Contract
Exhibit 4.22
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FEDERAL
AGRICULTURAL
MORTGAGE
CORPORATION
as
Note Purchaser
NATIONAL
RURAL UTILITIES
COOPERATIVE
FINANCE CORPORATION
as
Borrower
_______________________________
_______________________________
Dated
as of March 27, 2008
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Table
of Contents
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Page
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RECITALS
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1
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ARTICLE
I
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DEFINITIONS
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SECTION
1.01
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Definitions
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1
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SECTION
1.02.
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Principles
of Construction
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4
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ARTICLE
II
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PURCHASE
OF NOTES
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SECTION
2.01.
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Purchase
of Notes; Minimum Denominations
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4
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SECTION
2.02.
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Interest
Rates and Payment
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4
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SECTION
2.03.
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Maturity
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6
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ARTICLE
III
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CONDITIONS
PRECEDENT
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SECTION
3.01.
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Conditions
Precedent to the Purchase of Each Note
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6
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SECTION
3.02.
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Certificate
of Pleged Collateral
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7
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ARTICLE
IV
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REPORTING
REQUIREMENTS
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SECTION
4.01.
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Annual
Reporting Requirements
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7
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SECTION
4.02.
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Default
Notices
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7
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ARTICLE
V
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REPRESENTATIONS
OF THE PARTIES
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CFC
DOC
AA001-X-0000
(KHETANA)
119456-5
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SECTION
5.01.
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Representation
of Xxxxxx Mac
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8
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SECTION
5.02.
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Representations
of National Rural
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8
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ARTICLE
VI
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SECURITY
AND COLLATERAL
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SECTION
6.01.
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Security
and Collateral
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10
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ARTICLE
VII
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EVENTS
OF DEFAULT
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SECTION
7.01.
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Events
of Default
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10
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SECTION
7.02.
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Acceleration
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11
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SECTION
7.03.
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Remedies
Not Exclusive
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11
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ARTICLE
VIII
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MISCELLANEOUS
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SECTION
8.01.
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GOVERNING
LAW
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11
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SECTION
8.02.
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WAIVER
OF JURY TRIAL
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12
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SECTION
8.03.
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Notices
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12
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SECTION
8.04.
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Benefit
of Agreement
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12
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SECTION
8.05.
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Entire
Agreement
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12
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SECTION
8.06.
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Amendments
and Waivers
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12
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SECTION
8.07.
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Counterparts
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13
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SECTION
8.08.
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Termination
of Agreement
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13
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SECTION
8.09.
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Survival
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13
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SECTION
8.10.
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Severability
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13
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Schedule
I -
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Addresses
for Notices
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Schedule
II -
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Applicable
Margin Notice
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Schedule
II -
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Pricing
Agreement
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Annex
A –
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Form
of Note
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Annex
B –
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Opinion
of Counsel to National Rural
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Annex
C –
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Officers’
Certificate
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NOTE
PURCHASE AGREEMENT dated as of March 27, 2008 between FEDERAL AGRICULTURAL
MORTGAGE CORPORATION, a federally-chartered instrumentality of the United States
and an institution of the Farm Credit System (“Xxxxxx Mac”); and
NATIONAL RURAL UTILITIES COOPERATIVE FINANCE CORPORATION, a cooperative
association existing under the laws of the District of Columbia (“National
Rural”).
RECITALS
WHEREAS
National Rural wishes from time to time to issue and sell Notes to Xxxxxx Mac,
and Xxxxxx Mac wishes from time to time to purchase such Notes from National
Rural, all on the terms and subject to the conditions herein provided;
and
WHEREAS
Xxxxxx Mac is an instrumentality of the United States formed to provide for
a secondary marketing arrangement for agricultural real estate mortgages;
National Rural is a non-profit cooperative formed in part to provide financing
for rural electric distribution cooperatives and to finance the infrastructure
in rural America; and Xxxxxx Mac and National Rural have agreed that the Notes
will be secured by the pledge of mortgage notes for borrowings from National
Rural by rural electric distribution cooperative members of National Rural that
serve primarily communities with fewer than 50,000 inhabitants, as provided
herein;
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, Xxxxxx
Mac and National Rural agree as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions. As
used in this Agreement, the following terms shall have the following
meanings:
“Agreement” means this
Note Purchase Agreement, as the same may be amended from time to
time.
“AM Term” means, as to
each determination of the Applicable Margin by Xxxxxx Mac, the period of time
during which such Applicable Margin shall apply, as determined in accordance
with Section 2.02(a) hereof.
“Applicable Margin”
means the margin to be added to the LIBOR Rate to determine the rate of interest
payable on the Notes from time to time. The Applicable Margin shall
be communicated by Xxxxxx Mac to National Rural in accordance with Section
2.02(a) hereof and calculated by Xxxxxx Mac as follows: (i) Xxxxxx Mac’s
actual
2
cost of
funds (expressed in relation to the LIBOR Rate) plus 0.575% minus (ii) the LIBOR
Rate. The initial Applicable Margin shall be set in the Pricing
Agreement.
“Applicable Margin
Notice” means a notice by Xxxxxx Mac to National Rural notifying National
Rural of each new determination of the Applicable Margin and AM Term in
accordance with Section 2.02(a), in the form of Schedule II hereto.
“Business Day” means
any day other than a Saturday, a Sunday, or a day on which the Federal Reserve
Bank of New York is closed.
“Certificate of Pledged
Collateral” has the meaning given to that term in the Pledge
Agreement.
“Closing Date” has the
meaning given to that term in Section 2.01.
“Collateral Agent”
means U.S. Bank Trust National Association, or its successor, as collateral
agent under the Pledge Agreement.
“Dollar” or “$” means the lawful
money of the United States of America.
“Eligible Member” has
the meaning given to that term in the Pledge Agreement.
“Event of Default” has
the meaning given to that term in Section 7.01.
“Financial
Statements”, in respect of a Fiscal Year, means the consolidated
financial statements (including footnotes) of National Rural for that Fiscal
Year as audited by independent certified public accountants appointed by
National Rural.
“Fiscal Year” means
the fiscal year of National Rural, as such may be changed from time to time,
which at the date hereof commences on June 1 of each calendar year and ends on
May 31 of the following calendar year.
“Interest Payment
Date” means the first (1st) day of
each January, April, July and October beginning April 1, 2008; provided,
however, that if any such date is not a Business Day, such Interest Payment Date
that would otherwise be such date will be the next Business Day following such
date.
“Interest Period” means, initially, the
period from and including the Closing Date to and including March 31, 2008 and,
thereafter until all outstanding principal amount of the Notes and interest
accrued thereon have been paid in full, each 3-month period comprising a
calendar quarter from and including the first day of a calendar quarter (i.e.,
January 1st, April
1st,
July 1st and
October 1st) to and
including the last day of the same calendar quarter (i.e., March 31st, June
30th,
September 30th and
December 31st); provided, that if any
Interest Period would end on a day other than a Business Day, then such Interest
Period shall be extended to and including the next succeeding Business Day and
the next Interest Period shall commence on the next succeeding day.
3
“LIBOR Rate” shall
mean, for any Interest Period, the rate appearing on Page 3750 of the Telerate
service (or on any successor or substitute page of such service, or if the
Telerate service ceases to be available, any successor to or substitute for such
service providing rate quotations comparable to those currently provided on such
page of such service, as mutually agreed by National Rural and Xxxxxx Mac, from
time to time for purposes of providing quotations of interest rates applicable
to Dollar deposits in the London interbank market) as of 11:00 a.m., London
time, on the day that is two London Banking Days prior to the commencement of
such Interest Period, as the rate for the offering of Dollar deposits with a
maturity comparable to such Interest Period.
“London Banking Day”
shall mean any day on which commercial banks and foreign exchange markets settle
payments and are open for general business (including dealings in foreign
exchange and foreign currency deposits) in the Dollar, in London,
England.
“Member” shall mean
any Person who is member of National Rural.
“National Rural
Notice” has the meaning given to that term in the Pledge
Agreement.
“Notes” means one or
more notes of National Rural payable to Xxxxxx Mac, having the terms provided
for in Article II of this Agreement and otherwise in the form of Annex A
attached hereto, except to the extent Xxxxxx Mac and National Rural may have
approved changes therein.
“Note Documents” means
the Notes, this Agreement, the Pledge Agreement and the Registration Rights
Agreement.
“Payment Notice” means
a notice furnished by Xxxxxx Mac to National Rural that indicates the amount of
each payment of interest and the date when each payment is due, determined in
each case in accordance with Section 2.02 hereof.
“Person” means an
individual, a corporation, a partnership, an association, a trust or any other
entity or organization, including a government or political subdivision or an
agency or instrumentality thereof.
“Pledge Agreement”
means the Pledge Agreement dated as of the date hereof, among National Rural,
Xxxxxx Mac and the Collateral Agent.
“Pledged Collateral”
has the meaning given to that term in the Pledge Agreement.
“Pledged Securities”
has the meaning given to that term in the Pledge Agreement.
“Pricing Agreement”
means the Pricing Agreement between Xxxxxx Mac and National Rural in the form of
Schedule III attached hereto.
4
"Registration Rights
Agreement" means the Registration Rights Agreement dated as of the date
hereof between Xxxxxx Mac and National Rural.
SECTION
1.02. Principles of
Construction. Unless the context shall otherwise indicate, the
terms defined in Section 1.01 hereof include the plural as well as the
singular and the singular as well as the plural. The words
“hereafter”, “herein”, “hereof”, “hereto” and “hereunder”, and words of similar
import, refer to this Agreement as a whole. The descriptive headings
of the various articles and sections of this Agreement were formulated and
inserted for convenience only and shall not be deemed to affect the meaning or
construction of the provisions hereof.
ARTICLE
II
PURCHASE
OF NOTES
SECTION
2.01. Purchase of Notes; Minimum
Denominations. Xxxxxx Mac agrees to purchase Notes, at 100% of
their principal amount, from time to time, but not after March 31, 2008, as
requested by National Rural by written notice to Xxxxxx Mac (and, if the
purchase is other than on March 27, 2008 upon at least five Business Days’
advance notice to Xxxxxx Mac) (the “Closing Date”) in an aggregate principal
amount, for all Notes purchased hereunder, not in excess of $400 million,
subject to satisfaction of the conditions set forth herein.
SECTION
2.02. Interest Rates and
Payment. Each Note shall bear interest on the outstanding
principal amount thereof (computed on the basis of a 360-day year and the actual
number of days elapsed) from its date of issuance until final payment on the
maturity date thereof or otherwise at a variable rate per annum equal to the
LIBOR Rate for each Interest Period plus the Applicable Margin for such Interest
Period; provided, however, that, only
for the initial Interest Period, which is the period from and including the
Closing Date through and including March 31, 2008, the “LIBOR Rate” shall be the
1-week LIBOR Rate as set forth in the Pricing Agreement. To the
extent any payment of interest or principal is not paid when due, interest shall
continue to accrue thereon at the rate per annum determined as provided above
plus one percent.
(a) AM Term; Applicable
Margin. The initial AM Term shall be for a period of twelve
(12) months and five (5) days from the Closing Date, ending on March 31,
2009. Unless Xxxxxx Mac and National Rural expressly and mutually
agree to a different notice schedule for any new AM Term and Applicable Margin
in a writing signed by each of them that refers to this Section 2.02 (an “Agreed Variance”),
Xxxxxx Mac shall provide to National Rural (i) a preliminary indication in
writing of the new Applicable Margin and the new AM Term at least 14 days prior
to the end of each AM Term, (ii) an updated indication in writing of the new
Applicable Margin and the new AM Term by no later than 4:00 p.m. New York time
on the Business Day immediately preceding each AM Notice Date (as defined
below), and (iii) written notice (by facsimile transmission) of the new
Applicable Margin and AM Term by giving an Applicable Margin Notice, in the form
of Schedule II hereto, so that such Applicable Margin Notice
5
is received by
National Rural between 9:00 a.m. and noon New York time on the seventh (7th) day
prior to the end of each AM Term (including the initial AM Term) or if such
seventh (7th) day is
not a Business Day, then the Business Day immediately preceding such seventh
(7th) day
(the date on which each Applicable Margin Notice is to be provided pursuant to
this clause (iii) (including pursuant to any Agreed Variance), the “AM Notice Date”);
provided, however, that in no
event shall any AM Term have a duration of less than twelve months; provided, further, that if
Xxxxxx Mac does not deliver an Applicable Margin Notice in accordance with the
preceding terms of this clause (iii) (including any Agreed Variance), the then
current AM Term shall be automatically extended (and the Applicable Margin then
in effect shall continue in effect) until the end of the next Interest Period,
and shall thereafter be repeatedly extended (and such Applicable Margin
continued) automatically until the end of each succeeding Interest Period, until
such time as Xxxxxx Mac delivers an Applicable Margin Notice in accordance with
the preceding terms of this clause (iii). In the event an AM Term
terminates during an Interest Period, the AM Term and the then current
Applicable Margin shall be automatically extended until the last day of such
Interest Period. Within two (2) Business Days after written request
made by National Rural at any time and from time to time, Xxxxxx Mac shall
provide National Rural with a written notice setting forth its computation of
the then current Applicable Margin and its offer of the AM Term relating thereto
(except that the initial AM Term shall be twelve (12) months and five (5) days,
as provided above).
(b) Payments and
Prepayments. Xxxxxx Mac shall furnish to National Rural a
Payment Notice within seven (7) days after the beginning of each Interest Period
relating to such Interest Period. The principal amount of each Note
shall be due and payable in full at the stated maturity date thereof (as set
forth in Section 2.03 hereof), subject to National Rural’s right to prepay the
Notes, in whole or in part, as provided below. Interest accrued on
the outstanding principal amount of each Note for each Interest Period will be
payable quarterly in arrears on the Interest Payment Date immediately following
the last day of such Interest Period. National Rural shall have the
right, at its option, on the last day of any AM Term, to repay or prepay the
principal amount of any Note, in whole or in part, together with unpaid interest
accrued on the principal amount so repaid or prepaid through and including such
date, upon written notice to Xxxxxx Mac given by National Rural no later than on
the seventh (7th) day prior to the end of such AM Term (or any substituted
deadline specified in an Agreed Variance). If Xxxxxx Mac gives an
Applicable Margin Notice by facsimile transmission so that it is received by
National Rural on the AM Notice Date between 9:00 a.m. and noon New York time on
such date, in accordance with Section 2.02(a)(iii) above (or in accordance with
any Agreed Variance), and if Xxxxxx Mac does not receive written notice from
National Rural of its acceptance of the terms contained in an Applicable Margin
Notice, in the form of Schedule II hereto, at or prior to the time that is three
(3) hours after National Rural’s receipt of such Applicable Margin Notice on
such AM Notice Date (or at or prior to any substituted deadline specified in an
Agreed Variance), then that event shall be deemed to be notice to Xxxxxx Mac of
National Rural’s intent to repay or prepay the Notes on the last day of the AM
Term. In addition, National Rural shall have the right, at its
option, at any time and from time to time to repay or prepay the principal
amount of any Note, in whole or in part, during any AM Term, upon nine (9)
6
days prior written
notice to Xxxxxx Mac, together with unpaid interest accrued on the principal
amount so repaid or prepaid through and including (i) the last day of the
immediately preceding Interest Period, if such optional repayment or prepayment
is made on an Interest Payment Date, or (ii) the last day of the Interest Period
in which such optional repayment or prepayment is made, if such optional
repayment or prepayment is made on a date other than an Interest Payment
Date. If the Notes are repaid or prepaid in full during an AM Term,
such AM Term shall terminate on the date of such repayment or prepayment (if
such date is an Interest Payment Date) or on the last day of the then current
Interest Period (if such prepayment or repayment is made on a date other than an
Interest Payment Date).
SECTION
2.03. Maturity. The
Notes will mature on April 1, 2013. The principal amount of each Note
will be payable as provided in Section 2.02(b).
ARTICLE
III
CONDITIONS
PRECEDENT
SECTION
3.01. Conditions Precedent to the
Purchase of Each Note. Xxxxxx Mac shall be under no obligation
to purchase any Note unless and until the following conditions have been
satisfied:
(a) The
Notes. Xxxxxx Mac shall have received the original of such
Notes, duly executed on behalf of National Rural, in form and substance,
including interest rate and maturity date, as is acceptable to Xxxxxx
Mac.
(b) The Pledge
Agreement. Xxxxxx Mac shall have received an original of the
Pledge Agreement duly executed on behalf of National Rural and the Collateral
Agent.
(c) The Registration Rights
Agreement. Xxxxxx Mac shall have received an original of the
Registration Rights Agreement duly executed on behalf of National
Rural.
(d) Opinion of
Counsel. Xxxxxx Mac shall have received an opinion of counsel
to National Rural substantially in the form of Annex B, attached
hereto.
(e) Financial and Other
Information. National Rural shall have provided Xxxxxx Mac
with its most recent Financial Statements and such other information concerning
National Rural as Xxxxxx Mac shall have reasonably requested.
(f) No Material Adverse
Change. National Rural shall have certified to Xxxxxx Mac (in
the manner specified in paragraph (i) of this Section 3.01), and Xxxxxx Mac
shall be satisfied, that no material adverse change shall have occurred in the
financial condition or business of National Rural between the end of National
Rural’s most recently completed Fiscal Year for which Financial Statements have
been made publicly available and the date of the purchase of such Note, as
provided herein.
7
(g) UCC
Filing. National Rural shall have provided Xxxxxx Mac with
evidence that National Rural has filed the financing statement required pursuant
to Section 2.02(i) of the Pledge Agreement.
(h) No Event of
Default. National Rural shall have certified to Xxxxxx Mac and
Xxxxxx Mac shall be satisfied that no Event of Default shall have occurred and
be continuing.
(i) Certification of Senior
Management. National Rural shall have provided Xxxxxx Mac a
certification by its Chief Executive Officer and its Chief Financial Officer (or
other senior management acceptable to Xxxxxx Mac), substantially in the form of
Annex C attached hereto, as to the following: (i) that National Rural is a
lending institution organized as a private, not-for-profit, cooperative
association with the appropriate expertise, experience and qualifications to
make loans to its rural electric distribution cooperative Members for rural
electrification and related purposes; (ii) the matters to be certified under
paragraphs (f) and (h) of this Section 3.01; and (iii) the
representations and warranties of National Rural.
SECTION
3.02. Certificate of Pledged
Collateral. No later than April 1, 2008, National Rural shall
provide Xxxxxx Mac a copy of a Certificate of Pledged Collateral, dated as of
the last day of the calendar month most recently ended at least 10 Business Days
prior to such authentication and delivery, in accordance with the terms of the
Pledge Agreement.
ARTICLE
IV
REPORTING
REQUIREMENTS
SECTION
4.01. Annual Reporting
Requirements. So long as any Notes remain outstanding,
National Rural shall provide Xxxxxx Mac with the following items within 90 days
of the end of each Fiscal Year, in each case, in form and substance satisfactory
to Xxxxxx Mac:
(a) the
Financial Statements for such Fiscal Year;
(b) a
Certificate of Pledged Collateral;
(c) a receipt
from the Collateral Agent, or such other evidence as is satisfactory to Xxxxxx
Mac, as to the Pledged Collateral held by the Collateral Agent at the end of
such Fiscal Year; and
(d) such
other information concerning National Rural as is reasonably requested by Xxxxxx
Mac.
SECTION
4.02. Default
Notices. If an action, occurrence or event shall happen that
is, or with notice and the passage of time would become, an Event of Default,
National Rural shall deliver a National Rural Notice of such action, occurrence
or event
8
to Xxxxxx Mac before
4:00 p.m. District of Columbia time on the Business Day following the date
National Rural becomes aware of such action, occurrence or event, and, if such
Event of Default should occur, shall submit to Xxxxxx Mac, within five days
thereafter, a report setting forth its views as to the reasons for the Event of
Default, the anticipated duration of the Event of Default and what corrective
actions National Rural is taking to cure such Event of
Default.
ARTICLE
V
REPRESENTATIONS
OF THE PARTIES
SECTION
5.01. Representation of Xxxxxx
Mac. Xxxxxx Mac represents to National Rural that on the date
hereof and on each date on which Xxxxxx Mac purchases a Note from National
Rural:
(a) it has
all necessary authority and has taken all necessary corporate action, and
obtained all necessary approvals, in order for it to execute and deliver all
Note Documents to which it is a party and for its obligations and agreements
under the Note Documents to constitute valid and binding obligations of Xxxxxx
Mac; and in particular the terms of the transaction, and the actions taken by
Xxxxxx Mac, are in compliance with and in satisfaction of the requirements of
the approval letter dated October 19, 2007 from the Farm Credit Administration,
as amended or waived by the Farm Credit Administration; and
(b) Xxxxxx
Mac is purchasing the Notes for its own account and, except pursuant to the
Registration Rights Agreement, not with a view to the distribution thereof,
provided that the disposition by Xxxxxx Mac of its property shall at all times
be within its control. Xxxxxx Mac understands that the Notes have not
been registered under the Act and may be resold only as provided in the
Registration Rights Agreement or if an exemption from registration is
available.
SECTION
5.02. Representations of National
Rural. National Rural hereby represents to Xxxxxx Mac that on
the date hereof and on each date on which Xxxxxx Mac purchases a Note from
National Rural:
(a) National
Rural has been duly organized and is validly existing and in good standing as a
cooperative association under the laws of the District of Columbia;
(b) National
Rural has the corporate power and authority to execute and deliver this
Agreement and each of the other Note Documents, to consummate the transactions
contemplated hereby and thereby and to perform its obligations hereunder and
thereunder;
(c) National
Rural has taken all necessary corporate and other action to authorize the
execution and delivery of this Agreement and each of the other Note
Note
Purchase Agreement
9
Documents, the
consummation by National Rural of the transactions contemplated hereby and
thereby and the performance by National Rural of its obligations hereunder and
thereunder;
(d) this
Agreement and each of the other Note Documents have been duly authorized,
executed and delivered by National Rural and constitute the legal, valid and
binding obligations of National Rural, enforceable against National Rural in
accordance with their respective terms, subject to: (i) applicable
bankruptcy, reorganization, insolvency, moratorium and other laws of general
applicability relating to or affecting creditors’ rights generally; and
(ii) the application of general principles of equity regardless of whether
such enforceability is considered in a proceeding in equity or at
law;
(e) no
approval, consent, authorization, order, waiver, exemption, variance,
registration, filing, notification, qualification, license, permit or other
action is now, or under existing law in the future will be, required to be
obtained, given, made or taken, as the case may be, with, from or by any
regulatory body, administrative agency or governmental authority having
jurisdiction over National Rural or any third party under any agreement to which
National Rural is a party to authorize the execution and delivery by National
Rural of this Agreement or any of the other Note Documents, or the consummation
by National Rural of the transactions contemplated hereby or thereby or the
performance by National Rural of its obligations hereunder or
thereunder;
(f) neither
the execution or delivery by National Rural of this Agreement or any of the
other Note Documents nor the consummation by National Rural of any of the
transactions contemplated hereby or thereby nor the performance by National
Rural of its obligations hereunder or thereunder, including, without limitation,
the pledge of the Pledged Securities (as such term is defined in the Pledge
Agreement) to Xxxxxx Mac, conflicts with or will conflict with, violates or will
violate, results in or will result in a breach of, constitutes or will
constitute a default under, or results in or will result in the imposition of
any lien or encumbrance pursuant to any term or provision of the articles of
incorporation or the bylaws of National Rural or any provision of any existing
law or any rule or regulation currently applicable to National Rural or any
judgment, order or decree of any court or any regulatory body, administrative
agency or governmental authority having jurisdiction over National Rural or the
terms of any mortgage, indenture, contract or other agreement to which National
Rural is a party or by which National Rural or any of its properties is
bound;
(g) there is
no action, suit, proceeding or investigation before or by any court or any
regulatory body, administrative agency or governmental authority presently
pending or, to the knowledge of National Rural, threatened with respect to
National Rural, this Agreement or any of the other Note Documents challenging
the validity or enforceability of this Agreement or any of the other Note
Documents or seeking to restrain, enjoin or otherwise prevent National Rural
from engaging in its business as currently conducted or the consummation
Note
Purchase Agreement
10
by
National Rural of the transactions contemplated by this Agreement or any of the
other Note Documents or which, if adversely determined, would have a material
adverse effect on National Rural’s financial condition or its ability to perform
its obligations under this Agreement or any of the other Note
Documents;
(h) National
Rural is a lending institution organized as a private, not-for-profit,
cooperative association with the appropriate expertise, experience and
qualifications to make loans to its rural electric distribution cooperative
Members for rural electrification purposes; and
(i) no
material adverse change has occurred in the financial condition or business of
National Rural between the end of National Rural’s most recently completed
Fiscal Year for which Financial Statements have been made publicly available and
the date this representation is given.
ARTICLE
VI
SECURITY
AND COLLATERAL
SECTION
6.01. Security and
Collateral. (a) National Rural shall cause
the Allowable Amount of the Pledged Collateral (as such terms are defined in the
Pledge Agreement) to be at all times not less than 100% of the aggregate
outstanding principal amount of the Notes.
(b) National
Rural shall not create, or permit to exist, any pledge, lien, charge, mortgage,
encumbrance, debenture, hypothecation or other similar security instrument that
secures, or in any way attaches to, such Pledged Collateral, other than the lien
of the Pledge Agreement, without the prior written consent of Xxxxxx
Mac.
(c) The
Pledged Securities will at all times be mortgage notes issued to National Rural
by rural electric distribution cooperatives that are Eligible
Members.
ARTICLE
VII
EVENTS OF
DEFAULT
SECTION
7.01. Events of
Default. Each of the following actions, occurrences or events
shall, but only (except in the case of subsections (a), (d) and (e) below) if
National Rural does not cure such action, occurrence or event within
30 days of notice from Xxxxxx Mac requesting that it be cured, constitute
an “Event of
Default” under the terms of this Agreement:
(a) a failure
by National Rural to make a payment of principal or interest on any Note for
more than ten days after the same becomes due and payable;
Note
Purchase Agreement
11
(b) a
material representation by National Rural to Xxxxxx Mac in connection with this
Agreement, any Note or the Pledge Agreement, or any material information
reported pursuant to Article V, shall prove to be incorrect or untrue in any
material respect when made or deemed made;
(c) a failure
by National Rural to comply with any other material covenant or provision
contained in this Agreement or any of the other Note Documents;
(d) the entry
of a decree or order by a court having jurisdiction in the premises adjudging
National Rural a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of or in
respect of National Rural under the Federal Bankruptcy Act or any other
applicable Federal or State law or law of the District of Columbia, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of National Rural or of any substantial part of its property,
or ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 60 consecutive
days; or
(e) the
commencement by National Rural of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by it to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under the Federal Bankruptcy Act or any other
applicable Federal or State law or law of the District of Columbia, or the
consent by it to the filing of any such petition or to the appointment of
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
National Rural or of any substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the admission by it in writing
of its inability to pay its debts generally as they become due, or the taking of
corporate action by National Rural in furtherance of any such
action.
SECTION
7.02. Acceleration. Upon
the occurrence, and during the continuance, of an Event of Default, Xxxxxx Mac
may, upon notice to that effect to National Rural, declare the entire principal
amount of, and accrued interest on, the Notes at the time outstanding to be
immediately due and payable.
SECTION
7.03. Remedies Not
Exclusive. Upon the occurrence, and during the continuance, of
an Event of Default, Xxxxxx Mac shall be entitled to take such other action as
is provided for by law, in this Agreement, or in any of the other Note
Documents, including injunctive or other equitable relief.
ARTICLE
VIII
MISCELLANEOUS
SECTION
8.01. GOVERNING
LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH,
Note
Purchase Agreement
00
XXX XXXX
XX XXX XXXXXX XXXXXX OF AMERICA, TO THE EXTENT APPLICABLE, AND OTHERWISE THE
LAWS OF THE DISTRICT OF COLUMBIA.
SECTION
8.02. WAIVER OF JURY
TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 8.02.
SECTION
8.03. Notices. All
notices and other communications hereunder to be made to any party shall be in
writing and shall be addressed as specified in Schedule I attached hereto
as appropriate. The address, telephone number, or facsimile number
for any party may be changed at any time and from time to time upon written
notice given by such changing party to the other parties hereto. A
properly addressed notice or other communication shall be deemed to have been
delivered at the time it is sent by facsimile (fax) transmission to the party or
parties to which it is given.
SECTION
8.04. Benefit of
Agreement. This Agreement shall become effective when it shall
have been executed by Xxxxxx Mac and National Rural, and thereafter shall be
binding upon and inure to the respective benefit of the parties and their
permitted successors and assigns.
SECTION
8.05. Entire
Agreement. This Agreement, including Schedule I hereto
and Annexes A to C hereto, and the other Note Documents, constitute the
entire agreement between the parties hereto concerning the matters contained
herein and supersede all prior oral and written agreements and understandings
between the parties.
SECTION
8.06. Amendments and
Waivers. (a) No provision of this Agreement may be
amended or modified except pursuant to an agreement in writing entered into by
Xxxxxx Mac and National Rural. No provision of this Agreement may be
waived except in writing by the party or parties receiving the benefit of and
under such provision.
(b) No
failure or delay of Xxxxxx Mac or National Rural in exercising any power or
right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or
power. No waiver of any provision of this Agreement or consent to any
departure by National Rural therefrom shall in any event be effective unless the
same shall be authorized as provided in paragraph (a) of this
Section 8.06, and
Note
Purchase Agreement
13
then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given. No notice or demand on National Rural in any
case shall entitle National Rural to any other or further notice or demand in
similar or other circumstances.
SECTION
8.07. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be an
original, but all of which together shall constitute one and the same
instrument.
SECTION
8.08. Termination of
Agreement. This Agreement shall terminate upon the
indefeasible payment in full of all amounts payable hereunder and under the
Notes.
SECTION
8.09. Survival. The
representations and warranties of each of the parties hereto contained in this
Agreement and contained in each of the other Note Documents, and the parties’
obligations under any and all thereof, shall survive and shall continue in
effect following the execution and delivery of this Agreement, any disposition
of the Notes and the expiration or other termination of any of the other Note
Documents, but, in the case of each Note Document, shall not survive the
expiration or the earlier termination of such Note Document, except to the
extent expressly set forth in such Note Document.
SECTION
8.10. Severability. If
any term or provision of this Agreement or any Note Document or the application
thereof to any circumstance shall, in any jurisdiction and to any extent, be
invalid or unenforceable, such term or such provision shall be ineffective as to
such jurisdiction to the extent of such invalidity or unenforceability without
invalidating or rendering unenforceable any remaining terms or provisions of
such Note Document or the application of such term or provision to circumstances
other than those as to which it is held invalid or unenforceable.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, each party hereto has caused this Agreement to be executed by
an authorized officer as of the day and year first above written.
|
FEDERAL
AGRICULTURAL
MORTGAGE
CORPORATION,
|
||
|
By:
|
/s/ XXXXX X. XXXXXXXXX |
|
|
Title:
|
Xxxxx
X. Xxxxxxxxx
Executive
Vice President & CFO
|
|
|
NATIONAL
RURAL UTILITIES COOPERATIVE FINANCE CORPORATION,
|
||
|
By:
|
/s/ XXXXXX X. Xxxxx |
|
|
Title:
|
Xxxxxx
X. Xxxxx
Xx.
Vice President & Chief Financial
Officer
|
|
SCHEDULE
I
TO
NOTE
PURCHASE AGREEMENT
Addresses
for Notices
|
1.
|
The
addresses referred to in Section 8.03 hereof, for purposes of
delivering communications and notices, are as
follows:
|
If to
Xxxxxx Mac:
Federal
Agricultural Mortgage Corporation
0000 00xx
Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx,
XX 00000
Fax: 000-000-0000
Attention
of: Xxxxx X. Xxxxxxxxx, Executive Vice President &
Chief
Financial Officer
With a
copy to:
Federal
Agricultural Mortgage Corporation
0000 00xx
Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx,
XX 00000
Fax: 000-000-0000
Attention
of: Xxxxxx Xxxxx/Xxxxx Xxxxxxx, Capital Markets Group
With a
copy also to:
Federal
Agricultural Mortgage Corporation
0000 00xx Xxxxxx,
X.X., Xxxxx 000
Xxxxxxxxxx, XX
00000
Fax: 000-000-0000
Attention of: Xxxxxx
X. Xxxxxx, Vice President - General Counsel
If to
National Rural:
National
Rural Utilities Cooperative Finance Corporation
0000
Xxxxxxxxxxx Xxx
Xxxxxxx,
XX 00000-0000
Telephone: 000-000-0000
Fax: 000-000-0000
Attention
of: Xxxxxx X. Xxxxx, Senior Vice President &
Chief Financial
Officer
With a
copy to:
National
Rural Utilities Cooperative Finance Corporation
0000
Xxxxxxxxxxx Xxx
Xxxxxxx,
XX 00000-0000
Telephone: 000-000-0000
Note
Purchase Agreement
2
Fax: 000-000-0000
Attention
of: Xxxx Xxxxx, Vice President, Capital Market Funding
With a
copy also to:
National
Rural Utilities Cooperative Finance Corporation
0000
Xxxxxxxxxxx Xxx
Xxxxxxx,
XX 00000-0000
Telephone: 000-000-0000
Fax: 000-000-0000
Attention
of: Xxxx X. List, Esq., Senior Vice President &
General
Counsel
Note Purchase
Agreement
3
SCHEDULE
II
TO
NOTE
PURCHASE AGREEMENT
FORM
OF
APPLICABLE
MARGIN NOTICE
Issuer Name: National Rural Utilities
Cooperative Finance Corporation
Date
of Note(s): __________________________
Applicable
Margin: ________________________
Effective
Date of Applicable Margin: _________________________
AM
Term: __________________
This Applicable Margin Notice is delivered pursuant to the Note Purchase Agreement dated as of March 27, 2008 between Federal Agricultural Mortgage Corporation and National Rural Utilities Cooperative Finance Corporation (the “Note Purchase Agreement”). Capitalized terms used but not defined herein shall have the meanings given to them in the Note Purchase Agreement.
FEDERAL
AGRICULTURAL MORTGAGE CORPORATION
By:
_______________________________ __________________________________
Signature Date Title
of Authorized Officer
Name: _____________________
PLEASE
FAX
TO: ______________________ ATTN: ________________________
ACCEPTED
BY:
NATIONAL
RURAL UTILITIES COOPERATIVE FINANCE CORPORATION
By:
_______________________________ __________________________________
Signature Date Title
of Authorized Officer
Name: _____________________
Note Purchase
Agreement
4
SCHEDULE
III
TO
NOTE
PURCHASE AGREEMENT
PRICING
AGREEMENT
The
Federal Agricultural Mortgage Corporation, a federally chartered instrumentality
of the United States and an institution of the Farm Credit System (“Xxxxxx
Mac”), and National Rural Utilities Cooperative Finance Corporation, a
cooperative association existing under the laws of the District of Columbia
(“National Rural”), agree that, on March 27, 2008 (the “Closing Date”), Xxxxxx
Mac will purchase from National Rural and National Rural will sell to Xxxxxx Mac
$400,000,000.00 aggregate principal amount of 5-year secured notes (the “Notes”)
bearing interest at a rate per annum equal to the LIBOR Rate for each Interest
Period plus the Applicable Margin; except that the interest rate for the Notes
during the initial Interest Period described below shall be 3.26125 percent per
annum, representing the 1-week LIBOR Rate as of the date hereof of 2.68625
percent plus the Applicable Margin of 0.575 percent. The Applicable
Margin for the first 12 months following the Closing Date shall be 0.575
percent. The initial Interest Period for the Notes shall commence on
the Closing Date and end on March 31, 2008. Thereafter, the Interest
Period for the Notes shall be each successive calendar quarter (e.g., April 1,
2008 through June 30, 2008). The issuance and sale of the Notes by
National Rural to Xxxxxx Mac shall occur under the terms and conditions of a
Note Purchase Agreement to be entered into between Xxxxxx Mac and National Rural
(the “Note Purchase Agreement”), substantially in the form of which is attached
hereto. Capitalized terms used herein and not defined herein shall
have the meanings given to those terms in the Note Purchase
Agreement.
Agreed to
this 19th day of
March, 2008.
Federal
Agricultural Mortgage Corporation,
By:
______________________
Name:
Xxxxx X. Xxxxxxxxx
Title:
Executive Vice President &
Chief
Financial Officer
National
Rural Utilities Cooperative
Finance Corporation,
By: ______________________
Name: Xxxx
X. Xxxxx
Title: Vice
President, Capital
Market
Funding
ANNEX
A
[FORM OF
NOTE]
NATIONAL
RURAL UTILITIES COOPERATIVE FINANCE CORPORATION
Variable
Rate Senior Note due _______
Washington,
D.C.
____________,
2008
FOR VALUE
RECEIVED, the undersigned, NATIONAL RURAL UTILITIES COOPERATIVE FINANCE
CORPORATION (“National
Rural”), a District of Columbia cooperative association, hereby promises
to pay to FEDERAL AGRICULTURAL MORTGAGE CORPORATION (“Xxxxxx Mac”), or
registered assigns, the principal sum of FOUR HUNDRED MILLION DOLLARS
($400,000,000.00) on __________________, together with interest computed from
the date hereof according to the terms of the Note Purchase Agreement (as
defined below).
Payments
of principal and interest on this Note are to be made in lawful money of the
United States of America at such place as shall have been designated
by written notice to National Rural from the registered holder of this Note as
provided in the Note Purchase Agreement referred to below.
This Note
is issued pursuant to a Note Purchase Agreement dated as of ____________, 2008
(as from time to time amended, the “Note Purchase
Agreement”) between National Rural and Xxxxxx Mac and is entitled to the
benefits thereof. This Note is also entitled to the benefits of the
Pledge Agreement dated as of _____________, 2008, among National Rural, Xxxxxx
Mac and the Collateral Agent named therein.
Capitalized
terms used herein and not defined herein shall have the meanings given to those
terms in the Note Purchase Agreement.
This Note
is a registered Note and, upon surrender of this Note for registration of
transfer or exchange, accompanied by a written instrument of transfer duly
executed by the registered holder hereof or such holder’s attorney duly
authorized in writing, a new Note will be issued to, and registered in the name
of, the transferee. Prior to due presentment for registration of
transfer, National Rural may treat the person in whose name this Note is
registered as the owner hereof for the purpose of receiving payment and for all
other purposes, and National Rural will not be affected by any notice to the
contrary.
This Note
may be prepaid at any time, in whole or in part, at the option of National
Rural, according to the terms of the Note Purchase Agreement and provided that,
if such optional prepayment is made on a date other than an Interest Payment
Date, accrued interest on the principal amount hereof that is being prepaid
shall be payable
through
and including the last day of the Interest Period in which such optional
prepayment is made.
If an
Event of Default, as defined in the Note Purchase Agreement, occurs and is
continuing, the principal of this Note may be declared due and payable in the
manner, at the price and with the effect provided in the Note Purchase
Agreement.
This Note
shall be construed and enforced in accordance with, and the rights of National
Rural and the holder hereof shall be governed by, the laws of the District of
Columbia, excluding choice-of-law principles of the law of the District of
Columbia that would require the application of the laws of another
jurisdiction.
|
|
||
|
|
NATIONAL
RURAL UTILITIES COOPERATIVE FINANCE CORPORATION,
|
|
| By | ||
|
Name:
|
||
|
Title:
|
||
ANNEX
B
[FORM OF
OPINION OF COUNSEL TO NATIONAL RURAL]
_______________,
2008
Federal
Agricultural Mortgage Corporation
0000
Xxxxxx-Xxxxx Xxxxxx, XX
Xxxxx
000
Xxxxxxxxxx,
XX 00000
Gentlemen:
I am
delivering this opinion as general counsel (“Counsel”) of National Rural
Utilities Cooperative Finance Corporation, a District of Columbia cooperative
association (“Borrower”), and am familiar with matters pertaining to the loan to
Borrower in the principal amount of $400,000,000.00, provided for in the
Note Purchase Agreement dated as of _____________, 2008 (“Note
Purchase Agreement"), made by and between Borrower and Federal Agricultural
Mortgage Corporation (“Xxxxxx Mac”).
I have
examined such corporate records and proceedings of Borrower, and such other
documents as I have deemed necessary as a basis for the opinions hereinafter
expressed.
I have
also examined the following documents as executed and delivered: (a) the Note
Purchase Agreement; (b) the Note dated as of _______________, in the
principal amount of $400,000,000.00 (“Note”), said Note payable to Xxxxxx Mac;
(c) the Pledge Agreement, dated as of _____________, 2008, made by and among
Borrower, Xxxxxx Mac and U.S. Bank Trust National Association, and (d) the
Registration Rights Agreement, dated as of ______________, 2008, by and between
Borrower and Xxxxxx Mac. The documents described in items (a) through
(d) above are collectively referred to herein as the "Note
Documents."
Based on
the foregoing, but subject to the assumptions, exceptions, qualifications and
limitations hereinafter expressed, I am of the opinion that:
(1) The
Borrower has been duly incorporated and is validly existing as a not-for-profit
corporation in good standing under the laws of the District of Columbia with
corporate power and authority to execute and perform its obligations under the
Note Documents.
(2) The Note
Documents have been duly authorized, executed and delivered by the Borrower, and
such documents constitute the legal, valid and
binding
agreements of the Borrower, enforceable against the Borrower in accordance with
their respective terms.
(3) Neither
the execution nor the delivery by the Borrower of any of the Note Documents nor
the consummation by the Borrower of any of the transactions contemplated
therein, including, without limitation, the pledge of the Pledged Securities (as
such term is defined in the Pledge Agreement) to Xxxxxx Mac, nor the fulfillment
by the Borrower of the terms of any of the Note Documents will conflict with or
violate, result in a breach of or constitute a default under any term or
provision of the Articles of Incorporation or By-laws of the Borrower or any law
or any regulation or any order known to Counsel currently applicable to the
Borrower of any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Borrower or the terms of any indenture, deed
of trust, note, note agreement or instrument to which the Borrower is a party or
by which the Borrower or any of its properties is bound.
(4) No
approval, authorization, consent, order, registration, filing, qualification,
license or permit of or with any state or Federal court or governmental agency
or body having jurisdiction over the Borrower is required for any consummation
by the Borrower of the transactions contemplated by the Note Documents; provided, however, no opinion
is expressed as to the applicability of any Federal or state securities law to
any sale, transfer or other disposition of the Note after the date
hereof.
(5) Except as
set forth in writing and previously delivered to Xxxxxx Mac, there is no pending
or, to Counsel’s knowledge, threatened action, suit or proceeding before any
court or governmental agency, authority or body or any arbitrator with respect
to the Borrower, or any of the Note Documents, which, if adversely determined,
would have a material adverse effect on the Borrower’s financial condition or
its ability to perform its obligations under any of the Note
Documents.
The foregoing opinions are subject to
the following assumptions, exceptions, qualifications and
limitations:
A. I
am a member of the Bar of the District of Columbia and render no opinion on the
laws of any jurisdiction other than the laws of the District of Columbia, the
federal laws of the United States of America and the General Corporation Law of
the District of Columbia.
B. My
opinions are limited to the present laws and to the facts, as they presently
exist. I assume no obligation to revise or supplement this opinion
should the present laws of the jurisdictions referred to in paragraph A above be
changed by legislative action, judicial decision or otherwise.
C. The
opinions expressed in paragraph 2 above shall be understood to mean only that if
there is a default in performance of an obligation, (i) if a failure to pay or
other damage can be shown and (ii) if the defaulting party can be brought into a
court which will hear the case and apply the governing law, then, subject to the
availability of defenses, and to the exceptions set forth in the next paragraph,
the court will provide a money damage (or perhaps injunctive or specific
performance) remedy.
D. My
opinions are also subject to the effect of: (1) bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws affecting
creditors’ rights (including, without limitation, the effect of statutory and
other law regarding fraudulent conveyances, fraudulent transfers and
preferential transfers); and (2) the exercise of judicial discretion and the
application of principles of equity, good faith, fair dealing, reasonableness,
conscionability and materiality (regardless of whether the applicable agreements
are considered in proceeding in equity or at law).
E. This
letter is rendered to you in connection with the Note Documents and the
transactions related thereto, and may not be relied upon by any other person or
by you in any other context or for any other purpose.
F. I
have assumed with your permission (i) the genuineness of all signatures by each
party other than the Borrower, (ii) the authenticity of documents submitted to
me as originals and the conformity to authentic original documents of all
documents submitted to me as copies, and (iii) the due execution and delivery,
pursuant to due authorization, of the Note Documents by each party other than
the Borrower.
Yours
sincerely,
Xxxx X.
List
General
Counsel
ANNEX
C
[FORM OF
OFFICERS’ CERTIFICATE]
Officers’
Certificate
TO: Federal
Agricultural Mortgage Corporation.
We,
[ ],
Chief Executive Officer, and
[ ],
Chief Financial Officer, of National Rural Utilities Cooperative Finance
Corporation (“National
Rural”), pursuant to the Note Purchase Agreement dated as of
_______________, 2008, between National Rural and Federal Agricultural Mortgage
Corporation (the “Note
Purchase Agreement”), hereby certify on behalf of National Rural that as
at the date hereof:
(1) National
Rural is a lending institution organized as a private, not-for-profit,
cooperative association with the appropriate expertise, experience and
qualifications to make loans to its rural electric distribution cooperative
Members for rural electrification and related purposes;
(2) no
material adverse change has occurred in the financial condition of National
Rural between the date of the end of National Rural’s most recently completed
Fiscal Year for which Financial Statements have been made publicly available and
the date hereof;
(3) all
of the representations contained in Section 5.02 of the Note Purchase Agreement
remain true and correct in all material respects on and as of the date hereof;
and
(4) no
Event of Default exists.
Capitalized
terms used in this certificate shall have the meanings given to those terms in
the Note Purchase Agreement.
DATED as
of this ____day of _______________, 200__.
NATIONAL
RURAL UTILITIES COOPERATIVE FINANCE CORPORATION,
______________________________
Chief
Executive Officer
______________________________
Chief
Financial Officer
