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Exhibit 1.
$100,000,000
NATIONAL RURAL UTILITIES
COOPERATIVE FINANCE CORPORATION
6.70% Collateral Trust Bonds, Due 2002
Underwriting Agreement
June 9, 1997
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE,
▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
NATIONSBANC CAPITAL MARKETS, INC.
As Representatives of the several Underwriters
In care of ▇▇▇▇▇▇ Brothers Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
National Rural Utilities Cooperative Finance Corporation, a
District of Columbia cooperative association (the "Company"), proposes to issue
$100,000,000 principal amount of its 6.70% Collateral Trust Bonds, Due 2002
(the "Bonds"), to be issued under and secured by an Indenture dated as of
February 15, 1994, between the Company and First Bank National Association (the
"Trustee"). Such Indenture, as amended by any supplemental indenture, is
hereinafter called the "Indenture." The Bonds are more fully described in the
Registration Statement and in the Prospectus hereinafter mentioned. The Bonds
will be issued in fully registered form only, in denominations of $1,000 and
any integral multiple thereof.
You have advised us (i) that you and any other firms and
corporations named in Schedule I attached hereto (you and such firms and
corporations being hereinafter called the Underwriters, which term shall also
include any underwriter substituted as provided in Section 11 hereof), acting
severally and not jointly, are willing to purchase, on the terms and conditions
hereinafter set forth, the respective principal amounts of the Bonds,
aggregating $100,000,000 principal amount
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thereof, specified in such Schedule I, and (ii) that you are authorized, on
behalf of yourselves and the other Underwriters, to enter into this Agreement.
1. Certain Representations and Warranties by the Company.
The Company represents and warrants to each Underwriter as follows:
(a) Registration Statement and Prospectus. The Company has
filed with the Securities and Exchange Commission (the "Commission")
Registration Statement No. 333-05689, for the registration under the Securities
Act of 1933 (the "Securities Act") of the Bonds (including a prospectus
relating thereto) and may have filed one or more amendments thereto (including
one or more amended or supplemental prospectuses) and such registration
statement and any such amendments have become effective. The Company has also
filed with the Commission Registration Statement No. 333-21677, which, pursuant
to Rule 429 under the Securities Act, includes a prospectus covering certain of
the Company's securities previously registered and unissued under Registration
Statement No. 333-05689, and such registration statement has become effective.
A prospectus supplement relating to the Bonds, including a prospectus
(together, the "Prospectus"), has been prepared and will be filed pursuant to
Rule 424 under the Securities Act. The Company will not file any other
amendment of such registration statements or such prospectus or any supplement
to such prospectus on or after the date of this Agreement and prior to the date
and time of delivery of and payment for the Bonds referred to in Section 3
hereof (the "Closing Date"), except with your approval. Such registration
statements, including financial statements and exhibits, at the time they
became effective, are hereinafter called the Registration Statement. Any
reference in this Agreement to the Prospectus as amended or supplemented shall
include, without limitation, any prospectus filed with the Commission pursuant
to Rule 424 of the Commission under the Securities Act which amends or
supplements the Prospectus. Any reference herein to the Registration Statement
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934 (the "Exchange Act") on or
before the effective date of the Registration Statement or the date of such
Prospectus, as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement or the
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the effective date of the Registration Statement,
or the date of any Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(b) Accuracy of Registration Statement. At all times subsequent
to the date of this Agreement up to and including the Closing Date, and when
any post-effective amendment thereof shall become effective, the Registration
Statement (and the
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Registration Statement as amended if any post-effective amendment thereof shall
have become effective) will comply in all material respects with the provisions
of the Securities Act and the Exchange Act and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a material
fact and will not omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and, at all times
subsequent to the date of this Agreement up to and including the Closing Date,
the Prospectus (and the Prospectus as amended or supplemented, if the Company
shall have filed with the Commission any amendment thereof or supplement
thereto) will fully comply with the provisions of the Securities Act and the
Exchange Act and the rules and regulations of the Commission thereunder and
will not contain an untrue statement of a material fact and will not omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that none of the representations and
warranties in this paragraph (b) shall apply to (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of 1939 (the "Trust
Indenture Act"), of the Trustee or (ii) statements in, or omissions from, the
Registration Statement or the Prospectus or any amendment thereof or supplement
thereto made in reliance upon and in conformity with information furnished as
herein stated or otherwise furnished in writing to the Company by or on behalf
of any Underwriter through you for use in connection with the preparation of
the Registration Statement or the Prospectus or any such amendment or
supplement.
(c) Accountants. The accountants who have certified or shall
certify the financial statements filed and to be filed with the Commission as
parts of the Registration Statement and the Prospectus are independent with
respect to the Company as required by the Securities Act and rules and
regulations of the Commission thereunder.
(d) Due Incorporation. The Company has been duly
incorporated and is now, and on the Closing Date will be, a validly existing
cooperative association in good standing under the laws of the District of
Columbia, duly qualified and in good standing in each jurisdiction in which the
ownership or leasing of properties or the conduct of its business requires it
to be qualified (or the failure to be so qualified will not have a material
adverse effect upon the business or condition of the Company), and the Company
has the corporate power and holds all valid permits and other required
authorizations from governmental authorities necessary to carry on its business
as now conducted and as to be conducted on the Closing Date and as contemplated
by the Prospectus.
(e) Material Changes. Since the respective dates as of which
information is given in the Registration Statement and
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the Prospectus, and except as set forth therein, there has not been any
material adverse change in the condition, financial or other, or the results of
operations of the Company, whether or not arising from transactions in the
ordinary course of business.
(f) Litigation. On the date hereof, except as set forth in
the Prospectus, the Company does not have any litigation pending of a character
which in the opinion of counsel for the Company referred to in Section 10(c)
hereof could result in a judgment or decree having a material adverse effect on
the condition, financial or other, or the results of operations of the Company.
(g) Legality. On the Closing Date, the Bonds will be duly
and validly authorized, and no further authorization, consent or approval of
the members and no further authorization or approval of the Board of Directors
of the Company or any committee thereof will be required for the issuance and
sale of the Bonds as contemplated herein; and neither such issuance or sale of
the Bonds nor the consummation of any other of the transactions herein
contemplated will result in a breach by the Company of any terms of, or
constitute a default under, any other agreement or undertaking of the Company.
(h) No Stop Order. The Commission has not issued and, to the
best knowledge of the Company, is not threatening to issue any order preventing
or suspending the use of the Prospectus (as amended or supplemented, if the
Company shall have filed with the Commission any amendment thereof or
supplement thereto).
(i) Regulation. The Company is not required to be registered
as an investment company under the Investment Company Act of 1940 and is not
subject to regulation under the Public Utility Holding Company Act of 1935.
2. Agreement to Purchase. Subject to the terms and
conditions and upon the representations and warranties herein set forth, the
Company agrees to sell to you and any other Underwriters, severally and not
jointly, and you and such other Underwriters, severally and not jointly, agree
to purchase from the Company, at 99.214% of the principal amount thereof, plus
interest accrued thereon, if any, from June 12, 1997, to the Closing Date, the
respective principal amounts of the Bonds set forth opposite the names of the
respective Underwriters in Schedule I hereto, aggregating $100,000,000
principal amount thereof.
3. Closing. Delivery of and payment for the Bonds shall be
made at the office of ▇▇▇▇▇▇ Brothers Inc., Three World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 9:30 A.M., New York City time, on June 12, 1997, or
such later date (not later than June 19, 1997) as you, as Representatives of
the Underwriters, shall designate, which date and time may be postponed by
agreement between you, as such Representatives, and
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the Company or as provided in Section 11 hereof. Delivery of the Bonds shall
be made to you, for the respective accounts of the several Underwriters,
against payment by the several Underwriters through you of the purchase price
thereof, to or upon the order of the Company by certified or official bank
check or checks payable, or wire transfers, in immediately available funds.
The Bonds shall be delivered in definitive global form through the facilities
of Depository Trust Company.
4. Prospectuses. The Company has caused to be delivered to
you, as Representatives of the Underwriters, copies of the Prospectus and has
consented to the use of such copies for the purposes permitted by the
Securities Act. The Company agrees to deliver to you, as Representatives of
the Underwriters, without charge, from time to time during such period as in
the opinion of Cravath, Swaine & ▇▇▇▇▇, counsel for the Underwriters, the
Prospectus is required by law to be delivered in connection with sales by an
Underwriter or dealer, as many copies of the Prospectus (and, in the event of
any amendment of or supplement to the Prospectus, of such amended or
supplemented Prospectus) as you, as Representatives of the Underwriters, may
reasonably request. If, at any time during the period in which the Company is
required to deliver copies of the Prospectus, as provided in this Section 4,
any event known to the Company relating to or affecting the Company shall occur
which should be set forth in an amendment of or supplement to the Prospectus in
order to make the statements in the Prospectus not misleading in the light of
the circumstances at the time it is delivered to the purchaser, or it shall be
necessary to amend or supplement the Prospectus to comply with law or with the
rules and regulations of the Commission, the Company, at its expense, will
forthwith prepare and furnish to you for distribution to the Underwriters and
dealers a reasonable number of copies of an amendment or amendments of or a
supplement or supplements to the Prospectus which will so amend or supplement
the Prospectus that, as amended or supplemented, it will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements in the Prospectus
not misleading in the light of the circumstances when it is delivered to a
purchaser, and will comply with law and with such rules and regulations. The
Company authorizes the Underwriters and all dealers effecting sales of the
Bonds to use the Prospectus, as from time to time amended or supplemented, in
connection with the sale of the Bonds in accordance with applicable provisions
of the Securities Act and the applicable rules and regulations thereunder for
the period during which the Company is required to deliver copies of the
Prospectus as provided in this Section 4.
5. Commission Proceedings as to Registration Statement. The
Company agrees to advise you promptly, as Representatives of the Underwriters,
and to confirm such advice in writing, (a) when any post-effective amendment of
the Registration Statement shall have become effective and when any
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further amendment of or supplement to the Prospectus shall be filed with the
Commission, (b) of any request by the Commission for any amendment of the
Registration Statement or the Prospectus or for additional information and (c)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the initiation of any
proceedings for that purpose. The Company will use every reasonable effort to
prevent the issuance of such a stop order and, if any such order shall at any
time be issued, to obtain the withdrawal thereof at the earliest possible
moment.
6. Blue Sky. The Company will diligently endeavor, when and
as requested by you, to qualify the Bonds, or such portion thereof as you may
request, for offering and sale under the securities or blue sky laws of any
jurisdictions which you shall designate.
7. Earnings Statement. The Company agrees to make generally
available to its security holders, in accordance with Section 11(a) of the
Securities Act and Rule 158 thereunder, an earnings statement of the Company
(which need not be audited) in reasonable detail and covering a period of at
least twelve months beginning after the effective date of the Registration
Statement.
8. Expenses. The Company agrees to pay all fees and expenses
in connection with (a) the preparation, printing and filing of the Registration
Statement (including all exhibits to the Registration Statement), the
Prospectus and any amendments thereof and supplements thereto, and the
furnishing of copies of each thereof to the Underwriters (including costs of
mailing and shipment), (b) the issuance of the Bonds, (c) the rating of the
Bonds by rating agencies, (d) the delivery of the Bonds to you in New York City
for the respective accounts of the several Underwriters and (e) the qualifying
of the Bonds as provided in Section 6 hereof and the determination of the
eligibility of the Bonds for investment under the laws of such jurisdictions as
you may designate (including fees of not more than $10,000 and disbursements of
counsel for the Underwriters in connection therewith).
9. Indemnities.
(a) By the Company. The Company agrees to indemnify and hold
harmless each Underwriter and each person who controls any Underwriter within
the meaning of Section 15 of the Securities Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Securities Act, the Exchange Act or any other
statute or common law, and to reimburse the Underwriters and such controlling
persons, as incurred, for any legal or other expenses incurred by them in
connection with investigating any claims and defending any actions, insofar as
such losses, claims, damages, liabilities or actions arise out of or are based
upon (i) any untrue statement or alleged untrue statement of a
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material fact contained in the Registration Statement or any post-effective
amendment thereof, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (ii) any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (as amended or
supplemented, if the Company shall have filed with the Commission any amendment
thereof or supplement thereto), if used within the period during which the
Underwriters are authorized to use the Prospectus as provided in Section 4
hereof, or the omission or alleged omission to state therein (if so used) a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the indemnity agreement contained
in this Section 9(a) shall not apply to any such losses, claims, damages,
liabilities or actions arising out of, or based upon, any such untrue statement
or alleged untrue statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon and in conformity with
information furnished as herein stated in Section 12 or otherwise furnished in
writing to the Company by or on behalf of any Underwriter through you for use
in connection with the preparation of the Registration Statement or the
Prospectus or any such amendment thereof or supplement thereto, or was
contained in that part of the Registration Statement constituting the Statement
of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of
the Trustee; provided, further, that, with respect to any untrue statement or
alleged untrue statement made in, or omission or alleged omission from, the
Prospectus, the indemnity agreement contained in this Section 9(a) with respect
to the Prospectus shall not inure to the benefit of any Underwriter (or the
benefit of any person controlling such Underwriter) from whom the person
asserting any such losses, claims, damages or liabilities purchased the Bonds
which are the subject thereof, if such person did not receive a copy of the
Prospectus (or the Prospectus as amended or supplemented if the Company shall
have made any amendments thereof or supplements thereto which shall have been
furnished to you, as Representatives of the Underwriters, or to such
Underwriter prior to the time of the below-written confirmation), excluding the
documents incorporated therein by reference, at or prior to the written
confirmation of the sale of such Bonds to such person in any case where
delivery of the Prospectus is required under the Securities Act and the rules
and regulations of the Commission thereunder and any untrue statement or
alleged untrue statement or omission or alleged omission was corrected in the
Prospectus (or the Prospectus as amended or supplemented).
(b) By the Underwriters. Each Underwriter agrees, in the
manner and to the same extent as set forth in Section 9(a) hereof, to indemnify
and hold harmless the Company, each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act, the directors of the
Company and those officers of the Company who shall have signed the
Registration
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Statement, with respect to any statement in or omission from the Registration
Statement or any post-effective amendment thereof or the Prospectus (as amended
or supplemented, if so amended or supplemented), if such statement or omission
was made in reliance upon and in conformity with information furnished as
herein stated in Section 12 or otherwise furnished in writing to the Company
through you on behalf of such Underwriter for use in connection with the
preparation of the Registration Statement or the Prospectus or any such
amendment thereof or supplement thereto.
(c) General. Each indemnified party will, within ten days
after the receipt of notice of the commencement of any action against such
indemnified party in respect of which indemnity may be sought from an
indemnifying party on account of an indemnity agreement contained in this
Section 9, notify the indemnifying party in writing of the commencement
thereof. The omission of any indemnified party so to notify an indemnifying
party of any such action shall not relieve the indemnifying party from any
liability which it may have to such indemnified party on account of the
indemnity agreement contained in this Section 9 or otherwise. Except as
provided in the next succeeding sentence, in case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, and after notice in writing
from such indemnifying party to such indemnified party of its election so to
assume the defense thereof, such indemnifying party will not be liable to such
indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. Such indemnified party
shall have the right to employ its own counsel in any such action, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment of such counsel has been authorized in writing by the
indemnifying party in connection with the defense of such action, (ii) such
indemnified party shall have been advised by such counsel that there are
material legal defenses available to it which are different from or additional
to those available to the indemnifying party (in which case the indemnifying
party shall not have the right to assume the defense of such action on behalf
of such indemnified party) or (iii) the indemnifying party shall not have
assumed the defense of such action and employed counsel therefor satisfactory
to such indemnified party within a reasonable time after notice of commencement
of such action, in any of which events such fees and expenses shall be borne by
the indemnifying party. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification
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may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from
all liability arising out of such action or claim and (ii) does not include any
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party. No indemnified party shall effect the
settlement or compromise of, or consent of the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification may be sought hereunder without the consent of the indemnifying
party (which consent shall not be unreasonably withheld).
(d) Contribution. If the indemnification provided for in
this Section 9 shall for any reason be unavailable to an indemnified party
under Section 9(a) or 9(b) hereof in respect of any loss, claim, damage or
liability or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Bonds or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters on
the other with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other with respect to such
offering shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Bonds (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by
the Underwriters with respect to such offering, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault of the
Company on the one hand and the Underwriters on the other shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 9(d) were to be determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
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action in respect thereof, referred to above in this Section 9(d) shall be
deemed to include, for purposes of this Section 9(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Bonds
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise paid or
become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 9(d) are several in proportion to their respective underwriting
obligations and not joint.
(e) Survival of Indemnities. The respective indemnity and
contribution agreements of the Company and the Underwriters contained in this
Section 9, and the representations and warranties of the Company set forth in
Section 1 hereof, shall remain operative and in full force and effect,
regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any Underwriter or any such controlling
person or the Company or any such controlling person, director or officer, and
shall survive the delivery of the Bonds, and any successor of any Underwriter
or of any such controlling person or of the Company, and any legal
representative of any such controlling person, director or officer, as the case
may be, shall be entitled to the benefit of the respective indemnity and
contribution agreements.
10. Conditions to Underwriters' Obligations. The several
obligations of the Underwriters hereunder are subject to the accuracy of and
compliance with the representations and warranties of the Company contained in
Section 1 hereof, as of the date hereof and as of the Closing Date, and to the
following further conditions:
(a) Effectiveness of Registration Statement. No stop order
suspending the effectiveness of the Registration Statement or
qualification of the Indenture shall be in effect on the Closing Date,
and no proceedings for the issuance of such an order shall be pending
or, to the knowledge of the Company or you, threatened by the
Commission on the Closing Date.
(b) Opinion of Counsel for the Underwriters. The form and
validity of the Indenture, the form and validity of the Bonds, the
legality and sufficiency of the authorization of the issuance and sale
of the Bonds hereunder, and all corporate proceedings and other legal
matters incident to
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the foregoing, and the form of the Registration Statement and of the
Prospectus (other than financial statements and other financial data),
shall have been approved as of the Closing Date by Cravath, Swaine &
▇▇▇▇▇, counsel for the Underwriters.
(c) Opinion of Counsel for the Company. The Company shall
have furnished to you, as Representatives of the Underwriters, on the
Closing Date, the opinion, addressed to the Underwriters and dated the
Closing Date, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the
Company, which opinion shall be satisfactory in form and scope to
counsel for the Underwriters, to the following effect:
(i) the Company has been duly incorporated and is
validly existing as a cooperative association in good standing
under the laws of the District of Columbia with corporate
power to conduct its business as described in the Registration
Statement;
(ii) the issuance and sale of the Bonds by the
Company pursuant to this Agreement have been duly and validly
authorized by all necessary corporate action; and no
authorization, consent, order or approval of, or filing or
registration with, or exemption by, any government or public
body or authority (including, without limitation, the Rural
Utilities Service) of the United States or of the State of New
York or any department or subdivision thereof or to the best
of such counsel's knowledge any court, other than such as may
be required under State securities or blue sky laws and other
than registration of the Bonds under the Securities Act and
qualification of the Indenture under the Trust Indenture Act,
is required for the validity of the Bonds or for the issuance,
sale and delivery of the Bonds by the Company pursuant to this
Agreement or for the execution and delivery of this Agreement
by the Company;
(iii) the Indenture has been duly authorized by the
Company, has been duly qualified under the Trust Indenture
Act, constitutes an instrument valid and binding on the
Company and enforceable in accordance with its terms and the
Indenture Trustee has a valid first perfected security
interest in the Mortgage Notes in its possession in New York
and, subject to the requirements of Section 9-306 of the New
York Uniform Commercial Code, in the proceeds thereof, subject
only to the exceptions permitted by the Indenture, pledged
pursuant to the Indenture (except that no opinion need be
expressed as to the lien on the Mortgages, as defined in the
Indenture, so pledged);
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(iv) the Bonds are in the forms provided for in the
Indenture, and, assuming due execution of the Bonds on behalf
of the Company and authentication thereof by the Trustee, the
Bonds constitute valid and binding obligations of the Company
enforceable in accordance with their terms and are entitled to
the benefits of the Indenture;
(v) this Agreement has been duly authorized, executed
and delivered by the Company and the performance of this
Agreement and the consummation of the transactions herein
contemplated will not result in a breach of any terms or
provisions of, or constitute a default under, the Articles of
Incorporation or By-laws of the Company or any indenture, deed
of trust, note, note agreement or other agreement or
instrument known to such counsel, after due inquiry, to which
the Company is a party or by which the Company or any of its
properties is bound or affected;
(vi) the Bonds and the Indenture conform in all
material respects to the descriptions thereof contained in the
Registration Statement;
(vii) the Registration Statement (and any
post-effective amendment thereof) has become and is effective
under the Securities Act and the Bonds have become registered
under the Securities Act, and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or
contemplated, and the Registration Statement (and any
post-effective amendment thereof), the Prospectus and each
amendment thereof or supplement thereof (except for the
financial statements and other financial data included therein
as to which such counsel need express no opinion) when they
became effective or were filed with the Securities and
Exchange Commission complied as to form in all material
respects with the requirements of the Securities Act, the
Exchange Act, the Trust Indenture Act and the rules and
regulations issued thereunder;
(viii) based upon such counsel's participation in the
preparation of the Registration Statement, the Prospectus and
documents incorporated by reference therein, such counsel's
discussions with certain officers and employees of the
Company, such counsel's conferences with representatives of
the Company's independent Certified Public Accountants and
such counsel's representation of the Company, and while such
counsel does not pass on or assume any responsibility for the
accuracy, completeness or fairness thereof,
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nothing has come to such counsel's attention that causes it to
believe that either the Registration Statement (or any
post-effective amendment thereof) as of the date it became
effective, or the Prospectus and each supplement thereto as of
the Closing Date (except in each case for the financial or
statistical data included therein, as to which such counsel
expresses no view) contains an untrue statement of a material
fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading and such counsel does not know of any litigation or
any governmental proceeding instituted or threatened against
the Company required to be disclosed in the Registration
Statement or Prospectus and which is not disclosed therein;
(ix) the Company is not required to be registered as
an investment company under the Investment Company Act of
1940;
(x) the Company is not subject to regulation under
the Public Utility Holding Company Act of 1935; and
(xi) the Company is not a public utility as defined
in the Federal Power Act and is not a natural gas company as
defined in the Natural Gas Act.
If the certification referred to in clause (ix) of subsection
10(e) below indicates that the Pledged Property includes collateral
other than Mortgage Notes, the opinion referred to in clause (iii)
above shall also address the security interest of the Indenture
Trustee in the Pledged Property (and in the proceeds thereof), in form
reasonably satisfactory to you.
The foregoing opinion may contain qualifications to the effect
that any sale or transfer by the Trustee under the Indenture of any
Pledged Property (other than a transfer into the name of the Trustee
or a nominee thereof) may be subject to the provisions of the
Securities Act and other applicable securities laws and regulations
promulgated thereunder, and, insofar as such opinion relates to the
enforceability of the Bonds and the Indenture, the enforceability
thereof may be limited by bankruptcy, reorganization, insolvency,
moratorium or other laws of general application relating to or
affecting the enforcement of creditors' rights and by general
principals of equity (regardless of whether considered in a proceeding
in equity or at law), including without limitation (a) the possible
unavailability of specific performance, injunctive relief or any other
equitable remedy and (b) concepts of materiality, reasonableness, good
faith and fair dealing. In addition, the Company's obligations and
the rights and remedies of the Trustee and the Bondholders may be
subject to possible
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limitations on the exercise of remedial or procedural provisions
contained in the Indenture (provided that such limitations do not, in
the opinion of such counsel, make inadequate the remedies afforded
thereby for the practical realization of the substantive benefits
provided for in the Bonds and the Indenture).
In rendering the foregoing opinion, Milbank, Tweed, ▇▇▇▇▇▇ &
▇▇▇▇▇▇ may rely as to matters of the law of the District of Columbia
upon the opinion of ▇▇▇▇ ▇▇▇ List, Esq., General Counsel of the
Company, addressed to the Underwriters and dated the Closing Date,
satisfactory in form and scope to counsel for the Underwriters. If
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall so rely upon the opinion of ▇▇▇▇
▇▇▇ List, Esq., (i) copies of the opinion so relied upon shall be
delivered to you, as Representatives of the Underwriters, and to
counsel for the Underwriters and (ii) the opinion required by this
Section 10(c) shall also state that Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
has made an independent investigation of the matters in its opinion
covered by the opinion so relied upon and that the Underwriters are
justified in relying upon such opinion.
(d) Accountants' Letter. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP shall have
furnished to you, as Representatives of the Underwriters, at or prior
to the Closing Date, a letter, addressed to the Underwriters and dated
the Closing Date, confirming that they are independent public
accountants with respect to the Company within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission; and stating, as of the date of such
letter (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information
is given in the Prospectus, as of a date not more than five days prior
to the date of such letter), the conclusions and findings of such firm
with respect to the financial information and other matters covered by
its letter delivered to you, as Representatives of the Underwriters,
concurrently with the execution of this Agreement and confirming in
all material respects the conclusions and findings set forth in such
prior letter or, if no such letter shall have been delivered to you,
the conclusions and findings of such firm, in form and substance
satisfactory to you, as Representatives of the Underwriters, with
respect to such financial information and other matters as you, as
Representatives of the Underwriters, shall reasonably request.
(e) Officer's Certificate. You shall have received, on the
Closing Date, a certificate of the Company dated the Closing Date,
signed on its behalf by the President, the Governor or a Vice
President of the Company, to the effect that the signer of such
certificate has examined the
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Registration Statement and the Prospectus and that (i) in his opinion,
as of the effective date of the Registration Statement, the
Registration Statement did not contain an untrue statement of a
material fact and did not omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and the Prospectus did not contain an untrue statement of
a material fact and did not omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, (ii) since the effective date of
the Registration Statement no event has occurred which should have
been set forth in an amendment or supplement to the Prospectus but
which has not been so set forth, (iii) since the respective dates as
of which information is given in the Registration Statement and the
Prospectus, there has not been any material adverse change in the
condition, financial or other, or earnings of the Company, whether or
not arising from transactions in the ordinary course of business,
other than changes which the Registration Statement and the Prospectus
indicate might occur after the effective date of the Registration
Statement, (iv) the Company has no material contingent obligations
which are required to be disclosed in the Registration Statement and
the Prospectus and are not disclosed therein, (v) no stop order
suspending the effectiveness of the Registration Statement is in
effect on the Closing Date and no proceedings for the issuance of such
an order have been taken or to the knowledge of the Company are
contemplated by the Commission at or prior to the Closing Date, (vi)
there are no material legal proceedings to which the Company is a
party or of which property of the Company is the subject which are
required to be disclosed and which are not disclosed in the
Registration Statement and the Prospectus, (vii) there are no material
contracts to which the Company is a party which are required to be
disclosed and which are not disclosed in the Registration Statement or
the Prospectus, (viii) the representations and warranties of the
Company herein are true and correct as of the Closing Date and (ix)
the Pledged Property consists solely of Mortgage Notes, or if such is
not the case, a description of the other collateral included in the
Pledged Property.
(f) (i) The Company shall not have sustained since the date
of the latest audited financial statements included or incorporated by
reference in the Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated
in the Prospectus or (ii) since such date there shall not have been
any change in the members' equity or long-term debt of the Company or
any of its subsidiaries or any change, or any development involving a
prospective change,
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in or affecting the general affairs, management, financial position,
member's equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause
(i) or (ii), is, in your judgment, so material and adverse as to make
it impracticable or inadvisable to proceed with the public offering or
the delivery of the Bonds on the terms and in the manner contemplated
in the Prospectus.
(g) On or after the date hereof: (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities by
any "nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2) of
the Rules and Regulations and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's
debt securities.
(h) On or after the date hereof, there shall not have
occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York Stock
Exchange, (ii) a banking moratorium on commercial banking activities
in New York declared by Federal or state authorities, (iii) the United
States shall have become engaged in hostilities, there shall have been
an escalation in hostilities involving the United States or there
shall have been a declaration of a national emergency or war by the
United States or (iv) such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) the effect of which, in any such case described in
clause (iii) or (iv), is, in your reasonable judgment, to make it
impracticable or inadvisable to proceed with the public offering or
delivery of the Bonds on the terms and in the manner contemplated in
the Prospectus.
(i) Miscellaneous. The Company shall have taken, on or prior
to the Closing Date, all other action, if any, which it is stated in
the Registration Statement (or any post-effective amendment thereof)
or the Prospectus (as amended or supplemented, if so amended or
supplemented) that the Company will take prior to or concurrently with
the issuance and delivery of the Bonds, and all agreements herein
contained to be performed on the part of the Company on or prior to
the Closing Date shall have been so performed.
(j) Other Documents. The Company shall have furnished to you
and to Cravath, Swaine & ▇▇▇▇▇, counsel for the Underwriters, such
further certificates and documents as you
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or they may have reasonably requested prior to the Closing Date.
If any of the conditions specified in this Section 10 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, this
Agreement and all obligations of the Underwriters hereunder may be canceled on,
or at any time prior to, the Closing Date by you, as Representatives of the
Underwriters. Notice of such cancellation shall be given to the Company in
writing, or by telegraph, telephone or telex confirmed in writing.
11. Substitution of Underwriters. If any one or more of the
Underwriters shall fail or refuse on the Closing Date to purchase and pay for
the Bonds which it or they have agreed to purchase hereunder, then (a) if the
aggregate principal amount of the Bonds which the defaulting Underwriter or
Underwriters so agreed to purchase shall not exceed $10,000,000, the
nondefaulting Underwriters of shall be obligated to purchase the Bonds from the
Company, in proportion to their respective obligations hereunder and upon the
terms herein set forth, or (b) if the aggregate principal amount of the Bonds
which the defaulting Underwriter or Underwriters so agreed to purchase shall
exceed $10,000,000, either you, as Representatives of the Underwriters, or the
Company shall have the right at any time prior to 9:30 A.M., New York City
time, on the next business day after the Closing Date to procure one or more of
the other Underwriters, or any others, to purchase such Bonds from the Company,
in such amounts as may be agreed upon and upon the terms herein set forth. If
within such specified time neither you, as such representative, nor the Company
shall have procured such other Underwriters or any others to purchase the Bonds
agreed to be purchased by the defaulting Underwriter or Underwriters, this
Agreement shall terminate without liability on the part of any nondefaulting
Underwriter or of the Company. In the event of a default by any Underwriter or
Underwriters, as set forth in this Section 11, the Closing Date may be
postponed for such period, not exceeding seven days, as you, as such
representative, shall determine in order that any required changes in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken or termination of this
Agreement under this Section 11 shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
12. Information Furnished by Underwriters. The statement set
forth in the last paragraph on the cover of, in the last paragraph on page 2
of, and under the heading "Underwriting" in, the prospectus supplement portion
of the Prospectus, and under the heading "Plan of Distribution" in the
Prospectus, constitute the only information furnished in writing by you, on
behalf of the Underwriters, for inclusion therein, and you, as Representatives
of the Underwriters, confirm that such statements are correct.
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13. Termination. This Agreement shall be subject to
termination by you, by notice given to the Company prior to delivery of and
payment for the Bonds, if prior to such time any of the events described in
Sections 10(f), 10(g) or 10(h) occurs.
14. Miscellaneous.
(a) Except as otherwise expressly provided in this Agreement,
(i) whenever notice is required by all the provisions of this Agreement to be
given to the Company, such notice shall be in writing addressed to the Company
at its office, Woodland Park, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
attention of the Governor, and (ii) whenever notice is required by the
provisions of this Agreement to be given to you, as Representatives of the
Underwriters or of any of them, such notice shall be in writing addressed to
you at your office, Three World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
(b) The Company agrees to furnish to you and to Cravath,
Swaine & ▇▇▇▇▇, without charge, a signed copy of the Registration Statement and
each amendment thereof, including all financial statements and all exhibits
thereto (except such financial statements and exhibits as are incorporated
therein by reference and which shall have been previously furnished to you),
and to furnish to each of the other Underwriters, without charge, a copy of the
Registration Statement and each amendment thereof, including all financial
statements (except such financial statements as are incorporated therein by
reference) but without exhibits.
(c) This Agreement is made solely for the benefit of the
several Underwriters and the Company and their respective successors and
assigns, and, to the extent provided in Section 9 hereof, any controlling
person referred to in such Section 9 and the directors of the Company and those
officers of the Company who shall have signed the Registration Statement, and
their respective legal representatives, successors and assigns, and no other
person shall acquire or have any right under or by virtue of this Agreement.
The term "successor" or the term "successors and assigns" as used in this
Agreement shall not include any purchaser, as such purchaser, from any of the
Underwriters of the Bonds.
(d) If this Agreement shall be canceled or terminated by the
Underwriters on any of the grounds referred to or specified in Section 10
hereof or because of any failure or refusal on the part of the Company to
comply with any of the terms or to fulfill any of the conditions of this
Agreement, the Company will reimburse the Underwriters severally for all their
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by them in connection with the subject matter of this
Agreement.
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(e) The term "business day" as used in this Agreement shall
mean any day on which the New York Stock Exchange, Inc., is open for trading.
(f) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
(g) Section headings have been inserted in this Agreement as
a matter of convenience of reference only and it is agreed that such section
headings are not a part of this Agreement and will not be used in the
interpretation of any provision of this Agreement.
Please confirm that you are acting on behalf of yourself and
the other several Underwriters and that the foregoing correctly sets forth the
agreement between the Company and the several Underwriters.
Very truly yours,
NATIONAL RURAL UTILITIES
COOPERATIVE FINANCE
CORPORATION,
By
------------------
Name:
Title:
Acting on behalf of ourselves and
the other several Underwriters named
in Schedule I attached to the
foregoing letter, we hereby confirm
as of the date thereof that such letter
correctly sets forth the agreement between
the Company and the several Underwriters:
▇▇▇▇▇▇ BROTHERS INC.,
By
------------------
Name:
Title:
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SCHEDULE I
Underwriting Agreement dated June 9, 1997
NATIONAL RURAL UTILITIES
COOPERATIVE FINANCE CORPORATION
Principal Amount
of Bonds
Underwriter to be Purchased
----------- ----------------
▇▇▇▇▇▇ Brothers Inc. ........................ $ 34,000,000
▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ................... 33,000,000
NationsBanc Capital Markets, Inc. ........... 33,000,000
-------------
Total .................... $100,000,000
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