REVOLVING CREDIT AGREEMENT dated as of March 14, 2008 among NATIONAL RURAL UTILITIES COOPERATIVE FINANCE CORPORATION, THE BANKS LISTED HEREIN, DEUTSCHE BANK SECURITIES INC., UBS LOAN FINANCE LLC and THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK...
Exhibit 4.5
Execution
Draft
dated as
of
March 14,
2008
among
NATIONAL
RURAL UTILITIES
COOPERATIVE
FINANCE CORPORATION,
THE BANKS
LISTED HEREIN,
DEUTSCHE
BANK SECURITIES INC.,
UBS LOAN
FINANCE LLC
and
THE BANK
OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH
as
Co-Documentation Agents,
THE BANK
OF NOVA SCOTIA,
as
Administrative Agent
and
THE ROYAL
BANK OF SCOTLAND PLC,
as
Syndication Agent
THE ROYAL
BANK OF SCOTLAND PLC
and
THE BANK
OF NOVA SCOTIA,
as
Co-Lead Arrangers and Joint Bookrunners
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TABLE
OF CONTENTS
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Page
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ARTICLE
1
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Definitions
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Section
1.01. Definitions
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1
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Section
1.02. Accounting Terms and Determinations
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14
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Section
1.03. Types of Borrowings
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14
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ARTICLE
2
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The
Credits
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Section
2.01. Commitments to Lend
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14
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Section
2.02. Notice of Committed Borrowings
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14
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Section
2.03. Money Market Borrowings
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15
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Section
2.04. Notice to Banks; Funding of Loans
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19
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Section
2.05. Notes
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20
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Section
2.06. Maturity of Loans
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20
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Section
2.07. Interest Rates
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20
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Section
2.08. Method of Electing Interest Rates
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22
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Section
2.09. Fees
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24
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Section
2.10. Optional Termination or Reduction of
Commitments
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25
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Section
2.11. Mandatory Termination of Commitments
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25
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Section
2.12. Optional Prepayments
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25
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Section
2.13. General Provisions as to Payments
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25
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Section
2.14. Funding Losses
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26
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Section
2.15. Computation of Interest and Fees
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26
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Section
2.16. Withholding Tax Exemption
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27
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Section
2.17. Increase of Commitments
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27
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ARTICLE
3
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Conditions
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Section
3.01. Effectiveness
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28
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Section
3.02. Prior Credit Agreement
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29
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Section
3.03. Borrowings
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30
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ARTICLE
4
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Representations
and Warranties
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Section
4.01. Corporate Existence, Power and Authority
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31
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Section
4.02. Financial Statements
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31
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Section
4.03. Litigation
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32
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Section
4.04. Governmental Authorizations
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33
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Section
4.05. Members’ Subordinated Certificates
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33
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i
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Section
4.06. No Violation of Agreements
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33
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Section
4.07. No Event of Default under the Indentures
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33
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Section
4.08. Compliance with ERISA
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34
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Section
4.09. Compliance with Other Laws
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34
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Section
4.10. Tax Status
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34
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Section
4.11. Investment Company Act
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34
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Section
4.12. Disclosure
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34
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Section
4.13. Subsidiaries
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35
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Section
4.14. Environmental Matters
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35
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ARTICLE
5
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Covenants
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Section
5.01. Corporate Existence
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35
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Section
5.02. Disposition of Assets, Merger, Character of Business,
etc
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36
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Section
5.03. Financial Information
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36
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Section
5.04. Default Certificates
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38
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Section
5.05. Notice of Litigation, Legislative Developments and
Defaults
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39
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Section
5.06. ERISA
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39
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Section
5.07. Payment of Charges
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39
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Section
5.08. Inspection of Books and Assets
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40
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Section
5.09. Indebtedness
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40
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Section
5.10. Liens
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41
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Section
5.11. Maintenance of Insurance
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42
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Section
5.12. Subsidiaries and Joint Ventures
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42
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Section
5.13. Minimum TIER
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43
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Section
5.14. Retirement of Patronage Capital
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43
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Section
5.15. Use of Proceeds
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43
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ARTICLE
6
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Defaults
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Section
6.01. Events of Defaults
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44
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Section
6.02. Notice of Default
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46
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ARTICLE
7
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The
Administrative Agent
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Section
7.01. Appointment and Authorization
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46
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Section
7.02. Administrative Agent and Affiliates
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46
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Section
7.03. Action by Administrative Agent
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46
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Section
7.04. Consultation with Experts
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46
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Section
7.05. Liability of Administrative Agent
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47
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Section
7.06. Indemnification
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47
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Section
7.07. Credit Decision
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47
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Section
7.08. Successor Administrative Agent
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47
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Section
7.09. Co-Documentation Agents and Syndication Agent Not
Liable
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48
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ii
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ARTICLE
8
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Change
in Circumstances
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Section
8.01. Basis for Determining Interest Rate Inadequate or
Unfair
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48
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Section
8.02. Illegality
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49
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Section
8.03. Increased Cost and Reduced Return
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49
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Section
8.04. Base Rate Loans Substituted for Affected Euro-Dollar
Loans
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51
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ARTICLE
9
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Miscellaneous
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Section
9.01. Notices
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51
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Section
9.02. No Waivers
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52
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Section
9.03. Expenses; Documentary Taxes;
Indemnification
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52
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Section
9.04. Sharing of Set-offs
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53
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Section
9.05. Amendments and Waivers
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53
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Section
9.06. Successors and Assigns
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54
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Section
9.07. Collateral
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55
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Section
9.08. Governing Law
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55
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Section
9.09. Counterparts; Integration
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56
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Section
9.10. Several Obligations
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56
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Section
9.11. Severability
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56
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Section
9.12. Confidentiality
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56
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Section
9.13. WAIVER OF JURY TRIAL
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57
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Section
9.14. USA Patriot Act
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57
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iii
Schedules
Agent
Schedule
Commitment
Schedule
Pricing
Schedule
Schedule
5.03(a) Non-GAAP
Subsidiaries
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Exhibits
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Exhibit
A
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-
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Form
of Note
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| Exhibit B-1 and B-2 |
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Forms
of RUS Guarantee
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Exhibit
C
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Money
Market Quote Request
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Exhibit
D
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-
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Invitation
for Money Market Quotes
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Exhibit
E
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-
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Money
Market Quote
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Exhibit
F
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-
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Opinion
of General Counsel for the Borrower
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Annex A to Exhibit
F - Subsidiaries and Joint Ventures
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Exhibit
G
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-
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Opinion
of Special Counsel for the Administrative Agent
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Exhibit
H
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Assignment
and Assumption Agreement
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iv
REVOLVING
CREDIT AGREEMENT dated as of March 14, 2008, among NATIONAL RURAL UTILITIES
COOPERATIVE FINANCE CORPORATION, a not-for-profit cooperative association
incorporated under the laws of the District of Columbia, as Borrower, the BANKS
listed on the signature pages hereof, DEUTSCHE BANK SECURITIES INC., UBS LOAN
FINANCE LLC and THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., New York Branch, as
Co-Documentation Agents, THE ROYAL BANK OF SCOTLAND PLC, as Syndication Agent,
and THE BANK OF NOVA SCOTIA, as Administrative Agent.
The
parties hereto agree as follows:
ARTICLE 1
Definitions
Section
1.01 . Definitions. The following
terms, as used herein, have the following meanings:
“2007 Indenture” means the
Indenture dated as of October 25, 2007 between the Borrower and U.S. Bank
National Association, as trustee, as amended and supplemented from time to time,
providing for the issuance in series of certain collateral trust bonds of the
Borrower.
“1994 Indenture” means the
Indenture dated as of February 15, 1994 and as amended as of September 16, 1994
between the Borrower and U.S. Bank National Association, as trustee, as amended
and supplemented from time to time, providing for the issuance in series of
certain collateral trust bonds of the Borrower.
“1972 Indenture” means the
Seventeenth Supplemental Indenture dated as of March 1, 1987, amending and
restating in full the Indenture dated as of December 1, 1972, by and between the
Borrower and U.S. Bank Trust National Association, as trustee, as amended and
supplemented from time to time, providing for the issuance in series of certain
collateral trust bonds of the Borrower.
“Absolute Rate Auction” means a
solicitation of Money Market Quotes setting forth Money Market Absolute Rates
pursuant to Section 2.03.
“Adjusted London Interbank Offered
Rate” has the meaning set forth in Section 2.07(b).
“Administrative Agent” means
The Bank of Nova Scotia, in its capacity as administrative agent for the Banks
hereunder, and its successors in such capacity.
“Administrative Questionnaire”
means, with respect to each Bank, the administrative questionnaire in the form
submitted to such Bank by the Administrative Agent and submitted to the
Administrative Agent (with a copy to the Borrower) duly completed by such
Bank.
“Agreement” means this
Revolving Credit Agreement, as the same may be amended from time to
time.
“Applicable Lending Office”
means, with respect to any Bank, (i) in the case of its Base Rate Loans, its
Domestic Lending Office, (ii) in the case of its Euro-Dollar Loans, its
Euro-Dollar Lending Office and (iii) in the case of its Money Market Loans, its
Money Market Lending Office.
“Assignee” has the meaning set
forth in Section 9.06(c).
“Bank” means each bank listed
on the signature pages hereof, each Assignee which becomes a Bank pursuant to
Section 9.06(c), and their respective successors.
“Base Rate” means, for any day,
a rate per annum equal to the higher of (i) the Prime Rate for such day and (ii)
the sum of 1/2 of 1% plus the Federal Funds
Rate for such day.
“Base Rate Loan” means a
Committed Loan that bears interest at the Base Rate pursuant to the applicable
Notice of Committed Borrowing or Notice of Interest Rate Election or the last
sentence of Section 2.08(a) or Article 8.
“Bonds” means any bonds issued
pursuant to any of the Indentures, as the context may require.
“Borrower” means the National
Rural Utilities Cooperative Finance Corporation, a not-for-profit cooperative
association incorporated under the laws of the District of Columbia, and its
successors.
“Borrowing” has the meaning set
forth in Section 1.03.
“Co-Documentation Agents” means
Deutsche Bank Securities Inc., UBS Loan Finance LLC and The Bank of
Tokyo-Mitsubishi UFJ, LTD., New York Branch, each in its capacity as
co-documentation agent hereunder, and their successors in such
capacity.
“Commitment” means (i) with
respect to each Bank listed on the signature pages hereof, the amount set forth
opposite the name of such Bank on the Commitment Schedule hereto and (ii) with
respect to any Assignee that becomes a Bank pursuant to Section 9.06(c), the
amount of the transferor Bank’s Commitment assigned to it pursuant to Section
9.06(c), in each case as such amount may from time to time be reduced pursuant
to Sections 2.10 and 2.11; provided that, if the context
so requires, the term “Commitment” means the
2
obligation
of a Bank to extend credit up to such amount to the Borrower
hereunder.
“Committed Borrowing” means a
Borrowing under Section 2.01.
“Committed Loan” means a
Revolving Loan or a Term Loan; provided that, if any such
loan or loans (or portions thereof) are combined or subdivided pursuant to a
Notice of Interest Rate Election, the term “Committed Loan” shall refer to the
combined principal amount resulting from such combination or to each of the
separate principal amounts resulting from such subdivision, as the case may
be.
“Commitment Termination Date”
means March 13, 2009 or, if such day is not a Euro-Dollar Business Day, the next
preceding Euro-Dollar Business Day.
“Consolidated Subsidiary” means
at any date any Subsidiary and any other entity the accounts of which would be
combined or consolidated with those of the Borrower in its combined or
consolidated financial statements if such statements were prepared as of such
date.
“Consolidated Subsidiary Member” has the
meaning set forth in Section 5.03(b)(iii)(A).
“Default” means any condition
or event which constitutes an Event of Default or which with the giving of
notice or lapse of time or both (as specified in Section 6.01) would, unless
cured or waived, become an Event of Default.
“Derivative Cash Settlements” means, for
any period, the line item “derivative cash settlements” as it appears on the
statement of operations of the Borrower and its Consolidated Subsidiaries for
such period delivered to the Banks pursuant to Section 5.03(b), calculated in
accordance with generally accepted accounting principles as in effect from time
to time.
“Derivatives Obligations” of
any Person means all obligations of such Person in respect of any rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of the foregoing transactions) or any combination
of the foregoing transactions.
“Determination Date” has the
meaning set forth in Section 5.09.
“Domestic Business Day” means
any day except a Saturday, Sunday or other day on which commercial banks in New
York City are authorized or required by law to close.
3
“Domestic Lending Office”
means, as to each Bank, its office located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative Questionnaire
as its Domestic Lending Office) or such other office as such Bank may hereafter
designate as its Domestic Lending Office by notice to the Borrower and the
Administrative Agent.
“Effective Date” means the date
this Agreement becomes effective in accordance with Section 3.01.
“Environmental Laws” means any
and all federal, state, local and foreign statutes, laws, judicial decisions,
regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions,
permits, concessions, grants, franchises, licenses, agreements and governmental
restrictions relating to the environment, the effect of the environment on human
health or to emissions, discharges or releases of pollutants, contaminants,
Hazardous Substances or wastes into the environment including, without
limitation, ambient air, surface water, ground water, or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, Hazardous
Substances or wastes or the clean-up or other remediation thereof.
“ERISA” means the Employee
Retirement Income Security Act of 1974, as amended, or any successor
statute.
“ERISA Group” means the
Borrower, any Subsidiary and all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower or any Subsidiary, are treated as a single
employer under Section 414(b) or (c) of the Internal Revenue Code or, for
purposes of Section 412 of the Internal Revenue Code, under Section 414(b), (c),
(m) or (o) of the Internal Revenue Code.
“Euro-Dollar Business Day”
means any Domestic Business Day on which commercial banks are open for
international business (including dealings in dollar deposits) in
London.
“Euro-Dollar Lending Office”
means, as to each Bank, its office, branch or affiliate located at its address
set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Euro-Dollar Lending Office) or such other
office, branch or affiliate of such Bank as it may hereafter designate as its
Euro-Dollar Lending Office by notice to the Borrower and the Administrative
Agent.
“Euro-Dollar Loan” means a
Committed Loan that bears interest at a Euro-Dollar Rate pursuant to the
applicable Notice of Committed Borrowing or Notice of Interest Rate
Election.
“Euro-Dollar Margin” means a
rate per annum determined in accordance with the Pricing Schedule.
4
“Euro-Dollar Rate” means, for
any day, a rate per annum determined in accordance with Section
2.07(b).
“Euro-Dollar Reference Banks”
means the principal London offices of The Bank of Nova Scotia and The Royal Bank
of Scotland plc.
“Euro-Dollar Reserve
Percentage” has the meaning set forth in Section 2.07(b).
“Event of Default” has the
meaning set forth in Section 6.01.
“Facility Fee Rate” means a
rate per annum determined in accordance with the Pricing Schedule.
“Federal Funds Rate” means, for
any day, the rate per annum (rounded upward, if necessary, to the nearest
1/100th of 1%) equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Domestic Business Day next succeeding such day; provided that (i) if such day
is not a Domestic Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Domestic Business Day as so
published on the next succeeding Domestic Business Day, and (ii) if no such rate
is so published on such next succeeding Domestic Business Day, the Federal Funds
Rate for such day shall be the average rate quoted to The Bank of Nova Scotia on
such day on such transactions as determined by the Administrative
Agent.
“Fixed Rate Borrowing” means
either a Euro-Dollar Borrowing or a Money Market LIBOR
Borrowing.
“Fixed Rate Loans” means
Euro-Dollar Loans or Money Market Loans (excluding Money Market LIBOR Loans
bearing interest at the Base Rate pursuant to Section 8.01) or any combination
of the foregoing.
“Foreclosed Asset” has the
meaning set forth in Section 5.12.
“Group of Loans” means, at any
time, a group of Loans consisting of (i) all Committed Loans which are Base Rate
Loans at such time or (ii) all Euro-Dollar Loans having the same Interest Period
at such time; provided
that if a Committed Loan of any particular Bank is converted to or made as a
Base Rate Loan pursuant to Article 8, such Loan shall be included in the same
Group or Groups of Loans from time to time as it would have been in if it had
not been so converted or made.
“Guarantee” by any Person means
any obligation, contingent or otherwise, of such Person directly or indirectly
guaranteeing any Indebtedness or lease payments of any other Person or otherwise
in any manner assuring the holder of any Indebtedness of, or the obligee under
any lease of, any other Person through an agreement, contingent or otherwise, to
purchase Indebtedness or the
5
property
subject to such lease, or to purchase goods, supplies or services primarily for
the purpose of enabling the debtor or obligor to make payment of the
Indebtedness or under such lease or of assuring such Person against loss, or to
supply funds to or in any other manner invest in the debtor or obligor, or
otherwise; provided
that the term “Guarantee” shall not include
endorsements for collection or deposit in the ordinary course of
business. The term “Guarantee” when used as a verb
has a correlative meaning.
“Guaranteed Portion” has the
meaning set forth in the definition of RUS Guaranteed Loan.
“Hazardous Substances” means
any toxic, radioactive, caustic or otherwise hazardous substance, including
petroleum, its derivatives, by-products and other hydrocarbons, or any substance
having any constituent elements displaying any of the foregoing
characteristics.
“Indebtedness” with respect to
any Person means:
(1) all
indebtedness which would appear as indebtedness on a balance sheet of such
Person prepared in accordance with generally accepted accounting principles (i)
for money borrowed, (ii) which is evidenced by securities sold for money or
(iii) which constitutes purchase money indebtedness;
(2) all
indebtedness of others Guaranteed by such Person;
(3) all
indebtedness secured by any Lien upon property owned by such Person, even though
such Person has not assumed or become liable for the payment of such
indebtedness; and
(4) all
indebtedness of such Person created or arising under any conditional sale or
other title retention agreement (including any lease in the nature of a title
retention agreement) with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession of such property), but only if
such property is included as an asset on the balance sheet of such
Person;
provided that, in computing
the “Indebtedness” of
such Person, there shall be excluded any particular indebtedness if, upon or
prior to the maturity thereof, there shall have been deposited with the proper
depositary in trust money (or evidences of such indebtedness) in the amount
necessary to pay, redeem or satisfy such indebtedness, and thereafter such money
and evidences of indebtedness so deposited shall not be included in any
computation of the assets of such Person; and provided further that no provision of
this definition shall be construed to include as “Indebtedness” of the Borrower
or its Consolidated Subsidiaries any indebtedness by virtue of any agreement by
the Borrower or its Consolidated Subsidiaries to advance or supply funds to
Members or Consolidated Subsidiary Members.
6
“Indenture” means either the
1972 Indenture, the 1994 Indenture, the 2007 Indenture or any other Indenture
that provides for borrowing on terms not materially more disadvantageous to the
Borrower’s unsecured creditors than the borrowings under the 1972 Indenture, the
1994 Indenture or the 2007 Indenture, and “Indentures” means all such
Indentures.
“Interest Expense” means, for
any period, the line item “interest expense” as it appears on the statement of
operations of the Borrower and its Consolidated Subsidiaries for such period
delivered to the Banks pursuant to Section 5.03(b), calculated in accordance
with generally accepted accounting principles as in effect from time to
time.
“Interest Period” means: (1)
with respect to each Euro-Dollar Borrowing, the period commencing on the date of
such Borrowing and ending one, two, three or six months thereafter, as the
Borrower may elect in the applicable Notice of Borrowing; provided that:
(a) any
Interest Period which would otherwise end on a day which is not a Euro-Dollar
Business Day shall be extended to the next succeeding Euro-Dollar Business Day
unless such Euro-Dollar Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Euro-Dollar Business
Day;
(b) any
Interest Period which begins on the last Euro-Dollar Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall, subject to clause (c)
below, end on the last Euro-Dollar Business Day of a calendar month;
and
(c) any
Interest Period of any Euro-Dollar Loan included in such Borrowing which would
otherwise end after the Maturity Date shall, with respect to such Euro-Dollar
Loan, end on such Maturity Date;
(2) with
respect to each Base Rate Borrowing, the period commencing on the date of such
Borrowing and ending 30 days thereafter; provided that:
(a) any
Interest Period which would otherwise end on a day which is not a Euro-Dollar
Business Day shall be extended to the next succeeding Euro-Dollar Business Day;
and
(b) any
Interest Period of any Base Rate Loan included in such Borrowing which would
otherwise end after the Maturity Date shall, with respect to such Base Rate
Loan, end on such Maturity Date;
(3) with
respect to each Money Market LIBOR Borrowing, the period commencing on the date
of such Borrowing and ending any whole number of months thereafter (but not less
than one month) as the Borrower may elect in the applicable Notice of Borrowing;
provided
that:
7
(a) any
Interest Period which would otherwise end on a day which is not a Euro-Dollar
Business Day shall be extended to the next succeeding Euro-Dollar Business Day
unless such Euro-Dollar Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Euro-Dollar Business
Day;
(b) any
Interest Period which begins on the last Euro-Dollar Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall, subject to clause (c)
below, end on the last Euro-Dollar Business Day of a calendar month;
and
(c) any
Interest Period which would otherwise end after the Commitment Termination Date
shall end on the Commitment Termination Date; and
(4) with
respect to each Money Market Absolute Rate Borrowing, the period commencing on
the date of such Borrowing and ending such number of days thereafter (but not
less than 30 days) as the Borrower may elect in the applicable Notice of
Borrowing; provided
that:
(a) any
Interest Period which would otherwise end on a day which is not a Euro-Dollar
Business Day shall be extended to the next succeeding Euro-Dollar Business Day;
and
(b) any
Interest Period which would otherwise end after the Commitment Termination Date
shall end on the Commitment Termination Date.
“Internal Revenue Code” means
the Internal Revenue Code of 1986, as amended, or any successor
statute.
“Investments” has the meaning
set forth in Section 5.12.
“Joint Venture” means any
corporation, partnership, association, joint venture or other entity in which
the Borrower, directly or indirectly through Subsidiaries or Joint Ventures, has
an equity interest at the time of 10% or more but which is not a Subsidiary;
provided that no Person
whose only assets are RUS Guaranteed Loans and investments incidental thereto
shall be deemed a Joint Venture.
“LIBOR Auction” means a
solicitation of Money Market Quotes setting forth Money Market Margins based on
the London Interbank Offered Rate pursuant to Section 2.03.
“Lien” means, with respect to
any asset, any mortgage, lien, pledge, charge, security interest or encumbrance
of any kind in respect of such asset. For the purposes of this
Agreement, the Borrower or any Subsidiary shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the
8
interest
of a vendor or lessor under any conditional sale agreement, capital lease or
other title retention agreement relating to such asset.
“Loan” means a Base Rate Loan
or a Euro-Dollar Loan or a Money Market Loan and “Loans” means Base Rate Loans
or Euro-Dollar Loans or Money Market Loans or any combination of the
foregoing.
“London Interbank Offered Rate”
has the meaning set forth in Section 2.07(b).
“Maturity Date” means (i) with
respect to any Revolving Loan, the Commitment Termination Date, (ii) with
respect to any Term Loan, the first anniversary of the Commitment Termination
Date, and (iii) with respect to any Money Market Loan, the last day of the
Interest Period applicable thereto.
“Member” means any Person which
is a member or a patron of the Borrower.
“Members’ Subordinated
Certificate” means a note of the Borrower or its Consolidated
Subsidiaries substantially in the form of the membership subordinated
subscription certificates and the loan and guarantee subordinated certificates
outstanding on the date of the execution and delivery of this Agreement and any
other Indebtedness of the Borrower or its Consolidated Subsidiaries having
substantially similar provisions as to subordination as those contained in said
outstanding membership subordinated subscription certificates and loan and
guarantee subordinated certificates.
“Money Market Absolute Rate”
has the meaning set forth in Section 2.03(d).
“Money Market Absolute Rate
Loan” means a loan to be made by a Bank pursuant to an Absolute Rate
Auction.
“Money Market Lending Office”
means, as to each Bank, its Domestic Lending Office or such other office, branch
or affiliate of such Bank as it may hereafter designate as its Money Market
Lending Office by notice to the Borrower and the Administrative Agent; provided that any Bank may
from time to time by notice to the Borrower and the Administrative Agent
designate separate Money Market Lending Offices for its Money Market LIBOR
Loans, on the one hand, and its Money Market Absolute Rate Loans, on the other
hand, in which case all references herein to the Money Market Lending Office of
such Bank shall be deemed to refer to either or both of such offices, as the
context may require.
“Money Market LIBOR Loan” means
a loan to be made by a Bank pursuant to a LIBOR Auction (including such a loan
bearing interest at the Prime Rate pursuant to Section 8.01(a)).
“Money Market Loan” means a
Money Market LIBOR Loan or a Money Market Absolute Rate Loan.
9
“Money Market Margin” has the
meaning set forth in Section 2.03(d).
“Money Market Quote” means an
offer by a Bank to make a Money Market Loan in accordance with Section
2.03.
“Moody’s” means Xxxxx’x
Investors Service, Inc., and its successors.
“Multiple Employer Plan” means
a single employer plan, as defined in Section 4001 of ERISA and subject to Title
IV of ERISA, which has two or more contributing sponsors, one of whom is the
Borrower or a Subsidiary of the Borrower or any member of the ERISA Group, at
least two of whom are not under common control, within the meaning of Section
4063 of ERISA.
“Net Income” means, for any
period, the sum of (i) the line item “net income” on the consolidated statement
of operations of the Borrower and its Consolidated Subsidiaries plus (ii) the line item
“minority interest” on the consolidated statement of operations of the Borrower
and its Consolidated Subsidiaries at the last day of such period, each as it
appears in the financial statements for such period delivered to the Banks
pursuant to Section 5.03(b), and each calculated in accordance with generally
accepted accounting principles as in effect from time to time; provided that non-cash
adjustments (whether positive or negative) required to be made pursuant to SFAS
133 and SFAS 52 on each such line item shall be excluded from the calculation
thereof to the extent otherwise included therein.
“Notes” means promissory notes
of the Borrower, substantially in the form of Exhibit A hereto, evidencing the
obligation of the Borrower to repay the Loans, and “Note” means any one of such
promissory notes issued hereunder.
“Notice of Borrowing” means a
Notice of Committed Borrowing or a Notice of Money Market
Borrowing.
“Notice of Committed Borrowing”
has the meaning set forth in Section 2.02.
“Notice of Interest Rate
Election” has the meaning set forth in Section 2.08.
“Notice of Money Market
Borrowing” has the meaning set forth in Section 2.03(f).
“Participant” has the meaning
set forth in Section 9.06(b).
“Patronage Capital
Certificates” means those certificates that evidence the portion of Net
Income allocated by the Borrower among its Members in accordance with applicable
cooperative principles.
“PBGC” means the Pension
Benefit Guaranty Corporation or any entity succeeding to any or all of its
functions under ERISA.
10
“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.
“Plan” means any multiemployer
plan or single employer plan (including any Multiple Employer Plan), as defined
in Section 4001 and subject to Title IV of ERISA, which is maintained or
contributed to by, or at any time during the five calendar years preceding the
date of this Agreement was maintained or contributed to by, the Borrower or a
Subsidiary of the Borrower or any member of the ERISA Group.
“Pricing Schedule” means the
Pricing Schedule attached hereto.
“Prime Rate” means the rate of
interest published by the Wall
Street Journal from time to time as its prime rate.
“Prior 364-Day Credit
Agreement” means the 364-Day Revolving Credit Agreement dated as of March
16, 2007, among the Borrower, the banks named therein, ABN Amro Bank, N.V., The
Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, and The Royal Bank of
Scotland plc, as Co-Documentation Agents, The Bank of Nova Scotia, as
Syndication Agent, and XX Xxxxxx Xxxxx Bank, N.A., as Administrative
Agent.
“Qualified Subordinated
Indebtedness” means the Borrower’s (i) 6.75% Subordinated Deferrable
Interest Notes Due 2043, (ii) 6.10% Subordinated Deferrable Interest Notes Due
2044, (iii) 5.95% Subordinated Deferrable Interest Notes Due 2045, and (iv) any
other Indebtedness of the Borrower having substantially similar terms as to
subordination as those contained in the instruments and documents relating to
the foregoing Indebtedness or that would be junior to any of the foregoing;
provided that such
Indebtedness (a) will not mature prior to the Maturity Date and (b) does not
require payments of principal prior to the Maturity Date, except pursuant to
acceleration or at the option of the Borrower.
“REDLG Program Liens” means
Liens on any asset of the Borrower required to be pledged as collateral to
support obligations of the Borrower with respect to any government Guarantee
provided pursuant to regulations issued under the Rural Electrification Act of
1936, 7 U.S.C. 901 et. seq., and the Farm Security and Rural Investment Act of
2002, Pub. L. 107-171, 116 Stat. 413 (“REDLG Obligations”) so long as
such Guarantee supports long-term Indebtedness issued by the Borrower and
permitted by Section 5.09.
“REDLG Obligations” has the
meaning set forth in the definition of REDLG Program Liens.
“Regulation U” means Regulation
U of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
11
“Regulation X” means Regulation
X of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
“Reportable Event” means an
event described in Section 4043(c) of ERISA or regulations promulgated by the
Department of Labor thereunder (with respect to which the 30 day notice
requirement has not been waived by the PBGC).
“Required Banks” means at any
time Banks having at least 51% of the sum of the aggregate amount of the unused
Commitments and the aggregate principal outstanding amount of the
Loans.
“Revolving Credit Period” means
the period from and including the Effective Date to but excluding the Commitment
Termination Date.
“Revolving Loan” means a loan
made by a Bank pursuant to Section 2.01(a).
“RUS” means the Rural Utilities
Service of the Department of Agriculture of the United States of America (as
successor to the Rural Electrification Administration of the Department of
Agriculture of the United States of America) or any other regulatory body which
succeeds to its functions.
“RUS Guaranteed Loan” means any
loan made by any Person, which loan (x) bears interest at least equal to such
Person’s cost of funds and (y) is guaranteed, in whole or in part, as to
principal and interest by the United States of America through the RUS pursuant
to a guarantee, which guarantee contains provisions no less favorable to the
holder thereof than the provisions set forth in the form of Exhibit B-1 or
Exhibit B-2 hereto; and “Guaranteed Portion” of any RUS
Guaranteed Loan means that portion of principal of, and interest on, such RUS
Guaranteed Loan which is guaranteed by the United States of America through the
RUS as provided in clause (y).
“S&P” means Standard and
Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., and its
successors.
“Securities and Exchange
Commission” means the Securities and Exchange Commission or any other
governmental authority succeeding to any or all of the functions of the
Securities and Exchange Commission.
“SFAS 52” means Statement of
Financial Accounting Standards No. 52 entitled “Foreign Currency Translations”,
issued December, 1981 by the Financial Accounting Standards Board, as amended
from time to time.
“SFAS 133” means Statement of
Financial Accounting Standards No. 133 entitled “Accounting for Derivative
Instruments and Hedging Activities”, issued June, 1998 by the Financial
Accounting Standards Board as amended from time to time.
12
“Special Purpose Subsidiary”
has the meaning set forth in Section 5.12.
“Start-up Investments” has the
meaning set forth in Section 5.12.
“Subsidiary” of any Person
means (i) any corporation more than 50% of whose stock of any class or classes
having by the terms thereof ordinary voting power to elect a majority of the
directors of such corporation (irrespective of whether or not at the time stock
of any class or classes of such corporation shall have or might have voting
power by reason of the happening of any contingency) is at the time owned by
such Person directly or indirectly through its Subsidiaries, and (ii) any other
Person in which such Person directly or indirectly through Subsidiaries has more
than a 50% voting and equity interest; provided that no Person whose
only assets are RUS Guaranteed Loans and investments incidental thereto shall be
deemed a Subsidiary.
“Superior Indebtedness” means
all Indebtedness of the Borrower and its Consolidated Subsidiaries (other than
Members’ Subordinated Certificates and Qualified Subordinated Indebtedness), but
excluding (i) Indebtedness of the Borrower or any of its Consolidated
Subsidiaries to the extent that the proceeds of such Indebtedness are used to
fund Guaranteed Portions of RUS Guaranteed Loans and (ii) any indebtedness of
any Member Guaranteed by the Borrower or any of its Consolidated Subsidiaries
(“Guaranteed
Indebtedness”), to the extent that either (x) the long-term unsecured
debt of such Member is rated at least BBB+ by S&P or Baa1 by Xxxxx’x or (y)
the payment of principal and interest by the Borrower or any of its Consolidated
Subsidiaries in respect of such Guaranteed Indebtedness is covered by insurance
or reinsurance provided by an insurer having an insurance financial strength
rating of AAA by S&P or a financial strength rating of Aaa by
Xxxxx’x.
“Syndication Agent” means The
Royal Bank of Scotland plc, in its capacity as Syndication Agent hereunder, and
its successors in such capacity.
“Term Loan” means a loan made
pursuant to Section 2.01(b).
“TIER” means, for any period,
the ratio of (x) Net Income plus Interest Expense plus Derivative Cash
Settlements to (y) Interest Expense plus Derivative Cash
Settlements, in each case for such period.
“Type” refers to whether a Loan
is a Base Rate Loan, a Euro-Dollar Loan, a Money Market Absolute Rate Loan or a
Money Market LIBOR Loan.
“Utilization” means, at any
date, the percentage equivalent of a fraction (i) the numerator of which is the
aggregate outstanding principal amount of Loans at such date and (ii) the
denominator of which is the aggregate amount of the Commitments at such date;
provided that if any
Loans remain outstanding following the termination of the Commitments,
Utilization will be deemed to be 100% of the principal amount then
outstanding.
13
Section
1.02 . Accounting Terms and
Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made and all
financial statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles as in effect from time
to time, applied on a basis consistent (except for changes concurred in by the
Borrower’s independent public accountants) with the most recent audited
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks.
Section
1.03 . Types of
Borrowings. The term “Borrowing” denotes the
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article 2 on a single date and for a single Interest
Period. Borrowings are classified for purposes of this Agreement
either by reference to the pricing of Loans comprising such Borrowing (e.g., a “Euro-Dollar Borrowing” is a
Borrowing comprised of Euro-Dollar Loans) or by reference to the provisions of
Article 2 under which participation therein is determined (i.e., a “Revolving Borrowing”
is a Borrowing under Section 2.01(a) in which all Banks participate in
proportion to their Commitments, while a “Money Market Borrowing” is a
Borrowing under Section 2.03 in which the Bank participants are determined on
the basis of their bids in accordance therewith).
ARTICLE 2
The
Credits
Section
2.01 . Commitments to
Lend. (a) Revolving
Loans. During the Revolving Credit Period each Bank severally
agrees, on the terms and conditions set forth in this Agreement, to make loans
to the Borrower pursuant to this Section from time to time in amounts such that
the aggregate principal amount of Revolving Loans by such Bank at any one time
outstanding shall not exceed the amount of its Commitment. Each
Borrowing shall be in an aggregate principal amount of $10,000,000 or
any larger multiple of $1,000,000 (except that any such Borrowing may be in the
maximum aggregate amount available in accordance with Section 3.03(d)) and shall
be made from the several Banks ratably in proportion to their respective
Commitments. Within the foregoing limits, the Borrower may borrow
under this Section, repay or, to the extent permitted by Section 2.12, prepay
Loans and reborrow at any time during the Revolving Credit Period under this
Section.
(b) Term Loans. Each
Bank severally agrees, on the terms and conditions set forth in this Agreement,
to make a Term Loan to the Borrower on the Commitment Termination Date in an
amount up to but not exceeding the amount of its Commitment.
Section
2.02 . Notice of Committed
Borrowings. The Borrower
shall give the Administrative Agent notice (a “Notice of Committed
Borrowing”) not later than 11:00 A.M. (New York City time) on (x) the
date of such Borrowing, in the
14
(a) the date
of such Borrowing, which shall be a Domestic Business Day in the case of a Base
Rate Borrowing or a Euro-Dollar Business Day in the case of a Euro-Dollar
Borrowing,
(b) the
aggregate amount of such Borrowing,
(c) whether
the Loans comprising such Borrowing are to bear interest initially at the Base
Rate or a Euro-Dollar Rate, and
(d) in the
case of a Euro-Dollar Borrowing, the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of Interest
Period.
Notwithstanding
the foregoing, no more than 15 Fixed Rate Borrowings shall be
outstanding at any one time, and any Borrowing which would exceed such
limitation shall be made as a Base Rate Borrowing.
Section
2.03 . Money Market
Borrowings. (a)
In addition to Committed Borrowings pursuant to Section 2.01, the
Borrower may, as set forth in this Section, request the Banks during the
Revolving Credit Period to make offers to make Money Market Loans to the
Borrower. The Banks may, but shall have no obligation to, make such
offers and the Borrower may, but shall have no obligation to, accept any such
offers in the manner set forth in this Section.
(b) Money Market Quote
Request. When the Borrower wishes to request offers to make
Money Market Loans under this Section, it shall transmit to the Administrative
Agent by telex or facsimile transmission a Money Market Quote Request
substantially in the form of Exhibit C hereto so as to be received no later than
10:00 A.M. (New York City time) on (x) the fourth Euro-Dollar Business Day prior
to the date of Borrowing proposed therein, in the case of a LIBOR Auction or
(y) the Domestic Business Day next preceding the date of Borrowing proposed
therein, in the case of an Absolute Rate Auction (or, in either case, such other
time or date as the Borrower and the Administrative Agent shall have mutually
agreed and shall have notified to the Banks not later than the date of the Money
Market Quote Request for the first LIBOR Auction or Absolute Rate Auction for
which such change is to be effective) specifying:
(i) the
proposed date of Borrowing, which shall be a Euro-Dollar Business Day in the
case of a LIBOR Auction or a Domestic Business Day in the case of an Absolute
Rate Auction,
(ii) the
aggregate amount of such Borrowing, which shall be $10,000,000 or any larger
multiple of $1,000,000,
(iii) the
duration of the Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period, and
15
(iv) whether
the Money Market Quotes requested are to set forth a Money Market Margin or a
Money Market Absolute Rate.
The
Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money
Market Quote Request shall be given within four Euro-Dollar Business Days (or
such other number of days as the Borrower and the Administrative Agent may
agree) of any other Money Market Quote Request.
(c) Invitation for Money Market
Quotes. Promptly upon receipt of a Money Market Quote Request,
the Administrative Agent shall send to the Banks by telex or facsimile
transmission an Invitation for Money Market Quotes substantially in the form of
Exhibit D hereto, which shall constitute an invitation by the Borrower to each
Bank to submit Money Market Quotes offering to make the Money Market Loans to
which such Money Market Quote Request relates in accordance with this
Section.
(d) Submission and Contents of Money
Market Quotes. (i) Each Bank may submit a Money Market Quote
containing an offer or offers to make Money Market Loans in response to any
Invitation for Money Market Quotes. Each Money Market Quote must
comply with the requirements of this subsection (d) and must be submitted to the
Administrative Agent by telex or facsimile transmission at its offices specified
in or pursuant to Section 9.01 not later than (x) 9:30 A.M. (New York City time)
on the third Euro-Dollar Business Day prior to the proposed date of Borrowing,
in the case of a LIBOR Auction or (y) 9:30 A.M. (New York City time) on the
proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the Administrative
Agent shall have mutually agreed and shall have notified to the Banks not later
than the date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective); provided that Money Market
Quotes submitted by the Administrative Agent (or any affiliate of the
Administrative Agent) in the capacity of a Bank may be submitted, and may only
be submitted, if the Administrative Agent or such affiliate notifies the
Borrower of the terms of the offer or offers contained therein not later than
(x) 8:30 A.M. (New York City time) on the third Euro-Dollar Business Day prior
to the proposed date of Borrowing, in the case of a LIBOR Auction or (y) 9:15
A.M. (New York City time) on the proposed date of Borrowing, in the case of an
Absolute Rate Auction. Subject to Articles 3 and 6, any Money Market
Quote so made shall be irrevocable except with the written consent of the
Administrative Agent given on the instructions of the Borrower.
(ii) Each
Money Market Quote shall be in substantially the form of Exhibit E hereto and
shall in any case specify:
(A) the
proposed date of Borrowing,
(B) the
principal amount of the Money Market Loan for which each such offer is being
made, which principal amount
16
(w) may
be greater than or less than the Commitment of the quoting Bank, (x) must be
$1,000,000 or any larger multiple thereof, (y) may not exceed the principal
amount of Money Market Loans for which offers were requested and (z) may be
subject to an aggregate limitation as to principal amount of Money Market Loans
for which offers being made by such quoting Bank may be accepted,
(C) in the
case of a LIBOR Auction, the margin above or below the applicable London
Interbank Offered Rate (the “Money Market Margin”) offered
for each such Money Market Loan, expressed as a percentage (rounded to the
nearest 1/10,000th of 1%) to be added to or subtracted from such base
rate,
(D) in the
case of an Absolute Rate Auction, the rate of interest per annum (rounded to the
nearest 1/10,000th of 1%)
(the “Money Market Absolute
Rate”) offered for each such Money Market Loan, and
(E) the
identity of the quoting Bank.
A Money
Market Quote may set forth up to five separate offers by the quoting Bank with
respect to each Interest Period specified in the related Invitation for Money
Market Quotes.
(iii) Any Money
Market Quote shall be disregarded if it:
(A) is not
substantially in conformity with Exhibit E hereto or does not specify all of the
information required by subsection (d)(ii),
(B) contains
qualifying, conditional or similar language,
(C) proposes
terms other than or in addition to those set forth in the applicable Invitation
for Money Market Quotes, or
(D) arrives
after the time set forth in subsection (d)(i).
(e) Notice to
Borrower. The Administrative Agent shall promptly notify the
Borrower of the terms (x) of any Money Market Quote submitted by a Bank that is
in accordance with subsection (d) and (y) of any Money Market Quote that amends,
modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Bank with respect to the same Money Market Quote
Request. Any such subsequent Money Market Quote shall be disregarded
by the Administrative Agent unless such subsequent Money Market Quote is
submitted solely to correct a manifest error in such former Money Market
Quote. The Administrative Agent’s notice to the Borrower shall
specify (A) the
17
(f) Acceptance and Notice by
Borrower. Not later than 10:30 A.M. (New York City time) on
(x) the third Euro-Dollar Business Day prior to the proposed date of Borrowing,
in the case of a LIBOR Auction or (y) the proposed date of Borrowing, in the
case of an Absolute Rate Auction (or, in either case, such other time or date as
the Borrower and the Administrative Agent shall have mutually agreed and shall
have notified to the Banks not later than the date of the Money Market Quote
Request for the first LIBOR Auction or Absolute Rate Auction for which such
change is to be effective), the Borrower shall notify the Administrative Agent
of its acceptance or non-acceptance of the offers so notified to it pursuant to
subsection (e). In the case of acceptance, such notice (a “Notice of Money Market
Borrowing”) shall specify the aggregate principal amount of offers for
each Interest Period that are accepted. The Borrower may accept any
Money Market Quote in whole or in part; provided that:
(i) the
aggregate principal amount of each Money Market Borrowing may not exceed the
applicable amount set forth in the related Money Market Quote
Request,
(ii) the
aggregate principal amount of each Money Market Borrowing must be $10,000,000 or
any larger multiple of $1,000,000,
(iii) acceptance
of offers may only be made on the basis of ascending Money Market Margins or
Money Market Absolute Rates, as the case may be, and
(iv) the
Borrower may not accept any offer that is described in subsection (d)(iii) or
that otherwise fails to comply with the requirements of this
Agreement.
(g) Allocation by
Agent. If offers are made by two or more Banks with the same
Money Market Margins or Money Market Absolute Rates, as the case may be, for a
greater aggregate principal amount than the amount in respect of which such
offers are accepted for the related Interest Period, the principal amount of
Money Market Loans in respect of which such offers are accepted shall be
allocated by the Administrative Agent among such Banks as nearly as possible (in
such multiples, not greater than $100,000, as the Administrative Agent may deem
appropriate) in proportion to the aggregate principal amounts of such
offers. Determinations by the Administrative Agent of the amounts of
Money Market Loans shall be conclusive in the absence of manifest
error.
18
Section
2.04 . Notice to Banks; Funding of
Loans. (a) Upon receipt of a Notice of Borrowing, the
Administrative Agent shall promptly notify each Bank of the contents thereof and
of such Bank’s share (if any) of such Borrowing and such Notice of Borrowing
shall not thereafter be revocable by the Borrower.
(b) Not later
than 1:00 P.M. (New York City time) on the date of each Borrowing, each Bank
participating therein shall (except as provided in subsection (c) of this
Section) make available its share of such Borrowing, in Federal or other funds
immediately available in New York City, to the Administrative Agent at its
address specified in or pursuant to Section 9.01. Unless the
Administrative Agent determines that any applicable condition specified in
Article 3 has not been satisfied, the Administrative Agent will make the funds
so received from the Banks available to the Borrower at the Administrative
Agent’s aforesaid address.
(c) If any
Bank makes a new Loan hereunder on a day on which the Borrower is to repay all
or any part of an outstanding Loan from such Bank, such Bank shall apply the
proceeds of its new Loan to make such repayment and only an amount equal to the
difference (if any) between the amount being borrowed and the amount being
repaid shall be made available by such Bank to the Administrative Agent as
provided in subsection (b), or remitted by the Borrower to the Administrative
Agent as provided in Section 2.13, as the case may be.
(d) Unless
the Administrative Agent shall have been notified by any Bank prior to the date
of Borrowing (or prior to 1:00 P.M. (New York City time) on the date of
Borrowing in the case of a Base Rate Borrowing) that such Bank does not intend
to make available to the Administrative Agent such Bank’s portion of the
Borrowing to be made on such date, the Administrative Agent may assume that such
Bank has made such amount available to the Administrative Agent on such date and
the Administrative Agent may, in reliance upon such assumption, make available
to the Borrower a corresponding amount, subject to the provisions of subsection
(c). If such corresponding amount is not in fact made available to
the Administrative Agent by such Bank, the Administrative Agent shall be
entitled to recover such corresponding amount on demand from such
Bank. If such Bank does not pay such corresponding amount forthwith
upon the Administrative Agent’s demand therefor, the Administrative Agent shall
promptly notify the Borrower and the Borrower shall promptly pay such
corresponding amount to the Administrative Agent. The Administrative
Agent shall also be entitled to recover from such Bank or the Borrower interest
on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to the
Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (x) in the case of a Bank,
the Federal Funds Rate for each such day and (y) in the case of the Borrower,
the then applicable rate for Base Rate Loans, Euro-Dollar Loans or Money Market
Loans, as appropriate. Nothing herein shall be deemed to relieve any
Bank from its obligation to fulfill its Commitment hereunder or to prejudice any
rights which the Borrower may have against any Bank as a result of any default
by such Bank hereunder. For purposes
19
Section
2.05 . Notes. (a) Any Bank may
request that the Loans of such Bank be evidenced by a single Note payable to the
order of such Bank for the account of its Applicable Lending Office in an amount
equal to the aggregate unpaid principal amount of such Bank’s
Loans.
(b) Each Bank
that has requested that its Loans be evidenced by a Note may, by notice to the
Borrower and the Administrative Agent, request that its Loans of a particular
Type be evidenced by a separate Note in an amount equal to the aggregate unpaid
principal amount of such Loans. Each such Note shall be in
substantially the form of Exhibit A hereto with appropriate modifications to
reflect the fact that it evidences solely Loans of the relevant
Type. Each reference in this Agreement to the “Note” of such Bank shall be
deemed to refer to and include any or all of such Notes, as the context may
require.
(c) Upon
receipt of each Bank’s Note pursuant to Section 3.01(b), the Administrative
Agent shall forward such Note to such Bank. Each Bank shall record
the date, amount, type and maturity of each Loan made by it and the date and
amount of each payment of principal made by the Borrower with respect thereto,
and may, if such Bank so elects in connection with any transfer or enforcement
of its Note, endorse on the schedule forming a part thereof appropriate
notations to evidence the foregoing information with respect to each such Loan
then outstanding; provided that the failure of
any Bank to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Notes. Each Bank
is hereby irrevocably authorized by the Borrower so to endorse its Note and to
attach to and make a part of its Note a continuation of any such schedule as and
when required.
Section
2.06 . Maturity of
Loans. Each Loan hereunder shall mature, and the principal
amount thereof shall be due and payable on the Maturity Date with respect to
such Loan.
Section
2.07 . Interest
Rates. (a) Each Base Rate Loan shall
bear interest on the outstanding principal amount thereof, for each day from the
date such Loan is made until it becomes due, at a rate per annum equal to the
Base Rate for such day. Such interest shall be payable for each
Interest Period on the last day thereof and, with respect to the principal
amount of any Base Rate Loan that is prepaid or converted to a Euro-Dollar Loan,
on the date of such prepayment or conversion. Any overdue principal
of or interest on any Base Rate Loan shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the sum of 2% plus the rate
otherwise applicable to Base Rate Loans for such day.
(b) Each
Euro-Dollar Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per
20
The
“Adjusted London Interbank
Offered Rate” applicable to any Interest Period means a rate per annum
equal to the quotient obtained (rounded upward, if necessary, to the next higher
1/100 of 1%) by dividing (i) the applicable London Interbank Offered Rate by
(ii) 1.00 minus the Euro-Dollar Reserve Percentage.
The
“London Interbank Offered
Rate” applicable to any Interest Period means the average (rounded
upward, if necessary, to the next higher 1/16 of 1%) of the respective rates per
annum at which deposits in dollars are offered to each of the Euro-Dollar
Reference Banks in the London interbank market at approximately 11:00 A.M.
(London time) two Euro-Dollar Business Days before the first day of such
Interest Period in an amount approximately equal to the principal amount of the
Euro-Dollar Loan of such Euro-Dollar Reference Bank to which such Interest
Period is to apply and for a period of time comparable to such Interest
Period.
“Euro-Dollar Reserve
Percentage” means for any day that percentage (expressed as a decimal)
which is in effect on such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum reserve
requirement for a member bank of the Federal Reserve System in New York City
with deposits exceeding five billion dollars in respect of “Eurocurrency
liabilities” (or in respect of any other category of liabilities which includes
deposits by reference to which the interest rate on Euro-Dollar Loans is
determined or any category of extensions of credit or other assets which
includes loans by a non-United States office of any Bank to United States
residents). The Adjusted London Interbank Offered Rate shall be
adjusted automatically on and as of the effective date of any change in the
Euro-Dollar Reserve Percentage.
(c) Any
overdue principal of or interest on any Euro-Dollar Loan shall bear interest,
payable on demand, for each day from and including the date payment thereof was
due to but excluding the date of actual payment, at a rate per annum equal to
the sum of 2% plus the higher of (i) the sum of the Euro-Dollar Margin plus the
Adjusted London Interbank Offered Rate applicable to such Loan and (ii) the
Euro-Dollar Margin plus the quotient obtained (rounded upwards, if necessary, to
the next higher 1/100 of 1%) by dividing (x) the average (rounded upward, if
necessary, to the next higher 1/16 of 1%) of the respective rates per annum at
which one day (or, if such amount due remains unpaid more than three Euro-Dollar
Business Days, then for such other period of time not longer than six months as
the Administrative Agent may select) deposits in dollars in an amount
approximately equal to such overdue payment due to each of the Euro-Dollar
21
(d) Subject
to Section 8.01(a), each Money Market LIBOR Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the sum of the London Interbank Offered
Rate for such Interest Period (determined in accordance with Section 2.07(b) as
if each Euro-Dollar Reference Bank were to participate in the related Money
Market LIBOR Borrowing ratably in proportion to its Commitment) plus (or minus)
the Money Market Margin quoted by the Bank making such Loan in accordance with
Section 2.03. Each Money Market Absolute Rate Loan shall bear
interest on the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the Money Market Absolute Rate
quoted by the Bank making such Loan in accordance with Section
2.03. Such interest shall be payable for each Interest Period on the
last day thereof and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof. Any overdue
principal of or interest on any Money Market Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the sum of 2%
plus the Prime Rate for such day.
(e) The
Administrative Agent shall determine each interest rate applicable to the Loans
hereunder. The Administrative Agent shall give prompt notice to the
Borrower and the participating Banks of each rate of interest so determined, and
its determination thereof shall be conclusive in the absence of manifest
error.
(f) Each
Euro-Dollar Reference Bank agrees to use its best efforts to furnish quotations
to the Administrative Agent as contemplated by this Section. If
either Euro-Dollar Reference Bank does not furnish a timely quotation, the
Administrative Agent shall determine the relevant interest rate on the basis of
the quotation or quotations furnished by the remaining Euro-Dollar Reference
Bank or, if none of such quotations is available on a timely basis, the
provisions of Section 8.01 shall apply.
Section
2.08 . Method of Electing Interest
Rates. (a) The Loans included in each
Committed Borrowing shall bear interest initially at the type of rate specified
by the Borrower in the applicable Notice of Committed
Borrowing. Thereafter, the Borrower may from time to time elect to
change or continue the type of interest rate borne by each Group of Loans
(subject to Section 2.08(d) and the provisions of Article 8), as
follows:
(i) if such
Loans are Base Rate Loans, the Borrower may elect to convert such Loans to
Euro-Dollar Loans as of any Euro-Dollar Business Day;
22
(ii) if such
Loans are Euro-Dollar Loans, the Borrower may elect to convert such Loans to
Base Rate Loans as of any Domestic Business Day, subject to Section 2.14 if any
such conversion is effective on any day other than the last day of an Interest
Period applicable to such Loans, or may elect to continue such Loans as
Euro-Dollar Loans, as of the end of any Interest Period applicable thereto, for
an additional Interest Period.
Each such
election shall be made by delivering a notice (a “Notice of Interest Rate
Election”) to the Administrative Agent not later than 10:30 A.M. (New
York City time) on the third Euro-Dollar Business Day before the conversion or
continuation selected in such notice is to be effective. A Notice of
Interest Rate Election may, if it so specifies, apply to only a portion of the
aggregate principal amount of the relevant Group of Loans; provided that (i) such
portion is allocated ratably among the Loans comprising such Group and (ii) such
portion, and the remaining portion to which such Notice does not apply, are each
at least $10,000,000 (unless such portion is comprised of Base Rate
Loans). If no such notice is timely received before the end of an
Interest Period for any Group of Euro-Dollar Loans, the Borrower shall be deemed
to have elected that such Group of Loans be converted to Base Rate Loans at the
end of such Interest Period.
(b) Each
Notice of Interest Rate Election shall specify:
(i) the Group
of Loans (or portion thereof) to which such notice applies;
(ii) the date
on which the conversion or continuation selected in such notice is to be
effective, which shall comply with the applicable clause of Section
2.08(a);
(iii) if the
Loans comprising such Group are to be converted to Euro-Dollar Loans, the
duration of the next succeeding Interest Period applicable thereto;
and
(iv) if such
Loans are to be continued as Euro-Dollar Loans for an additional Interest
Period, the duration of such additional Interest Period.
Each
Interest Period specified in a Notice of Interest Rate Election shall comply
with the provisions of the definition of Interest Period.
(c) Promptly
after receiving a Notice of Interest Rate Election from the Borrower pursuant to
Section 2.08(a), the Administrative Agent shall notify each Bank of the contents
thereof and such notice shall not thereafter be revocable by the
Borrower.
(d) The
Borrower shall not be entitled to elect to convert any Committed Loans to, or
continue any Committed Loans for an additional Interest
23
(e) If any
Committed Loan is converted to a different Type of Loan, the Borrower shall pay,
on the date of such conversion, the interest accrued to such date on the
principal amount being converted.
Section
2.09 . Fees. (a) Facility Fee. The
Borrower shall pay to the Administrative Agent for the account of each Bank
facility fees accruing at the Facility Fee Rate on the daily average amount of
such Bank’s Commitment (whether used or unused), for the period from and
including the Effective Date to but excluding the date such Bank’s Commitment is
terminated; provided
that, if such Bank continues to have any Committed Loans outstanding after its
Commitment terminates, then such facility fee shall continue to accrue on the
daily outstanding principal amount of such Bank’s Committed Loans from and
including the date on which its Commitment terminates to but excluding the date
on which such Bank ceases to have any Committed Loans
outstanding. Accrued facility fees shall be payable on each January
1, April 1, July 1, and October 1 and on the date the Commitment of such Bank is
terminated (and, if later, on the date the Loans of such Bank shall be repaid in
their entirety);
provided that any facility fees accruing after the first anniversary of
the Commitment Termination Date shall be payable on demand.
(b) Utilization
Fee. During any period when Utilization exceeds 50%, the
Borrower shall pay to the Administrative Agent for the account of each Bank
utilization fees at a rate of 0.050% per annum accruing on the average daily
aggregate outstanding principal amount of the Loans of such Bank. Such
utilization fees for each Loan shall be payable on each date on which interest
is payable with respect to such Loan pursuant to Section 2.07, and on the date
the Commitment of such Bank is terminated (and, if later, on the date the Loans
of such Bank shall be repaid in their entirety); provided that any utilization
fees accruing after the first anniversary of the Commitment Termination Date
shall be payable on demand.
(c) Term-Out Fee. The
Borrower shall pay to the Administrative Agent for the account of each Bank
ratably term-out fees at a rate of 0.100% per annum accruing on the daily
aggregate outstanding principal amount of the Term Loan of such Bank, for the
period from and including the Commitment Termination Date to but excluding the
date the Term Loan of such Bank is repaid in full. Such term-out fees for each
Loan shall be payable on each date on which interest is payable with respect to
such Loan pursuant to Section 2.07 occurring after the Commitment Termination
Date, and on the date the Term Loan of such Bank shall be repaid in its
entirety; provided that
any term-out fees accruing after the first anniversary of the Commitment
Termination Date shall be payable on demand.
24
(d) Agents’ Fees. The
Borrower shall pay to the Administrative Agent and the Syndication Agent, each
for its own account, one or more fees in such amounts and at such times as has
been previously agreed between the Borrower and each of them.
Section
2.10 . Optional Termination or Reduction of
Commitments. During the Revolving Credit Period, the Borrower
may, upon at least three Domestic Business Days’ notice to the Administrative
Agent (which notice the Administrative Agent will promptly deliver to the
Banks), (i) terminate the Commitments at any time, if no Loans are
outstanding at such time or (ii) ratably reduce from time to time by an
aggregate amount of $10,000,000 or any larger multiple of $1,000,000, the
aggregate amount of the Commitments in excess of the aggregate outstanding
principal amount of the Loans.
Section
2.11 . Mandatory Termination of
Commitments. The Commitments shall terminate on the Commitment
Termination Date.
Section
2.12 . Optional
Prepayments. (a) Subject in the case
of Euro-Dollar Loans to Section 2.14, the Borrower may (i) upon at least
one Domestic Business Day’s notice to the Administrative Agent, prepay any Group
of Base Rate Loans (or any Money Market Borrowing bearing interest at the Base
Rate pursuant to Section 8.01(a)) or (ii) upon at least three Euro-Dollar
Business Days’ notice to the Administrative Agent, prepay any Group of
Euro-Dollar Loans, in each case in whole at any time, or from time to time in
part in amounts aggregating $10,000,000 or any larger multiple of $1,000,000, by
paying the principal amount to be prepaid together with accrued interest thereon
to the date of prepayment. Each such optional prepayment shall be
applied to prepay ratably the Loans of the several Banks included in such Group
of Loans (or such Money Market Borrowing).
(b) Except as
provided in Section 2.12(a), the Borrower may not prepay all or any portion of
the principal amount of any Money Market Loan prior to the maturity
thereof.
(c) Upon
receipt of a notice of prepayment pursuant to this Section, the Administrative
Agent shall promptly notify each Bank of the contents thereof and of such Bank’s
ratable share (if any) of such prepayment and such notice shall not thereafter
be revocable by the Borrower.
Section
2.13 . General Provisions as to
Payments. (a) The Borrower shall make each payment of
principal of, and interest on, the Loans and of fees hereunder, not later than
1:00 P.M. (New York City time) on the date when due, in Federal or other funds
immediately available in New York City, to the Administrative Agent at its
address referred to in Section 9.01. The Administrative Agent will
promptly distribute to each Bank its ratable share of each such payment received
by the Administrative Agent for the account of the Banks. Whenever
any payment of principal of, or interest on, the Base Rate Loans or of fees
shall be due on a day which is not a Domestic Business Day, the
25
(b) Unless
the Administrative Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Banks hereunder that the Borrower
will not make such payment in full, the Administrative Agent may assume that the
Borrower has made such payment in full to the Administrative Agent on such date
and the Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount then due
such Bank. If and to the extent that the Borrower shall not have so
made such payment, each Bank shall repay to the Administrative Agent forthwith
on demand such amount distributed to such Bank together with interest thereon,
for each day from the date such amount is distributed to such Bank until the
date such Bank repays such amount to the Administrative Agent, at the Federal
Funds Rate.
Section
2.14 . Funding
Losses. If the Borrower
makes any payment of principal with respect to any Fixed Rate Loan or any Fixed
Rate Loan is converted to a different type of Loan (whether such payment or
conversion is pursuant to Article 2, 6 or 8 or otherwise) on any day other than
the last day of the Interest Period applicable thereto, or the end of an
applicable period fixed pursuant to Section 2.07(c), or if the Borrower fails to
borrow, prepay, convert or continue any Fixed Rate Loans after notice has been
given to any Bank in accordance with Section 2.04(a), 2.08(c) or 2.12(c) the
Borrower shall reimburse each Bank within 15 days after demand for any resulting
loss or expense incurred by it (or by an existing or prospective Participant in
the related Loan), including (without limitation) any loss incurred in
obtaining, liquidating or employing deposits from third parties, but excluding
loss of margin for the period after any such payment or conversion or failure to
borrow, prepay, convert or continue; provided that such Bank shall
have delivered to the Borrower a certificate as to the amount of such loss or
expense, which certificate shall be conclusive in the absence of manifest
error.
Section
2.15 . Computation of Interest and
Fees. Interest based on the Prime Rate and fees hereunder
shall be computed on the basis of a year of 365 days (or 366 days in a leap
year) and paid for the actual number of days elapsed (including the first day
but excluding the last day). All other interest shall be
26
Section
2.16 . Withholding Tax
Exemption. At least five Domestic Business Days prior to the
first date on which interest or fees are payable hereunder for the account of
any Bank, each Bank that is not incorporated under the laws of the United States
of America or a state thereof agrees that it will deliver to each of the
Borrower and the Administrative Agent two duly completed copies of (i) United
States Internal Revenue Service Form W-8BEN (or any successor form), certifying
that such Bank is entitled to benefits under an income tax treaty to which the
United States is a party which exempts such Bank from United States withholding
tax or reduces the rate of withholding tax on payments received for the account
of such Bank under this Agreement and the Notes, or (ii) United States Internal
Revenue Service Form W-8ECI (or any successor form), certifying that the income
receivable by such Bank under this Agreement and the Notes is effectively
connected with the conduct of a trade or business in the United
States. Each Bank which so delivers a Form W-8BEN or W-8ECI further
undertakes to deliver to each of the Borrower and the Administrative Agent two
additional copies of such form (or a successor form) on or before the date that
such form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Borrower or the Administrative Agent, in each case certifying
to the effect set forth in clause (i) or (ii) above, as applicable, unless an
event (including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Bank from duly completing and delivering any such form with respect to it and
such Bank advises the Borrower and the Administrative Agent that it is not
capable of making the certifications set forth in clause (i) or (ii) above, as
applicable.
Section
2.17 . Increase of
Commitments. (a) Upon at least 15 days’
prior notice to the Administrative Agent (which notice the Administrative Agent
shall promptly transmit to each of the Banks), the Borrower shall have the
right, subject to the terms and conditions set forth below, to increase the
aggregate amount of the Commitments in multiples of $5,000,000; provided that the amount of
such increase when added to the aggregate amount of all such prior increases in
the Commitments hereunder (including by way of creating new Commitments), on or
after the Effective Date, does not exceed $250,000,000.
(b) Any such
increase in the Commitments hereunder shall apply, at the option of the
Borrower, (x) to the Commitment of one or more Banks; provided that (i) the
Administrative Agent and each Bank whose Commitment is to be increased shall
consent to such increase, (ii) the amount set forth on the Commitment Schedule
opposite the name of each Bank the Commitment of which is being so increased
shall be amended to reflect the increased Commitment of such Bank and (iii) if
any Committed Loans are outstanding at the time of such an increase, the
Borrower will, notwithstanding anything to the contrary contained in this
Agreement, on the date of such increase, incur and repay or prepay one or more
Committed Loans from the Banks in such amounts so that after giving effect
thereto the Committed Loans shall be outstanding on a pro rata basis (based on the
Commitments of the Banks after giving effect to the changes made pursuant to
this Section 2.17 on such date) from all the Banks or (y) to the creation of a
new Commitment of one or more institutions not then a Bank hereunder; provided that (i) such
institution becomes a party to this Agreement as a Bank by execution and
delivery to the Borrower and the Administrative Agent of counterparts of this
Agreement, (ii) the Commitment Schedule shall be amended to reflect the
Commitment of such new Bank, (iii) if requested by such new Bank, the Borrower
shall issue a Note to such new Bank in conformity with the provisions of Section
2.05, (iv) if any Committed Loans are outstanding at the time of the creation of
such Commitment of such Bank, the Borrower will, notwithstanding anything to the
27
(c) It is
understood that any increase in the amount of the Commitments pursuant to this
Section 2.17 shall not constitute an amendment of this Agreement or the
Notes.
ARTICLE 3
Conditions
Section
3.01 . Effectiveness. This
Agreement shall become effective on the date (the “Effective Date”) on which the
Administrative Agent shall have received the following documents or other items,
each dated the Effective Date unless otherwise indicated:
(a) receipt
by the Administrative Agent of counterparts hereof signed by each of the parties
hereto (or, in the case of any party as to which an executed counterpart shall
not have been received, receipt by the Administrative Agent in form satisfactory
to it of telegraphic, telex or other written confirmation from such party of
execution of a counterpart hereof by such party);
(b) receipt
by the Administrative Agent for the account of each Bank that has requested a
Note of a duly executed Note dated on or before the Effective Date complying
with the provisions of Section 2.05;
(c) receipt
by the Administrative Agent of an opinion of the General Counsel of the
Borrower, substantially in the form of Exhibit F hereto and covering such
additional matters relating to the transactions contemplated hereby
28
(d) receipt
by the Administrative Agent of an opinion of Xxxxx Xxxx & Xxxxxxxx, special
counsel for the Administrative Agent, substantially in the form of Exhibit G
hereto and covering such additional matters relating to the transactions
contemplated hereby as the Required Banks may reasonably request, such opinion
to be in form and substance satisfactory to the Administrative
Agent;
(e) receipt
by the Administrative Agent of a certificate signed by the Chief Financial
Officer or the Chief Executive Officer and an Assistant Secretary-Treasurer or
the Controller of the Borrower to the effect that the conditions set forth in
clauses (c) through (g), inclusive, of Section 3.03 have been satisfied as of
the Effective Date and, in the case of clauses (c), (e) and (g), setting forth
in reasonable detail the calculations required to establish such
compliance;
(f) receipt
by the Administrative Agent, with a copy for each Bank, of a certificate of an
officer of the Borrower acceptable to the Administrative Agent stating that all
consents, authorizations, notices and filings required or advisable in
connection with this Agreement are in full force and effect, and the
Administrative Agent shall have received evidence thereof reasonably
satisfactory to it;
(g) evidence
satisfactory to the Administrative Agent that arrangements have been made for
payment in full of all amounts owed under the Prior 364-Day Credit
Agreement;
(h) receipt
by the Administrative Agent and the Syndication Agent (or their respective
assigns) and by each Bank of all fees required to be paid in the respective
amounts heretofore mutually agreed, and all expenses for which invoices have
been presented, on or before the Effective Date; and
(i) receipt
by the Administrative Agent of all documents the Required Banks may reasonably
request relating to the existence of the Borrower, the corporate authority for
and the validity of this Agreement and the Notes, and any other matters relevant
hereto, all in form and substance satisfactory to the Administrative
Agent.
The
Administrative Agent shall promptly notify the Borrower and the Banks
of the Effective Date, and such notice shall be conclusive and binding on all
parties hereto.
Section
3.02 . Prior Credit
Agreement. (a)
On the Effective Date, the “Commitments” as defined in the Prior 364-Day Credit
Agreement shall terminate, without further action by any party thereto, except that Sections 2.14,
7.05, 7.06, 8.03 and 9.03 of the Prior 364-Day Credit Agreement (and Section
2.13 and Article 9 of the Prior 364-Day Credit Agreement insofar as they relate
to such foregoing Sections) shall survive such termination and any related
payment of amounts owed under the Prior 364-Day Credit Agreement.
29
(b) The Banks
which are parties to the Prior 364-Day Credit Agreement, comprising the
“Required Banks” as defined therein, hereby waive any requirement of notice of
termination of the “Commitments” (as defined in the Prior 364-Day Credit
Agreement) pursuant to Section 2.10 thereof and of prepayment of loans
thereunder to the extent necessary to give effect to Section 3.01(g) and Section
3.02(a) hereof; provided that any such
prepayment of Loans shall be subject to Section 2.14 of the Prior 364-Day Credit
Agreement.
Section
3.03 . Borrowings. The
obligation of any Bank to make a Loan on the occasion of any Borrowing is
subject to the satisfaction of the following conditions, in each case at the
time of such Borrowing and immediately thereafter:
(a) the fact
that the Effective Date shall have occurred on or prior to March 31,
2008;
(b) receipt
by the Administrative Agent of a Notice of Borrowing as required by Section 2.02
or 2.03, as the case may be;
(c) the fact
that the Borrower is in compliance with Section 7.12(a) of the 1972 Indenture
and Section 7.11 of the 1994 Indenture, as each Indenture is in effect as of the
date hereof;
(d) the fact
that the aggregate outstanding principal amount of the Loans will not exceed the
aggregate amount of the Commitments;
(e) the fact
that no Default shall have occurred and be continuing;
(f) the fact
that the representations and warranties of the Borrower (in the case of a
Borrowing, other than the representation set forth in Section 4.02(c)) contained
in this Agreement shall be true (it being understood and agreed that the
representation and warranty set forth in Section 4.12 shall be true and correct
as to all information furnished prior to the making of the respective Loan);
and
(g) the fact
that (i) there shall be no collateral securing Bonds issued pursuant to any
Indenture of a type other than the types of collateral permitted to secure Bonds
issued pursuant to such Indenture as of the date hereof, (ii) the allowable
amount of eligible collateral then pledged under any Indenture shall not exceed
150% of the aggregate principal amount of Bonds then outstanding under such
Indenture and (iii) no collateral shall secure Bonds other than (A) eligible
collateral under such Indenture, the allowable amount of which is included
within the computation under subsection (ii) above or (B) collateral previously
so pledged which ceases to be such eligible collateral not as a result of any
acts or omissions to act of the Borrower (other than the declaration of an
“event of default” as
defined in a mortgage which results in the exercise of any right or remedy
described in such mortgage).
30
Each
Borrowing hereunder shall be deemed to be a representation and warranty by the
Borrower on the date of such Borrowing as to the facts specified in clauses (c),
(d), (e), (f) and (g) of this Section 3.03.
ARTICLE 4
Representations
and Warranties
The
Borrower makes the following representations, warranties and agreements, which
shall survive the execution and delivery of this Agreement and the Notes and the
making of the Loans:
Section
4.01 . Corporate Existence, Power and
Authority. The Borrower is a cooperative association duly
incorporated, validly existing and in good standing under the laws of the
District of Columbia and has the corporate power and authority and all material
governmental licenses, authorizations, consents and approvals required to own
its property and assets and to transact the business in which it is
engaged. The Borrower is duly qualified or licensed as a foreign
corporation in good standing in every jurisdiction in which the nature of the
business in which it is engaged makes such qualification or licensing necessary,
except in those jurisdictions in which the failure to be so qualified or
licensed would not (after qualification, assuming that the Borrower could so
qualify without the payment of any fee or penalty and retain the rights as they
existed prior to such qualification all to an extent so that any fees or
penalties required to be so paid or any rights not so retained would not,
individually or in the aggregate, have a material adverse effect on the business
or financial condition of the Borrower), individually or in the aggregate, have
a material adverse effect upon the business or financial condition of the
Borrower. The Borrower has the corporate power and authority to
execute, deliver and carry out the terms and provisions of this Agreement and
the Notes. This Agreement has been, and the Notes when executed and
delivered will have been, duly and validly authorized, executed and delivered by
the Borrower, and this Agreement constitutes a legal, valid and binding
agreement of the Borrower, and the Notes, when executed and delivered by the
Borrower in accordance with this Agreement, will constitute legal, valid and
binding obligations of the Borrower, in each case enforceable in accordance with
its terms, except as the same may be limited by bankruptcy, insolvency or
similar laws affecting creditors’ rights generally and by general principles of
equity.
Section
4.02 . Financial
Statements. (a) The consolidated balance
sheets of the Borrower and its Consolidated Subsidiaries as at May 31, 2007 and
the related consolidated statements of operations, changes in equity and cash
flows for the fiscal year ended May 31, 2007, including the related notes,
accompanied by the opinion and report thereon of Deloitte & Touche LLP,
independent public accountants, heretofore delivered to the Banks, present
fairly in all material respects in accordance with generally accepted accounting
principles (i) the consolidated financial position of the Borrower and its
Consolidated Subsidiaries as at the date of said balance sheets and (ii)
the consolidated results of the
31
(b) The
unaudited consolidated balance sheets of the Borrower and its Consolidated
Subsidiaries as of November 30, 2007 and the related unaudited consolidated
statements of operations, changes in equity and cash flows for the six months
then ended, heretofore delivered to the Banks, present fairly in conformity with
generally accepted accounting principles applied on a basis consistent with the
financial statements referred to in subsection (a) of this Section 4.02, the
consolidated financial position of the Borrower and its Consolidated
Subsidiaries as of such date and their consolidated results of operations and
changes in financial position for such six-month period (subject to normal
year-end adjustments). The Borrower and its Consolidated Subsidiaries
have no material liabilities (contingent or otherwise) of the type required to
be disclosed in financial statements or footnotes which are not disclosed by or
reserved against in such financial statements for such six-month period other
than (i) Indebtedness incurred and (ii) loan and guarantee commitments issued in
each case by the Borrower or its Consolidated Subsidiaries in the ordinary
course of business since the date of such financial statements.
(c) Since
November 30, 2007 there has been no material adverse change in the business,
financial position, results of operations or prospects of the Borrower and its
Consolidated Subsidiaries, considered as a whole.
Section
4.03 . Litigation. There
are no actions, suits, proceedings or investigations pending or, to the
Borrower’s knowledge, threatened by or before any court or any governmental
authority, body or agency or any arbitration board which are reasonably likely
to materially adversely affect the business, property, assets, financial
position or results of operations of the Borrower or the authority or ability of
the Borrower to perform its obligations under this Agreement or the
Notes.
32
Section
4.04 . Governmental
Authorizations. No material authorization, consent, approval
or license of, or declaration, filing or registration with or exemption by, any
governmental authority, body or agency is required in connection with the
execution, delivery or performance by the Borrower of this Agreement or the
Notes. The Banks
acknowledge that the Borrower will file this Agreement with the Securities and
Exchange Commission after the Effective Date.
Section
4.05 . Members’ Subordinated
Certificates. The holders of the Borrower’s Members’
Subordinated Certificates are not and will not be entitled to receive any
payments with respect to the principal thereof or interest thereon solely
because of withdrawing or being expelled from membership in the
Borrower.
Section
4.06 . No Violation of
Agreements. Neither the Borrower nor any Subsidiary is in
default in any material respect under any material agreement or other material
instrument to which it is a party or by which it is bound or its property or
assets may be affected. No event or condition exists which
constitutes, or with the giving of notice or lapse of time or both would
constitute, such a default under any such agreement or other
instrument. Neither the execution and delivery of this Agreement or
the Notes, nor the consummation of any of the transactions herein or therein
contemplated, nor compliance with the terms and provisions hereof or thereof,
will contravene any material provision of law, statute, rule or regulation to
which the Borrower is subject or any material judgment, decree, award,
franchise, order or permit applicable to the Borrower, or will conflict or be
inconsistent with, or will result in any breach of, any of the material terms,
covenants, conditions or provisions of, or constitute (or with the giving of
notice or lapse of time, or both, would constitute) a material default under (or
condition or event entitling any Person to require, whether by purchase,
redemption, acceleration or otherwise, the Borrower to perform any obligations
prior to the scheduled maturity thereof), or result in the creation or
imposition of any Lien upon any of the property or assets of the Borrower
pursuant to the terms of, any indenture, mortgage, deed of trust, agreement or
other instrument to which it may be subject, or violate any provision of the
certificate of incorporation or by-laws of the Borrower. Without
limiting the generality of the foregoing, the Borrower is not a party to, or
otherwise subject to any provision contained in, any instrument evidencing
Indebtedness of the Borrower, any agreement or indenture relating thereto or any
other material contract or agreement (including its certificate of incorporation
and by-laws), which would be violated by the incurring of the Indebtedness to be
evidenced by the Notes.
Section
4.07 . No Event of Default under the
Indentures. The Borrower has complied fully with all of the
material provisions of each Indenture. No Event of Default (within
the meaning of such term as defined in each Indenture) and no event, act or
condition (except for possible non-compliance by the Borrower with any
immaterial provision of such Indenture which in itself is not such an Event of
Default under such Indenture) which with notice or lapse of time, or both, would
constitute such an Event of Default has occurred and is
33
Section
4.08 . Compliance with
ERISA. The Plans (other than Plans consisting of multiemployer
plans (as defined in Section 4001 of ERISA)) are in substantial compliance with
ERISA other than any failure to comply that is not reasonably likely to have a
material adverse effect on the business, operations, prospects, property, assets
or financial position of the Borrower, no such Plan is insolvent or in
reorganization other than an insolvency or reorganization that is not reasonably
likely to have a material adverse effect on the business, operations, prospects,
property, assets or financial position of the Borrower, and no such Plan has an
accumulated or waived funding deficiency within the meaning of Section 412 of
the Internal Revenue Code other than any accumulated or waived funding
deficiency that is not reasonably likely to have a material adverse effect on
the business, operations, prospects, property, assets or financial position of
the Borrower. No Plan consisting of a multiemployer plan (as defined
in Section 4001 of ERISA) is in reorganization. Neither the Borrower
nor a Subsidiary of the Borrower nor any member of the ERISA Group has incurred
any material liability (including any material contingent liability) to or on
account of a Plan pursuant to Section 4062, 4063, 4064, 4201 or 4204 of ERISA,
no proceedings have been instituted to terminate any Plan, and no condition
exists which presents a material risk to the Borrower of incurring a material
liability to or on account of a Plan pursuant to any of the foregoing Sections
of ERISA.
Section
4.09 . Compliance with Other
Laws. The Borrower and each Subsidiary is in compliance, in
all material respects, with all applicable requirements of law and all
applicable rules and regulations of each Federal, State, municipal or other
governmental department, agency or authority, domestic or foreign.
Section
4.10 . Tax Status. The
Borrower is exempt from payment of Federal income tax under Section 501(c)(4) of
the Internal Revenue Code.
Section
4.11 . Investment Company
Act. The Borrower is not an “investment company” or a company
“controlled” by an “investment company”, within the meaning of the Investment
Company Act of 1940, as amended.
Section
4.12 . Disclosure. To the
best of the Borrower’s knowledge, information and belief, neither this Agreement
nor any document, certificate or financial statement furnished to any Bank by or
on behalf of the Borrower in connection herewith (all such documents,
certificates and financial statements, taken as a whole) contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements contained herein and therein not
misleading. There is no fact (other than facts of a general economic
or political nature) known to the Borrower which in its judgment materially
adversely affects or in the future is likely to (so far as is now known to the
Borrower) have a material adverse effect upon the business, operations,
prospects,
34
Section
4.13 . Subsidiaries. Each
of the Borrower’s corporate Subsidiaries is a corporation duly incorporated,
validly existing and in good standing under the laws of its jurisdiction of
incorporation, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
Section
4.14 . Environmental
Matters. In the ordinary course of its business, the Borrower
conducts reviews, to the extent appropriate given the nature of its business
operations, of the effect of Environmental Laws on the business, operations and
properties of the Borrower and its Subsidiaries, in the course of which it
identifies and evaluates associated liabilities and costs (including, without
limitation, any capital or operating expenditures required for clean-up or
closure of properties presently or previously owned, any capital or operating
expenditures required to achieve or maintain compliance with environmental
protection standards imposed by law or as a condition of any license, permit or
contract, any related constraints on operating activities, including any
periodic or permanent shutdown of any facility or reduction in the level of or
change in the nature of operations conducted thereat, any costs or liabilities
in connection with off-site disposal of wastes or Hazardous Substances, and any
actual or potential liabilities to third parties, including employees, and any
related costs and expenses). On the basis of this review, the
Borrower has reasonably concluded that such associated liabilities and costs,
including the cost of compliance with Environmental Laws, are unlikely to have a
material adverse effect on the business, financial condition, results of
operations or prospects of the Borrower and its Consolidated Subsidiaries,
considered as a whole.
ARTICLE 5
Covenants
The
Borrower agrees that, so long as any Bank has any Commitment hereunder or any
amount payable under any Note or any fee payable pursuant to Section 2.09 or any
other amount then due and payable hereunder remains unpaid:
Section
5.01 . Corporate
Existence. The Borrower, at its own cost and expense, will,
and will cause each Subsidiary to, do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence, material
rights and franchises; provided, however, that
neither the Borrower nor any Subsidiary shall be required to preserve any right
or franchise or, in the case of a Subsidiary, its corporate existence, if its
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Borrower or such Subsidiary
(provided that the
termination of the corporate existence of a Subsidiary shall be permitted if the
Board of Directors of the
35
Section
5.02 . Disposition of Assets, Merger,
Character of Business, etc. The Borrower will not wind up or
liquidate its business or sell, lease, transfer or otherwise dispose of all or
substantially all of its assets as an entirety or in a series of related
transactions and will not consolidate with or merge with or into any other
Person other than a merger with a Subsidiary in which the Borrower is the
surviving Person. The Borrower will not engage in any business other
than the business contemplated by its certificate of incorporation and by-laws,
each as in effect on the Effective Date.
Section
5.03 . Financial
Information. (a) The Borrower will, and will cause each
Subsidiary other than the Subsidiaries listed on Schedule 5.03(a) to, keep its
books of account in accordance with generally accepted accounting
principles.
(b) The
Borrower will furnish to the Banks:
(i) as soon
as available and in any event within 60 days after the close of each of the
first three quarters of each fiscal year of the Borrower, as at the end of, and
for the period commencing at the end of the previous fiscal year and ending
with, such quarter, unaudited consolidated balance sheets of the Borrower and
its Consolidated Subsidiaries and the related unaudited consolidated statements
of operations, changes in equity and cash flow of the Borrower and its
Consolidated Subsidiaries for such quarter and for the portion of the Borrower’s
fiscal year ended at the end of such quarter, setting forth in each case in
comparative form the figures for the corresponding quarter and the corresponding
portion of the Borrower’s previous fiscal year, all in reasonable detail and
certified (subject to normal year-end adjustments) as to fairness of
presentation in accordance with generally accepted accounting principles in all
material respects and consistency (except for changes concurred in by the
Borrower’s independent public accountants) by the Chief Executive Officer, the
Chief Financial Officer, an Assistant Secretary-Treasurer or the Controller of
the Borrower;
(ii) as soon
as practicable and in any event within the earlier of (i) two Domestic Business
Days after filing with the Securities and Exchange Commission and (ii) 120 days
after the close of each fiscal year of the Borrower, as at the end of and for
the fiscal year just closed, consolidated balance sheets of the Borrower and its
Consolidated Subsidiaries and the related consolidated statements of operations,
changes in equity and cash flow for such fiscal year for the Borrower and its
Consolidated Subsidiaries, all in reasonable detail and fully certified (without
any qualification as to the scope of the audit) by Deloitte & Touche LLP or
other independent public accountants of nationally
36
(iii) together
with the financial statements referred to in clauses (i) and (ii) above, a
certificate signed by the Chief Executive Officer, the Chief Financial Officer,
an Assistant Secretary-Treasurer or the Controller of the Borrower, in such
detail as shall be reasonably satisfactory to the Required Banks,
(A) identifying
(x) all Indebtedness outstanding as at the end of the fiscal period covered by
such financial statements extended by the Borrower or its Consolidated
Subsidiaries or by any other Person and Guaranteed by the Borrower or its
Consolidated Subsidiaries to the ten Members or borrowers of any Consolidated
Subsidiary (“Consolidated
Subsidiary Members”), taken as a whole, with the largest amount of
Indebtedness to (or Guaranteed by) the Borrower or its Consolidated Subsidiaries
outstanding as at the end of the fiscal period covered by such financial
statements (the “Largest
Members”) as to which, to the knowledge and information of the Borrower
or such Consolidated Subsidiary, the Member or Consolidated Subsidiary Member is
in default (whether in the payment of the principal thereof or interest thereon
or with respect to any material covenant or agreement contained in any
instrument, mortgage or agreement evidencing or relating to such Indebtedness)
and specifying whether such default has been waived by the Borrower or such
Consolidated Subsidiary or such other Person and the nature and status of each
such default not so waived and (y) the aggregate amount of all Indebtedness
outstanding as of the end of the fiscal period covered by such financial
statements as to which, to the knowledge and information of the Borrower or such
Consolidated Subsidiary, Members or Consolidated Subsidiary Members other than
the Largest Members are in default in the payment of the principal thereof or
interest thereon or are in default with respect to any material covenant or
agreement contained in any instrument, mortgage or agreement evidencing or
relating to such Indebtedness and as to which the Borrower or such Consolidated
Subsidiary has commenced the exercise of remedies in respect
thereof,
(B) identifying
the ten Members or Consolidated Subsidiary Members, taken as a whole, with the
largest amount of Indebtedness to (or Guaranteed by) the Borrower or its
Consolidated Subsidiaries outstanding as of the end of the fiscal period covered
by such financial statements, together with the principal amount of such
Indebtedness outstanding with respect to each such Member or Consolidated
Subsidiary Member as of the end of such fiscal period, and
37
(C) providing
the aggregate principal amount of all loans which are RUS Guaranteed Loans and
are outstanding as of the end of the fiscal period covered by such financial
statements, provided
that if such amount has previously been disclosed by the Borrower in its regular
or periodical reports filed with, or furnished to, the Securities and Exchange
Commission, then the certificate need only reference such report and the section
of such report in which such information may be found;
(iv) with
reasonable promptness, copies of all regular and periodical reports (including
Current Reports on Form 8-K) filed with, or furnished to, the Securities and
Exchange Commission;
(v) promptly
after obtaining knowledge or receiving notice of a change (whether an increase
or decrease) in any rating issued by S&P or Xxxxx’x pertaining to any
securities of, or guaranteed by, the Borrower or any of its Subsidiaries or
affiliates, a notice setting forth such change; and
(vi) with
reasonable promptness, such other information respecting the business,
operations, prospects and financial condition of the Borrower or any of its
Subsidiaries or any Joint Venture as any Bank may, from time to time, reasonably
request, including, without limitation, with respect to the performance and
observance by the Borrower of the covenants and conditions contained in this
Agreement.
Section
5.04 . Default
Certificates. Concurrently with each financial statement
delivered to the Banks pursuant to clauses (i) and (ii) of Section 5.03, the
Borrower will furnish to the Banks a certificate signed by the Chief Executive
Officer, the Chief Financial Officer, an Assistant Secretary-Treasurer or the
Controller of the Borrower to the effect that the review of the activities of
the Borrower during such year or the portion thereof covered by such financial
statement and of the performance of the Borrower under this Agreement has been
made under his supervision and that to the best of his knowledge, based on such
review, there exists no event which constitutes a Default or an Event of Default
under this Agreement or, if any such event exists, specifying the nature
thereof, the period of its existence and what action the Borrower has taken and
proposes to take with respect thereto, which certificate shall set forth the
calculations or other data required to establish compliance with the provisions
of Section 5.09 and Sections 5.12 through 5.14, inclusive, at the end of such
fiscal quarter or fiscal year, as the case may be. The Borrower
further covenants that upon any such officer of the Borrower obtaining knowledge
of any Default or Event of Default under this Agreement, it will forthwith, and
in no event later than the close of business on the Domestic Business Day
immediately after the day such knowledge is obtained, deliver to the Banks a
statement of any officer referred to above specifying the nature and the period
of existence thereof and what action the Borrower has taken and proposes to take
with respect thereto.
38
Section
5.05 . Notice of Litigation, Legislative
Developments and Defaults. The Borrower will promptly give
written notice to each of the Banks of (i) any action, proceeding or claim of
which the Borrower may have notice, which may be commenced against the Borrower
or any Subsidiary in which the amount involved is $50,000,000 or more and is not
covered in full by insurance or as to which any insurer has disclaimed
liability; (ii) any dispute which may exist between the Borrower or any
Subsidiary and any governmental body, which is likely to materially and
adversely affect the normal business operation of the Borrower or the Borrower
and its Subsidiaries taken as a whole or any of the material properties and
assets of the Borrower or the Borrower and its Subsidiaries taken as a whole;
(iii) any legislation enacted by any governmental body and any rulings and
regulations promulgated by any governmental or regulatory bodies, known to the
Borrower, affecting the Borrower or any Subsidiary or, if known to the Borrower,
generally affecting the Borrower’s Members which is likely to materially and
adversely affect the present or future operations of the Borrower, the Borrower
and its Subsidiaries taken as a whole or the Borrower’s Members; and (iv) any
default by the Borrower or any Subsidiary or event or condition known to the
Borrower which with the giving of notice or lapse of time, or both, would
constitute a default, with respect to any payment or payments in respect of
Indebtedness of the Borrower or such Subsidiary aggregating in excess of
$25,000,000 (whether in payment of principal thereof or interest thereon or with
respect to any material covenant or agreement contained in any instrument,
mortgage, deed of trust or agreement evidencing or relating to such Indebtedness
or otherwise), provided
that if any matter described in clauses (i) through (iv) of this Section has
previously been disclosed by the Borrower in its regular or periodical reports
filed with, or furnished to, the Securities and Exchange Commission, then no
additional written notice shall be required under this Section.
Section
5.06 . ERISA. As soon as
possible and, in any event, within 10 days after the Borrower or a Subsidiary of
the Borrower knows or has reason to know that a Reportable Event has occurred,
that an accumulated funding deficiency has been incurred or an application may
be or has been made to the Secretary of the Treasury for a waiver of the minimum
funding standard under Section 412 of the Internal Revenue Code with respect to
a Plan, that a Plan has been or may be terminated, that proceedings may be or
have been instituted to terminate a Plan, or that the Borrower, a Subsidiary of
the Borrower or any member of the ERISA Group will or may incur any liability in
excess of $5,000,000 to or on account of a Plan under Section 4062, 4063, 4064,
4201 or 4204 of ERISA, the Borrower will deliver to each of the Banks a
certificate of the Chief Financial Officer of the Borrower setting forth details
as to such occurrence and action, if any, which the Borrower or such Subsidiary
is required or proposes to take, together with any notices required to be filed
by the Borrower, such Subsidiary, such member of the ERISA Group or the plan
administrator with the PBGC with respect thereto.
Section
5.07 . Payment of
Charges. The Borrower will, and will cause each Subsidiary to,
duly pay and discharge (i) all taxes, assessments and
39
Section
5.08 . Inspection of Books and
Assets. The Borrower will, and will cause each Subsidiary to,
permit any representative of any Bank (or any agent or nominee of such Bank) to
visit and inspect any of the property of the Borrower or such Subsidiary, to
examine the books of record and account of the Borrower or such Subsidiary and
to discuss the affairs, finances and accounts of the Borrower or such Subsidiary
with the officers and independent public accountants of the Borrower or such
Subsidiary, all at such reasonable times and as often as such Bank may
reasonably request.
Section
5.09 . Indebtedness. (a) The Borrower
will not, and will not permit any of its Consolidated Subsidiaries (other than
Rural Telephone Finance Cooperative and National Cooperative Services
Corporation) to, incur, assume or Guarantee any Superior Indebtedness, or make
any optional prepayment on any Members’ Subordinated Certificate; provided that (i)
subject to the provisions of Section 5.12, any such Subsidiary may incur
Superior Indebtedness owing to the Borrower or assume or Guarantee Indebtedness
of any Person (other than the Borrower or any of its Subsidiaries) owing to the
Borrower and (ii) the Borrower may incur, assume or Guarantee Superior
Indebtedness or make optional prepayments on Members’ Subordinated Certificates
if, after giving effect to any such action specified above in this clause (ii),
(x) on the date of such incurrence, assumption or Guarantee or making of such
optional prepayment (the “Determination Date”) the
aggregate principal amount of Superior Indebtedness then outstanding would not
exceed ten times the sum of (a) the aggregate principal amount of Members’
Subordinated Certificates outstanding on the Determination Date, (b) the
aggregate amount of the line item “total equity” shown on the consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries on the
Determination Date, (c) the aggregate amount of the line item “minority
interest”
40
(b) If any
Loan is outstanding hereunder, the Borrower will not take any action which would
prevent it from then complying, or fail to take any action which would enable it
then to comply, with the provisions of Section 3.03(g), assuming for this
purpose only that the Borrower then intended to borrow from one or more of the
Banks hereunder.
Section
5.10 . Liens. The
Borrower will not create or permit to exist any Lien on or with respect to any
Indebtedness of any Member which is an asset of the Borrower, now existing or
hereafter created, or on any notes, mortgages or other documents or instruments
evidencing any such Indebtedness, and the Borrower will not permit any
Consolidated Subsidiary to create or permit to exist any Lien on or with respect
to any of such Subsidiary’s assets, except Liens (i) granted by the Borrower to
the trustee pursuant to any Indenture, (ii) on any such Indebtedness granted by
the Borrower or its Consolidated Subsidiary to secure any borrowing for the
purpose of making loans to Member power supply systems or loans to Members for
bulk power supply projects or loans to Members for the purpose of providing
financing to telephone and related systems eligible to borrow from the RUS or
loans to borrowers borrowing from National Cooperative Services Corporation or
Rural Telephone Finance Cooperative, which borrowing or borrowings are on terms
(except as to terms of interest, premium, if any, and amortization) not
materially more disadvantageous to the Borrower’s unsecured creditors than the
borrowings under any Indenture (it being understood that the Borrower can not
pledge such assets to an extent greater than 150% of the aggregate principal
amount of such Indebtedness); provided that Liens incurred
in reliance on this subsection (ii) shall not secure amounts exceeding
$500,000,000 in the aggregate at any one time outstanding, (iii) of current
taxes not delinquent or a security for taxes being contested in good faith, (iv)
other than in favor of the PBGC, created by or resulting from any legal
proceedings (including legal proceedings instituted by the Borrower or any
Subsidiary) which are being contested in good faith by appropriate proceedings,
including appeals of judgments as to which a stay of execution shall have been
issued, and adequate reserves shall have been established, (v) created by the
Borrower to secure
41
Section
5.11 . Maintenance of
Insurance. The Borrower will maintain, and will cause each
Subsidiary to maintain, insurance in such amounts, on such forms and with such
companies as is necessary or appropriate for its business.
Section
5.12 . Subsidiaries and Joint
Ventures. The Borrower will not permit (a) the sum of (i) the amount of
Indebtedness owing to the Borrower by all of its Subsidiaries and Joint Ventures
plus (ii) the
amount paid by the Borrower in respect of the stock, obligations or securities
of or any other interest in such Subsidiaries and Joint Ventures plus (iii) any capital
contributions by the Borrower to such Subsidiaries and Joint Ventures (the
amounts referred to in paragraphs (i) through (iii), the “Investments”) plus (iv) the amount of assets (excluding
Foreclosed Assets) otherwise sold or transferred by the Borrower to such
Subsidiaries and Joint Ventures (other than sales at fair market value) minus (v) any Start-up
Investments minus (vi)
any Investment made in cash by the Borrower in any Special Purpose Subsidiary
(up to a maximum amount not to exceed the lesser of (x) the amount
necessary to provide such Special Purpose Subsidiary with sufficient working
capital to conduct its business as contemplated hereby and
(y) $150,000,000) to exceed at any time (b) 10% of the sum of (i) all
accounts which, in accordance with generally accepted accounting principles,
constitute equity in the Borrower and its Consolidated Subsidiaries at such time
plus (ii) all
Indebtedness of the Borrower shown on its balance sheet dated as of May 31, 2007
as Members’ Subordinated Certificates as such Indebtedness shall be reduced from
time to time and any other Indebtedness of the Borrower incurred after May 31,
2007 having substantially similar provisions as to subordination as those
contained in said outstanding certificates as such other Indebtedness shall be
reduced from time to time, in each case at such time plus (iii) all “minority
interest” shown on the consolidated statement of operations of
42
Section
5.13 . Minimum TIER. The
Borrower shall not permit, as of the last day of each fiscal quarter, the
average of the TIERs for the six (6) immediately preceding fiscal quarters
(including the fiscal quarter ending on such date) of the Borrower to be less
than 1.025:1.00.
Section
5.14 . Retirement of Patronage
Capital. The Borrower shall not make, or permit any
Subsidiaries of the Borrower to make, any payments to Members in respect of
Patronage Capital Certificates unless (i) the TIER for the immediately preceding
fiscal year for which financial statements have been delivered to the Banks
pursuant to Section 5.03(b) equals or exceeds 1.05:1.00 and (ii) there exists
(and would exist after giving effect to any such payment) no Default or Event of
Default under this Agreement.
Section
5.15 . Use of
Proceeds. The proceeds of the Loans made hereunder may be used
by the Borrower for general corporate purposes. None of such proceeds
will be used, directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of buying or carrying any “margin stock”, within the
meaning of Regulation U. Neither the Borrower nor any agent acting on
its behalf has taken or will take any action which might cause this Agreement or
the Notes to violate Regulation U or Regulation X.
43
ARTICLE 6
Defaults
Section
6.01 . Events of
Defaults. If one or more of the following events (“Events of Default”) shall have
occurred and be continuing:
(a) Principal and
Interest. The Borrower shall (i) fail to pay when due
(whether upon stated maturity, by acceleration or otherwise) any principal of
any Loan or (ii) fail, and such failure shall continue uncured for one or
more Domestic Business Days, to pay when due (whether upon stated maturity, by
acceleration or otherwise) any interest on any Loan;
(b) Other
Amounts. The Borrower shall fail to pay when due
any fee or other amount payable under this Agreement and such failure remains
uncured for five (5) days after the due date thereof;
(c) Covenants Without
Notice. The Borrower shall fail to observe or perform any
covenant or agreement on its part to be observed or performed which is set forth
in Section 5.01, 5.02, 5.09, 5.10, 5.12, 5.13, 5.14 or 5.15;
(d) Covenants With 10 Days
Grace. The Borrower shall fail to observe or perform any
covenant or agreement on its part to be observed or performed, which is set
forth in the last sentence of Section 5.04, or in Section 5.05, 5.06, 5.07,
5.08, and such non-observance or non-performance shall continue unremedied for a
period of more than 10 days;
(e) Other
Covenants. The Borrower shall fail to observe or perform any
covenant, condition or agreement on its part to be observed or performed, other
than as referred to in subsections (a), (b), (c) and (d) above, for a period of
30 days after written notice specifying such failure and requesting that it be
remedied is given by any Bank to the Borrower and the other Banks; provided that, if the failure
be such that it cannot be corrected within the applicable period, but can be
corrected within a reasonable period of time thereafter, it shall not constitute
a Default if corrective action is instituted by the Borrower within the
applicable period and diligently pursued until the failure is corrected, but any
such failure that is not so corrected within 45 days after such applicable
period shall constitute a Default;
(f) Representations. Any
representation, warranty, certification or statement made or deemed to be made
by the Borrower in this Agreement or in any certificate, financial statement or
other document delivered pursuant to this Agreement shall prove to have been
incorrect in any material respect when made or deemed to be made;
(g) Non-Payments of Indebtedness and/or
Derivatives Obligations. The Borrower or any Subsidiary of the
Borrower shall fail to make any payment or payments aggregating for the Borrower
and its Subsidiaries in excess of $50,000,000 in respect of Indebtedness and/or
Derivatives Obligations of the Borrower or any Subsidiary (other than the Loans
or any Indebtedness under this
44
(h) Defaults Under Other
Agreements. The Borrower or any Subsidiary shall fail to
observe or perform within any applicable grace period any covenant or agreement
contained in any agreement or instrument relating to any Indebtedness of the
Borrower or any Subsidiary, aggregating for the Borrower and its Subsidiaries in
excess of $50,000,000 if the effect of such failure is to accelerate, or to
permit the holder of such Indebtedness or any other Person to accelerate, the
maturity of such Indebtedness;
(i) Bankruptcy. The
Borrower or any Subsidiary shall generally not pay its debts as they become due,
or shall admit in writing its inability to pay its debts generally or shall make
a general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any Subsidiary seeking to adjudicate it
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, conservation or proceeding in the nature
thereof, relief or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief or protection of debtors, or
seeking the entry of an order for relief or the appointment of a receiver
(including state regulatory authorities acting in a similar capacity), trustee,
custodian or other similar official for it or for any substantial part of its
property, and, in the case of any such proceeding instituted against it (but not
instituted by it) shall remain undismissed or unstayed for a period of 60 days;
or the Borrower or any Subsidiary shall take any action to authorize any of the
actions set forth above in this subsection (i);
(j) ERISA. A Plan
shall fail to maintain the minimum funding standard required by Section 412 of
the Internal Revenue Code for any plan year or a waiver of such standard is
sought or granted under Section 412(d), or a Plan is, shall have been or is
likely to be terminated or the subject of termination proceedings under Section
4042 of ERISA, or the Borrower or a Subsidiary of the Borrower or any member of
the ERISA Group has incurred or is likely to incur a liability to or on account
of a Plan under Section 4062, 4063, 4064, 4201 or 4204 of ERISA, and there shall
result from any such event or events either a liability or a material risk of
incurring a liability to the PBGC or a Plan, which in the opinion of the
Required Banks, will have a material adverse effect upon the business,
operations or the financial condition of the Borrower; or
(k) Money Judgment. A
final judgment or order for the payment of money in excess of $50,000,000 shall
be rendered against the Borrower or any Subsidiary and such judgment or order
shall continue unsatisfied and in effect for a period of 45 days during which
execution shall not be effectively stayed or deferred (whether by action of a
court, by agreement or otherwise);
then, and
in any such event, and at any time thereafter, if any Event of Default shall
then be continuing, the Administrative Agent, upon the request of the Required
Banks, shall by notice to the Borrower, take any or all of the following
45
actions,
without prejudice to the rights of the Administrative Agent, any Bank or the
holder of any Note to enforce its claims against the Borrower: (a)
declare the Commitments terminated, whereupon the Commitment of each Bank shall
forthwith terminate immediately and any fee payable pursuant to Section 2.09
shall forthwith become due and payable without any other notice of any kind; or
(b) declare the principal of and accrued interest on the Loans, and all other
obligations owing hereunder, to be, whereupon the same shall become, forthwith
due and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower; provided that, if an Event of
Default specified in subsection (i) shall occur, the result which would occur
upon the giving of written notice by the Administrative Agent to the Borrower,
as specified in clauses (a) and (b) above, shall occur automatically without the
giving of any such notice.
Section
6.02 . Notice of
Default. The Administrative Agent shall give notice to the
Borrower under Section 6.01(e) promptly upon being requested to do so by any
Bank and shall thereupon notify all the Banks thereof.
ARTICLE
7
The
Administrative Agent
Section
7.01 . Appointment and
Authorization. Each Bank irrevocably appoints and authorizes
the Administrative Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the Notes as are delegated to the
Administrative Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto.
Section
7.02 . Administrative Agent and
Affiliates. The Bank of Nova Scotia shall have the same rights
and powers under this Agreement as any other Bank and may exercise or refrain
from exercising the same as though it were not the Administrative Agent, and The
Bank of Nova Scotia and its affiliates may accept deposits from, lend money to,
and generally engage in any kind of business with the Borrower or any Subsidiary
or affiliate of the Borrower as if it were not the Administrative Agent
hereunder.
Section
7.03 . Action by Administrative
Agent. The obligations of the Administrative Agent hereunder
are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Administrative Agent shall not be required to
take any action with respect to any Default, except as expressly provided in
Article 6.
Section
7.04 . Consultation with
Experts. The Administrative Agent may consult with legal
counsel (who may be counsel for the Borrower), independent public accountants
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
46
Section
7.05 . Liability of Administrative
Agent. Neither the Administrative Agent nor any of its
affiliates nor any of their respective directors, officers, agents, or employees
shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks or (ii) in the
absence of its own gross negligence or willful misconduct. Neither
the Administrative Agent nor any of its affiliates nor any of their respective
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with this Agreement or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Borrower; (iii) the satisfaction of any condition specified in
Article 3, except receipt of items required to be delivered to the
Administrative Agent; or (iv) the validity, effectiveness or genuineness of this
Agreement, the Notes or any other instrument or writing furnished in connection
herewith. The Administrative Agent shall not incur any liability by
acting in reliance upon any notice, consent, certificate, statement, or other
writing (which may be a bank wire, telex or similar writing) reasonably believed
by it to be genuine or to be signed by the proper party or parties.
Section
7.06 . Indemnification. Each
Bank shall, ratably in accordance with its Commitment, indemnify the
Administrative Agent, its affiliates and their respective directors, officers,
agents and employees (to the extent not reimbursed by the Borrower) against any
cost, expense (including counsel fees and disbursements), claim, demand, loss,
damages or liability (except such as result from such indemnitee’s gross
negligence or willful misconduct) that such indemnitees may suffer or incur in
connection with this Agreement or any action taken or omitted by such
indemnitees hereunder.
Section
7.07 . Credit
Decision. Each Bank acknowledges that it has, independently
and without reliance upon the Administrative Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking any action under this
Agreement.
Section
7.08 . Successor Administrative
Agent. The Administrative Agent may, and for so long as long
as no Event of Default has occurred and is continuing, at the request of the
Borrower, shall, resign at any time by giving written notice thereof to the
Banks and the Borrower. Upon any such resignation, the Borrower shall
have the right, with the consent of the Required Banks, such consent not to be
unreasonably withheld, to appoint a successor Administrative
Agent. If no successor Administrative Agent shall have been so
appointed by the Borrower, and shall have accepted such appointment, within 15
days after the retiring Administrative Agent gives notice of resignation, then
the retiring Administrative Agent may, on behalf of the Banks, appoint a
successor
47
Administrative
Agent, which shall be a commercial bank organized or licensed under the laws of
the United States of America or of any State thereof and having a combined
capital and surplus of at least $1,000,000,000. Upon the acceptance
of its appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After any retiring
Administrative Agent’s resignation hereunder as Administrative Agent, the
provisions of this Article shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent.
Section
7.09 . Co-Documentation Agents and
Syndication Agent Not Liable. Nothing in this Agreement shall
impose upon any Co-Documentation Agent or the Syndication Agent, each in such
capacity, any duties or responsibilities whatsoever.
ARTICLE
8
Change
in Circumstances
Section
8.01 . Basis for Determining Interest Rate
Inadequate or Unfair. If on or prior to the first day of any
Interest Period for any Fixed Rate Borrowing:
(a) the
Administrative Agent is advised by the Euro-Dollar Reference Banks that deposits
in dollars (in the applicable amounts) are not being offered to the Euro-Dollar
Reference Banks in the relevant market for such Interest Period, or
(b) in the
case of a Committed Borrowing, Banks having 50% or more of the aggregate amount
of the Commitments advise the Administrative Agent that the Adjusted London
Interbank Offered Rate, as determined by the Administrative Agent will not
adequately and fairly reflect the cost to such Banks of funding their
Euro-Dollar Loans for such Interest Period,
the
Administrative Agent shall forthwith give notice thereof to
the Borrower and the Banks, whereupon until the Administrative Agent
notifies the Borrower that the circumstances giving rise to such suspension no
longer exist, (i) the obligations of the Banks to make Euro-Dollar Loans or to
continue or convert outstanding Loans as or into Euro-Dollar Loans shall be
suspended and (ii) each outstanding Euro-Dollar Loan shall be converted into a
Base Rate Loan on the last day of the then current Interest Period applicable
thereto. Unless the Borrower notifies the Administrative Agent at
least two Domestic Business Days before the date of any Fixed Rate Borrowing for
which a Notice of Borrowing has previously been given that it elects not to
borrow on such date, (i) if such Fixed Rate Borrowing is a Euro-Dollar
Borrowing, such Borrowing shall instead be made as a Base Rate Borrowing and
(ii) if such Fixed Rate Borrowing is a Money Market LIBOR Borrowing, the Money
Market LIBOR Loans comprising such
48
Borrowing
shall bear interest for each day from and including the first day to but
excluding the last day of the Interest Period applicable thereto at the Base
Rate for such day.
Section
8.02 . Illegality. If, on
or after the date of this Agreement, the adoption of any applicable law, rule or
regulation, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank (or its Euro-Dollar Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for any Bank (or its
Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar Loans and
such Bank shall so notify the Administrative Agent, the Administrative Agent
shall forthwith give notice thereof to the other Banks and the Borrower,
whereupon until such Bank notifies the Borrower and the Administrative Agent
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans or to convert outstanding
Loans into Euro-Dollar Loans or continue outstanding Loans as Euro-Dollar Loans,
shall be suspended. Before giving any notice to the Administrative
Agent pursuant to this Section, such Bank shall designate a different
Euro-Dollar Lending Office if such designation will avoid the need for giving
such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such Bank shall determine that it
may not lawfully continue to maintain and fund any of its outstanding
Euro-Dollar Loans to maturity and shall so specify in such notice, the Borrower
shall immediately prepay in full the then outstanding principal amount of each
such Euro-Dollar Loan, together with accrued interest
thereon. Concurrently with prepaying each such Euro-Dollar Loan, the
Borrower shall borrow a Base Rate Loan in an equal principal amount from such
Bank (on which interest and principal shall be payable contemporaneously with
the related Euro-Dollar Loans of the other Banks), and such Bank shall make such
a Base Rate Loan.
Section
8.03 . Increased Cost and Reduced
Return. (a) If on or after
(x) the date hereof, in the case of any Committed Loan or any obligation to
make Committed Loans or (y) the date of the related Money Market Quote, in the
case of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank (or its Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
(i) shall
subject any Bank (or its Applicable Lending Office) to any tax, duty or other
charge with respect to its Fixed Rate Loans, its Notes or its obligation to make
Fixed Rate Loans, or shall change the basis of taxation of payments to any Bank
(or its Applicable Lending Office) of the principal of or interest on its Fixed
Rate Loans or any other amounts
49
due under
this Agreement in respect of its Fixed Rate Loans or its obligation to make
Fixed Rate Loans (except for changes in the rate of tax on the overall net
income of such Bank or its Applicable Lending Office imposed by the jurisdiction
in which such Bank’s principal executive office or Applicable Lending Office is
located); or
(ii) shall
impose, modify or deem applicable any reserve (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding with respect to any Euro-Dollar Loan any such requirement
included in an applicable Euro-Dollar Reserve Percentage), special deposit,
insurance assessment or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Bank (or its Applicable Lending
Office) or shall impose on any Bank (or its Applicable Lending Office) or the
London interbank market any other condition affecting its Fixed Rate Loans, its
Notes or its obligation to make Fixed Rate Loans; and the result of any of the
foregoing is to increase the cost to such Bank (or its Applicable Lending
Office) of making or maintaining any Fixed Rate Loan, or to reduce the amount of
any sum received or receivable by such Bank (or its Applicable Lending Office)
under this Agreement or under its Note with respect thereto, by an amount deemed
by such Bank to be material, then, within 15 days after demand by such Bank
(with a copy to the Administrative Agent), the Borrower shall pay to such Bank
such additional amount or amounts as will compensate such Bank for such
increased cost or reduction (including any amount or amounts equal to any taxes
on the overall net income of such Bank payable by such Bank with respect to the
amount of payments required to be made pursuant to this Section
8.03(a)).
(b) If any
Bank determines that the adoption of any applicable law, rule, regulation,
guideline or request concerning capital adequacy, or any change therein, or any
change in interpretation or administration thereof by any governmental
authority, central bank or comparable agency (including, without limitation, any
such adoption or change the effect of which would be, for purposes of capital
adequacy requirements, to treat the Commitments hereunder as not constituting
commitments with an original maturity of one year or less), occurring after the
date hereof, will have the effect of increasing the amount of capital required
or expected to be maintained by such Bank based on the existence of such Bank’s
Commitment hereunder or its obligations hereunder, it will notify the
Borrower. This determination will be made on a Bank by Bank
basis. The Borrower will pay to each Bank on demand such additional
amounts as are necessary to compensate for the increased cost to such Bank as a
result of the event described in the first sentence of this Section
8.03(b). In determining such amount, such Bank will act reasonably
and in good faith and will use averaging and attribution methods which are
reasonable, and such Bank will pass such costs on to the Borrower only if such
costs are passed on in a similar manner by such Bank to similarly situated
borrowers (which are parties to credit or loan documentation containing a
provision similar to this Section 8.03(b)), as
50
(c) Each Bank
will promptly notify the Borrower and the Administrative Agent of any event of
which it has knowledge, occurring after the date hereof, which will entitle such
Bank to compensation pursuant to this Section and will designate a different
Applicable Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. A Bank claiming compensation
under this Section shall furnish a certificate to the Borrower setting forth the
additional amount or amounts to be paid to it hereunder, which shall be
conclusive in the absence of manifest error. In determining such
amount, such Bank may use any reasonable averaging and attribution
methods.
Section
8.04 . Base Rate Loans Substituted for
Affected Euro-Dollar Loans. If (i) the obligation of any Bank
to make, or to continue or convert outstanding Loans as or to, Euro-Dollar Loans
has been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03(a) and the Borrower shall, by at least five
Euro-Dollar Business Days’ prior notice to such Bank through the Administrative
Agent, have elected that the provisions of this Section shall apply to such
Bank, then, unless and until such Bank notifies the Borrower that the
circumstances giving rise to such suspension or demand for compensation no
longer apply:
(a) all Loans
which would otherwise be made by such Bank as Euro-Dollar Loans shall be made
instead as Base Rate Loans (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks),
and
(b) after
each of its Euro-Dollar Loans has been repaid, all payments of principal which
would otherwise be applied to repay such Euro-Dollar Loans shall be applied to
repay its Base Rate Loans instead.
ARTICLE 9
Miscellaneous
Section
9.01 . Notices. (a)
All notices, requests, directions, consents, approvals and other communications
to any party hereunder shall be in writing (including bank wire, telex,
facsimile transmission or similar writing) and shall be given to such party
(subject to subparagraph (b) below): (x) in the case of the Borrower
or the Administrative Agent, at its address or telex or telecopier number
51
(b) Notices
and other communications to the Banks hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative
Agent; provided that
the foregoing shall not apply to notices pursuant to Article 2 or Article 8
unless otherwise agreed by the Administrative Agent and the applicable
Bank. The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided that approval of
such procedures may be limited to particular notices or
communications.
Section
9.02 . No Waivers. No
failure or delay by the Administrative Agent or any Bank in exercising any
right, power or privilege hereunder or under any Note shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by
law.
Section
9.03 . Expenses; Documentary Taxes;
Indemnification. (a)
The Borrower shall pay (i) all documented reasonable out-of-pocket expenses
of the Administrative Agent, including reasonable fees and disbursements of
special counsel for the Administrative Agent, in connection with the preparation
of this Agreement, any waiver or consent hereunder or any amendment hereof or
any Default or alleged Default hereunder and (ii) if an Event of Default
occurs, all documented reasonable out-of-pocket expenses incurred by the
Administrative Agent or any Bank, including reasonable fees and disbursements
incurred by counsel or in-house counsel, in connection with such Event of
Default and collection, bankruptcy, insolvency and other enforcement proceedings
resulting therefrom. The Borrower shall indemnify each Bank against
any transfer taxes, documentary taxes, assessments or charges made by any
governmental authority by reason of the execution and delivery of this Agreement
or the Notes and any and all liabilities with respect to or resulting from any
delay or omission (unless solely attributable to such Bank) to pay such
taxes.
(b) The
Borrower agrees to indemnify each Bank, their respective affiliates and the
respective directors, officers, agents, advisors and employees of the foregoing
(each an “Indemnitee”)
and hold each Indemnitee harmless from
52
Section
9.04 . Sharing of
Set-offs. Each Bank agrees that if it shall, by exercising any
right of set-off or counterclaim or otherwise, receive payment of a proportion
of the aggregate amount of principal and interest then due with respect to any
Loans made by it which is greater than the proportion received by any other Bank
in respect of the aggregate amount of principal and interest due with respect to
any Loans made by such other Bank, the Bank receiving such proportionately
greater payment shall purchase such participations in the Loans held by the
other Banks, and such other adjustments shall be made, as may be required so
that all such payments of principal and interest with respect to the Loans held
by the Banks shall be shared by the Banks pro rata; provided that nothing in this
Section shall impair the right of any Bank to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such exercise to the
payment of indebtedness of the Borrower other than its indebtedness under the
Loans. The Borrower agrees, to the fullest extent it may effectively
do so under applicable law, that any holder of a participation in a Loan,
whether or not acquired pursuant to the foregoing arrangements, may exercise
rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Borrower in the amount of such participation.
Section
9.05 . Amendments and
Waivers. Except as provided by Section 2.17, any provision of
this Agreement or the Notes may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Borrower and the Required
Banks (and, if the rights or duties of the Administrative Agent are affected
thereby, by the Administrative Agent); provided that, no such
amendment or waiver shall (i) increase or decrease the Commitment of any Bank
(except for a ratable decrease in the Commitments of all Banks) or subject any
Bank to any additional obligation without the written consent of such Bank, (ii)
reduce the principal of or rate of interest on any Loan or any fees hereunder
without the written consent of each Bank directly affected thereby, (iii)
postpone the date fixed for any payment of principal of or interest on any Loan
or any fees hereunder or for any reduction or termination of any Commitment
without the written consent of each Bank directly affected thereby, (iv) change
the percentage of the Commitments (other than in connection with any increase in
Commitments pursuant to Section 2.17) or of the aggregate unpaid principal
amount of the Notes without the written consent of each Bank directly affected
thereby or (v) change any of the provisions of this Section 9.05 or the
definition of “Required Banks” or
53
Section
9.06 . Successors and
Assigns. (a)
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that the Borrower may not assign or otherwise transfer any of its rights
under this Agreement without the prior written consent of all
Banks.
(b) Any Bank
may at any time grant to one or more affiliates of such Bank, banks or other
institutions (each a “Participant”) participating
interests in its Commitment or any or all of its Loans. In the event
of any such grant by a Bank of a participating interest to a Participant,
whether or not upon notice to the Borrower and the Administrative Agent, such
Bank shall remain responsible for the performance of its obligations hereunder,
and the Borrower and the Administrative Agent shall continue to deal solely and
directly with such Bank in connection with such Bank’s rights and obligations
under this Agreement. Any agreement pursuant to which any Bank may
grant such a participating interest shall provide that such Bank shall retain
the sole right and responsibility to enforce the obligations of the Borrower
hereunder including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
participation agreement may provide that such Bank will not agree to any
modification, amendment or waiver of this Agreement described in clause (i),
(ii) or (iii) of Section 9.05 without the consent of the
Participant. Subject to the provisions of subsection (e), the
Borrower agrees that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits, and be bound by the
obligations, of Article 8 with respect to its participating
interest. An assignment or other transfer which is not permitted by
subsection (c) or (d) below shall be given effect for purposes of this Agreement
only to the extent of a participating interest granted in accordance with this
subsection (b).
(c) Any Bank
may at any time assign to one or more banks or other institutions (each an
“Assignee”) all, or a
proportionate part (but not in any case in an amount less than $10,000,000,
unless (x) such Assignee is another Bank or an affiliate of such transferor Bank
or (y) such assignment is for all of such transferor Bank’s rights and
obligations under this Agreement and the Notes) of all of its rights and
obligations under this Agreement and the Notes, and such Assignee shall assume
such rights and obligations, pursuant to an Assignment and Assumption Agreement
in substantially the form of Exhibit H hereto executed by such Assignee and such
transferor Bank, with (and subject to) the subscribed consent of the Borrower
and the Administrative Agent, such consents not to be unreasonably withheld;
provided that (i) if an
Assignee is another Bank or an affiliate of such transferor Bank, or (ii) in the
case of an assignment by any Bank to one or more Assignees after the occurrence
and during the continuance of an Event of Default, no such consent of the
Borrower shall be required; and provided
54
(d) Any Bank
may at any time assign all or any portion of its rights under this Agreement and
its Note to a Federal Reserve Bank. No such assignment shall release
the transferor Bank from its obligations hereunder.
(e) No
Assignee, Participant or other transferee of any Bank’s rights shall be entitled
to receive any greater payment under Section 8.03 than such Bank would have been
entitled to receive with respect to the rights transferred, unless such transfer
is made with the Borrower’s prior written consent or by reason of the provisions
of Section 8.02 or 8.03 requiring such Bank to designate a different Applicable
Lending Office under certain circumstances or at a time when the circumstances
giving rise to such greater payment did not exist.
Section
9.07 . Collateral. Each
of the Banks represents to the Administrative Agent and each of the other Banks
that it in good faith is not relying upon any “margin stock” (as defined in
Regulation U) as collateral in the extension or maintenance of the credit
provided for in this Agreement.
Section
9.08 . Governing Law. (a)
This Agreement and each Note shall be governed by and construed in accordance
with the laws of the State of New York.
(b) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State of
New York sitting in New York County and of the United States District Court of
the Southern District of New York, and any appellate court from any thereof, in
any action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such
55
(c) The
Borrower hereby irrevocably and unconditionally waives, to the fullest extent it
may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each
party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will
affect the right of any party to this Agreement to serve process in any other
manner permitted by law.
Section
9.09 . Counterparts;
Integration. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This
Agreement constitutes the entire agreement and understanding among the parties
hereto and supersedes any and all prior agreements and understandings, oral or
written, relating to the subject matter hereof.
Section
9.10 . Several
Obligations. The obligations of the Banks hereunder are
several. Neither the failure of any Bank to carry out its obligations
hereunder nor of this Agreement to be duly authorized, executed and delivery by
any Bank shall relieve any other Bank of its obligations hereunder (or affect
the rights hereunder of such other Bank). No Bank shall be
responsible for the obligations of, or any action taken or omitted by, any other
Bank hereunder.
Section
9.11 . Severability. In
case any provision in or obligation under this Agreement shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision
or obligation in any other jurisdiction, shall not in any way be affected or
impaired thereby.
Section
9.12 . Confidentiality. The
Administrative Agent and each Bank represent that they will maintain the
confidentiality of any written or oral information provided by or on behalf of
the Borrower (hereinafter collectively called “Confidential Information”),
subject to the Administrative Agent’s and each Bank’s (a) obligation to disclose any such
Confidential Information pursuant to a request or order under applicable laws or
regulations or from a regulatory
56
Section
9.13 . WAIVER OF JURY
TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section
9.14 . USA Patriot Act. Each Bank hereby
notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act
(Title III of Pub. L 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to
obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Bank to identify the Borrower in accordance with the
Act.
[remainder
of page intentionally left blank]
57
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
|
NATIONAL
RURAL UTILITIES COOPERATIVE FINANCE CORPORATION,
|
|
|
By
|
/s/
XXXXXX X. XXXXX
|
|
Name:
Xxxxxx X. Xxxxx
|
|
|
Title: Senior
Vice President, Chief Financial Officer and Assistant
Secretary-Treasurer
|
|
|
Address:
0000 Xxxxxxxxxxx Xxx Xxxxxxx, Xxxxxxxx 00000
|
|
|
Attention:
Xxxxxx X. Xxxxx
|
|
|
Title:
Senior Vice President, Chief Financial Officer and Assistant
Secretary-Treasurer
|
|
|
Telephone
No.: (000) 000-0000
|
|
|
Telephone
No.: (000) 000-0000
|
|
|
THE
BANK OF NOVA SCOTIA
|
|
|
By:
|
/s/
XXXXX XXXXXX
|
|
Name:Xxxxx
Xxxxxx
|
|
|
Title:Managing
Director
|
|
|
THE
ROYAL BANK OF SCOTLAND PLC, as Syndication Agent and as a
Bank
|
||
|
By:
|
/s/
XXXXX XXXXXXXX
|
|
|
Name:Xxxxx
Xxxxxxxx
|
||
|
Title:Vice
President
|
||
|
LBS LOAN FINANCE, LLC. as a
Bank
|
||
|
By:
|
/s/
XXXX X. XXXX
|
|
|
Name:
Xxxx X
Xxxx
|
||
|
Title:Associate
Director
|
||
|
By:
|
/s/
XXXX X. XXXXX
|
|
|
Name:Xxxx
X. Xxxxx
|
||
|
Title:Associate
Director
|
||
|
DEUTSCHE
BANK SECURJTIES INC, as Co-Documentation Agent
|
||
|
By:
|
/s/
XXXXXX XXXXXXXXXX
|
|
|
Name:Xxxxxx
Xxxxxxxxxx
|
||
|
Title:Director
|
||
|
By:
|
/s/
XXXXXX XXXXX
|
|
|
Name:Xxxxxx
Xxxxx
|
||
|
Title:Vice
President
|
||
|
DEUTSCHE
BANK AG NEW YORK
BRANCH
|
||
|
By:
|
/s/
XXXXXX XXXXXXXXXX
|
|
|
Name:Xxxxxx
Xxxxxxxxxx
|
||
|
Title:Director
|
||
|
By:
|
/s/
XXXXXX XXXXX
|
|
|
Name:Xxxxxx
Xxxxx
|
||
|
Title:Vice
President
|
||
|
THE
BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH
|
||
|
By:
|
/s/
XXXXXXXX X. XXXXXXXX
|
|
|
Name:Xxxxxxxx
X. Xxxxxxxx
|
||
|
Title:Authorized
Signatory
|
||
|
KEYBANK
NATIONAL
ASSOCIATION
|
||
|
By:
|
/s/
XXXXXXX X. XXXXXX
|
|
|
Name:Xxxxxxx
X. Xxxxxx
|
||
|
Title:Senior
Vice President
|
||
|
By:
|
/s/
XXXXXX XXXXXX
|
|
|
Name:Xxxxxx
Xxxxxx
|
||
|
Title:Authorized
Signatory
|
||
|
JPMorgan
Chase Bank, N.A.
|
||
|
By:
|
/s/
XXXXXXX XXXXXXX
|
|
|
Name:Xxxxxxx
XxXxxxx
|
||
|
Title:Executive
Director
|
||
|
XXXXXXX
XXXXX BANK USA
|
||
|
By:
|
/s/
XXXXX XXXXX
|
|
|
Name:
Xxxxx Xxxxx
|
||
|
Title:Vice
President
|
||
|
HSBC
BANK (USA). N.A.
|
||
|
By:
|
/s/
XXXXX XXXXX
|
|
|
Name:
Xxxxx Xxxxx
|
||
|
Title:Senior
Vice President
|
||
|
By:
|
/s/
XXXXXXX XXXXXXX
|
|
|
Name:
Xxxxxxx
Xxxxxxx
|
||
|
Title:Deputy
General Manager
|
||
|
By:
|
/s/
XXXX XXXXXXXX
|
|
|
Name:
Xxxx Xxxxxxxx
|
||
|
Title:Assistant
Vice President U.S. Bank,
N.A.
|
||
|
SUNTRUST
BANK
|
||
|
By:
|
/s/
XXXX XXXXX
|
|
|
Name:
Xxxx Xxxxx
|
||
|
Title:Director
|
||
|
PNC
BANK N.A.
|
||
|
By:
|
/s/
XXXX XXXXX
|
|
|
Name:
Xxxx Xxxxx
|
||
|
Title:Vice
President
|
||
|
COMERICA
BANK
|
||
|
By:
|
/s/
XXXX XXXXXXX
|
|
|
Name:
Xxxx Xxxxxxx
|
||
|
Title:Group
Manager, SVP
|
||
AGENT
SCHEDULE
|
Institution
|
Title
|
|
The
Bank of Nova Scotia
|
Administrative
Agent
|
|
The
Royal Bank of Scotland plc
|
Syndication
Agent
|
|
The
Bank of Tokyo-Mitsubishi UFJ, LTD., New York Branch
|
Co-Documentation
Agent
|
|
Deutsche
Bank Securities Inc.
|
Co-Documentation
Agent
|
|
UBS
Loan Finance LLC
|
Co-Documentation
Agent
|
Ex.A-1
COMMITMENT
SCHEDULE
|
Institution
|
Commitment
|
|
The
Bank of Nova Scotia
|
$200,000,000
|
|
The
Royal Bank of Scotland
|
$183,630,000
|
|
Deutsche
Bank Securities Inc.
|
$125,000,000
|
|
UBS
Loan Finance LLC
|
$125,000,000
|
|
The
Bank of Tokyo-Mitsubishi UFJ, LTD.
|
$110,000,000
|
|
KeyBank
National Association
|
$110,000,000
|
|
Xxxxxx
Brothers Bank, FSB
|
$105,000,000
|
|
JPMorgan
Chase Bank, N.A.
|
$100,000,000
|
|
Xxxxxxx
Xxxxx Bank USA
|
$90,500,000
|
|
HSBC
Bank USA, National Association
|
$77,500,000
|
|
Mizuho
Corporate Bank, Ltd.
|
$75,000,000
|
|
U.S.
Bank National Association
|
$75,000,000
|
|
SunTrust
Bank
|
$50,000,000
|
|
PNC
Bank, National Association
|
$42,750,000
|
|
Comerica
Bank
|
$30,620,000
|
|
$1,500,000,000
|
|
Ex.A-2
PRICING
SCHEDULE
The
“LIBOR Margin” and the
“Facility Fee Rate” for
the Borrower at any date are the respective percentages set forth below in the
applicable row and column based upon the Status of the Borrower that exists on
such date.
|
Status
|
Level
I
|
Level
II
|
Level
III
|
Xxxxx
XX
|
Xxxxx
X
|
Xxxxx
XX
|
Xxxxx
XXX
|
|
XXXXX
Xxxxxx:
|
0.145%
|
0.160%
|
0.200%
|
0.240%
|
0.330%
|
0.410%
|
0.625%
|
|
Facility
Fee Rate:
|
0.030%
|
0.040%
|
0.050%
|
0.060%
|
0.070%
|
0.090%
|
0.125%
|
For
purposes of this Pricing Schedule, the following terms have the following
meanings, subject to the concluding paragraph of this Pricing
Schedule:
“Fitch” means Fitch Ratings
Ltd.
“Level I Status” exists at any
date if, at such date, the Borrower’s senior unsecured long-term debt is rated
AA- or higher by S&P or Aa3 or higher by Moody’s or AA- or higher by
Fitch.
“Level II Status” exists at any
date if, at such date, (i) the Borrower’s senior unsecured long-term debt is
rated A+ or higher by S&P or A1 or higher by Moody’s or A+ or higher by
Fitch, and (ii) Level I Status does not exist.
“Level III Status” exists at
any date if, at such date, (i) the Borrower’s senior unsecured long-term debt is
rated A or higher by S&P or A2 or higher by Moody’s or A or higher by Fitch,
and (ii) Level II Status does not exist.
“Level IV Status” exists at any
date if, at such date, (i) the Borrower’s senior unsecured long-term debt is
rated A- or higher by S&P or A3 or higher by Moody’s or A- or higher by
Fitch, and (ii) Level III Status does not exist.
“Level V Status” exists at any
date if, at such date, (i) the Borrower’s senior unsecured long-term debt is
rated BBB+ or higher by S&P or Baa1 or higher by Moody’s or BBB+ or higher
by Fitch, and (ii) Level IV Status does not exist.
“Level VI Status” exists at any
date if, at such date, (i) the Borrower’s senior unsecured long-term debt is
rated BBB or higher by S&P or Baa2 or higher by Moody’s or BBB or higher by
Fitch, and (ii) Level V Status does not exist.
“Level VII Status” exists at
any date if, at such date, no other Status applies.
Ex.A-3
“Moody’s” means Xxxxx’x
Investors Services, Inc.
“Rating Agencies” means each of
S&P, Xxxxx’x and Fitch.
“S&P” means Standard &
Poor’s Rating Services.
“Status” refers to the
determination of which of Level I Status, Level II Status, Level III Status,
Level IV Status, Level V Status, Level VI or Level VII Status exists at any
date.
The
credit ratings to be utilized for purposes of this Pricing Schedule are those
assigned to the senior unsecured long-term debt securities of the
Borrower without third-party credit enhancement (the “Borrower’s Unsecured Long-Term
Debt”), and any ratings assigned to any other debt security of the
Borrower shall be disregarded; provided that if at any date
there is no such rating assigned by a particular Rating Agency, such Rating
Agency’s rating of the Borrower’s Unsecured Long-Term Debt shall be deemed to be
one notch below such Rating Agency’s rating of the senior secured debt of the
Borrower at such date. If two of the three Rating Agencies have
assigned the same rating to the Borrower’s Unsecured Long-Term Debt (after
giving effect to the proviso in the first sentence of this paragraph) and the
third rating agency has assigned a different rating, the rating of the third
Rating Agency shall be disregarded (e.g., A/A2/A+ results in
Level III Status). If each Rating Agency has assigned to the
Borrower’s Unsecured Long-Term Debt a different rating, the intermediate rating
shall be used (e.g.,
A/Baa1/BBB results in Level V Status).
Ex.A-4
SCHEDULE
5.03(a)
NON-GAAP
SUBSIDIARIES
|
x.
|
Xxxxxx
Realty Holdings, LLC, organized in the State of Delaware. Borrower owns
100% of the membership interests.
|
|
x.
|
Xxxxxx
Realty Investors, LLC, organized in the State of Delaware. Borrower owns
100% of the membership interests.
|
|
x.
|
Xxxxxx
Realty Partners, LP, organized in the State of Delaware. Xxxxxx Realty
Holdings, LLC is the general partner and owns 0.5% of the partnership
interests, and Xxxxxx Realty Investors, LLC is the limited partner and
owns 99.5% of the partnership
interests.
|
|
d.
|
CFC
Advantage, LLC, organized in the State of Delaware. Borrower owns 100% of
the membership interests.
|
Ex.A-5
EXHIBIT
A
FORM OF
NOTE
New York,
New York [DATE]
For value
received, National Rural Utilities Cooperative Finance Corporation, a
not-for-profit cooperative association incorporated under the laws of the
District of Columbia (the “Borrower”), promises to pay to
the order of (the “Bank”), for the account of its
Applicable Lending Office, the unpaid principal amount of each Loan made by the
Bank to the Borrower pursuant to the Revolving Credit Agreement referred to
below on the Maturity Date with respect to such Loan. The Borrower
promises to pay interest on the unpaid principal amount of each such Loan on the
dates and at the rate or rates provided for in the Revolving Credit
Agreement. All such payments of principal and interest shall be made
in lawful money of the United States in Federal or other immediately available
funds at the office of The Bank of Nova Scotia, c/o GWS Loan Operations, 000
Xxxx Xxxxxx Xxxx, 0xx Xxxxx,
Xxxxxxx, Xxxxxxx, X0X 0X0, Attn: NYA Loan Operations.
All Loans
made by the Bank, the respective types and maturities thereof and all repayments
of the principal thereof shall be recorded by the Bank and, prior to any
transfer hereof, appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding may be endorsed by the Bank on
the schedule attached hereto, or on a continuation of such schedule attached to
and made a part hereof; provided that the failure of
the Bank to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Revolving Credit
Agreement.
This note
is one of the Notes referred to in the 364-Day Revolving Credit Agreement dated
as of March 14, 2008, among the Borrower, the Banks listed on the signature
pages thereof, Deutsche Bank Securities Inc., UBS Loan Finance LLC and The Bank
of Tokyo-Mitsubishi UFJ, LTD., New York Branch, as Co-Documentation Agents, The
Royal Bank of Scotland plc, as Syndication Agent, and The Bank of Nova Scotia,
as Administrative Agent (as the same may be amended from time to time, the
“Revolving Credit
Agreement”). Terms defined in the Revolving Credit Agreement
are used herein with the same meanings. Reference is made to the
Revolving Credit Agreement for provisions for the prepayment hereof and the
acceleration of the maturity hereof.
|
NATIONAL
RURAL UTILITIES COOPERATIVE FINANCE CORPORATION
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
Ex.A-1
Note
(cont’d)
LOANS AND
PAYMENTS OF PRINCIPAL
|
Date
|
Amount
of Loan
|
Type
of Loan
|
Amount
of Principal Repaid
|
Maturity
Date
|
Notation
Made By
|
Ex.A-2
EXHIBIT
B-1
FORM OF RUS
GUARANTEE
The
United States of America acting through the Administrator of the Rural Utilities
Service (“RUS”) hereby
unconditionally guarantees to [name of Payee] the making of [__%] of the
payments of principal and interest when and as due on this Note of _________
(the “Cooperative”) in
accordance with the terms hereof and of the Loan Agreement referred to in this
Note, until such principal and interest shall be indefeasibly paid in full
(which includes interest accruing on such principal between the date of default
under this Note and the payment in full of this Guarantee), irrespective of
receipt by RUS of any sums or property from its enforcement of its remedies for
the Cooperative default. This Guarantee shall be incontestable except
for fraud or misrepresentation of which the holder had actual knowledge at the
time it became a holder. RUS hereby waives diligence, presentment,
demand, protest and notice of any kind, as well as any requirement that [name of
Payee] exhaust any right or take any action against the
Cooperative.
This
Guarantee is issued pursuant to Title III of the Rural Electrification Act of
1936, as amended (7 U.S.C. '' 901,
et seq.), and the Loan Guarantee
and Servicing Agreement among RUS, the Cooperative, Bank One, NA and National
Rural Utilities Cooperative Finance Corporation dated ___________,
____.
|
UNITED
STATES OF AMERICA
|
||
|
Date________________,
___
|
By:
|
|
|
Name:
|
||
|
Title:Administrator
of Rural
Electrification
Administration
|
||
Ex.B-1
EXHIBIT
B-2
FORM OF RUS
GUARANTEE
The
United States of America acting through the Administrator of the Rural Utilities
Service (“RUS”) hereby
unconditionally guarantees to the Payee the making of the payments of principal
and Guaranteed Interest when and as due on the Note of _______________ (the
“Cooperative”) dated
_____ in the original principal amount of $ _____ (the “Note”), in accordance with the
terms thereof and of the Loan Agreement and the Master Loan Guarantee and
Servicing Agreement referred to in the Note, until such principal and Guaranteed
Interest shall be indefeasibly paid in full (which includes interest accruing at
the Guaranteed Interest Rate between the date of default under the Note and the
payment in full of this Guarantee), irrespective of receipt by RUS of any sums
or property from its enforcement of its remedies for the Cooperative’s
default. This Guarantee shall be incontestable except for fraud or
misrepresentation of which the holder had actual knowledge at the time it became
a holder. RUS hereby waives diligence, presentment, demand, protest
and notice of any kind (except the “Default Notice” required pursuant to Section
5.3(a) of the Master Loan Guarantee and Servicing Agreement), and acknowledges
that the Payee does not have any right or obligation to exercise any right or
take any action against the Cooperative.
This
Guarantee is issued pursuant to the Rural Electrification Act of 1936, as
amended (7 U.S.C. ''
901, et seq.) (the “Act”), and the Master Loan
Guarantee and Servicing Agreement between RUS and National Rural Utilities
Cooperative Finance Corporation dated as of February 16, 1999.
THIS
GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OF THE UNITED STATES OF AMERICA, TO THE EXTENT APPLICABLE, AND
OTHERWISE THE LAWS OF THE COMMONWEALTH OF VIRGINIA.
THE
UNDERSIGNED, AS [ADMINISTRATOR] OF RUS, DOES HEREBY CERTIFY THAT I AM AUTHORIZED
UNDER THE ACT AND 7 CFR PART 1700 TO DELIVER THIS GUARANTEE.
|
UNITED
STATES OF AMERICA
|
|
|
By:
|
|
|
Name:
|
|
|
Title:[Administrator]
of the Rural Utilities Service
|
|
|
Dated:__________________
|
RUS
Loan No_______________________
|
Ex.B-2
EXHIBIT
C
FORM OF MONEY MARKET QUOTE
REQUEST
[Date]
|
To:
|
The
Bank of Nova Scotia (the “Administrative
Agent”)
|
|
From:
|
National
Rural Utilities Cooperative Finance Corporation (the “Borrower”)
|
|
Re:
|
364-Day
Revolving Credit Agreement dated as of March 14, 2008, among the Borrower,
the Banks listed on the signature pages thereof, Deutsche Bank Securities
Inc., UBS Loan Finance LLC and The Bank of Tokyo-Mitsubishi UFJ, LTD., New
York Branch, as Co-Documentation Agents, The Royal Bank of Scotland plc,
as Syndication Agent, and The Bank of Nova Scotia, as Administrative Agent
(the “Revolving Credit
Agreement”)
|
We hereby
give notice pursuant to Section 2.03 of the Revolving Credit Agreement that we
request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of
Borrowing: __________________
$
Such
Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Terms
used herein have the meanings assigned to them in the Revolving Credit
Agreement.
|
NATIONAL
RURAL UTILITIES
COOPERATIVE
FINANCE
CORPORATION
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
2 Any
number of whole months (but not less than one month) (LIBOR Auction) or not less
than 30 days (Absolute Rate Auction), subject to the provisions of the
definition of Interest Period.
Ex.C-1
EXHIBIT
D
FORM OF INVITATION FOR MONEY
MARKET QUOTES
[Date]
|
To:
|
[Name
of Bank]
|
|
Re:
|
Invitation
for Money Market Quotes to the National Rural Utilities Cooperative
Finance Corporation (the “Borrower”)
|
Pursuant to Section 2.03 of the 364-Day
Revolving Credit Agreement dated as of March 14, 2008, among the Borrower, the
Banks listed on the signature pages thereof, Deutsche Bank Securities Inc., UBS
Loan Finance LLC and The Bank of Tokyo-Mitsubishi UFJ, LTD., New York Branch, as
Co-Documentation Agents, The Royal Bank of Scotland plc, as Syndication Agent,
and The Bank of Nova Scotia, as Administrative Agent (the “Revolving Credit
Agreement”):
|
|
Date
of
Borrowing: __________________
|
|
|
Principal
Amount
|
Interest
Period
|
$
Such
Money Market Quotes should offer a Money Market [Margin] [Absolute Rate]. [The
applicable base rate is the London Interbank Offered Rate.]
Please
respond to this invitation by no later than 9:30 A.M. (New York City time) on
[date].
|
The
Bank of Nova Scotia
|
|
|
By:
|
|
|
Name:
|
|
|
Title:Authorized
Officer
|
|
Ex.D-1
EXHIBIT
E
FORM OF MONEY MARKET
QUOTE
[Date]
|
The
Bank of Nova Scotia,
|
|
|
as
Administrative Agent
|
c/o GWS
Loan Operations
000 Xxxx
Xxxxxx Xxxx, 0xx
Xxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Attn: NYA
Loan Operations
Attention:
|
Re:
|
Money
Market Quote to National Rural Utilities Cooperative Finance
Corporation (the “Borrower”)
|
In
response to your invitation on behalf of the Borrower dated _____________, 200_,
we hereby make the following Money Market Quote on the following
terms:
|
1.
|
Quoting
Bank: ________________________________
|
|
2.
|
Person
to contact at Quoting
Bank: _____________________________
|
|
3.
|
Date
of Borrowing: ____________________*
|
|
4.
|
We
hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following
rates:
|
Ex.E-1
|
Principal
Amount*
|
Interest
Period**
|
Money
Market [Margin***]
|
[Absolute
Rate****]
|
|
$
|
|||
|
$
|
|||
[provided, that the aggregate
principal amount of Money Market Loans for which the above offers may be
accepted shall not exceed $____________.]**
We
understand and agree that the offer[s] set forth above [is][are] subject to the
satisfaction of the applicable conditions set forth in the 364-Day Revolving
Credit Agreement dated as of March 14, 2008, among the Borrower, the Banks
listed on the signature pages thereof, Deutsche Bank Securities Inc., UBS Loan
Finance LLC and The Bank of Tokyo-Mitsubishi UFJ, LTD., New York Branch, as
Co-Documentation Agents, The Royal Bank of Scotland plc, as Syndication Agent,
and The Bank of Nova Scotia, as Administrative Agent.
|
Very
truly yours,
[NAME
OF BANK]
|
|
|
By:
__________________________________
|
|
|
Name:
|
|
|
Title:Authorized
Officer
|
Dated:
_______________
**
Principal amount bid for each Interest Period may not exceed principal amount
requested. Specify aggregate limitation if the sum of the individual offers
exceeds the amount the Bank is willing to lend. Bids must be made for
$1,000,000 or a larger multiple thereof.
*** Any
number of whole months (but not less than one month) or not less than 30 days,
as specified in the related Invitation. No more than five bids are
permitted for each Interest Period.
****
Margin over or under the London Interbank Offered Rate determined for the
applicable Interest Period. Specify percentage (rounded to the
nearest 1/10,000 of 1%) and specify whether “PLUS” or “MINUS”.
Ex.E-2
EXHIBIT
F
OPINION OF GENERAL COUNSEL
OF THE BORROWER
March 14,
2008
To the
Administrative Agent and each of the Bank parties
to
the Revolving Credit Agreement referred to below
x/x Xxx
Xxxx xx Xxxx Xxxxxx
Xxx
Xxxxxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
I,
Xxxxxxx X. Xxxxxxx, Acting General Counsel of the National Rural Utilities
Cooperative Finance Corporation (the “Borrower”), am delivering this
opinion pursuant to the Revolving Credit Agreement (the “Agreement”) dated as of March
14, 2008 among the Borrower, the Banks listed on the signature pages thereof,
Deutsche Bank Securities Inc., UBS Loan Finance LLC, and The Bank of
Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as Co-Documentation Agents, The
Royal Bank of Scotland plc, as Syndication Agent, and The Bank of Nova Scotia,
as Administrative Agent. Terms defined in the Agreement are used
herein as therein defined. This opinion is being rendered to you at
the request of the Borrower, pursuant to 3.01(c) of the Agreement.
I have
examined originals or copies, certified or otherwise identified to my
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion. This opinion is limited to the laws of the District of
Columbia.
Upon the
basis of the foregoing, I am of the opinion that:
1. The
Borrower is a cooperative association duly incorporated, validly existing and in
good standing under the laws of the District of Columbia and has the corporate
power and authority and all material governmental licenses, authorizations,
consents and approvals required to own its property and assets and to transact
the business in which it is engaged. The Borrower is duly qualified
or licensed as a foreign corporation in good standing in every jurisdiction in
which the nature of the business in which it is engaged makes such qualification
or licensing necessary, except in those jurisdictions in which the failure to be
so qualified or licensed would not (after qualification, assuming that the
Borrower could so qualify without the payment of any fee or penalty and retain
its rights as they existed prior to such qualification all to an extent so that
any fees or penalties required to be so paid or any rights not so retained would
not, individually or in the aggregate, have a material adverse effect on the
business or financial condition of the Borrower), individually or in the
aggregate, have a material adverse effect upon the business or financial
condition of the Borrower.
Ex.H-1
2. The
Borrower has the corporate power and authority to execute, deliver and carry out
the terms and provisions of the Agreement and the Notes. The
Agreement and the Notes have been duly and validly authorized, executed and
delivered by the Borrower, and the Agreement constitutes a legal, valid and
binding agreement of the Borrower, and the Notes constitute legal, valid and
binding obligations of the Borrower, in each case enforceable in accordance with
its terms, except as the same may be limited by: (a) 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 (b) 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 a proceeding in equity or at law). The opinions expressed in this paragraph
shall be understood to mean 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 sections (a) and (b) of this paragraph, the court will
provide a money damage (or perhaps injunctive or specific performance)
remedy.
3. There
are no actions, suits, proceedings or investigations pending or, to my
knowledge, threatened against or affecting the Borrower by or before any court
or any governmental authority, body or agency or any arbitration board which are
reasonably likely to materially adversely affect the business, property, assets,
financial position or results of operations of the Borrower or the authority or
ability of the Borrower to perform its obligations under the Agreement or the
Notes. Without limiting the foregoing opinion, I would like to draw
your attention to the legal actions described on Annex A.
4. No
authorization, consent, approval or license of, or declaration, filing or
registration with or exemption by, any governmental authority, body or agency is
required in connection with the execution, delivery or performance by the
Borrower of the Agreement or the Notes.
5. The
holders of the Borrower’s Members’ Subordinated Certificates are not and will
not be entitled to receive any payments with respect to the principal thereof or
interest thereon solely because of withdrawing or being expelled from membership
in the Borrower.
Ex.H-2
6. Neither
the Borrower nor any Consolidated Subsidiary is in default in any material
respect under any material agreement or other instrument to which it is a party
or by which it or its property or assets is bound. No event or condition exists
which constitutes, or with the giving of notice or lapse of time or both would
constitute, such a default under any such agreement or other
instrument. Neither the execution and delivery of the Agreement or
the Notes, nor the consummation of any of the transactions therein contemplated,
nor compliance with the terms and provisions thereof, will contravene any
provision of law, statute, rule or regulation to which the Borrower is subject
or any judgment, decree, award, franchise, order or permit applicable to the
Borrower, or will conflict or be inconsistent with, or will result in any
material breach of, any of the material terms, covenants, conditions or
provisions of, or constitute (or with the giving of notice or lapse of time, or
both, would constitute) a default under (or condition or event entitling any
Person to require, whether by purchase, redemption, acceleration or otherwise,
the Borrower to perform any obligations prior to the scheduled maturity
thereof), or result in the creation or imposition of any Lien upon any of the
property or assets of the Borrower pursuant to the terms of, any indenture,
mortgage, deed of trust, agreement or other instrument to which it may be
subject, or violate any provision of the certificate of incorporation or by-laws
of the Borrower. Without limiting the generality of the foregoing,
the Borrower is not a party to, or otherwise subject to any provision contained
in, any instrument evidencing Indebtedness of the Borrower, any agreement or
indenture relating thereto or any other contract or agreement (including its
certificate of incorporation and by-laws), which would be violated by the
incurring of the Indebtedness to be evidenced by the Notes.
7. The
Borrower has complied fully with all of the material provisions of each
Indenture. No Event of Default (within the meaning of such term as
defined in any Indenture) and no event, act or condition (except for possible
non-compliance by the Borrower with any immaterial provisions of such Indenture
which in itself is not such an Event of Default under such Indenture) which with
notice or lapse of time, or both, would constitute such an Event of Default has
occurred and is continuing under such Indenture. The borrowings by
the Borrower contemplated by the Agreement will not cause such an Event of
Default under, or the violation of any covenant contained in, any
Indenture.
8. Set
forth on Annex B attached hereto is a true, correct and complete list of all of
the Borrower’s Subsidiaries and Joint Ventures, the jurisdiction of
incorporation or organization of each such Subsidiary and Joint Venture and the
nature and percentage of the Borrower’s ownership of each such Subsidiary and
Joint Venture.
9. The
Borrower has received a ruling from the Internal Revenue Service to the effect
that it is exempt from payment of Federal income tax under
Section
501 (c)(4) of the Internal Revenue Code of 1986, and nothing has come to our
attention that leads us to believe that the Borrower is not so
exempt.
Although
the parties have agreed that the Agreement and Notes shall be governed by and
construed in accordance with the laws of the State of New York, if a court were
to hold that the Agreement and Notes are to be governed and construed in
accordance with the laws of the District of Columbia, the Agreement and Notes
would, under the laws of the District of Columbia, be legal, valid and binding
obligations of the Borrower enforceable against the Borrower in accordance with
their respective terms, subject as to enforceability only to those
qualifications referenced in Paragraph 1 above.
Sincerely,
Xxxxxxx
X. Xxxxxxx
Acting
General Counsel
Ex.H-4
Annex
A
VarTec
Telecom, Inc. ("VarTec") was a telecommunications company and Rural Telephone
Finance Cooperative (“RTFC”) borrower located in Dallas, Texas. RTFC
was VarTec's principal senior secured creditor.
VarTec
and 16 of its U.S.-based affiliates, which were guarantors of VarTec's debt to
RTFC, filed voluntary petitions under Chapter 11 of the United States Bankruptcy
Code on November 1, 2004 in Dallas, Texas. The cases were converted
in 2006 to Chapter 7 proceedings, administered by a Chapter 7
trustee.
On June
4, 2007, the Bankruptcy Court approval of a settlement of litigation against
RTFC became final, pursuant to which (a) all claims against RTFC were dismissed
with prejudice and fully released, (b) a portion of the proceeds from the
collateral that had been provisionally applied to RTFC’s secured debt was
reallocated to VarTec creditors, including RTFC, and (c) an administrative
debtor-in-possession (“DIP”) financing facility owed by VarTec bankruptcy
estates to RTFC was reduced to $6 million. RTFC’s remaining claims
will share in further recoveries by the bankruptcy estates.
As a
result of the settlement of the litigation, National Rural Utilities Cooperative
Finance Corporation (“CFC”) wrote off $44 million of pre-petition debt during
the fourth quarter of fiscal year 2007. CFC also wrote off $17 million in the
first quarter of fiscal year 2008.
At
November 30, 2007, CFC had a receivable for $6 million, which has a payment
priority from the bankruptcy estates; in addition, CFC will share in recoveries
that are in excess of the amount required to repay the DIP financing and cover
expenses of the estates. On December 26, 2007, CFC received $3 million from the
Chapter 7 trustee, thereby reducing the receivable to $3 million.
Innovative
Communication Corporation ("ICC") is a diversified telecommunications company
and RTFC borrower headquartered in St. Croix, United States Virgin Islands
("USVI"). In the USVI, through its subsidiary Virgin Islands
Telephone Corporation d/b/a Innovative Telephone ("Vitelco"), ICC provides wire
line local and long-distance telephone services and well as other communications
and media services in the eastern and southern Caribbean and mainland
France.
As of
November 30, 2007 and May 31, 2007, RTFC had $496 million and $493 million,
respectively, in loans outstanding to ICC. Loans outstanding to ICC
continue to increase due to accrued legal costs associated with ongoing
litigation to recover the outstanding loan balance. All loans to ICC
have been on non-accrual status since February 1, 2005. ICC has not
made debt service payments to RTFC since June 2005.
Ex.H-5
RTFC is
the primary secured lender to ICC. RTFC's collateral for the loans
includes (i) a series of mortgages, security agreements, financing statements,
pledges and guaranties creating liens in favor of RTFC on substantially all of
the assets and voting stock of ICC, (ii) a direct pledge of 100% of
the voting stock of ICC's USVI local exchange carrier subsidiary, Vitelco, (iii)
secured guaranties, mortgages and direct and indirect stock pledges encumbering
the assets and ownership interests in substantially all of ICC's other operating
subsidiaries and certain of its parent entities, including ICC's immediate
parent, Emerging Communication, Inc., a Delaware corporation ("Emcom") and
Emcom's parent, Innovative Communication Company LLC, a Delaware limited
liability company ("ICC-LLC"), and (iv) a personal guaranty of the loans from
ICC's indirect majority shareholder and chairman, Xxxxxxx Xxxxxxx
("Xxxxxxx").
Beginning
on June 1, 2004, RTFC filed a series of lawsuits against ICC, Xxxxxxx and others
for failure to comply with the terms of ICC's loan agreement with RTFC dated
August 27, 2001 as amended on April 4, 2003 (hereinafter, the "RTFC
Lawsuits"). In response to the RTFC Lawsuits, ICC, Vitelco and
Xxxxxxx denied liability and asserted claims, by way of counterclaim and by
filing its own lawsuits against RTFC, CFC and certain of RTFC's officers,
seeking various remedies, including reformation of the loan agreement,
injunctive relief, and damages. The remedies were based on various
theories including a claim that RTFC breached an alleged funding obligation for
the settlement of litigation brought by Emcom shareholders (the "Greenlight
Entities") against ICC-LLC, ICC and some of ICC's directors, and a claim that
Emcom and ICC-LLC were entitled to contribution from RTFC and CFC in connection
with judgments that the Greenlight Entities had been awarded (the "ICC Claims,"
together with the RTFC Lawsuits, the "Loan Litigation"). Venue of the
Loan Litigation ultimately was fixed in the United States District Court for the
District of the Virgin Islands.
On
February 10, 2006, Greenlight filed petitions for involuntary bankruptcy against
Xxxxxxx, Emcom and ICC-LLC in the United States Bankruptcy Court for the
District of Delaware, later transferred to the United States District Court for
the Virgin Islands, Bankruptcy Division. RTFC appeared in the
proceedings as a party-in-interest in accordance with the provisions of the
United States Bankruptcy Code.
On April
26, 2006, RTFC reached a settlement of the Loan Litigation with ICC, Vitelco,
ICC-LLC, Emcom, their directors and Xxxxxxx, individually. Under the
settlement, RTFC obtained entry of judgments in the District Court for the
District of the Virgin Islands against ICC for approximately $525 million and
Xxxxxxx for approximately $100 million. RTFC also obtained dismissals
with prejudice of all counterclaims, affirmative defenses and other lawsuits
alleging wrongful acts by RTFC, certain of its officers, and CFC. Various
parties also reached agreement for ICC to satisfy the RTFC judgments in the
third quarter of
Ex.H-6
calendar
year 2006, subject to certain terms and conditions, however, on July 31, 2006,
certain of the parties obligated to satisfy the RTFC judgments under the
agreement filed voluntary bankruptcy proceedings, as described below, in order
to obtain additional time to satisfy the judgments.
On July
31, 2006, ICC-LLC, Emcom and Xxxxxxx, individually, each filed a voluntary
petition under Chapter 11 of the United States Bankruptcy Code, now pending in
the United States District Court for the Virgin Islands, Division of St. Xxxxxx
and St. Xxxx, Bankruptcy Division. Each of the debtors is obligated to RTFC for
certain obligations of ICC, including court judgments. On February
13, 2007, the Bankruptcy Court ordered the appointment of a Chapter 11 trustee
for the ICC-LLC and Emcom bankruptcy estates and an examiner for Xxxxxxx’x
bankruptcy estate.
On August
2, 2007, the Bankruptcy Court entered an order declaring that the debtors could
not satisfy the RTFC judgments at a discount. Xxxxxxx, individually,
has filed a notice of appeal of the order; none of the other debtors has sought
review of the order.
On
September 7, 2007, the Bankruptcy Court entered an order authorizing the Chapter
11 trustee for the Emcom bankruptcy estate to exercise control over the common
stock of ICC, including authority to vote the stock to, among other things,
facilitate a refinancing or sale of ICC and its assets.
On
September 21, 2007, the United States District Court for the Virgin Islands,
Bankruptcy Division, in response to an involuntary petition filed by the
Greenlight Entities, entered an order for relief under Chapter 11 of the United
States Bankruptcy Code thereby placing ICC in its own bankruptcy
proceeding. In response to a motion by RTFC, the Bankruptcy Court
ordered appointment of a Chapter 11 trustee on October 3, 2007. Certain parties
have moved for reconsideration of and/or appealed one or more orders of the
Bankruptcy Court and have requested a stay pending ruling by the District Court.
RTFC believes both that the moving parties have no standing and that the motion
to reconsider and appeal have no merit. Pending the appeal, the Chapter 11
trustee of ICC has assumed ownership and control of ICC, including its
subsidiaries, and has begun to marshal RTFC collateral and other assets for
disposition and eventual payment in respect of RTFC’s claims and the claims of
other parties-in-interest. On January 2, 2008, the Chapter 11 trustee of ICC
filed a motion seeking authority to sell substantially all of ICC’s assets,
including stock in ICC’s operating subsidiaries. The Court has entered an order
approving certain sale motions presented on February 1, 2008.
In
response to a motion by the Greenlight Entities, joined by RTFC, the Bankruptcy
Court converted Xxxxxxx’x individual Chapter 11 bankruptcy to a Chapter 7
liquidation on October 3, 2007. Xxxxxxx has filed a notice of appeal of the
conversion order. RTFC believes that the appeal has no merit. Pending the
appeal, the Chapter 7 trustee has advised that he intends to xxxxxxx Xxxxxxx’x
non-
Ex.H-7
exempt
assets for disposition and eventual payment in respect of creditor claims. On
December 3, 2007, the Chapter 7 trustee of Xxxxxxx’x estate filed a motion to
approve sale procedures and for authority to sell Xxxxxxx’x controlling shares
in the Virgin Islands Community Bank Corp. The sale closed on January 27,
2008.
In most
cases, the sale (as part of the reorganization process) of ICC or any of its
subsidiaries engaged in a regulated telecommunications or cable television
business, or of the regulated assets of ICC or its subsidiaries, will require
the prior consent of the respective regulators in the United States (including
the Federal Communications Commission and the U.S. Virgin Islands Public
Services Commission), the British Virgin Islands, France and its Caribbean
territories, and the Netherlands Antilles. In certain limited cases, only a
post-transaction notification will be required.
Each of
the above cases, including related proceedings and counterclaims, has been
previously disclosed in greater detail in CFCs public filings with the
Securities and Exchange Commission. Nothing herein constitutes an admission that
the foregoing are reasonably likely to materially adversely affect the business,
property, assets, financial position or results of CFC or the authority or
ability of CFC to perform its obligations under the Agreement or the
Notes.
Ex.H-8
Annex
B
Subsidiaries, Special Purpose
Subsidiaries and Joint Ventures:
|
|
a.
|
CFC
Advantage, LLC, organized in the State of Delaware. Borrower owns 100% of
the membership interests.
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x.
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Xxxxxx
Realty Holdings, LLC, organized in the State of Delaware. Borrower owns
100% of the membership interests.
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x.
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Xxxxxx
Realty Investors, LLC, organized in the State of Delaware. Borrower owns
100% of the membership interests.
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x.
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Xxxxxx
Realty Partners, LP, organized in the State of Delaware. Xxxxxx Realty
Holdings, LLC is the general partner and owns 0.5% of the partnership
interests, and Xxxxxx Realty Investors, LLC is the limited partner and
owns 99.5% of the partnership
interests.
|
Denton Realty Partners, LP ownership
interest:
|
Rayzor Ranch,
L.P.
|
25%
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|
Laurel Development I,
L.P.
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25%
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Crescent/Lantana I,
L.P.
|
10%
|
|
Meridian/Lantana I,
L.P.
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10%
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Laurel Development II,
L.P.
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10%
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Crescent/Lantana II,
L.P.
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10%
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Brenham Development,
L.P.
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10%
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W/J Lakes Development
LP
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50%
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W/J Lakes LP
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50%
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Ex.H-9
EXHIBIT
G
OPINION
OF
XXXXX XXXX &
XXXXXXXX,
SPECIAL COUNSEL FOR THE
ADMINISTRATIVE AGENT
March 14,
2008
|
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To
the Banks and the Administrative
Agent
|
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Referred
to Below
|
|
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x/x
Xxx Xxxx xx Xxxx Xxxxxx, as Administrative
Agent
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|
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c/o
GWS Loan Operations
|
000 Xxxx Xxxxxx Xxxx, 0xx
Xxxxx
Xxxxxxx, Xxxxxxx X0X
0X0
Attn: NYA Loan Operations
Dear
Sirs:
We have
participated in the preparation of the 364-Day Revolving Credit Agreement dated
as of March 14, 2008 (the “Credit Agreement”) among the
National Rural Utilities Cooperative Finance Corporation, a not-for-profit
cooperative association incorporated under the laws of the District of Columbia
(the “Borrower”), the
Banks listed on the signature pages thereof, Deutsche Bank Securities Inc., UBS
Loan Finance LLC and The Bank of Tokyo-Mitsubishi UFJ, LTD., New York Branch, as
Co-Documentation Agents, The Royal Bank of Scotland plc, as Syndication Agent,
and The Bank of Nova Scotia, as Administrative Agent (the “Administrative Agent”), and have acted as
special counsel for the Administrative Agent for the purpose of rendering this
opinion pursuant to Section 3.01(d) of the Credit Agreement. Terms
defined in the Credit Agreement are used herein as therein defined.
We have
examined originals or copies, certified or otherwise identified to our
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of this
opinion.
Upon the
basis of the foregoing, we are of the opinion that the Credit Agreement
constitutes a valid and binding agreement of the Borrower and the Notes issued
today constitute valid and binding obligations of the Borrower, in each case
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency or similar laws affecting creditors’ rights generally and
by general principles of equity.
In
rendering the foregoing opinion, we have assumed that (i) the Borrower is duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and (ii) the execution, delivery and
performance
Ex.H-10
We are
members of the Bar of the State of New York and the foregoing opinion is limited
to the laws of the State of New York and the federal laws of the United States
of America. In giving the foregoing opinion, we express no opinion as
to the effect (if any) of any law of any jurisdiction (except the State of New
York) in which any Bank is located which limits the rate of interest that such
Bank may charge or collect.
This
opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other
purpose or relied upon by any other Person without our prior written
consent.
|
Very
truly yours,
|
Ex.H-11
EXHIBIT
H
ASSIGNMENT AND ASSUMPTION
AGREEMENT
AGREEMENT
dated as of ___________, 200__ among [ASSIGNOR] (the “Assignor”), [ASSIGNEE] (the
“Assignee”), NATIONAL
RURAL UTILITIES COOPERATIVE FINANCE CORPORATION (the “Borrower”) and THE BANK OF
NOVA SCOTIA, as Administrative Agent (the “Agent”).
W I T N E
S S E T H
WHEREAS,
this Assignment and Assumption Agreement (the “Agreement”) relates to the
364-Day Revolving Credit Agreement dated as of March 14, 2008 (the “Credit Agreement”), among the
Borrower, the Banks listed on the signature pages thereof, Deutsche Bank
Securities Inc., UBS Loan Finance LLC and The Bank of Tokyo-Mitsubishi UFJ,
LTD., New York Branch, as Co-Documentation Agents, The Royal Bank of Scotland
plc, as Syndication Agent, and The Bank of Nova Scotia, as Administrative Agent
(the “Agent”);
WHEREAS,
as provided under the Credit Agreement, the Assignor has a Commitment to make
Loans to the Borrower in an aggregate principal amount at any time outstanding
not to exceed $__________;
WHEREAS,
Committed Loans made to the Borrower by the Assignor under the Credit Agreement
in the aggregate principal amount of $__________ are outstanding at the date
hereof; and
WHEREAS,
the Assignor proposes to assign to the Assignee all of the rights of the
Assignor under the Credit Agreement in respect of a portion of its Commitment
thereunder in an amount equal to $__________ (the “Assigned Amount”), together
with a corresponding portion of its outstanding Committed Loans, and the
Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW,
THEREFORE, in consideration of the foregoing and the mutual agreements contained
herein, the parties hereto agree as follows:
SECTION
1. Definitions. All
capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Credit Agreement.
SECTION
2. Assignment. The
Assignor hereby assigns and sells to the Assignee all of the rights of the
Assignor under the Credit Agreement to the extent of the Assigned Amount, and
the Assignee hereby accepts such assignment from the Assignor and assumes all of
the obligations of the Assignor under the Credit Agreement to the extent of the
Assigned Amount, including the purchase from the Assignor of the corresponding
portion of the principal amount of the Committed Loans made by the Assignor
outstanding at the date hereof. Upon the execution and delivery
hereof by the Assignor, the Assignee, the Borrower and
4. Ex.E-1
SECTION
3. Payments. As
consideration for the assignment and sale contemplated in Section 2 hereof, the
Assignee shall pay to the Assignor on the date hereof in Federal funds the
amount heretofore agreed between them. It is understood that commitment and/or
facility fees accrued to the date hereof are for the account of the Assignor and
such fees accruing from and including the date hereof are for the account of the
Assignee. Each of the Assignor and the Assignee hereby agrees that if
it receives any amount under the Credit Agreement which is for the account of
the other party hereto, it shall receive the same for the account of such other
party to the extent of such other party’s interest therein and shall promptly
pay the same to such other party.
SECTION
4. Consent of the Borrower and the
Administrative Agent. This Agreement is conditioned upon the
consent of the Borrower and the Administrative Agent pursuant to Section 9.06(c)
of the Credit Agreement. The execution of this Agreement by the
Borrower and the Administrative Agent is evidence of this
consent. Pursuant to Section 9.06(c) of the Credit Agreement, if
requested by the Assignee, the Borrower agrees to execute and deliver a Note
payable to the order of the Assignee to evidence the assignment and assumption
provided for herein.
SECTION
5. Non-Reliance on
Assignor. The Assignor makes no representation or warranty in
connection with, and shall have no responsibility with respect to, the solvency,
financial condition, or statements of the Borrower, or the validity and
enforceability of the obligations of the Borrower in respect of the Credit
Agreement or any Note. The Assignee acknowledges that it has,
independently and without reliance on the Assignor, and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and will continue to be responsible for
making its own independent appraisal of the business, affairs and financial
condition of the Borrower.
SECTION
6. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Ex.H-2
SECTION
7. Counterparts. This
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
Ex.H-3
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered by their duly authorized officers as of the date first above
written.
|
[ASSIGNOR]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
[ASSIGNEE]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
NATIONAL
RURAL UTILITIES COOPERATIVE FINANCE CORPORATION
|
|
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By:
|
|
|
Name:
|
|
|
Title:
|
|
|
THE
BANK OF NOVA SCOTIA, as Administrative Agent
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
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|
