor pursuant to the provisions
of the guarantee contained in this Article IX. Each holder shall
execute and deliver to the Guarantor in each holder’s name such instruments and
documents as the Guarantor may reasonably request in writing confirming or
evidencing such subrogation and assignment.
(d) No
reference herein shall alter or impair the guarantee, which is absolute and
unconditional, of the due and punctual payment of principal of, and interest on,
the Notes, on the dates such payments are due.
(e) The
guarantee is not an obligation of, and is not a guarantee as to principal or
interest by the Farm Credit Administration, the United States or any other
agency or instrumentality of the United States (other than the
Guarantor).
(f) The
guarantee shall be governed by, and construed in accordance with, Federal
law. To the extent Federal law incorporates state law, that state law
shall be the laws of the District of Columbia applicable to contracts made and
performed therein.
SECTION
9.02. Control by the
Guarantor. If the
Guarantor is the Control Party, the Guarantor shall be considered the holder of
all Notes outstanding for all purposes under the Pledge Agreement and shall be
permitted to take any and all actions permitted to be taken by the holder
thereunder. The Control Party will have the sole right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Collateral Agent or any holder with respect to the Notes or exercising any
power conferred on the Collateral Agent with respect to the Notes provided
that:
14
(i) such
direction shall not be in conflict with any rule of law or with the Pledge
Agreement;
(ii) the
Collateral Agent shall have been provided with indemnity from the Control Party
reasonably satisfactory to it; and
(iii) the
Collateral Agent may take any other action deemed proper by such Collateral
Agent that is not inconsistent with such direction, provided, however, that the
Collateral Agent need not take any action which it determines might expose it to
liability.
[SIGNATURE
PAGE FOLLOWS]
15
IN
WITNESS WHEREOF, each party hereto has caused this Agreement to be executed by
an authorized officer as of the day and year first above written.
|
XXXXXX
MAC MORTGAGE SECURITIES CORPORATION,
|
|
|
By:
|
/s/ XXXXXX X. XXXXXX |
|
Title:
|
Xxxxxx X. Xxxxxx, Vice President |
|
FEDERAL
AGRICULTURAL
MORTGAGE
CORPORATION,
|
|
|
By:
|
/s/ XXXXXXX X. XXXXXX |
|
Title:
|
Xxxxxxx
X. Xxxxxx, President and CEO
|
|
NATIONAL
RURAL UTILITIES COOPERATIVE FINANCE CORPORATION,
|
|
|
By:
|
|
|
Title:
|
|
IN
WITNESS WHEREOF, each party hereto has caused this Agreement to be executed by
an authorized officer as of the day and year first above written.
|
XXXXXX
MAC MORTGAGE SECURITIES CORPORATION,
|
|
|
By:
|
|
|
Title:
|
|
|
FEDERAL
AGRICULTURAL
MORTGAGE
CORPORATION,
|
|
|
By:
|
|
|
Title:
|
|
|
NATIONAL
RURAL UTILITIES COOPERATIVE FINANCE CORPORATION,
|
|
|
By:
|
/s/ XXXX X. LIST |
|
Title:
|
Xxxx X. List, Senior Vice President |
SCHEDULE
I
TO
Addresses
for Notices
|
1.
|
The
addresses referred to in Section 8.03 hereof, for purposes of
delivering communications and notices, are as
follows:
|
If to the
Purchaser or Xxxxxx Mac:
Federal
Agricultural Mortgage Corporation
0000 00xx
Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx,
XX 00000
Fax: 000-000-0000
Attention
of: Xxxxxxx X. Xxxxx, Vice President and Controller
With a
copy to:
Federal
Agricultural Mortgage Corporation
0000 00xx
Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx,
XX 00000
Fax: 000-000-0000
Attention
of: Xxxxxx Xxxxx/Xxxxx Xxxxxxx, Capital Markets Group
With a
copy also to:
Federal
Agricultural Mortgage Corporation
0000 00xx
Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx,
XX 00000
Fax: 000-000-0000
Attention
of: Xxxxxx X. Xxxxxx, Vice President - General Counsel
If to
National Rural:
National
Rural Utilities Cooperative Finance Corporation
0000
Xxxxxxxxxxx Xxx
Xxxxxxx,
XX 00000-0000
Telephone: 000-000-0000
Fax: 000-000-0000
Attention
of: Xxxxxx X. Xxxxx, Senior Vice President &
Chief Financial
Officer
With a
copy to:
National
Rural Utilities Cooperative Finance Corporation
0000
Xxxxxxxxxxx Xxx
Xxxxxxx,
XX 00000-0000
Telephone: 000-000-0000
Fax: 000-000-0000
Attention
of: Xxxx Xxxxx, Vice President, Capital Market Funding
With a
copy also to:
National
Rural Utilities Cooperative Finance Corporation
0000
Xxxxxxxxxxx Xxx
Xxxxxxx,
XX 00000-0000
Telephone: 000-000-0000
Fax: 000-000-0000
Attention
of: Xxxx X. List, Esq., Senior Vice President &
General
Counsel
2
SCHEDULE
II
TO
FORM
OF
APPLICABLE
MARGIN NOTICE
Issuer Name: National Rural Utilities
Cooperative Finance Corporation
Date
of Note(s): __________________________
Type
of Note: ____________________________
Applicable
Margin: ________________________
Effective
Date of Applicable Margin: _________________________
This
Applicable Margin Notice is delivered pursuant to the Note Purchase Agreement,
dated as of March 23, 2009 among Federal Agricultural Mortgage Corporation,
Xxxxxx Mac Mortgage Securities Corporation and National Rural Utilities
Cooperative Finance Corporation (the “Note Purchase
Agreement”). Capitalized terms used but not defined herein shall have
the meanings given to them in the Note Purchase Agreement.
FEDERAL
AGRICULTURAL MORTGAGE CORPORATION
By:
_______________________________ __________________________________
Signature Date Title
of Authorized Officer
Name: _____________________
PLEASE
FAX
TO: ______________________ ATTN: ________________________
ACCEPTED
BY:
NATIONAL
RURAL UTILITIES COOPERATIVE FINANCE CORPORATION
By:
_______________________________ __________________________________
Signature Date Title
of Authorized Officer
Name: _____________________
3
SCHEDULE
III
TO
NOTE
PURCHASE AGREEMENT
FORM OF
PRICING AGREEMENT
The
Federal Agricultural Mortgage Corporation, a federally chartered instrumentality
of the United States and an institution of the Farm Credit System (“Xxxxxx
Mac”), Xxxxxx Mac Mortgage Securities Corporation, a wholly owned subsidiary of
Xxxxxx Mac (the “Purchaser”) and National Rural Utilities Cooperative Finance
Corporation, a cooperative association existing under the laws of the District
of Columbia (“National Rural”), agree that, on _______ __, 20__ (the “Closing
Date”), the Purchaser will purchase from National Rural and National Rural will
sell to the Purchaser $________________ aggregate principal amount of [Floating
Rate Notes][specify other type of Notes] (the “Notes”) with the following
terms:
[Initial
LIBOR Rate: _______]
Applicable
Margin:__________
Interest
Payment Dates:___________
Interest
Periods:_____________
[The
Notes may not be prepaid at any time.]
Maturity
Date: __________________
The
issuance and sale of the Notes by National Rural to the Purchaser shall occur
under the terms and conditions of the Note Purchase Agreement, dated as of March
23, 2009, among Xxxxxx Mac, the Purchaser and National Rural (the “Note Purchase
Agreement”). All of the provisions contained in the Note Purchase
Agreement are hereby incorporated by reference in their entirety and shall be
deemed to be a part of this Pricing Agreement to the same extent as if such
provisions had been set forth in full herein. Capitalized terms used
herein and not defined herein shall have the meanings given to those terms in
the Note Purchase Agreement. This Pricing Agreement may be executed
in two or more counterparts.
In the
event of any inconsistency between the terms of this Pricing Agreement and the
Note Purchase Agreement, the terms of this Pricing Agreement shall
apply.
4
Agreed to
this __ day of _______, 20__.
Federal
Agricultural Mortgage Corporation,
By:
______________________
Name:
____________________
Title:
_____________________
Xxxxxx
Mac Mortgage Securities Corporation,
By:
______________________
Name:
____________________
Title:
_____________________
National
Rural Utilities Cooperative
Finance
Corporation,
By:
Name: __________________
Title:____________________
5
ANNEX
A
[FORM OF
NOTE]
NATIONAL
RURAL UTILITIES COOPERATIVE FINANCE CORPORATION
Floating
Rate [__-Year] Senior Note due _______
Washington,
D.C.
____________,
20__
FOR VALUE
RECEIVED, the undersigned, NATIONAL RURAL UTILITIES COOPERATIVE FINANCE
CORPORATION (“National
Rural”), a District of Columbia cooperative association, hereby promises
to pay to XXXXXX MAC MORTGAGE SECURITIES CORPORATION, a wholly owned subsidiary
of Xxxxxx Mac (as defined below)(the “Purchaser”), or
registered assigns, the principal sum of _______________ MILLION DOLLARS
($___,000,000.00) on __________________, together with interest computed from
the date hereof according to the terms of the Note Purchase Agreement (as
defined below).
Payments
of principal and interest on this Note are to be made in lawful money of the
United States of America at such place as shall have been designated by written
notice to National Rural from the registered holder of this Note as provided in
the Note Purchase Agreement referred to below.
This Note
is issued pursuant to a Note Purchase Agreement, dated as of March 23, 2009, as
well as the Pricing Agreement for $__ [Floating Rate] Notes dated as of
_________ __, 20__ (together, as from time to time amended, the “Note Purchase
Agreement”), among National Rural, the Purchaser and Federal Agricultural
Mortgage Corporation (“Xxxxxx Mac”) and is
entitled to the benefits thereof. This Note is also entitled to the
benefits of the Pledge Agreement, dated as of March 23, 2009, among National
Rural, Xxxxxx Mac, the Purchaser and the Collateral Agent named
therein.
Capitalized
terms used herein and not defined herein shall have the meanings given to those
terms in the Note Purchase Agreement.
This Note
is a registered Note and, upon surrender of this Note for registration of
transfer or exchange, accompanied by a written instrument of transfer duly
executed by the registered holder hereof or such holder’s attorney duly
authorized in writing, a new Note will be issued to, and registered in the name
of, the transferee. Prior to due presentment for registration of
transfer, National Rural may treat the person in whose name this Note is
registered as the owner hereof for the purpose of receiving payment and for all
other purposes, and National Rural will not be affected by any notice to the
contrary.
This Note
may not be prepaid at any time.
If an
Event of Default, as defined in the Note Purchase Agreement, occurs and is
continuing, the principal of this Note may be declared due and payable in the
manner, at the price and with the effect provided in the Note Purchase
Agreement.
This Note
shall be construed and enforced in accordance with, and the rights of National
Rural and the holder hereof shall be governed by, the laws of the District of
Columbia, excluding choice-of-law principles of the law of the District of
Columbia that would require the application of the laws of another
jurisdiction.
|
NATIONAL
RURAL UTILITIES COOPERATIVE FINANCE CORPORATION,
|
|
|
By
|
|
|
Name:
|
|
|
Title:
|
|
2
ANNEX
B
[FORM OF
OPINION OF COUNSEL TO NATIONAL RURAL]
[•]
Federal
Agricultural Mortgage Corporation
0000
Xxxxxx-Xxxxx Xxxxxx, XX
Xxxxx
000
Xxxxxxxxxx,
XX 00000
Gentlemen:
I am
delivering this opinion as general counsel (“Counsel”) of National Rural
Utilities Cooperative Finance Corporation, a District of Columbia cooperative
association (the “Borrower”), and am familiar with matters pertaining to the
loan to Borrower in the principal amount of $400,000,000.00, provided for
in the Note Purchase Agreement, dated as of March 23, 2009 (“Note
Purchase Agreement”), among the Borrower, Xxxxxx Mac Mortgage Securities
Corporation (the “Purchaser”) and Federal Agricultural Mortgage Corporation
(“Xxxxxx Mac”).
I have
examined such corporate records and proceedings of the Borrower, and such other
documents as I have deemed necessary as a basis for the opinions hereinafter
expressed.
I have
also examined the following documents as executed and delivered: (a) the Note
Purchase Agreement; (b) the Note dated as of ____________, in the principal
amount of $____________ (“Note”), said Note payable to the Purchaser;
(c) the Pricing Agreement for $__________ Notes dated as of ____________
among the Borrower, the Purchaser and Xxxxxx Mac (the “Pricing Agreement”) and
(d) the Pledge Agreement, dated as of March 23, 2009, among the Borrower, the
Purchaser, Xxxxxx Mac and U.S. Bank National Association (the “Pledge
Agreement”). The documents described in items (a) through (d) above
are collectively referred to herein as the “Note Documents.”
Based on
the foregoing, but subject to the assumptions, exceptions, qualifications and
limitations hereinafter expressed, I am of the opinion that:
(1) The
Borrower has been duly incorporated and is validly existing as a cooperative
association in good standing under the laws of the District of Columbia with
corporate power and authority to execute and perform its obligations under the
Note Documents.
(2) The Note
Documents have been duly authorized, executed and delivered by the Borrower, and
such documents constitute the legal, valid and binding
agreements
of the Borrower, enforceable against the Borrower in accordance with their
respective terms.
(3) Neither
the execution nor the delivery by the Borrower of any of the Note Documents nor
the consummation by the Borrower of any of the transactions contemplated
therein, including, without limitation, the pledge of the Pledged Securities (as
such term is defined in the Pledge Agreement) to Xxxxxx Mac, nor the fulfillment
by the Borrower of the terms of any of the Note Documents will conflict with or
violate, result in a breach of or constitute a default under any term or
provision of the Articles of Incorporation or By-laws of the Borrower or any law
or any regulation or any order known to Counsel currently applicable to the
Borrower of any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Borrower or the terms of any indenture, deed
of trust, note, note agreement or instrument to which the Borrower is a party or
by which the Borrower or any of its properties is bound.
(4) No
approval, authorization, consent, order, registration, filing, qualification,
license or permit of or with any state or Federal court or governmental agency
or body having jurisdiction over the Borrower is required for any consummation
by the Borrower of the transactions contemplated by the Note Documents; provided, however, no opinion
is expressed as to the applicability of any Federal or state securities law to
any sale, transfer or other disposition of the Note after the date
hereof.
(5) Except as
set forth in writing and previously delivered to Xxxxxx Mac or attached hereto
as Exhibit A, there is no pending or, to Counsel’s knowledge, threatened action,
suit or proceeding before any court or governmental agency, authority or body or
any arbitrator with respect to the Borrower, or any of the Note Documents,
which, if adversely determined, would have a material adverse effect on the
Borrower’s financial condition or its ability to perform its obligations under
any of the Note Documents.
(6) With
respect to the Pledged Securities in the Certificate of Pledged Collateral (as
such term is defined in the Pledge Agreement), (x) all action with respect to
the recording, registering or filing of financing statements in the jurisdiction
of organization of National Rural has been taken as is necessary to perfect the
security interest intended to be created in such items under the Uniform
Commercial Code and (y) in the case of each Eligible Security (as such term is
defined in the Pledge Agreement) constituting a certificated security or
instrument under the Uniform Commercial Code, such Eligible Security has been
delivered to the Collateral Agent such that the taking and retention of the
possession by the Collateral Agent of such Eligible Security is sufficient to
perfect the security interest to be created under the Uniform Commercial
Code. For purposes of the opinion set forth in this section (6), I
have assumed that the Uniform Commercial Code of the District of Columbia is the
same as that of the State of New York.
The foregoing opinions are subject to
the following assumptions, exceptions, qualifications and
limitations:
A. I
am a member of the Bar of the District of Columbia and render no opinion on the
laws of any jurisdiction other than the laws of the District of Columbia, the
federal laws of the United States of America and the General Corporation Law of
the District of Columbia.
B. My
opinions are limited to the present laws and to the facts, as they presently
exist. I assume no obligation to revise or supplement this opinion
should the present laws of the jurisdictions referred to in paragraph A above be
changed by legislative action, judicial decision or otherwise.
C. The
opinions expressed in paragraph 2 above shall be understood to mean only that if
there is a default in performance of an obligation, (i) if a failure to pay or
other damage can be shown and (ii) if the defaulting party can be brought into a
court which will hear the case and apply the governing law, then, subject to the
availability of defenses, and to the exceptions set forth in the next paragraph,
the court will provide a money damage (or perhaps injunctive or specific
performance) remedy.
D. My
opinions are also subject to the effect of: (1) bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws affecting
creditors’ rights (including, without limitation, the effect of statutory and
other law regarding fraudulent conveyances, fraudulent transfers and
preferential transfers); and (2) the exercise of judicial discretion and the
application of principles of equity, good faith, fair dealing, reasonableness,
conscionability and materiality (regardless of whether the applicable agreements
are considered in proceeding in equity or at law).
E. This
letter is rendered to you in connection with the Note Documents and the
transactions related thereto, and may not be relied upon by any other person or
by you in any other context or for any other purpose.
F. I
have assumed with your permission (i) the genuineness of all signatures by each
party other than the Borrower, (ii) the authenticity of documents submitted to
me as originals and the conformity to authentic original documents of all
documents submitted to me as copies, and (iii) the due execution and delivery,
pursuant to due authorization, of the Note Documents by each party other than
the Borrower.
Yours
sincerely,
Xxxx X.
List
General
Counsel
ANNEX
C
[FORM OF
OFFICERS’ CERTIFICATE]
Officers’
Certificate
TO: Federal
Agricultural Mortgage Corporation.
We,
_________________, _________________, and ________________,
_____________________, of National Rural Utilities Cooperative Finance
Corporation (“National
Rural”), pursuant to the Note Purchase Agreement dated as of March 23,
2009, among National Rural, Xxxxxx Mac Mortgage Securities Corporation, and
Federal Agricultural Mortgage Corporation (the “Note Purchase
Agreement”), hereby certify on behalf of National Rural that as at the
date hereof:
(1) National
Rural is a lending institution organized as a private, not-for-profit,
cooperative association with the appropriate expertise, experience and
qualifications to make loans to its Members for rural electrification and
related purposes;
(2) no
material adverse change has occurred in the financial condition of National
Rural between the date of the end of National Rural’s most recently completed
Fiscal Year for which Financial Statements have been made publicly available and
the date hereof, which has not been set forth in documents, certificates, or
financial information furnished to Xxxxxx Mac or publicly filed;
(3) all
of the representations contained in Section 5.02 of the Note Purchase Agreement
remain true and correct in all material respects on and as of the date hereof;
and
(4) no
Event of Default exists.
Capitalized
terms used in this certificate shall have the meanings given to those terms in
the Note Purchase Agreement.
DATED as
of this _____ day of ______________, _________.
NATIONAL
RURAL UTILITIES
COOPERATIVE
FINANCE
CORPORATION,
______________________________
Name:
Title
______________________________
Name:
Title:
