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Exhibit 10.3
FIRST AMENDMENT TO
REVOLVING CREDIT AND
TERM LOAN AGREEMENT
THIS FIRST AMENDMENT, dated as of November 27, 1996 (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 Agent.
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks and the Agent have
heretofore entered into a Revolving Credit and Term Loan agreement, dated
as of April 30, 1996 (the "Original Agreement"); and
WHEREAS, the Borrower has requested the Banks and the 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
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):
"Amendment" is defined in the preamble.
"Original Agreement" is defined in the first recital.
SECTION 1.2. 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.
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ARTICLE II
AMENDMENTS TO
ORIGINAL AGREEMENT
Effective on (and subject to the occurrence of) the First
Amendment Effective Date, the Original Agreement is hereby amended in
accordance with Sections 2.1 and 2.2. Except as so amended or modified by
this Amendment, the Original Agreement shall continue in full force and effect.
SECTION 2.1 Amendments to Article I. Article I of the
Original Agreement is hereby amended in accordance with Sections 2.1.1
and 2.1.2.
SECTION 2.1.1. Section 1.01 of the Original Agreement is
hereby amended by inserting the following definitions in the appropriate
alphabetical order:
"First Amendment" means the First Amendment, dated as of
November 27, 1996, to this Agreement, among the Borrower, the Banks parties
thereto and the Agent.
"First Amendment Effective Date" is defined in Section 3.1 of
the First Amendment.
SECTION 2.1.2 Section 1.01 of the Original Agreement is
hereby further amended as follows:
(a) The definition of "Minimum Required Net Worth" is hereby amended
in its entirety to read as follows:
"Minimum Required Net Worth" shall initially be
$1,346,291,939; provided that on each date after the First Amendment
Effective Date upon which annual financial statements are required to be
delivered pursuant to Section 5.03(ii), the Minimum Required Net Worth shall
be permanently increased by an amount, if positive, equal to ninety percent
(90%) of (i) the aggregate amount of Net Margins for the prior fiscal year
minus (ii) the aggregate amount of retirements of Patronage Capital
Certificates made by the Borrower to Members in the prior fiscal year.
In the event that in any year the amount specified in clause (ii) above is
equal to or greater than the amount specified in clause (i) above, the
Minimum Required Net Worth shall remain the same for that year.
the definition of "Net Worth" is hereby amended in its entirety to read as
follows:
"Net Worth" means the sum of (i) all accounts which constitute
Members' equity in the Borrower, (ii) all Indebtedness of the Borrower shown
in its balance sheet dated as of May 31, 1996 as "Members' Subordinated
Certificates" and any other Indebtedness of the Borrower incurred after
May 31, 1996 having substantially similar provisions as to subordination as
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those contained in said outstanding certificates and (iii) any amounts
reflected in the financial statements of the Borrower as a reserve for loan
losses.
(c) 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 First Amendment Effective Date to but excluding the Revolving Credit
Period Termination Date.
(d) 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 26,
1997, 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.
(e) the definition of "S&P" is hereby amended in its entirety to read
as follows:
"S&P" means Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, and its successors.
SECTION 2.2. 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. All references to
the Pricing Schedule in the Original Agreement shall be deemed to refer to
the Pricing Schedule attached hereto as Exhibit A.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
SECTION 3.1. Effectiveness. This Amendment shall become
effective on the date (the "First Amendment Effective Date") on which the
Agent shall have received the following documents, each dated the First
Amendment Effective Date unless otherwise indicated:
(a) receipt by the Agent of counterparts hereof signed by each
of the parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the 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);
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(b) 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
(c) receipt by the Agent, for the account of the Banks, of
all fees accrued to but excluding the First Amendment Effective Date for the
account of the Agent pursuant to Section 2.08(b) of the Original Agreement.
The Agent shall promptly notify the Borrower and the Banks of the First
Amendment Effective Date, and such notice shall be conclusive and binding
on all parties hereto. On and after the First 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 First Amendment
Effective Date shall continue to be governed by the provisions of the Original
Agreement; and provided further, that (i) 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 hereof (as such
amount may be reduced from time to time pursuant to the Original Agreement),
in each case created as of the First Amendment Effective Date, and (ii) all
references to "the date hereof" or "the date of this Agreement" contained in
the Original Agreement shall be deemed to refer to the First 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 4.1. 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
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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 4.2. 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 4.3 No Default. No Default or Event of Default has
occurred and is continuing under the Original Agreement.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Governing Law. This Amendment shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 5.2 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 5.3. 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,
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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 5.4. 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 5.5. 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 5.6. 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
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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).
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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: Chief Financial Officer
Address: Woodland Park
0000 Xxxxxxxxxxx Xxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
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Commitments
$50,000,000 ABN AMRO BANK N.V.
NEW YORK BRANCH
By /s/ Xxxxxxx X'Xxxxx
Title: Vice President
By /s/ Xxxxxx X. Xxxxxx
Title: Assistant
$50,000,000 BANK OF AMERICA ILLINOIS
By /s/ Xxxxxxx X. Xxxxxx
Title: Vice President
$50,000,000 CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Xxxx X. Xxxxxxx
Title: Vice President
$50,000,000 XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Xxxxxxxxxxx Xxxxxx
Title: Vice President
$50,000,000 NATIONSBANK, N.A.
By /s/ Xxxxx X. Xxxxx
Title: Vice President
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$50,000,000 RABOBANK NEDERLAND,
NEW YORK BRANCH
By /s/ Xxxx X. Xxxxxxx
Title: Vice President
By /s/ Xxx Xxxxx
Title: Vice President & Manager
$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 FIRST NATIONAL BANK OF CHICAGO
By /s/ Xxxxxxx Xxxxxxx
Title: Authorized Agent
$50,000,000 THE TORONTO-DOMINION BANK
By /s/ Xxxxx X. Xxxxxx
Title: Mgr. Cr. Admin.
Total Commitments
$ 500,000,000
00
XXX XXXX XX XXXX XXXXXX,
as Agent
By /s/ J.R. Trimble
Title: Senior Relationship Manager
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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:
Xxxxxx Xxxxx Xxxxx Xxxxx
X II III
Euro-DollarMargin 0.185% 0.22% 0.25%
If Utiliza-
tion is equal
to or less than 50%
If Utiliza- 0.185% 0.345% 0.375%
tion exceeds50%
CD Margin
If Utiliza- 0.315% 0.345% 0.375%
tion is
equal to or
less than 50%
If Utiliza- 0.315% 0.47% 0.5%
tion exceeds
50%
Facility Fee Rate 0.065% 0.08% 0.1%
<1TABLE>
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
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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.
