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EXHIBIT 1
$200,000,000
NATIONAL RURAL UTILITIES
COOPERATIVE FINANCE CORPORATION
5.00% Collateral Trust Bonds, Due 2002
Underwriting Agreement
----------------------
October 2, 1998
Xxxxxx Brothers Inc.
Xxxxxxx Sachs & Co.
NationsBanc Xxxxxxxxxx Securities LLC
In care of Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
National Rural Utilities Cooperative Finance Corporation, a District
of Columbia cooperative association (the "Company"), proposes to issue
$200,000,000 principal amount of its 5.00% 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),
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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 $200,000,000 principal amount 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.
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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. 333-47683, 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. 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.
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(b) Accuracy of Registration Statement. At all times subsequent to
the date of this Agreement up to and including the Closing Date, and when any
post-effective amendment thereof shall become effective, the Registration
Statement (and the Registration Statement as amended if any post-effective
amendment thereof shall have become effective) will comply in all material
respects with the provisions of the Securities Act and the Exchange Act and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact and will not omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and, at all times subsequent to the date of this Agreement up to and
including the Closing Date, the Prospectus (and the Prospectus as amended or
supplemented, if the Company shall have filed with the Commission any amendment
thereof or supplement thereto) will fully comply with the provisions of the
Securities Act and the Exchange Act and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a material
fact and will not omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that none of the
representations and warranties in this paragraph (b) shall apply to (i) that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of 1939
(the "Trust Indenture Act"), of the Trustee or (ii) statements in, or omissions
from, the Registration Statement or the Prospectus or any amendment thereof or
supplement thereto made in reliance upon and in conformity with information
furnished as herein stated or otherwise furnished in writing to the Company by
or on behalf of any Underwriter through you for use in connection with the
preparation of the Registration Statement or the Prospectus or any such
amendment or supplement.
(c) Accountants. The accountants who have certified or shall certify
the financial statements filed and to be filed with the Commission as parts of
the Registration Statement and the Prospectus are independent with respect to
the Company as required by the Securities Act and rules and regulations of the
Commission thereunder.
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(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 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
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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 99.55% of the principal amount thereof, the respective principal
amounts of the Bonds set forth opposite the names of the respective Underwriters
in Schedule I hereto, aggregating $200,000,000 principal amount thereof.
3. Closing. Delivery of and payment for the Bonds shall be made at
the office of Xxxxxx Brothers Inc., Three World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, at 9:30 A.M., New York City time, on October 7, 1998, or such later
date (not later than October 14, 1998) as you, as Representatives of the
Underwriters, shall designate, which date and time may be postponed by agreement
between you, as such Representatives, and the Company or as provided in Section
11 hereof. Delivery of the 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
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Cravath, Swaine & Xxxxx, counsel for the Underwriters, the Prospectus is
required by law to be delivered in connection with sales by an Underwriter or
dealer, as many copies of the Prospectus (and, in the event of any amendment of
or supplement to the Prospectus, of such amended or supplemented Prospectus) as
you, as Representatives of the 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 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
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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
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person who controls any Underwriter within the meaning of Section 15 of the
Securities Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or any other statute or common law, and to reimburse the
Underwriters and such controlling persons, as incurred, for any legal or other
expenses incurred by them in connection with investigating any claims and
defending any actions, insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
any post-effective amendment thereof, or the omission or 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
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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 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
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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 may be sought hereunder (whether or not the indemnified party is
an actual or potential party to such
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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
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things, whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this Section 9(d) were to
be determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
9(d) shall be deemed to include, for purposes of this Section 9(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the 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 cancelation of this Agreement or any
investigation made by or on behalf of any Underwriter or any such controlling
person or the Company or any such controlling person, director or officer, and
shall survive the delivery of the Bonds, and
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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 the foregoing, and the form of the Registration Statement and of the
Prospectus (other than financial statements and other financial data),
shall have been approved as of the Closing Date by Cravath, Swaine &
Xxxxx, counsel for the Underwriters.
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(c) Opinion of Counsel for the Company. The Company shall have
furnished to you, as Representatives of the Underwriters, on the Closing
Date, the opinion, addressed to the Underwriters and dated the Closing
Date, of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for 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
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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);
(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
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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, 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;
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(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 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
19
realization of the substantive benefits provided for in the Bonds and the
Indenture).
In rendering the foregoing opinion, Milbank, Tweed, Xxxxxx & XxXxxx
may rely as to matters of the law of the District of Columbia upon the
opinion of Xxxx Xxx List, Esq., General Counsel of the Company, addressed
to the Underwriters and dated the Closing Date, satisfactory in form and
scope to counsel for the Underwriters. If Milbank, Tweed, Xxxxxx & XxXxxx
shall so rely upon the opinion of Xxxx Xxx List, Esq., (i) copies of the
opinion so relied upon shall be delivered to you, as Representatives of
the Underwriters, and to counsel for the Underwriters and (ii) the opinion
required by this Section 10(c) shall also state that Milbank, Tweed,
Xxxxxx & XxXxxx has made an independent investigation of the matters in
its opinion covered by the opinion so relied upon and that the
Underwriters are justified in relying upon such opinion.
(d) Accountants' Letter. Xxxxxx Xxxxxxxx LLP shall have furnished to
you, as Representatives of the Underwriters, at or prior to the Closing
Date, a letter, addressed to the Underwriters and dated the Closing Date,
confirming that they are independent public accountants with respect to
the Company within the meaning of the Securities Act and are in compliance
with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission; and
stating, as of the date of such letter (or, with respect to matters
involving changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as of a date
not more than five days prior to the date of such letter), the conclusions
and findings of such firm with respect to the financial information and
other matters covered by its letter delivered to you, as Representatives
of the Underwriters, concurrently with the execution of this Agreement and
confirming in all material respects the 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
20
Representatives of the Underwriters, with respect to such financial
information and other matters as you, as Representatives of the
Underwriters, shall reasonably request.
(e) Officer's Certificate. You shall have received, on the Closing
Date, a certificate of the Company dated the Closing Date, signed on its
behalf by the President, the Governor or a Vice President of the Company,
to the effect that the signer of such certificate has examined the
Registration Statement and the Prospectus and that (i) in his opinion, as
of the effective date of the Registration Statement, the Registration
Statement did not contain an untrue statement of a material fact and did
not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the
Prospectus did not contain an untrue statement of a material fact and did
not omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, (ii) since the effective date of the Registration Statement no
event has occurred which should have been set forth in an amendment or
supplement to the Prospectus but which has not been so set forth, (iii)
since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change in the condition, financial or other, or earnings of the
Company, whether or not arising from transactions in the ordinary course
of business, other than changes which the Registration Statement and the
Prospectus indicate might occur after the effective date of the
Registration Statement, (iv) the Company has no material contingent
obligations which are required to be disclosed in the Registration
Statement and the Prospectus and are not disclosed therein, (v) no stop
order suspending the effectiveness of the Registration Statement is in
effect on the Closing Date and no proceedings for the issuance of such an
order have been taken or to the knowledge of the Company are contemplated
by the Commission at or prior to the Closing Date, (vi) there are no
material legal proceedings to which the Company is a party or of
21
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, 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,
22
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 & Xxxxx, counsel for the Underwriters, such further
certificates and documents as you or they may have reasonably requested
prior to the Closing Date.
If any of the conditions specified in this Section 10 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, this Agreement
and all
23
obligations of the Underwriters hereunder may be canceled on, or at any time
prior to, the Closing Date by you, as Representatives of the Underwriters.
Notice of such cancelation shall be given to the Company in writing, or by
telegraph, telephone or telex confirmed in writing.
11 Substitution of Underwriters. If any one or more of the
Underwriters shall fail or refuse on the Closing Date to purchase and pay for
the 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 $20,000,000, 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 $20,000,000, 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,
24
in the last paragraph on page 2 of, and under the heading "Underwriting" in, the
prospectus supplement portion of the Prospectus, and under the heading "Plan of
Distribution" in the Prospectus, constitute the only information furnished in
writing by you, on behalf of the Underwriters, for inclusion therein, and you,
as Representatives of the Underwriters, confirm that such statements are
correct.
13 Termination. This Agreement shall be subject to termination by
you, by notice given to the Company prior to delivery of and payment for the
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, 0000 Xxxxxxxxxxx Xxx, Xxxxxxx, Xxxxxxxx 00000, attention
of the Governor, and (ii) whenever notice is required by the provisions of this
Agreement to be given to you, as Representatives of the Underwriters or of any
of them, such notice shall be in writing addressed to you at your office, Three
World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(b) The Company agrees to furnish to you and to Cravath, Swaine &
Xxxxx, without charge, a signed copy of the Registration Statement and each
amendment thereof, including all financial statements and all exhibits thereto
(except such financial statements and exhibits as are incorporated therein by
reference and which shall have been previously furnished to you), and to furnish
to each of the other Underwriters, without charge, a copy of the Registration
Statement and each amendment thereof, including all financial statements (except
such financial statements as are incorporated therein by reference) but without
exhibits.
(c) This Agreement is made solely for the benefit of the several
Underwriters and the Company and their respective successors and assigns, and,
to the extent provided in Section 9 hereof, any controlling person
25
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.
(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.
26
(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: Xxxxxx X. Xxxxx
Title: Senior Vice President
and Chief Financial Officer
Acting on behalf of ourselves and
the other several Underwriters named
in Schedule I attached to the
foregoing letter, we hereby confirm
as of the date thereof that such letter
correctly sets forth the agreement between
the Company and the several Underwriters:
XXXXXX BROTHERS INC.,
By
Name: Xxxxxx Xxxxxxxx
Title: Managing Director
27
SCHEDULE I
Underwriting Agreement dated October 2, 1998
NATIONAL RURAL UTILITIES
COOPERATIVE FINANCE CORPORATION
Principal Amount
of Bonds
Underwriter to be Purchased
----------- ---------------
Xxxxxx Brothers Inc. ....................... $ 140,000,000
Xxxxxxx Sachs & Co. ........................ 30,000,000
NationsBanc Xxxxxxxxxx Securities LLC ...... 30,000,000
-------------
Total ............................ $200,000,000
=============
