SECOND AMENDMENT TO REVOLVING CREDIT AND
TERM LOAN AGREEMENT
THIS SECOND AMENDMENT, dated as of November 25, 1998 (this Amendment), to
the Original Agreement (as defined below) is entered into 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, and THE BANK OF
NOVA SCOTIA, as the administrative agent (in such capacity, the
Administrative Agent).
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks and the Administrative Agent have heretofore
entered into a Revolving Credit and Term Loan Agreement, dated as of April
30, 1996 (as amended by a First Amendment, dated as of November 27, 1996, as
supplemented by various extension letters from the Banks and as further
amended or otherwise modified prior to the date hereof, the Original
Agreement); and
WHEREAS, the Borrower has requested the Banks and the Administrative Agent to
amend the Original Agreement in certain respects as set forth below; and
WHEREAS, the Banks and the Agent are willing, on the terms and conditions set
forth below, to amend the Original Agreement in certain respects as provided
below;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Borrower, the Banks and the Agent hereby
agree as follows.
ARTICLE I
DEFINITIONS
SECTION I.1. Certain Definitions. The following terms when used in this
Amendment shall have the following meanings (such meanings to be equally
applicable to the singular and plural form thereof):
Administrative Agent is defined in the preamble.
Amendment is defined in the preamble.
Credit Agreement means the Original Agreement, as amended pursuant to the
terms of this Amendment.
Original Agreement is defined in the first recital.
SECTION I.2. Other Definitions. Terms for which meanings are provided in
the Original Agreement are, unless otherwise defined herein or the context
otherwise requires, used in this Amendment
with such meanings.
ARTICLE II
AMENDMENTS TO
ORIGINAL AGREEMENT
Effective on (and subject to the occurrence of) the Second Amendment Effective
Date, the Original Agreement is hereby amended in accordance with the terms
of this Article. Except as so amended or modified by this Amendment, the
Original Agreement shall continue in full force and effect.
SECTION II.1. Amendment to Preamble. The Preamble to the Original Agreement
is hereby amended in its entirety to read as follows:
REVOLVING CREDIT AND TERM LOAN AGREEMENT dated as of April 30, 1996, 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, THE
BANK OF NOVA SCOTIA, as Lead Arranger and as Administrative Agent and THE
CHASE MANHATTAN BANK, N.A., as Documentation Agent.
SECTION II.2. Amendments to Article I. Article I of the Original Agreement
is hereby amended in accordance with Sections 2.2.1 and 2.2.2 below.
SECTION II.2.1. Section 1.01 of the Original Agreement is hereby amended by
inserting the following definitions in the appropriate alphabetical order:
Second Amendment means the Second Amendment, dated as of November 25, 1998,
to this Agreement, among the Borrower, the Banks parties thereto and the
Agent.
Second Amendment Effective Date is defined in Section 3.1 of the Second
Amendment.
SECTION II.2.2. Section 1.01 of the Original Agreement is hereby further
amended as follows:
(a) the definition of Revolving Credit Period is hereby amended in its
entirety to read as follows:
Revolving Credit Period means the period from and including the Second
Amendment Effective Date to but excluding the Revolving Credit Period
Termination Date.
(b) the definition of Revolving Credit Period Termination Date is hereby
amended in its entirety to read as follows:
Revolving Credit Period Termination Date means November 24, 1999, or such
later date to which the Revolving Credit Period shall have been extended
pursuant to Section 2.01(b), or, if either such day is not a Euro-Dollar
Business Day, the next preceding Euro-Dollar Business Day.
SECTION II.3. Amendment to Pricing Schedule. The Pricing Schedule attached
to the Original Agreement is hereby deleted and replaced with the Pricing
Schedule attached hereto as Exhibit A. From and after the Second Amendment
Effective Date, all references to the Pricing Schedule shall be deemed to
refer to the Pricing Schedule attached hereto as Exhibit A.
SECTION II.4. Amendment to Article VII and Global Amendment to Credit
Agreement. Article VII of the Original Agreement is hereby amended by
adding a new Section 7.09, to read in its entirety as follows:
SECTION 7.09. The Documentation Agent and the Lead Arranger. Notwithstanding
anything else to the contrary contained in this Agreement, the Documentation
Agent and the Lead Arranger, in such capacity, shall not have any rights,
duties or responsibilities under this Agreement or the Notes, or any
fiduciary relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Documentation Agent or the Lead
Arranger in such capacity.
Furthermore, the Original Agreement and each Note is hereby amended to
replace each reference to The Bank of Nova Scotia as Agent with a reference
to the Administrative Agent.
SECTION II.5. Commitments. The term Commitment as used in the Original
Agreement shall mean, with respect to each Bank, the amount set forth opposite
the name of such Bank on the signature pages thereof (as such amount may have
been modified from time to time pursuant to the Original Agreement), and from
and after the Second Amendment Effective Date, the term Commitment shall
mean the amount set forth opposite a particular Bank's name on the signature
pages to this Amendment (as modified from to time pursuant to the terms of
the Credit Agreement) as of the Second Amendment Effective Date.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
SECTION III.1. Effectiveness. (a) This Amendment shall become effective as
of the date first set forth above (the Second Amendment Effective Date)
when the Agent shall have received the following documents, each dated the
Second Amendment Effective Date unless otherwise indicated:
(i) receipt by the Agent of counterparts hereof signed by the Borrower and
each Bank (or, in the case of any party as to which an executed counterpart
shall not have been received, receipt by the 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);
(ii) receipt by the 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 Amendment, the Original Agreement (as amended
hereby) and the Notes, and any other matters relevant hereto, all in form
and substance satisfactory to the Agent; and
(iii) receipt by the Agent, for the account of the Banks, of all fees
accrued to but excluding the Second Amendment Effective Date for the account
of the Agent pursuant to Section 2.08(b) of the Original Agreement.
(b) The Agent shall promptly notify the Borrower and the Banks of the
occurrence of the Second Amendment Effective Date, and such notice shall
be conclusive and binding on all parties hereto.
(c) On and after the Second Amendment Effective Date, the rights and
obligations of the parties hereto shall be governed by the Original
Agreement, as amended by this Amendment; provided, that rights and
obligations of the parties hereto with respect to the period prior to the
Second Amendment Effective Date shall continue to be governed by the
provisions of the Original Agreement; and provided further, that all
references to the date hereof or the date of this Agreement contained
in the Original Agreement shall be deemed to refer to the Second Amendment
Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower hereby reaffirms, as of the date hereof, the representations,
warranties and agreements set forth in Article IV of the Original Agreement,
and hereby makes the following additional representations, warranties and
agreements, each of which shall survive the execution and delivery of this
Amendment:
SECTION IV.1. Corporate Power and Authority. The Borrower has the
corporate power and authority to execute, deliver and carry out the terms
and provisions of this Amendment, the Original Agreement (as amended hereby)
and the Notes. This Amendment, the Original Agreement and the Notes have
been duly and validly authorized, executed and delivered by the Borrower,
and this Amendment and the Original Agreement (as amended hereby) each
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 bankruptcy, insolvency or similar laws affecting creditors'
rights generally and by general principles of equity.
SECTION IV.2. No Violation of Agreements. Neither the execution and
delivery of this Amendment, the Original Agreement (as amended hereby) 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 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 breach of, any of the 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.
SECTION IV.3. No Default. No Default or Event of Default has occurred and
is continuing under the Original Agreement.
ARTICLE V
MISCELLANEOUS
SECTION V.1. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION V.2. Counterparts; Integration. This Amendment 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 Amendment and the Original Agreement (as amended hereby) constitute 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 V.3. Several Obligations. The obligations of the Banks hereunder
and under the Original Agreement (as amended hereby) are several. Neither
the failure of any Bank to carry out its obligations hereunder or under the
Original Agreement (as amended hereby) nor of this Amendment or the Original
Agreement (as amended hereby) to be duly authorized, executed and delivered
by any Bank shall relieve any other Bank of its obligations hereunder or
thereunder (or affect the rights hereunder or thereunder of such other Bank).
No Bank shall be responsible for the obligations of, or any action taken or
omitted by, any other Bank hereunder or thereunder.
SECTION V.4. Severability. In case any provision in or obligation under
this Amendment or the Original Agreement (as amended hereby) 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 V.5. Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AMENDMENT
OR THE ORIGINAL AGREEMENT (AS AMENDED HEREBY), OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE
AGENT, THE BANKS OR THE BORROWER SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY
IN THE COURTS OF THE STATE OF NEW YORK, NEW YORK COUNTY OR IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. THE BANKS, THE
AGENT AND THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, NEW YORK COUNTY AND OF
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR
THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREE
TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH
LITIGATION. THE BANKS, THE AGENT AND THE BORROWER IRREVOCABLY CONSENT TO
THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. THE BANKS, THE AGENT AND
THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH THEY MAY HAVE OR HEREAFTER MAY HAVE TO
THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED
TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT ANY BANK, THE AGENT OR THE BORROWER
HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR
FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR
TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, IT HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT
OF ITS OBLIGATIONS UNDER THIS AMENDMENT AND THE ORIGINAL AGREEMENT (AS
AMENDED HEREBY).
SECTION V.6. Waiver of Jury Trial. THE AGENT, THE BANKS AND THE BORROWER
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING
OUT OF, UNDER, OR IN CONNECTION WITH, THIS AMENDMENT AND THE ORIGINAL
AGREEMENT (AS AMENDED HEREBY), OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE BANKS OR
THE BORROWER. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL
AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE AGENT AND THE BANKS ENTERING INTO THIS AMENDMENT
AND THE ORIGINAL AGREEMENT (AS AMENDED HEREBY).
IN WITNESS WHEREOF, the parties hereto have caused this Amendment 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
Title: Senior Vice-President & Chief Financial Officer
Address: Woodland Park
0000 Xxxxxxxxxxx Xxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Ms. Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Commitments
$50,000,000 ABN AMRO BANK N.V.
NEW YORK BRANCH
By /s/ Xxxxx X. Xxxxxxx
Title: Vice President
By /s/ Xxxx X. Xxxxxx
Title: Assistant Vice President
$50,000,000 NATIONSBANK, N.A.
By /s/ Xxxxx X. Xxxxx
Title: Vice President
$50,000,000 CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Xxxxxxxx Xxxxx
Title: First Vice President - Manager
$50,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Xxxxxxxxx X. Xxxxxx
Title: Assistant Vice President
$50,000,000 XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Xxxx X. Xxxxxxx, Xx.
Title: Associate
$50,000,000 RABOBANK NEDERLAND, NEW YORK BRANCH
By /s/ Xxxx X. Xxxxxxx
Title: Vice Presdient
By /s/ W. Xxxxxx X. Xxxxx
Title: Vice President
$50,000,000 THE BANK OF NOVA SCOTIA
By /s/ J.R. Trimble
Title: Senior Relationship Manager
$50,000,000 THE CHASE MANHATTAN BANK
By /s/ Xxxxxx X. Xxxxx
Title: Vice President
$50,000,000 THE TORONTO-DOMINION BANK
By /s/ Xxxxx X. Xxxxxx
Title: Mgr. CR. Admin.
Total Commitments
$450,000,000 THE BANK OF NOVA SCOTIA, as Administrative Agent
By /s/ J.R. Trimble
Title: Senior Relationship Manager
EXHIBIT A
PRICING SCHEDULE
The Euro-Dollar Margin, CD Margin and Facility Fee Rate for any day
are the respective percentages set forth below in the applicable row under
the column corresponding to the Status that exists on such day:
Status Level I Level II Level III
Euro-Dollar Margin:
If Utilization is equal to
or less than 50% 0.165% 0.20% 0.23%
If Utilization exceeds 50% 0.165% 0.325% 0.355%
CD Margin:
If Utilization is equal to
or less than 50% 0.295% 0.325% 0.355%
If Utilization exceeds 50% 0.295% 0.45% 0.48%
Facility Fee Rate 0.085% 0.10% 0.12%
For purposes of this Schedule, the following terms have the following
meanings:
Level I Status exists at any date if, at such date, the Borrower has
outstanding senior unsecured long-term debt and such debt, without third
party enhancement, is rated (or, if on such date the Borrower has no
outstanding senior unsecured long-term debt, evidence satisfactory to the
Agent is provided to the effect that the rating of senior unsecured long-term
debt of the Borrower, assuming that it had outstanding senior unsecured
long-term debt, would be rated) at least AA- (or any equivalent rating which
is used in lieu thereof) by S&P or Aa3 (or any equivalent rating which is
used in lieu thereof) by Xxxxx'x.
Level II Status exists at any date, if at such date, the Borrower has
outstanding senior unsecured long-term debt and such debt, without third
party enhancement, is rated (or, if on such date the Borrower has no
outstanding senior unsecured long-term debt, evidence satisfactory to the
Agent is provided to the effect that the rating of senior unsecured long-
term debt of the Borrower, assuming that it had outstanding senior unsecured
long-term debt, would be rated) at least A+ (or any equivalent rating which
is used in lieu thereof) or higher by S&P or A1 (or any equivalent rating
which is used in lieu thereof) or higher by Xxxxx'x and Level I Status does
not exist at such date.
Level III Status exists at any date if, at such date, neither Level I
Status nor Level II Status exists.
Status refers to the determination of which of Level I Status, Level II
Status or Level III Status exists at any date.
Utilization means at any date the percentage equivalent of a fraction (i)
the numerator of which is the aggregate outstanding principal amount of the
Loans at such date, after giving effect to any borrowing or payment on such
date, and (ii) the denominator of which is the aggregate amount of the
Commitments at such date, after giving effect to any reduction of the
Commitments on such date. For purposes of this Schedule, if for any reason
any Loans remain outstanding after termination of the Commitments, the
Utilization for each date on or after the date of such termination shall be
deemed to be greater than 50%.
The credit ratings to be utilized for purposes of this Pricing Schedule shall
be, so long as the Borrower's unsecured Medium Term Notes are rated by either
S&P or Xxxxx'x, those assigned to the Borrower's unsecured Medium Term Notes.
The rating in effect at any date is that in effect at the close of business
on such date.
