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EXHIBIT 1
[COMFORMED COPY]
$[ ]
NATIONAL RURAL UTILITIES
COOPERATIVE FINANCE CORPORATION
[TITLE OF DEBT SECURITIES]
Underwriting Agreement
[DATE]
XXXXXX BROTHERS INC.
As Representatives of the several Underwriters
In care of Xxxxxx Brothers Inc.
Three World Financial Center
Xxx Xxxx, XX 00000
Dear Sirs:
National Rural Utilities Cooperative Finance Corporation, a
District of Columbia cooperative association (the "Company"), proposes to issue
$[ ] principal amount of its [TITLE OF DEBT SECURITIES] (the "Debt
Securities"), to be issued under and secured by an Indenture dated as of
November __, 1995, between the Company and Mellon Bank, N.A. (the "Trustee").
Such Indenture, as it may be amended from time to time, is hereinafter called
the "Indenture." The Debt Securities are more fully described in the
Registration Statement and in the Prospectus hereinafter mentioned. The Debt
Securities will be issued in fully registered form only, in denominations of
$[ ] and any integral multiple thereof.
You have advised us (i) that you and the other firms and
corporations named in Schedule I attached hereto (you and such firms and
corporations being hereinafter called the Underwriters, which term shall also
include any underwriter substituted as provided in Section 11 hereof), acting
severally and not jointly, are willing to purchase, on the terms and conditions
hereinafter set forth, the respective principal amounts of the Debt Securities,
aggregating $[ ] principal amount thereof, specified in such Schedule
I, and (ii) that you are
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authorized, on behalf of yourselves and the other Underwriters, to enter into
this Agreement.
1. Certain Representations and Warranties by the Company.
The Company represents and warrants to each Underwriter as follows:
(a) Registration Statement and Prospectus. The Company
has filed with the Securities and Exchange Commission (the "Commission")
Registration Statement No. 33-_____, for the registration under the Securities
Act of 1933 (the "Securities Act"), of the Debt Securities (including a
prospectus relating thereto) and may have filed one or more amendments thereto
(including one or more amended or supplemental prospectuses) and such
registration statement and any such amendment has become effective. A
prospectus supplement relating to the Debt Securities, including a prospectus
(together, the "Prospectus"), has been prepared and will be filed pursuant to
Rule 424 under the Securities Act. The Company will not file any other
amendment of such registration statement or such prospectus or any supplement
to such prospectus on or after the date of this Agreement and prior to the date
and time of delivery of and payment for the Debt Securities referred to in
Section 3 hereof (the "Closing Date"), except with your approval. Such
registration statement, including financial statements and exhibits, at the
time it became effective, is hereinafter called the Registration Statement.
Any reference in this Agreement to the Prospectus as amended or supplemented
shall include, without limitation, any prospectus filed with the Commission
pursuant to Rule 424 of the Commission under the Securities Act which amends or
supplements the Prospectus. Any reference herein to the Registration Statement
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934 (the "Exchange Act"), on or
before the effective date of the Registration Statement or the date of such
Prospectus, as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement or the
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the effective date of the Registration Statement,
or the date of any Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
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(b) Accuracy of Registration Statement. At all times
subsequent to the date of this Agreement up to and including the Closing Date,
and when any post-effective amendment thereof shall become effective, the
Registration Statement (and the Registration Statement as amended if any
post-effective amendment thereof shall have become effective) will comply in
all material respects with the provisions of the Securities Act and the
Exchange Act and the rules and regulations of the Commission thereunder and
will not contain an untrue statement of a material fact and will not omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and, at all times subsequent to the date of
this Agreement up to and including the Closing Date, the Prospectus (and the
Prospectus as amended or supplemented, if the Company shall have filed with the
Commission any amendment thereof or supplement thereto) will fully comply with
the provisions of the Securities Act and the Exchange Act and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact and will not omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that none of the representations and warranties in this
paragraph (b) shall apply to (i) that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of 1939 (the "Trust Indenture Act"), of the
Trustee or (ii) statements in, or omissions from, the Registration Statement or
the Prospectus or any amendment thereof or supplement thereto made in reliance
upon and in conformity with information furnished as herein stated or otherwise
furnished in writing to the Company by or on behalf of any Underwriter through
you for use in connection with the preparation of the Registration Statement or
the Prospectus or any such amendment or supplement.
(c) Accountants. The accountants who have certified or shall
certify the financial statements filed and to be filed with the Commission as
parts of the Registration Statement and the Prospectus are independent with
respect to the Company as required by the Securities Act and rules and
regulations of the Commission thereunder.
(d) Due Incorporation. The Company has been duly
incorporated and is now, and on the Closing Date will be, a validly existing
cooperative association in good standing
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under the laws of the District of Columbia, duly qualified and in good standing
in each jurisdiction in which the ownership or leasing of properties or the
conduct of its business requires it to be qualified (or the failure to be so
qualified will not have a material adverse effect upon the business or
condition of the Company), and the Company has the corporate power and holds
all valid permits and other required authorizations from governmental
authorities necessary to carry on its business as now conducted and as to be
conducted on the Closing Date and as contemplated by the Prospectus.
(e) Material Changes. Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, and
except as set forth therein, there has not been any material adverse change in
the condition, financial or other, or the results of operations of the Company,
whether or not arising from transactions in the ordinary course of business.
(f) Litigation. On the date hereof, except as set forth in
the Prospectus, the Company does not have any litigation pending of a character
which in the opinion of counsel for the Company referred to in Section 10(c)
hereof could result in a judgment or decree having a material adverse effect on
the condition, financial or other, or the results of operations of the Company.
(g) Legality. On the Closing Date, the Debt Securities will
be duly and validly authorized, and no further authorization, consent or
approval of the members and no further authorization or approval of the Board
of Directors of the Company or any committee thereof will be required for the
issuance and sale of the Debt Securities as contemplated herein; and neither
such issuance or sale of the Debt Securities nor the consummation of any other
of the transactions herein contemplated will result in a breach by the Company
of any terms of, or constitute a default under, any other agreement or
undertaking of the Company.
(h) No Stop Order. The Commission has not issued and, to the
best knowledge of the Company, is not threatening to issue any order preventing
or suspending the use of the Prospectus (as amended or supplemented, if the
Company shall have filed with the Commission any amendment thereof or
supplement thereto).
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(i) Regulation. The Company is not required to be registered
as an investment company under the Investment Company Act of 1940 and is not
subject to regulation under the Public Utility Holding Company Act of 1935.
2. Agreement to Purchase. Subject to the terms and
conditions and upon the representations and warranties herein set forth, the
Company agrees to sell to you and the other Underwriters, severally and not
jointly, and you and such other Underwriters, severally and not jointly, agree
to purchase from the Company, at [ . ]% of the principal amount thereof,
plus interest accrued thereon, if any, from [DATE], to the Closing Date, the
respective principal amounts of the Debt Securities set forth opposite the
names of the respective Underwriters in Schedule I hereto, aggregating $[
] principal amount thereof.
3. Closing. Delivery of and payment for the Debt Securities
shall be made at the office of Xxxxxx Brothers Inc., Three World Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:30 A.M., New York City time, on [CLOSING
DATE], or such later date (not later than [CLOSING DATE + 7]) as you, as
Representatives of the Underwriters, shall designate, which date and time may
be postponed by agreement between you, as such Representatives, and the Company
or as provided in Section 11 hereof. Delivery of the Debt Securities shall be
made to you, for the respective accounts of the several Underwriters, against
payment by the several Underwriters through you of the purchase price thereof,
to or upon the order of the Company by certified or official bank check or
checks payable, or wire transfers, in immediately available funds. The Debt
Securities shall be delivered in definitive global form through the facilities
of Depository Trust Company.
4. Prospectuses. The Company has caused to be delivered to
you, as Representatives of the Underwriters, copies of the Prospectus and has
consented to the use of such copies for the purposes permitted by the
Securities Act. The Company agrees to deliver to you, as Representatives of
the Underwriters, without charge, from time to time during such period as in
the opinion of Cravath, Swaine & Xxxxx, counsel for the Underwriters, the
Prospectus is required by law to be delivered in connection with sales by an
Underwriter or dealer, as many copies of the Prospectus (and, in the event of
any amendment of or supplement to the Prospectus, of such amended or
supplemented Prospectus) as you, as Representatives of the
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Underwriters, may reasonably request. If, at any time during the period in
which the Company is required to deliver copies of the Prospectus, as provided
in this Section 4, any event known to the Company relating to or affecting the
Company shall occur which should be set forth in an amendment of or supplement
to the Prospectus in order to make the statements in the Prospectus not
misleading in the light of the circumstances at the time it is delivered to the
purchaser, or it shall be necessary to amend or supplement the Prospectus to
comply with law or with the rules and regulations of the Commission, the
Company, at its expense, will forthwith prepare and furnish to you for
distribution to the Underwriters and dealers a reasonable number of copies of
an amendment or amendments of or a supplement or supplements to the Prospectus
which will so amend or supplement the Prospectus that, as amended or
supplemented, it will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements in the Prospectus not misleading in the light of
the circumstances when it is delivered to a purchaser, and will comply with law
and with such rules and regulations. The Company authorizes the Underwriters
and all dealers effecting sales of the Debt Securities to use the Prospectus,
as from time to time amended or supplemented, in connection with the sale of
the Debt Securities in accordance with applicable provisions of the Securities
Act and the applicable rules and regulations thereunder for the period during
which the Company is required to deliver copies of the Prospectus as provided
in this Section 4.
5. Commission Proceedings as to Registration Statement. The
Company agrees to advise you promptly, as Representatives of the Underwriters,
and to confirm such advice in writing, (a) when any post-effective amendment of
the Registration Statement shall have become effective and when any further
amendment of or supplement to the Prospectus shall be filed with the
Commission, (b) of any request by the Commission for any amendment of the
Registration Statement or the Prospectus or for additional information and (c)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the initiation of any
proceedings for that purpose. The Company will use every reasonable effort to
prevent the issuance of such a stop order and, if any such order shall at any
time be issued, to obtain the withdrawal thereof at the earliest possible
moment.
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6. Blue Sky. The Company will diligently endeavor, when and
as requested by you, to qualify the Debt Securities, or such portion thereof as
you may request, for offering and sale under the securities or blue sky laws of
any jurisdictions which you shall designate.
7. Earnings Statement. The Company agrees to make generally
available to its security holders, in accordance with Section 11(a) of the
Securities Act and Rule 158 thereunder, an earnings statement of the Company
(which need not be audited) in reasonable detail and covering a period of at
least twelve months beginning after the effective date of the Registration
Statement.
8. Expenses. The Company agrees to pay all fees and expenses
in connection with (a) the preparation, printing and filing of the Registration
Statement (including all exhibits to the Registration Statement), the
Prospectus and any amendments thereof and supplements thereto, and the
furnishing of copies of each thereof to the Underwriters (including costs of
mailing and shipment), (b) the issuance of the Debt Securities, (c) the rating
of the Debt Securities by rating agencies, (d) the delivery of the Debt
Securities to you in New York City for the respective accounts of the several
Underwriters and (e) the qualifying of the Debt Securities as provided in
Section 6 hereof and the determination of the eligibility of the Debt
Securities for investment under the laws of such jurisdictions as you may
designate (including fees and disbursements of counsel for the Underwriters in
connection therewith).
9. Indemnities.
(a) By the Company. The Company agrees to indemnify and hold
harmless each Underwriter and each person who controls any Underwriter within
the meaning of Section 15 of the Securities Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Securities Act, the Exchange Act or any other
statute or common law, and to reimburse the Underwriters and such controlling
persons, as incurred, for any legal or other expenses incurred by them in
connection with investigating any claims and defending any actions, insofar as
such losses, claims, damages, liabilities or actions arise out of or are based
upon (i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any post-effective amendment
thereof, or the omission or
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alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or (ii) any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus (as amended or supplemented, if the Company shall have filed with
the Commission any amendment thereof or supplement thereto), if used within the
period during which the Underwriters are authorized to use the Prospectus as
provided in Section 4 hereof, or the omission or alleged omission to state
therein (if so used) a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
indemnity agreement contained in this Section 9(a) shall not apply to any such
losses, claims, damages, liabilities or actions arising out of, or based upon,
any such untrue statement or alleged untrue statement, or any such omission or
alleged omission, if such statement or omission was made in reliance upon and
in conformity with information furnished as herein stated in Section 12 or
otherwise furnished in writing to the Company by or on behalf of any
Underwriter through you for use in connection with the preparation of the
Registration Statement or the Prospectus or any such amendment thereof or
supplement thereto, or was contained in that part of the Registration Statement
constituting the Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act of the Trustee; provided, further, that, with respect
to any untrue statement or alleged untrue statement made in, or omission or
alleged omission from, the Prospectus, the indemnity agreement contained in
this Section 9(a) with respect to the Prospectus shall not inure to the benefit
of any Underwriter (or the benefit of any person controlling such Underwriter)
from whom the person asserting any such losses, claims, damages or liabilities
purchased the Debt Securities which are the subject thereof, if such person did
not receive a copy of the Prospectus (or the Prospectus as amended or
supplemented if the Company shall have made any amendments thereof or
supplements thereto which shall have been furnished to you, as Representatives
of the Underwriters, or to such Underwriter prior to the time of the
below-written confirmation), excluding the documents incorporated therein by
reference, at or prior to the written confirmation of the sale of such Debt
Securities to such person in any case where delivery of the Prospectus is
required under the Securities Act and the rules and regulations of the
Commission thereunder and any untrue statement or alleged untrue statement or
omission or alleged omission was corrected in the Prospectus (or the
Prospectus as amended or supplemented).
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(b) By the Underwriters. Each Underwriter agrees, in the
manner and to the same extent as set forth in Section 9(a) hereof, to indemnify
and hold harmless the Company, each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act, the directors of the
Company and those officers of the Company who shall have signed the
Registration Statement, with respect to any statement in or omission from the
Registration Statement or any post-effective amendment thereof or the
Prospectus (as amended or supplemented, if so amended or supplemented), if such
statement or omission was made in reliance upon and in conformity with
information furnished as herein stated in Section 12 or otherwise furnished in
writing to the Company through you on behalf of such Underwriter for use in
connection with the preparation of the Registration Statement or the Prospectus
or any such amendment thereof or supplement thereto.
(c) General. Each indemnified party will, within ten days
after the receipt of notice of the commencement of any action against such
indemnified party in respect of which indemnity may be sought from an
indemnifying party on account of an indemnity agreement contained in this
Section 9, notify the indemnifying party in writing of the commencement
thereof. The omission of any indemnified party so to notify an indemnifying
party of any such action shall not relieve the indemnifying party from any
liability which it may have to such indemnified party on account of the
indemnity agreement contained in this Section 9 or otherwise. Except as
provided in the next succeeding sentence, in case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, and after notice in writing
from such indemnifying party to such indemnified party of its election so to
assume the defense thereof, such indemnifying party will not be liable to such
indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. Such indemnified party
shall have the right to employ its own counsel in any such action, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment of such counsel has been authorized in writing by
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the indemnifying party in connection with the defense of such action, (ii) such
indemnified party shall have been advised by such counsel that there are
material legal defenses available to it which are different from or additional
to those available to the indemnifying party (in which case the indemnifying
party shall not have the right to assume the defense of such action on behalf
of such indemnified party) or (iii) the indemnifying party shall not have
assumed the defense of such action and employed counsel therefor satisfactory
to such indemnified party within a reasonable time after notice of commencement
of such action, in any of which events such fees and expenses shall be borne by
the indemnifying party. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out
of such action or claim and (ii) does not include any statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party. No indemnified party shall effect the settlement or
compromise of, or consent to the entry of any judgement with respect to, any
pending or threatened action or claim in respect of which indemnification may
be sought hereunder without the consent of the indemnifying party (which
consent shall not be unreasonably withheld).
(d) Contribution. If the indemnification provided for in
this Section 9 shall for any reason be unavailable to an indemnified party
under Section 9(a) or 9(b) hereof in respect of any loss, claim, damage or
liability or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Debt Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the
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Company on the one hand and the Underwriters on the other with respect to such
offering shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Debt Securities (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions
received by the Underwriters with respect to such offering, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault of
the Company on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 9(d) were to be determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 9(d) shall be
deemed to include, for purposes of this Section 9(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Debt
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 9(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) Survival of Indemnities. The respective indemnity and
contribution agreements of the Company and the Underwriters contained in this
Section 9, and the
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representations and warranties of the Company set forth in Section 1 hereof,
shall remain operative and in full force and effect, regardless of any
termination or cancelation of this Agreement or any investigation made by or on
behalf of any Underwriter or any such controlling person or the Company or any
such controlling person, director or officer, and shall survive the delivery of
the Debt Securities, and any successor of any Underwriter or of any such
controlling person or of the Company, and any legal representative of any such
controlling person, director or officer, as the case may be, shall be entitled
to the benefit of the respective indemnity and contribution agreements.
10. Conditions to Underwriters' Obligations. The several
obligations of the Underwriters hereunder are subject to the accuracy of and
compliance with the representations and warranties of the Company contained in
Section 1 hereof, as of the date hereof and as of the Closing Date, and to the
following further conditions:
(a) Effectiveness of Registration Statement. No stop order
suspending the effectiveness of the Registration Statement or
qualification of the Indenture shall be in effect on the Closing Date,
and no proceedings for the issuance of such an order shall be pending
or, to the knowledge of the Company or you, threatened by the
Commission on the Closing Date.
(b) Opinion of Counsel for the Underwriters. The form and
validity of the Indenture, the form and validity of the Debt
Securities, the legality and sufficiency of the authorization of the
issuance and sale of the Debt Securities hereunder, and all corporate
proceedings and other legal matters incident to the foregoing, and the
form of the Registration Statement and of the Prospectus (other than
financial statements and other financial data), shall have been
approved as of the Closing Date by Cravath, Swaine & Xxxxx, counsel
for the Underwriters.
(c) Opinion of Counsel for the Company. The Company shall
have furnished to you, as Representatives of the Underwriters, on the
Closing Date, the opinion, addressed to the Underwriters and dated the
Closing Date, of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for
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the Company, which opinion shall be satisfactory in form and scope to
counsel for the Underwriters, to the following effect:
(i) the Company has been duly incorporated and is
validly existing as a cooperative association in good standing
under the laws of the District of Columbia with corporate
power to conduct its business as described in the Registration
Statement;
(ii) the issuance and sale of the Debt Securities by
the Company pursuant to this Agreement have been duly and
validly authorized by all necessary corporate action; and no
authorization, consent, order or approval of, or filing or
registration with, or exemption by, any government or public
body or authority (including, without limitation, the Rural
Utilities Service) of the United States or of the State of New
York or any department or subdivision thereof or to the best
of such counsel's knowledge any court, other than such as may
be required under State securities or blue sky laws and other
than registration of the Debt Securities under the Securities
Act and qualification of the Indenture under the Trust
Indenture Act, is required for the validity of the Debt
Securities or for the issuance, sale and delivery of the Debt
Securities by the Company pursuant to this Agreement or for
the execution and delivery of this Agreement by the Company;
(iii) the Indenture has been duly authorized by the
Company, has been duly qualified under the Trust Indenture
Act, constitutes an instrument valid and binding on the
Company and enforceable in accordance with its terms;
(iv) the Debt Securities are in the forms provided
for in the Indenture, and, assuming due execution of the Debt
Securities on behalf of the Company and authentication thereof
by the Trustee, the Debt Securities constitute valid and
binding obligations of the Company enforceable in accordance
with their terms and are entitled to the benefits of the
Indenture;
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(v) this Agreement has been duly authorized, executed
and delivered by the Company and the performance of this
Agreement and the consummation of the transactions herein
contemplated will not result in a breach of any terms or
provisions of, or constitute a default under, the Articles of
Incorporation or By-laws of the Company or any indenture, deed
of trust, note, note agreement or other agreement or
instrument known to such counsel, after due inquiry, to which
the Company is a party or by which the Company or any of its
properties is bound or affected;
(vi) the Debt Securities and the Indenture conform in
all material respects to the descriptions thereof contained in
the Registration Statement;
(vii) the Registration Statement (and any
post-effective amendment thereof) has become and is effective
under the Securities Act and the Debt Securities have become
registered under the Securities Act, and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
are pending or contemplated, and the Registration Statement
(and any post-effective amendment thereof), the Prospectus and
each amendment thereof or supplement thereof (except for the
financial statements and other financial data included therein
as to which such counsel need express no opinion) when they
became effective or were filed with the Securities and
Exchange Commission complied as to form in all material
respects with the requirements of the Securities Act, the
Exchange Act, the Trust Indenture Act and the rules and
regulations issued thereunder;
(viii) based upon such counsel's participation in the
preparation of the Registration Statement, the Prospectus and
documents incorporated by reference therein, such counsel's
discussions with certain officers and employees of the
Company, such counsel's conferences with representatives of
the Company's independent Certified Public Accountants and
such counsel's representation of
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the Company, and while such counsel does not pass on or assume
any responsibility for the accuracy, completeness or fairness
thereof, nothing has come to such counsel's attention that
causes it to believe that either the Registration Statement
(or any post-effective amendment thereof) as of the date it
became effective, or the Prospectus and each supplement
thereto as of the Closing Date (except in each case for the
financial or statistical data included therein, as to which
such counsel expresses no view) contains an untrue statement
of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading and such counsel does not know of any
litigation or any governmental proceeding instituted or
threatened against the Company required to be disclosed in the
Registration Statement or Prospectus and which is not
disclosed therein;
(ix) the Company is not required to be registered as
an investment company under the Investment Company Act of
1940;
(x) the Company is not subject to regulation under
the Public Utility Holding Company Act of 1935; and
(xi) the Company is not a public utility as defined
in the Federal Power Act and is not a natural gas company as
defined in the Natural Gas Act.
The foregoing opinion may contain qualifications to the effect
that, insofar as such opinion relates to the enforceability of the
Debt Securities and the Indenture, the enforceability thereof may be
limited by bankruptcy, reorganization, insolvency, moratorium or other
laws of general application relating to or affecting the enforcement
of creditors' rights and by general principals of equity (regardless
of whether considered in a proceeding in equity or at law), including
without limitation (a) the possible unavailability of specific
performance, injunctive relief or any other equitable remedy and (b)
concepts of materiality, reasonableness, good faith and fair dealing.
In addition, the Company's obligations and
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the rights and remedies of the Trustee and the holders of the Debt
Securities may be subject to possible limitations on the exercise of
remedial or procedural provisions contained in the Indenture (provided
that such limitations do not, in the opinion of such counsel, make
inadequate the remedies afforded thereby for the practical realization
of the substantive benefits provided for in the Debt Securities and
the Indenture).
In rendering the foregoing opinion, Milbank, Tweed, Xxxxxx &
XxXxxx may rely as to matters of the law of the District of Columbia
upon the opinion of Xxxx Xxx List, Esq., General Counsel of the
Company, addressed to the Underwriters and dated the Closing Date,
satisfactory in form and scope to counsel for the Underwriters. If
Milbank, Tweed, Xxxxxx & XxXxxx shall so rely upon the opinion of Xxxx
Xxx List, Esq., (i) copies of the opinion so relied upon shall be
delivered to you, as Representatives of the Underwriters, and to
counsel for the Underwriters and (ii) the opinion required by this
Section 10(c) shall also state that Milbank, Tweed, Xxxxxx & XxXxxx
has made an independent investigation of the matters in its opinion
covered by the opinion so relied upon and that the Underwriters are
justified in relying upon such opinion.
(d) Accountants' Letter. Xxxxxx Xxxxxxxx LLP shall have
furnished to you, as Representatives of the Underwriters, at or prior
to the Closing Date, a letter, addressed to the Underwriters and dated
the Closing Date, confirming that they are independent public
accountants with respect to the Company within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission; and stating, as of the date of such
letter (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information
is given in the Prospectus, as of a date not more than five days prior
to the date of such letter), the conclusions and findings of such firm
with respect to the financial information and other matters covered by
its letter delivered to you, as Representatives of the Underwriters,
concurrently with the execution of this Agreement and confirming in
all material respects the
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conclusions and findings set forth in such prior letter or, if no such
letter shall have been delivered to you, the conclusions and findings
of such firm, in form and substance satisfactory to you, as
Representatives of the Underwriters, with respect to such financial
information and other matters as you, as Representatives of the
Underwriters, shall reasonably request.
(e) Officer's Certificate. You shall have received, on the
Closing Date, a certificate of the Company dated the Closing Date,
signed on its behalf by the President, the Governor or a Vice
President of the Company, to the effect that the signer of such
certificate has examined the Registration Statement and the Prospectus
and that (i) in his opinion, as of the effective date of the
Registration Statement, the Registration Statement did not contain an
untrue statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus did not contain
an untrue statement of a material fact and did not omit to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, (ii)
since the effective date of the Registration Statement no event has
occurred which should have been set forth in an amendment or
supplement to the Prospectus but which has not been so set forth,
(iii) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material adverse change in the condition, financial or other, or
earnings of the Company, whether or not arising from transactions in
the ordinary course of business, other than changes which the
Registration Statement and the Prospectus indicate might occur after
the effective date of the Registration Statement, (iv) the Company has
no material contingent obligations which are required to be disclosed
in the Registration Statement and the Prospectus and are not disclosed
therein, (v) no stop order suspending the effectiveness of the
Registration Statement is in effect on the Closing Date and no
proceedings for the issuance of such an order have been taken or to
the knowledge of the Company are contemplated by the Commission at or
prior to the Closing Date, (vi) there are no material legal
proceedings to which the Company is a party or of
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which property of the Company is the subject which are required to be
disclosed and which are not disclosed in the Registration Statement
and the Prospectus, (vii) there are no material contracts to which the
Company is a party which are required to be disclosed and which are
not disclosed in the Registration Statement or the Prospectus and
(viii) the representations and warranties of the Company herein are
true and correct as of the Closing Date.
(f) (i) The Company shall not have sustained since the date
of the latest audited financial statements included or incorporated by
reference in the Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated
in the Prospectus or (ii) since such date there shall not have been
any change in the members' equity or long-term debt of the Company or
any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, member's equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is, in your judgment, so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Debt Securities on the terms
and in the manner contemplated in the Prospectus.
(g) On or after the date hereof: (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities by
any "nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2) of
the Rules and Regulations and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's
debt securities.
(h) On or after the date hereof, there shall not have
occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York Stock
Exchange, (ii) a
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banking moratorium on commercial banking activities in New York
declared by Federal or state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall
have been a declaration of a national emergency or war by the United
States or (iv) such a material adverse change in general economic,
political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be
such) the effect of which, in any such case described in clause (iii)
or (iv), is, in your reasonable judgment, to make it impracticable or
inadvisable to proceed with the public offering or delivery of the
Debt Securities on the terms and in the manner contemplated in the
Prospectus.
(i) Miscellaneous. The Company shall have taken, on or prior
to the Closing Date, all other action, if any, which it is stated in
the Registration Statement (or any post-effective amendment thereof)
or the Prospectus (as amended or supplemented, if so amended or
supplemented) that the Company will take prior to or concurrently with
the issuance and delivery of the Debt Securities, and all agreements
herein contained to be performed on the part of the Company on or
prior to the Closing Date shall have been so performed.
(j) Other Documents. The Company shall have furnished to you
and to Cravath, Swaine & Xxxxx, counsel for the Underwriters, such
further certificates and documents as you or they may have reasonably
requested prior to the Closing Date.
If any of the conditions specified in this Section 10 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, this
Agreement and all obligations of the Underwriters hereunder may be canceled on,
or at any time prior to, the Closing Date by you, as Representatives of the
Underwriters. Notice of such cancelation shall be given to the Company in
writing, or by telegraph, telephone or telex confirmed in writing.
11. Substitution of Underwriters. If any one or more of the
Underwriters shall fail or refuse on the Closing Date to purchase and pay for
the Debt Securities which it or they have agreed to purchase hereunder, then
(a) if the aggregate principal amount of the Debt Securities which the
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defaulting Underwriter or Underwriters so agreed to purchase shall not exceed
$10,000,000, the nondefaulting Underwriters of shall be obligated to purchase
the Debt Securities from the Company, in proportion to their respective
obligations hereunder and upon the terms herein set forth, or (b) if the
aggregate principal amount of the Debt Securities which the defaulting
Underwriter or Underwriters so agreed to purchase shall exceed $10,000,000,
either you, as Representatives of the Underwriters, or the Company shall have
the right at any time prior to 9:30 A.M., New York City time, on the next
business day after the Closing Date to procure one or more of the other
Underwriters, or any others, to purchase such Debt Securities from the Company,
in such amounts as may be agreed upon and upon the terms herein set forth. If
within such specified time neither you, as such representative, nor the Company
shall have procured such other Underwriters or any others to purchase the Debt
Securities agreed to be purchased by the defaulting Underwriter or
Underwriters, this Agreement shall terminate without liability on the part of
any nondefaulting Underwriter or of the Company. In the event of a default by
any Underwriter or Underwriters, as set forth in this Section 11, the Closing
Date may be postponed for such period, not exceeding seven days, as you, as
such representative, shall determine in order that any required changes in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken or termination of this
Agreement under this Section 11 shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
12. Information Furnished by Underwriters. The statement set
forth in the last paragraph on the cover of, in the last paragraph on page 2
of, and under the heading "Underwriting" in, the prospectus supplement portion
of the Prospectus, and under the heading "Plan of Distribution" in the
Prospectus, constitute the only information furnished in writing by you, on
behalf of the Underwriters, for inclusion therein, and you, as Representatives
of the Underwriters, confirm that such statements are correct.
13. Termination. This Agreement shall be subject to
termination by you, by notice given to the Company prior to delivery of and
payment for the Debt Securities, if prior to such time any of the events
described in Sections 10(f), 10(g) or 10(h) occurs.
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14. Miscellaneous.
(a) Except as otherwise expressly provided in this Agreement,
(i) whenever notice is required by all the provisions of this Agreement to be
given to the Company, such notice shall be in writing addressed to the Company
at its office, Woodland Park, 0000 Xxxxxxxxxxx Xxx, Xxxxxxx, Xxxxxxxx 00000,
attention of the Governor, and (ii) whenever notice is required by the
provisions of this Agreement to be given to you, as Representatives of the
Underwriters or of any of them, such notice shall be in writing addressed to
you at your office, Three World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(b) The Company agrees to furnish to you and to Cravath,
Swaine & Xxxxx, without charge, a signed copy of the Registration Statement and
each amendment thereof, including all financial statements and all exhibits
thereto (except such financial statements and exhibits as are incorporated
therein by reference and which shall have been previously furnished to you),
and to furnish to each of the other Underwriters, without charge, a copy of the
Registration Statement and each amendment thereof, including all financial
statements (except such financial statements as are incorporated therein by
reference) but without exhibits.
(c) This Agreement is made solely for the benefit of the
several Underwriters and the Company and their respective successors and
assigns, and, to the extent provided in Section 9 hereof, any controlling
person referred to in such Section 9 and the directors of the Company and those
officers of the Company who shall have signed the Registration Statement, and
their respective legal representatives, successors and assigns, and no other
person shall acquire or have any right under or by virtue of this Agreement.
The term "successor" or the term "successors and assigns" as used in this
Agreement shall not include any purchaser, as such purchaser, from any of the
Underwriters of the Debt Securities.
(d) If this Agreement shall be canceled or terminated by the
Underwriters on any of the grounds referred to or specified in Section 10
hereof or because of any failure or refusal on the part of the Company to
comply with any of the terms or to fulfill any of the conditions of this
Agreement, the Company will reimburse the Underwriters severally for all their
out-of-pocket expenses (including
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the fees and disbursements of their counsel) reasonably incurred by them in
connection with the subject matter of this Agreement.
(e) The term "business day" as used in this Agreement shall
mean any day on which the New York Stock Exchange, Inc., is open for trading.
(f) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
(g) Section headings have been inserted in this Agreement as
a matter of convenience of reference only and it is agreed that such section
headings are not a part of this Agreement and will not be used in the
interpretation of any provision of this Agreement.
Please confirm that you are acting on behalf of yourself and
the other several Underwriters and that the foregoing correctly sets forth the
agreement between the Company and the several Underwriters.
Very truly yours,
NATIONAL RURAL UTILITIES
COOPERATIVE FINANCE
CORPORATION,
By
------------------
Name:
Title:
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Acting on behalf of ourselves and
the other several Underwriters named
in Schedule I attached to the
foregoing letter, we hereby confirm
as of the date thereof that such letter
correctly sets forth the agreement between
the Company and the several Underwriters:
XXXXXX BROTHERS INC.,
By
------------------
Name:
Title:
24
SCHEDULE I
Underwriting Agreement dated [DATE]
NATIONAL RURAL UTILITIES
COOPERATIVE FINANCE CORPORATION
[TITLE OF DEBT SECURITIES]
Principal Amount of
Debt Securities
Underwriter to be Purchased
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Xxxxxx Brothers Inc. . . . . . . . . . . . . . . $
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Total . . . . . . . . . . . . . . . $
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