CLEAN RENEWABLE ENERGY BONDS SECURED TAX CREDIT SERIES 2009A NATIONAL RURAL UTILITIES COOPERATIVE FINANCE CORPORATION as Issuer FEDERAL AGRICULTURAL MORTGAGE CORPORATION as Guarantor
EXHIBIT
10.38
$28,908,000
CLEAN
RENEWABLE ENERGY BONDS
SECURED
TAX CREDIT SERIES 2009A
NATIONAL
RURAL UTILITIES
COOPERATIVE
FINANCE CORPORATION
as
Issuer
as
Guarantor
Dated
as of September 1, 2009
CREDIT
SUPPORT AGREEMENT, dated as of September 1, 2009, between FEDERAL AGRICULTURAL
MORTGAGE CORPORATION, a federally-chartered instrumentality of the United States
and an institution of the Farm Credit System, as guarantor, (“Farmer Mac” or the
“Guarantor”)
and NATIONAL RURAL UTILITIES COOPERATIVE FINANCE CORPORATION, a cooperative
association existing under the laws of the District of Columbia, as issuer
(“National
Rural”).
RECITALS
WHEREAS
National Rural is a non-profit cooperative association whose primary business is
making rural utilities loans; and
WHEREAS
National Rural wishes to fund certain rural utilities loans for clean renewable
energy projects by issuing $28,908,000 of Clean Renewable Energy Bonds, Secured
Tax Credit Series 2009A (the “2009A Bonds”); and
WHEREAS
Farmer Mac is an instrumentality of the United States formed to provide for
a secondary market for agricultural real estate and rural housing mortgage
loans, rural utilities loans, and USDA-guaranteed farm program and
rural development loans; and
WHEREAS
at National Rural’s request, Farmer Mac has agreed to issue its guarantee of the
timely payment of interest (if any) on the Series 2009A Bonds and, in the case
of principal, an amount equal to the amount of outstanding principal of the
Series 2009A Bonds less any amounts in the Series 2009A Project Account
(the “Guarantee”), subject to the limitations set forth herein and in the
Indenture; and
WHEREAS,
Farmer Mac’s agreement to provide its guarantee on the 2009A Bonds is subject to
the condition that National Rural pledge Eligible Loans to the Trustee such that
the sum of (i) the aggregate outstanding principal balance of the Eligible Loans
and (ii) any amounts in the Borrower Repayments Fund or the Bond Fund shall at
all times be at least equal to the amount of the Guarantee.
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, Farmer
Mac and National Rural agree as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions. As
used in this Agreement, the following terms shall have the following
meanings:
“Agreement” means this
Credit Support Agreement, as the same may be amended from time to
time.
“Bond Fund” has the
meaning given to that term in the Indenture.
“Borrower Repayments
Fund” has the meaning given to that term in the Indenture.
“Business Day” has the
meaning given to that term in the Indenture.
“Certificate of Pledged
Collateral” has the meaning given to that term in the Pledge
Agreement.
“Closing Date” means
the issuance date of the 2009A Bonds.
“Eligible Loan” is
defined in Annex F hereto.
“Event of Default” has
the meaning given to that term in Section 7.01.
“Farmer Mac Series C
Preferred Stock” means shares of Non-Voting Cumulative Preferred Stock,
Series C issued by Farmer Mac.
“Financial
Statements”, in respect of a Fiscal Year, means the consolidated
financial statements (including footnotes) of National Rural for that Fiscal
Year as audited by an independent registered public accounting firm selected by
National Rural.
“Fiscal Year” means
the fiscal year of National Rural, as such may be changed from time to time,
which at the date hereof commences on June 1 of each calendar year and ends on
May 31 of the following calendar year.
“Guarantor Default”
has the meaning given to that term in the Indenture.
“Indenture” means that
certain indenture dated as of September 1, 2009 between National Rural, U.S.
Bank National Association, a national banking association, as Trustee, and
Farmer Mac, as guarantor.
“Indenture Event of
Default” means an “Event of Default” as such term is defined in the
Indenture.
“Member” shall mean
any Person who is member of National Rural.
“National Rural
Notice” has the meaning given to that term in the Pledge
Agreement.
“Payment Date” means
any date upon which the payment of principal and, if applicable, interest on the
Series 2009A Bonds is due to the holders thereof.
“Person” means an
individual, a corporation, a partnership, an association, a trust or any other
entity or organization, including a government or political subdivision or an
agency or instrumentality thereof.
“Pledge Agreement”
means the Pledge and Security Agreement dated as of the date hereof between
National Rural and the Trustee for the benefit and security of the holders of
the 2009A Bonds and Farmer Mac, as guarantor, to the extent Farmer Mac is
subrogated to the rights of the holders of the 2009A Bonds.
“Pledged Collateral”
has the meaning given to that term in the Pledge Agreement.
“Purchase Agreement”
means the Securities Purchase Agreement between National Rural and Farmer Mac,
substantially in the form of Annex C hereto, pursuant to which National
Rural agrees to purchase Farmer Mac Series C Preferred Stock in an amount equal
to 2% of the outstanding principal amount of the Series 2009A Bonds as of the
Closing Date.
“Series 2009A Project
Account” has the meaning given to that term in the
Indenture.
“Transaction
Documents” means this Agreement, the Indenture, the Pledge Agreement, and
the Purchase Agreement.
“Trustee” means U.S.
Bank National Association, or its successor, as Trustee under the
Indenture.
SECTION
1.02. Principles of
Construction. As used in this Agreement, the terms defined in
Section 1.01 include the plural as well as the singular and the singular as
well as the plural. The words “hereafter”, “herein”, “hereof”,
“hereto” and “hereunder”, and words of similar import, refer to this Agreement
as a whole. The descriptive headings of the various articles and
sections of this Agreement were formulated and inserted for convenience only and
shall not be deemed to affect the meaning or construction of the provisions
hereof. Capitalized terms used herein and not otherwise defined shall
have the meanings assigned to them in the Indenture, as supplemented by the
First Supplemental Indenture.
ARTICLE
II
GUARANTEE
SECTION
2.01. Guarantee. Farmer
Mac shall issue the Guarantee in accordance with the terms, conditions and
provisions of the Indenture and this Agreement. No reference herein
shall alter or impair the Guarantee.
SECTION
2.02. Payment of
Guarantee and Administrative Fee.
(a) In
consideration of the Guarantee and subject to the terms and conditions of this
Agreement, National Rural shall pay to Farmer Mac a nonrefundable guarantee fee
quarterly in arrears in an amount equal to the product of (i) the outstanding
principal balance of the Series 2009A Bonds less any amounts in the Series 2009A
Project Account as of the last calendar day of each February, May, August and
November through and including the final maturity date of the Series 2009A
Bonds, and (ii) a rate equal to one fourth of the per annum fee of [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH SECURITIES AND EXCHANGE COMMISSION],
computed on the basis of a 360-day year comprised of twelve 30-day months (the
“Guarantee Fee”). National Rural shall also pay to Farmer Mac a
nonrefundable administrative fee quarterly in arrears in an amount equal to the
product of (i) the outstanding principal balance of the Series 2009A Bonds less
any amounts in the Series 2009A Project Account as of the last calendar day of
each February, May, August and November through and including the final maturity
date of the Series 2009A Bonds, and (ii) a rate equal to one fourth of the per
annum fee of [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH SECURITIES
AND EXCHANGE COMMISSION], computed on the basis of a 360-day year comprised of
twelve 30-day months (the “Administrative Fee”). Upon the occurrence,
and during the continuance, of an Event of Default by National Rural set forth
in Section 7.01(d), the rate used to calculate the quarterly Administrative Fee
shall be one fourth of the per annum fee of [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH SECURITIES AND EXCHANGE COMMISSION]. Payments
of the Guarantee Fee and the Administrative Fee will be rounded to the nearest
cent.
(b) The
first quarterly Guarantee Fee and the Administrative Fee shall be paid on the
first Farmer Mac Payment Date (as defined below) occurring after the Closing
Date and then subsequently on each succeeding Farmer Mac Payment Date (as
defined below) through and including the final maturity date of the Series 2009A
Bonds. National Rural shall pay the Guarantee Fee and the
Administrative Fee to Farmer Mac by 11 a.m. New York City time on the 20th day of
each March, June, September and December (each, a “Farmer Mac Payment Date”), in
United States dollars, by wire transfer of immediately available funds to such
account as Farmer Mac shall specify to National Rural. If a specified
Farmer Mac Payment Date is not a Business Day, the Guarantee Fee and the
Administrative Fee will be paid on the next Business Day with the same force and
effect as if made on the applicable Farmer Mac Payment Date.
(c) Payment
of the Guarantee Fee and the Administrative Fee by National Rural shall be
suspended during any period in which a Guarantor Default shall have occurred and
be continuing; provided that at the time the Guarantor Default is cured all
accrued and unpaid Guarantee Fees and Administrative Fees shall then become due
and payable.
(d) All
payments in respect of the Guarantee Fee and the Administrative Fee will be made
without any withholding or deduction for or on account of any present or future
taxes, duties, levies, assessments or other governmental charges of whatever
nature imposed or levied on behalf of any governmental authority in the United
States having the power to tax, unless National Rural, based on an opinion of
counsel acceptable to the Guarantor, determines that it is required by law to
make such withholding or deduction.
(e) Payment
of the Guarantee Fee and the Administrative Fee will not be subject to
counterclaim or setoff for any claim or dispute of National
Rural.
SECTION
2.03. Invest to
Participate. In further consideration of the Guarantee,
National Rural shall enter into the Purchase Agreement and purchase Farmer Mac
Series C Preferred Stock in an amount equal to 2% of the outstanding principal
amount of the Series 2009A Bonds as of the Closing Date.
SECTION
2.04. Payment on the
Series 2009A Bonds. In accordance with the Indenture, at least
two (2) Business Days prior to each Payment Date, National Rural shall remit to
the Trustee, in immediately available funds, an amount sufficient to make a full
payment of all principal and interest (if any) on the Series 2009A Bonds due on
such Payment Date. Beginning with the day that Farmer ▇▇▇ makes an
advance under the Guarantee, National Rural agrees to pay to the Guarantor all
amounts necessary to reimburse Farmer Mac for any payments made to holders of
Series 2009A Bonds under the Guarantee to the extent to which the Guarantor has
not already been reimbursed through the liquidation of Pledged
Collateral.
ARTICLE
III
CONDITIONS
PRECEDENT
SECTION
3.01. Conditions Precedent to
Famer Mac’s Obligation. Farmer Mac’s obligation to issue its
Guarantee on the Closing Date is subject to the following conditions
precedent:
(a) Bond
Issuance. The Series 2009A Bonds shall have been issued
pursuant to and in accordance with the terms, conditions and provisions of the
Indenture.
(b) Opinion of
Counsel. Farmer Mac shall have received an opinion of counsel
to National Rural substantially in the form of Annex A attached hereto, and such
other opinions as provided for in the Indenture.
(c) Financial and Other
Information. National Rural shall have provided Farmer Mac
with its most recent Financial Statements and such other information concerning
National Rural as Farmer Mac shall have reasonably requested.
(d) No Material Adverse
Change. National Rural shall have certified to Farmer Mac (in
the manner specified in paragraph (g) of this Section 3.01), and Farmer Mac
shall be satisfied, that no material adverse change shall have occurred in the
financial condition or business of National Rural between the end of National
Rural’s most recently completed Fiscal Year for which Financial Statements have
been made publicly available and the Closing Date, which has not been set forth
in documents, certificates or financial information furnished to Farmer Mac or
publicly filed.
(e) No Event of
Default. National Rural shall have certified to Farmer Mac and
Farmer Mac shall be satisfied that no Event of Default or Indenture Event of
Default shall have occurred and be continuing.
(f) Securities
Purchase. National Rural shall have entered into the Purchase
Agreement pursuant to Section 2.03.
(g) Certification of Senior
Management. National Rural shall have provided Farmer Mac a
certification by any vice president of National Rural, substantially in the form
of Annex B attached hereto, as to the following: (i) that National Rural is
a lending institution organized as a private, not-for-profit, cooperative
association with the appropriate expertise, experience and qualifications to
make loans to its Members for rural electrification and related purposes; (ii)
the matters to be certified under paragraphs (d) and (e) of this
Section 3.01; and (iii) the representations and warranties of National
Rural.
ARTICLE
IV
REPORTING
REQUIREMENTS
SECTION
4.01. Annual Reporting
Requirements. So long as any 2009A Bond remains outstanding,
National Rural shall provide Farmer Mac with the following items within 90 days
of the end of each Fiscal Year, in each case, in form and substance satisfactory
to Farmer Mac:
(a) the
Financial Statements for such Fiscal Year;
(b) a
Certificate of Pledged Collateral; and
(c) a
receipt from the Trustee, or such other evidence as is satisfactory to Farmer
Mac, as to the Pledged Collateral held by the Trustee at the end of such Fiscal
Year.
SECTION
4.02. Other Reporting
Requirements. So long as any Series 2009A Bond remains
outstanding, National Rural shall provide Farmer Mac with the following items,
which items may be included on a consolidated report of other loans serviced by
National Rural on behalf of Farmer Mac:
(a) within
30 days of the end of each calendar quarter ending March 31st, June
30th,
September 30th, and
December 31st, a
report substantially in the form of Annex D hereto that identifies each
Eligible Loan that constitutes Pledged Collateral, which report shall include
the outstanding principal balance of such Eligible Loan, the related facility
rating assigned by National Rural and the related borrower rating assigned by
National Rural, in each case as of the end of such quarter;
(b) within
30 days following the end of the calendar quarter ending December 31st, a
report substantially in the form of Annex E hereto that identifies each
Eligible Loan that constitutes Pledged Collateral, which report shall include
the appropriate financial data (as described in Annex E) from the most recent
year end unaudited financial statements, which may be on a Form 7 (the financial
and statistical report used by National Rural for a distribution system Member)
or Form 12 (the financial and statistical report used by National Rural for a
power supply Member); and
(c) National
Rural shall provide written notice to Farmer Mac within 30 days after the
occurrence of any of the following material changes to National Rural’s current
internal risk rating methodology for determining facility ratings or borrower
ratings: (1) any material change to the weighting of the risk rating
criteria; and (2) any material change in the criteria in the risk rating;
and
(d) such
other information concerning National Rural or the Eligible Loans that
constitute Pledged Collateral as is reasonably requested by Farmer
Mac.
SECTION
4.03. Default
Notices. If an action, occurrence or event shall happen that
is, or with notice and the passage of time would become, an Event of Default or
an Indenture Event of Default, National Rural shall deliver a National Rural
Notice of such action, occurrence or event to Farmer Mac before 4:00 p.m.
(District of Columbia time) on the Business Day following the date National
Rural becomes aware of such action, occurrence or event, and, if such Event of
Default or Indenture Event of Default should occur, shall promptly submit to
Farmer Mac, within five days of such occurrence, a report setting forth its
views as to the reasons for the Event of Default or Indenture Event of Default
(as applicable), the anticipated duration of the Event of Default or Indenture
Event of Default and what corrective actions National Rural is taking to cure
such Event of Default or Indenture Event of Default.
SECTION
4.04. Access to Information by
Farmer Mac. Upon 30 days prior written request and
identification of specific Eligible Loans by Farmer Mac, which shall not exceed
40% of the total amount of Eligible Loans that constitute Pledged Collateral
(“Identified Loans”), National Rural shall provide to representatives of Farmer
Mac access to the following documentation related to each Identified Loan:
(1) credit recommendation associated with the Eligible Loan; (2) three most
recent calendar year end unaudited financial statements of the Member, which may
be on a Form 7 or Form 12; (3) most recent borrower rating by National
Rural; (4) most recent facility rating by National rural; (5) most recent
key ratio trend analysis (the annual report generated by National Rural
containing key financial and operating ratios and other growth indicators for
each Class A Member); (6) most recent annual certification by an officer of
a Member to National Rural under the applicable loan agreement; (7) most recent
fiscal year-end certified independent audit of the Member; (8) most recent
mortgage of the Member, if applicable; (9) loan agreement associated with the
Eligible Loan; (10) opinion of counsel associated with the Eligible Loan, if
applicable; and (11) most recent rating on the Member issued by a
nationally recognized statistical rating organization, if
applicable. All such access shall occur during normal business hours
at the offices of National Rural, and the information disclosed shall be treated
by the representatives of Farmer Mac as confidential and proprietary to National
Rural for so long as National Rural is the owner of the Eligible Loans and to
the extent that such information has not otherwise been made public by National
Rural.
ARTICLE
V
REPRESENTATIONS
OF THE PARTIES
SECTION
5.01. Representations of Farmer
Mac. Farmer Mac represents to National Rural as of the Closing Date that
it has all necessary authority and has taken all necessary corporate action, and
obtained all necessary approvals, in order for it to guarantee the 2009A Bonds,
to execute and deliver this Agreement and all other documents executed or to be
executed by Farmer Mac in connection with the issuance of the 2009A Bonds, and
that such documents constitute valid and binding obligations of Farmer Mac; and
the actions taken by Farmer Mac in connection with the issuance of the 2009A
Bonds are in compliance with and in satisfaction of the requirements of the Farm
Credit Administration, as amended or waived by the Farm Credit
Administration,
SECTION
5.02. Representations of National
Rural. National Rural hereby represents to Farmer Mac that as
of the Closing Date:
(a) National
Rural has been duly organized and is validly existing and in good standing as a
cooperative association under the laws of the District of Columbia;
(b) National
Rural has the corporate power and authority, and has taken all necessary
corporate and other action to (i) issue the 2009A Bonds, (ii) execute and
deliver this Agreement, (iii) consummate the transactions contemplated hereby
and in the other Transaction Documents, and (iv) perform its obligations
hereunder and under the other Transaction Documents;
(c) this
Agreement, the other Transaction Documents, and each other document to National
Rural has executed in connection with the issuance of the 2009A Bonds have been
duly authorized, executed and delivered by National Rural and constitute the
legal, valid and binding obligations of National Rural, enforceable against
National Rural in accordance with their respective terms, subject to:
(i) applicable bankruptcy, reorganization, insolvency, moratorium and other
laws of general applicability relating to or affecting creditors’ rights
generally; and (ii) the application of general principles of equity
regardless of whether such enforceability is considered in a proceeding in
equity or at law;
(d) no
approval, consent, authorization, order, waiver, exemption, variance,
registration, filing, notification, qualification, license, permit or other
action is now, or under existing law in the future will be, required to be
obtained, given, made or taken, as the case may be, with, from or by any
regulatory body, administrative agency or governmental authority having
jurisdiction over National Rural or any third party under any agreement to which
National Rural is a party to authorize the execution and delivery by National
Rural of this Agreement, the other Transaction Documents, and each other
document National Rural has executed in connection with the issuance of the
2009A Bonds, or the consummation by National Rural of the transactions
contemplated hereby or by the other Transaction Documents;
(e) neither
the execution nor delivery by National Rural of this Agreement, the other
Transaction Documents, and each other document National Rural has executed in
connection with the issuance of the 2009A Bonds, nor the consummation by
National Rural of the transactions contemplated hereby or by the other
Transaction Documents, conflicts with or will conflict with, violates or will
violate, results in or will result in a breach of, constitutes or will
constitute a default under, or results in or will result in the imposition of
any lien or encumbrance (other than the lien on the Pledged Collateral as
contemplated by the Indenture) prohibited by, any term or provision of the
articles of incorporation or the bylaws of National Rural or any provision of
any existing law or any rule or regulation currently applicable to National
Rural or any judgment, order or decree of any court or any regulatory body,
administrative agency or governmental authority having jurisdiction over
National Rural or the terms of any mortgage, indenture, contract or other
agreement to which National Rural is a party or by which National Rural or any
of its properties is bound;
(f) there
is no action, suit, proceeding or investigation before or by any court or any
regulatory body, administrative agency or governmental authority presently
pending or, to the knowledge of National Rural, threatened with respect to
National Rural, this Agreement or any other Transaction Documents, or
challenging the validity or enforceability of this Agreement or any other
Transaction Documents, or seeking to restrain, enjoin or otherwise prevent
National Rural from engaging in its business as currently conducted or the
consummation by National Rural of the transactions contemplated by this
Agreement or any other Transaction Documents, if any, or which, if adversely
determined, would have a material adverse effect on National Rural’s financial
condition or its ability to perform its obligations under this Agreement or any
other Transaction Documents;
(g) National
Rural is a lending institution organized as a private, not-for-profit,
cooperative association with the appropriate expertise, experience and
qualifications to make loans to its Members for rural electrification
purposes;
(h) no
material adverse change has occurred in the financial condition or business of
National Rural between the end of National Rural’s most recently completed
Fiscal Year for which Financial Statements have been made publicly available and
the date this representation is given which has not been set forth in documents,
certificates or financial information furnished to Farmer Mac or publicly filed;
and
(i) Each
Member whose notes are Eligible Loans that constitute Pledged Collateral has
received, or is eligible to receive, a loan or commitment for a loan from the
Rural Utilities Service of the United States Department of Agriculture or any
successor agency.
ARTICLE
VI
SECURITY
AND COLLATERAL
SECTION
6.01. Security and
Collateral.
(a) National
Rural shall cause the amount of Eligible Loans that constitute Pledged
Collateral to be maintained such that the sum of (i) the aggregate outstanding
principal balance of the Eligible Loans and (ii) any amounts in the Borrower
Repayments Fund or the Bond Fund shall at all times be at least equal to the
amount of the Guarantee.
(b) National
Rural shall not create, or permit to exist, any pledge, lien, charge, mortgage,
encumbrance, debenture, hypothecation or other similar security instrument that
secures, or in any way attaches to, such Pledged Collateral, other than the lien
of the Pledge Agreement and the Indenture, without the prior written consent of
Farmer Mac and the Trustee.
ARTICLE
VII
EVENTS OF
DEFAULT
SECTION
7.01. Events of
Default. Each of the following actions, occurrences or events
shall constitute an “Event of Default”
under the terms of this Agreement:
(a) a
failure by National Rural to make any payment required to be made under Section
2.04;
(b) the
Trustee has declared the 2009A Bonds immediately due and payable;
(c) an
Insolvency Event, as defined in the Indenture, shall have occurred and be
continuing with respect to National Rural; or
(d) a
failure of National Rural to observe or perform the covenant set forth in
Section 6.01(a) hereof, which shall remain unremedied for five (5) Business Days
after National Rural Shall have become aware of such failure or shall have been
given notice thereof, whichever occurs earlier.
SECTION
7.02. Exercise of
Remedies.
(a) Any
remedies provided to Farmer Mac under this Agreement shall be in addition to its
remedies under the Indenture, Pledge Agreement and Securities Purchase
Agreement.
(b) In
addition to the provisions regarding an increase in the fee payable to Farmer
Mac under Section 2.02, upon the occurrence, and during the continuance, of an
Event of Default set forth in Section 7.01(d), Farmer Mac may institute one or
more legal proceedings against National Rural seeking, individually or in the
aggregate, (i) recovery of actual monetary damages, and (ii) injunctive relief
or specific performance, in each case without proof of actual
damages.
ARTICLE
VIII
MISCELLANEOUS
SECTION
8.01. GOVERNING
LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, FEDERAL LAW. TO THE EXTENT FEDERAL LAW INCORPORATES
STATE LAW, THAT STATE LAW SHALL BE THE LAWS OF THE DISTRICT OF COLUMBIA
APPLICABLE TO CONTRACTS MADE AND PERFORMED THEREIN.
SECTION
8.02. WAIVER OF JURY
TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 8.02.
SECTION
8.03. Notices. All
notices and other communications hereunder to be made to any party shall be in
writing and shall be addressed as specified in Schedule I attached hereto
as appropriate except as otherwise provided herein. The address,
telephone number, or facsimile number for any party may be changed at any time
and from time to time upon written notice given by such changing party to the
other parties hereto. A properly addressed notice or other
communication shall be deemed to have been delivered at the time it is sent by
facsimile (fax) transmission to the party or parties to which it is
given.
SECTION
8.04. Benefit of
Agreement. This Agreement shall become effective when it shall
have been executed by Farmer Mac and National Rural, and thereafter shall be
binding upon and inure to the respective benefit of the parties and their
permitted successors and assigns.
SECTION
8.05. Entire
Agreement. This Agreement, including the Schedules and
Annexes hereto, constitute the entire agreement between the parties hereto
concerning the matters contained herein and supersede all prior oral and written
agreements and understandings between the parties.
SECTION
8.06. Amendments and Waivers;
Assignment.
(a) No
provision of this Agreement may be amended or modified except pursuant to an
agreement in writing entered into by Farmer Mac and National
Rural. No provision of this Agreement may be waived except in writing
by the party or parties receiving the benefit of and under such
provision.
(b) Neither
party may assign this Agreement without the prior consent of the other
party.
(c) No
failure or delay of Farmer Mac or National Rural in exercising any power or
right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or
power. No waiver of any provision of this Agreement or consent to any
departure by National Rural therefrom shall in any event be effective unless the
same shall be authorized as provided in paragraph (a) of this
Section 8.06, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice
or demand on National Rural in any case shall entitle National Rural to any
other or further notice or demand in similar or other
circumstances.
SECTION
8.07. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be an
original, but all of which together shall constitute one and the same
instrument.
SECTION
8.08. Termination of
Agreement. This Agreement shall terminate upon the
indefeasible payment in full of all amounts payable on the 2009A
Bonds.
SECTION
8.09. Survival. The
representations and warranties of each of the parties hereto contained in this
Agreement and the parties’ obligations hereunder shall survive and shall
continue in effect following the execution and delivery of this
Agreement.
SECTION
8.10. Severability. If
any term or provision of this Agreement or the application thereof to any
circumstance shall, in any jurisdiction and to any extent, be invalid or
unenforceable, such term or such provision shall be ineffective as to such
jurisdiction to the extent of such invalidity or unenforceability without
invalidating or rendering unenforceable any remaining terms or provisions hereof
or the application of such term or provision to circumstances other than those
as to which it is held invalid or unenforceable.
IN
WITNESS WHEREOF, each party hereto has caused this Agreement to be executed by
an authorized officer as of the day and year first above written.
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By:
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Name:
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Title:
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NATIONAL
RURAL UTILITIES COOPERATIVE FINANCE CORPORATION
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By:
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Name:
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Title:
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SCHEDULE
I
TO
Addresses
for Notices
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1.
|
The
addresses referred to in Section 8.03 hereof, for purposes of
delivering communications and notices, are as
follows:
|
If to
Farmer Mac:
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
Washington,
DC 20036
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention
of: Chief Financial Officer
With a
copy to:
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
Washington,
DC 20036
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention
of: Chief Operating Officer
With a
copy also to:
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
Washington,
DC 20036
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention
of: General Counsel
If to
National Rural:
National
Rural Utilities Cooperative Finance Corporation
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
Herndon,
VA ▇▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention
of: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President &
Chief Financial Officer
Chief Financial Officer
With a
copy to:
National
Rural Utilities Cooperative Finance Corporation
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
Herndon,
VA ▇▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention
of: ▇▇▇▇ ▇▇▇▇▇, Vice President, Capital Market Funding
With a
copy also to:
National
Rural Utilities Cooperative Finance Corporation
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
Herndon,
VA ▇▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention
of: ▇▇▇▇ ▇. ▇▇▇▇, Esq., Senior Vice President &
General Counsel
General Counsel
ANNEX
A
[FORM OF
OPINION OF COUNSEL TO NATIONAL RURAL]
__________________,
2009
▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
Suite
600
Washington,
DC 20036
Gentlemen:
I am
delivering this opinion as general counsel of National Rural Utilities
Cooperative Finance Corporation, a District of Columbia cooperative association
(“National Rural”).
I am
familiar with matters pertaining to the issuance of $28,908,000 of Clean
Renewable Energy Bonds, Secured Tax Credit Series 2009A (the “2009A
Bonds”). I, or attorneys under my supervision, have examined such
corporate records and proceedings of National Rural, and such other documents as
I have deemed necessary as a basis for the opinions hereinafter
expressed.
I, or
attorneys under my supervision, have also examined the Credit Support Agreement
dated as of September 1 (“Credit Support Agreement"), between National Rural and
Federal Agricultural Mortgage Corporation (“Farmer Mac”).
Based on
the foregoing, but subject to the assumptions, exceptions, qualifications and
limitations hereinafter expressed, I am of the opinion that:
(1) National
Rural 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 and authority to execute and perform its obligations under the
Credit Support Agreement.
(2) The
Credit Support Agreement has been duly authorized, executed and delivered by
National Rural, and constitutes the legal, valid and binding agreement of
National Rural, enforceable against National Rural in accordance with its
terms.
(3) Neither
the execution nor the delivery by National Rural of any of the Credit Support
Agreement nor the consummation by National Rural of any of the transactions
contemplated therein, including, without limitation, the pledge of the Pledged
Securities (as such term is defined in the Pledge Agreement) to Farmer Mac, nor
the fulfillment by National Rural of the terms of any of the Credit Support
Agreement will conflict with or violate, result in a breach of or constitute a
default under any term or provision of the Articles of Incorporation or By-laws
of National Rural or any law or any regulation or any order known to me
currently applicable to National Rural of any court, regulatory body,
administrative agency or governmental body having jurisdiction over National
Rural or the terms of any indenture, deed of trust, note, note agreement or
instrument to which National Rural is a party or by which National Rural or any
of its properties is bound.
(4) No
approval, authorization, consent, order, registration, filing, qualification,
license or permit of or with any state or Federal court or governmental agency
or body having jurisdiction over National Rural is required for any consummation
by National Rural of the transactions contemplated by the Credit Support
Agreement; provided, however, no opinion
is expressed as to the applicability of any Federal or state securities law to
any sale, transfer or other disposition of the Bonds after the date
hereof.
(5) Except
as set forth in writing and previously delivered to Farmer Mac, there is no
pending or, to my knowledge, threatened action, suit or proceeding before any
court or governmental agency, authority or body or any arbitrator with respect
to National Rural, or the Credit Support Agreement, which, if adversely
determined, would have a material adverse effect on National Rural’s financial
condition or its ability to perform its obligations under any of the Credit
Support Agreement.
The foregoing opinions are subject to
the following assumptions, exceptions, qualifications and
limitations:
A. I
am a member of the Bar of the District of Columbia and render no opinion on the
laws of any jurisdiction other than the laws of the District of Columbia, the
federal laws of the United States of America and the General Corporation Law of
the District of Columbia.
B. My
opinions are limited to the present laws and to the facts, as they presently
exist. I assume no obligation to revise or supplement this opinion
should the present laws of the jurisdictions referred to in paragraph A above be
changed by legislative action, judicial decision or otherwise.
C. The
opinions expressed in paragraph 2 above shall be understood to mean only that if
there is a default in performance of an obligation, (i) if a failure to pay or
other damage can be shown and (ii) if the defaulting party can be brought into a
court which will hear the case and apply the governing law, then, subject to the
availability of defenses, and to the exceptions set forth in the next paragraph,
the court will provide a money damage (or perhaps injunctive or specific
performance) remedy.
D. My
opinions are also subject to the effect of: (1) bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws affecting
creditors’ rights (including, without limitation, the effect of statutory and
other law regarding fraudulent conveyances, fraudulent transfers and
preferential transfers); and (2) the exercise of judicial discretion and the
application of principles of equity, good faith, fair dealing, reasonableness,
conscionability and materiality (regardless of whether the applicable agreements
are considered in proceeding in equity or at law).
E. This
letter is rendered to you in connection with the Credit Support Agreement, and
may not be relied upon by any other person or by you in any other context or for
any other purpose.
F. I
have assumed with your permission (i) the genuineness of all signatures by each
party other than National Rural, (ii) the authenticity of documents submitted to
me as originals and the conformity to authentic original documents of all
documents submitted to me as copies, and (iii) the due execution and delivery,
pursuant to due authorization, of the Credit Support Agreement by each party
other than National Rural.
Yours
sincerely,
▇▇▇▇ ▇.
▇▇▇▇
General
Counsel
ANNEX
B
[FORM OF
OFFICERS’ CERTIFICATE]
Officers’
Certificate
TO: Federal
Agricultural Mortgage Corporation.
The
undersigned, _________________, _____________________, of National Rural
Utilities Cooperative Finance Corporation (“National Rural”),
pursuant to the Credit Support Agreement dated as of September 1, 2009, among
National Rural and Federal Agricultural Mortgage Corporation (the “Credit Support
Agreement”), hereby certifies on behalf of National Rural that as at the
date hereof:
(1) National
Rural is a lending institution organized as a private, not-for-profit,
cooperative association with the appropriate expertise, experience and
qualifications to make loans to its Members for rural electrification and
related purposes;
(2) no
material adverse change has occurred in the financial condition of National
Rural between the date of the end of National Rural’s most recently completed
Fiscal Year for which Financial Statements have been made publicly available and
the date hereof, which has not been set forth in documents, certificates, or
financial information furnished to Farmer Mac or publicly filed;
(3) all
of the representations contained in Section 5.02 of the Credit Support Agreement
remain true and correct in all material respects on and as of the date hereof;
and
(4) no
Event of Default or Indenture Event of Default exists.
Capitalized
terms used in this certificate shall have the meanings given to those terms in
the Credit Support Agreement.
DATED as
of this _____ day of ______________, _________.
NATIONAL
RURAL UTILITIES COOPERATIVE FINANCE CORPORATION
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By:
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Name:
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Title:
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ANNEX
C
[FORM OF
SERIES C PREFERRED STOCK PURCHASE AGREEMENT]
SERIES
C PREFERRED STOCK PURCHASE AGREEMENT
BETWEEN
[●]
AND
DATED
AS OF [●]
TABLE
OF CONTENTS
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Page
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Article
I DEFINITIONS
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2
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1.1
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Certain
Terms
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2
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1.2
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Additional
Terms
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4
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1.3
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Terms
Generally
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5
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Article
II SALE AND PURCHASE OF THE SECURITIES; CLOSING
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5
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2.1
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Authorization
of Securities
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5
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2.2
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Closing
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6
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Article
III REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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6
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3.1
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Organization
and Standing
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6
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3.2
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Corporate
Power; Authorization
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6
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3.3
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Issuance
of Preferred Stock
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7
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3.4
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Consents;
No Conflicts
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7
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3.5
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Compliance
with Laws; Permits
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7
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3.6
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Exempt
Securities
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8
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Article
IV ADDITIONAL AGREEMENTS
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8
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4.1
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Further
Assurances
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8
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4.2
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Tax
Treatment
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8
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Article
V MISCELLANEOUS
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8
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5.1
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Notices
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8
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5.2
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Severability
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9
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5.3
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Entire
Agreement; Assignment
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9
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5.4
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Specific
Performance
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9
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5.5
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Burden
and Benefit
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10
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5.6
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Governing
Law; Forum
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10
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5.7
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Waiver
of Jury Trial
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10
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5.8
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Headings
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11
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5.9
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Counterparts
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11
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5.10
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Waiver
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11
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SERIES
C PREFERRED STOCK SECURITIES PURCHASE AGREEMENT
THIS SERIES C PREFERRED STOCK
SECURITIES PURCHASE AGREEMENT (this “Agreement”) is made
as of [●], between [●], a [●] (the “Purchaser”), and
Federal Agricultural Mortgage Corporation, a federally chartered instrumentality
of the United States of America (the “Company”).
RECITALS
WHEREAS, the Company has
authorized the issuance and sale of up to 100,000 shares of Preferred Stock (as
defined herein) to be sold from time to time; and
WHEREAS, the Company and the
Purchaser desire to set forth herein the terms and conditions of such issuance
and sale of shares of Preferred Stock by the Company to the
Purchaser.
NOW, THEREFORE, in
consideration of the foregoing recitals and the mutual promises,
representations, warranties and covenants hereinafter set forth and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE
IX
DEFINITIONS
SECTION
9.01. Certain Terms. Whenever used in this Agreement, the following
terms shall have the respective meanings given to them below:
“Act” means the Farm
Credit Act of 1971, as amended.
“Affiliate” means any
Person that, directly or indirectly, controls, is controlled by or is under
common control with another Person. As used in this definition,
“control” (including its correlative meanings, “controlled by” and “under common
control with”) shall mean the possession, directly or indirectly, of power to
direct or cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership interests, by contract
or otherwise). To the extent that any such term is used in relation
to, or in connection with, any statute, and the definition of such term in such
statute is broader or different, then, in such context, such term shall have the
meaning set forth in such statute.
“Board” means the
Board of Directors of the Company.
“Bylaws” means the
By-Laws of the Company.
“Charter” means Title
VIII of the Act.
“Company Reports”
means all registration statements, prospectuses, forms, reports, schedules,
statements and other documents filed by the Company and the Subsidiary with the
SEC.
“Contract” means,
whether written or oral, any note, bond, mortgage, indenture, contract,
agreement, permit, license, lease, purchase order, sales order, arrangement or
other commitment, obligation or understanding (including any understanding with
respect to pricing) to which a Person is a party or by which a Person or its
assets or properties are bound.
“Encumbrance” means
any liens, pledges, hypothecations, mortgages, deeds of trust, charges, claims,
security interests, options, restrictions, encumbrances, rights, warrants,
licenses, burdens, Title defects, Title retention agreements, voting trust
agreements, proxy or other similar interests, restrictions or
limitations.
“FCA” means the Farm
Credit Administration.
“Governmental Entity”
means any court or tribunal or administrative, governmental or regulatory body,
agency, commission, board, legislature, instrumentality, division, department,
public body or other authority of any nation or government or any political
subdivision thereof, whether foreign or domestic and whether national,
supranational, state or local and any industry self-regulatory
organization.
“Law” means any
foreign, national, state, provincial, municipal or local statute, law,
ordinance, regulation, treaty, rule, code, injunction, decree, judgment, writ,
order, determination, award or decree, other order or applicable
regulations.
“Material Adverse
Effect” means any fact, circumstance, event, change, violation,
development, effect, condition or occurrence, either individually or in the
aggregate with any other fact, circumstance, event, change, violation,
development, effect, condition or occurrence, that is, or would reasonably be
expected to be, materially adverse to the business, operations (including
results of operations), assets, liabilities, properties or condition (financial
or otherwise) of the Company and the Subsidiary, taken as a whole, excluding any
such fact, circumstance, event, change, violation, development, effect,
condition or occurrence arising out of, in connection with or resulting from, in
whole or in part (a) general economic conditions or changes therein,
(b) changes in or events affecting the industries in which the Company or
the Subsidiary participate generally, (c) any effect arising out of a
change in U.S. GAAP or applicable Law, (d) national or international
political conditions, including any engagement in hostilities, whether or not
pursuant to the declaration of a national emergency or war, or the occurrence of
any military or terrorist attack, (e) any change in the market price or
trading volume of the Company’s outstanding securities, in and of itself,
(f) announcement of the transactions contemplated by this Agreement or
(g) actions or omissions by the Company or the Subsidiary pursuant to this
Agreement or with the prior written consent of the Purchaser, to the extent that
any such fact, circumstance, event, change, violation, development, effect,
condition or occurrence described in the foregoing clauses (a) through (e)
does not have a disproportionate impact on the Company or the Subsidiary as
compared to other Persons participating in businesses or industries in which the
Company or the Subsidiary operates.
“NYSE” means the New
York Stock Exchange.
“Per Share Purchase
Price” means $1,000 per share of Preferred Stock.
“Person” means any
individual, corporation (including not-for-profit), general or limited
partnership, limited liability company, joint venture, estate, trust,
association, organization, Governmental Entity or other entity of any kind or
nature.
“SEC” means the United
States Securities and Exchange Commission.
“Securities Act” means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Tax” or “Taxes” means all
federal, state, local, foreign and other taxes, charges, fees, duties, imposts,
levies, penalties or other assessments or other similar charges imposed by any
Taxing Authority, including, but not limited to, income, excise, property, sales
and use, franchise, payroll, withholding, social security profits, capital
gains, capital stock, transfer, gross receipts, production, customs, goods and
services, service, state guarantee fund assessment, occupation, ad valorem,
excise, severance, windfall profits, premium, stamp, license, employment,
workers compensation, unemployment, disability, alternative minimum, add-on,
value-added, capital, or other taxes, duties or assessments including any
interest, penalties or additions attributable thereto. For purposes
of this Agreement, “Taxes” also includes any liability pursuant to
section 1.1502-6 of the Treasury Regulations or comparable provisions of
state, local or foreign Law, any obligations under any Contract with any Person
with respect to the liability for, or sharing of, Taxes (including pursuant to
section 1.1502-6 of the Treasury Regulations or comparable provisions of
state, local or foreign Tax Law) and any liability for Taxes as a transferee or
successor, by contract or otherwise.
“Taxing Authority”
shall mean any federal, national, provincial, foreign, state or local
government, or any subdivision, agency, commission or authority thereof
exercising Tax regulatory, enforcement, collection or other
authority.
SECTION
9.02. Additional Terms. The following terms are defined in the
corresponding Sections of this Agreement:
|
Term
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Section
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Agreement
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Preamble
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Certificate
of Designation
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Section 2.1
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Closing
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Section 5.1
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Closing
Date
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Section 2.2
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Company
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Preamble
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Issue
Date
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Section
2.1
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Letter
Agreement
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Recitals
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New
York Courts
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Section 7.6(b)
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Observers
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Section 5.3
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Order
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Section
3.5
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Preferred
Stock
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Section 2.1
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Purchaser
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Preamble
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Subsidiary
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Section
3.1
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SECTION
9.03. Terms Generally. For the purposes of this Agreement,
(a) words (including capitalized terms defined herein) in the singular
shall be held to include the plural and vice versa and words
(including capitalized terms defined herein) of one gender shall be held to
include the other gender as the context requires; (b) the terms “hereof,”
“herein” and “herewith” and words of similar import shall, unless otherwise
stated, be construed to refer to this Agreement as a whole (including all of the
Exhibits) and not to any particular provision of this Agreement, and Article,
Section, paragraph and Exhibit references are to the Articles, Sections,
paragraphs and Exhibits to this Agreement, unless otherwise specified;
(c) the word “including” and words of similar import when used in this
Agreement shall mean “including, without limitation”; (d) the phrase
“ordinary course of business” and phrases of similar import when used in this
Agreement shall mean “ordinary course of business consistent with past
practice”; (e) the word “liability” and words of similar import when used
in this Agreement shall be deemed to include any liabilities, whether known or
unknown, whether asserted or unasserted, whether absolute or contingent, whether
accrued or unaccrued, whether liquidated or unliquidated and whether due or to
become due; (f) all references to any period of days shall be deemed to be
to the relevant number of calendar days unless otherwise specified;
(g) references to any statute, rule or regulation are to the statute, rule
or regulation as amended, modified, supplemented or replaced from time to time
(and, in the case of statutes, include any rules and regulations promulgated
under said statutes) and to any section of any statute, rule or regulation
include any successor to said section; (h) the word “or” shall not be
interpreted to be exclusive or disjunctive; and (i) all references herein
to “$” or dollars shall refer to United States dollars, unless otherwise
specified.
ARTICLE
X
SALE AND
PURCHASE OF THE SECURITIES; CLOSING
SECTION
10.01. Authorization of Securities.
The
Company hereby agrees to issue and sell to the Purchaser, and the Purchaser
agrees to purchase from the Company, [●] shares of the Company’s Non-Voting
Cumulative Preferred Stock, Series C, par value $1,000 per share
(“Preferred
Stock”), free and clear of all Encumbrances, each of which shares of
Preferred Stock will have the designations, powers, preferences, rights,
privileges, qualifications, limitations, restrictions, terms and conditions set
forth in the Amended and Restated Certificate of Designation of Terms and
Conditions of Non-Voting Cumulative Preferred Stock, Series C previously
provided to the Purchaser (the “Certificate of
Designation”), for a purchase price per share of Preferred Stock equal to
the Per Share Purchase Price. The Company and the Purchaser hereby
agree that, for the purposes of the Certificate of Designation, the “Issue Date” with
respect to the shares of Preferred Stock being purchased by the Purchaser
pursuant to this Agreement shall be [●].
SECTION
10.02. Closing. On [●] (the “Closing Date”),
(a) the Company will deliver to the Purchaser a certificate representing
[●] shares of Preferred Stock, registered in the name of the Purchaser,
(b) the Purchaser, in full payment for the Preferred Stock being purchased
by it, will deliver to the Company by wire transfer of immediately available
funds to such account as the Company shall specify, an amount equal to $[●] and
(c) each party shall take or cause to happen such other actions, and shall
execute and deliver such other instruments or documents, as shall be required
pursuant to this Agreement.
ARTICLE
XI
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
Except as
set forth in the Company Reports filed prior to the date of this Agreement
(excluding any disclosures set forth in any section of any such Company Report
entitled “Risk Factors” or “Forward-Looking Statements”), the Company hereby
represents and warrants to the Purchaser as follows:
SECTION
11.01. Organization and Standing. The Company is a federally
chartered instrumentality of the United States, duly organized, validly existing
and in good standing under the Act. The Company’s wholly-owned
subsidiary, Farmer Mac Mortgage Securities Corporation, a Delaware corporation
(the “Subsidiary”), is duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Each of the Company and the Subsidiary has full corporate
power and authority to own, lease, use and operate its properties and to carry
on its business as currently conducted where now owned, leased, used, operated
and conducted. Each of the Company and the Subsidiary is duly
qualified to do business in all jurisdictions in which the character of the
business conducted by it or the property it owns, leases or operates requires it
to so qualify, except where the failure to be so qualified or in good standing
in such jurisdiction would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect. The Company is not in
default in the performance, observance or fulfillment of any provision of the
Charter or Bylaws. The Subsidiary is not in default in the
performance, observance or fulfillment of any provision of its organizational or
corporate governance Contracts (including any federal statutes similar to the
Charter).
SECTION
11.02. Corporate Power; Authorization. The Company has all requisite
corporate power and has taken all necessary corporate action required for the
due authorization, execution, delivery and performance by the Company of this
Agreement, the execution and filing (if necessary) of the Certificate of
Designation and the consummation of the transactions contemplated hereby and
thereby. The issuance and delivery of Preferred Stock have been duly
authorized by all necessary corporate action on the part of the Company, and no
further corporate proceedings are required by the Company, the Board or the
Company’s stockholders. This Agreement has been duly executed and
delivered by the Company and constitutes the valid and binding obligation of the
Company enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting
creditors’ rights generally and to general equitable
principles.
SECTION
11.03. Issuance of Preferred Stock. The Preferred Stock being
purchased by the Purchaser pursuant to this Agreement, upon payment of the Per
Share Purchase Price therefore, will be (a) duly authorized, validly
issued, fully paid and nonassessable, (b) will not be subject to any
preemptive or similar rights of any other Person and (c) will be delivered
to the Purchaser (or the Purchaser’s transferee) free and clear of all
Encumbrances. When issued, the Purchaser will be the sole record and
beneficial owner of each share of Preferred Stock.
SECTION
11.04. Consents; No Conflicts.
(a) The
Company has obtained all consents and approvals, and has taken all actions
necessary, in connection with the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby (including the issuance
of Preferred Stock in connection therewith) such that the execution and delivery
of this Agreement and the consummation of such transactions do not and will
not:
(i)
conflict, or result in a breach or violation of any provision of, or constitute
a default under, the Charter or the Bylaws;
(ii)
conflict with, or result in a breach or violation of any provision of, or
constitute a default (or an event that, with the giving of notice, the passage
of time or otherwise, would constitute a default) under, or entitle any Person
(with the giving of notice, the passage of time or otherwise) to terminate,
accelerate, modify or call a default under, or result in the creation of any
Encumbrances upon any of the properties or assets of the Company or the
Subsidiary under, any of the terms, conditions or provisions of any Contract to
which the Company or the Subsidiary is a party or to which any of their
respective properties or assets are bound;
(iii)
materially violate any Law applicable to the Company or the Subsidiary or any of
their respective properties or assets; or
(iv)
require any further action or consent or approval of, or review by, or any
registration or filing by the Company or any of its Affiliates with, any third
party or any Governmental Entity, including (A) approval of this Agreement
and the other transactions contemplated hereby by the FCA,
(B) registrations or other actions required under United States federal and
state securities laws and (C) compliance with any applicable requirements
of the NYSE,
except,
in the case of clause (ii) above, as would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse
Effect. Without limiting the generality of the foregoing, the Company
has obtained from the FCA and any other regulatory Governmental Entity written
assurances that the proceeds from the sale of shares of Preferred Stock pursuant
to this Agreement will be treated as capital for minimum capital purposes under
the Charter.
SECTION
11.05. Compliance with Laws; Permits. Neither the Company nor the
Subsidiary, nor the conduct of their respective businesses, is in material
violation of or material default under any judicial or administrative judgment,
decision, decree, order, settlement, injunction, writ, stipulation,
determination, award or permit (each, an “Order”) or any Law
(including the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act). No investigation or review by any
Governmental Entity with respect to the Company or the Subsidiary is pending or,
to the knowledge of the Company, threatened, nor has any Governmental Entity
indicated in writing an intention to conduct any such investigation or
review.
SECTION
11.06. Exempt Securities. The shares of Preferred Stock are being
issued and are properly exempt under Section 3(a)(2) of the Securities Act
from the registration and prospectus delivery requirements of the Securities Act
and such registration or prospectus delivery is not required in connection with
the issuance, sale, resale or delivery of such securities as contemplated
herein.
ARTICLE
XII
ADDITIONAL
AGREEMENTS
SECTION
12.01. Further Assurances. Following the closing of the transactions
contemplated by this Agreement (the “Closing”), the
Purchaser, on the one hand, and the Company, on the other hand, shall execute
all such further certificates, agreements, instruments and other documents and
take all such other actions as are reasonably required in order to more
effectively consummate or implement the transactions contemplated by this
Agreement or the Certificate of Designation or otherwise carry out, and comply
with its obligations under, the terms and conditions of this Agreement and the
Certificate of Designation.
SECTION
12.02. Tax Treatment. The parties agree to treat the Preferred Stock
as equity for all Tax purposes.
ARTICLE
XIII
MISCELLANEOUS
SECTION
13.01. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by prepaid
overnight courier (providing proof of delivery), by facsimile or by registered
or certified mail (postage prepaid, return receipt requested) to the respective
parties at the following addresses or facsimile numbers (or at such other
address for a party as shall be specified in a notice given in accordance with
this Section 5.1):
if to the
Purchaser:
[●]
if to the
Company:
Federal
Agricultural Mortgage Corporation
▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Suite
600
Washington,
D.C. 20036
Telecopier
No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General
Counsel
with a
copy to:
▇▇▇▇▇▇▇▇
& Sterling LLP
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Suite
900
Washington,
D.C. 20004
Telecopier
No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Abigail
Arms, Esq.
SECTION
13.02. Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or public
policy or the application of this Agreement to any person or circumstance is
invalid or incapable of being enforced by any rule of law or public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated by this Agreement is not affected in any manner
materially adverse to any party. To such end, the provisions of this
Agreement are agreed to be severable. Upon such determination that
any term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible in a
mutually acceptable manner in order that the transactions contemplated by this
Agreement be consummated as originally contemplated to the fullest extent
possible.
SECTION
13.03. Entire Agreement; Assignment. This Agreement, including any
Exhibits hereto and the other documents delivered pursuant hereto constitute the
full and entire understanding and agreement among the parties with respect to
the subject matter hereof, and supersede and preempt all prior agreements and
undertakings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof. Neither this Agreement nor any
of the rights or obligations hereunder may be assigned by any party without the
prior written consent of the other parties; provided, that in the
event of any such assignment, such assignee shall be required to execute a
joinder to and agree to be bound by this Agreement. No such
assignment shall release the assignor from any of its obligations
hereunder.
SECTION
13.04. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement were
not performed in accordance with the terms hereof and that money damages would
not be a sufficient remedy for any breach of this Agreement, and accordingly,
the parties hereto shall be entitled to specific performance of the terms
hereof, in addition to any other remedy at law or equity.
SECTION
13.05. Burden and Benefit. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns. This Agreement and all of its
conditions and provisions are for the sole and exclusive benefit of the parties
hereto and their respective successors and permitted assigns, and nothing in
this Agreement, express or implied, is intended to confer upon any Person other
than the parties hereto any rights or remedies of any nature whatsoever under or
by reason of this Agreement or any provision hereof.
SECTION
13.06. Governing Law; Forum.
(a) All
disputes, claims or controversies arising out of or relating to this Agreement,
or the negotiation, validity or performance of this Agreement or the
transactions contemplated by this Agreement shall be governed by and construed
in accordance with the laws of the State of New York without regard to its rules
of conflict of laws.
(b) Except
as set out below, the Company and the Purchaser hereby irrevocably and
unconditionally consent to submit to the sole and exclusive jurisdiction of the
United States District Court for the Southern District of New York (the “New York Courts”) for
any litigation arising out of or relating to this Agreement, or the negotiation,
validity or performance of this Agreement or the transactions contemplated by
this Agreement (and agree not to commence any litigation relating thereto except
in such courts), waive any objection to the laying of venue of any such
litigation in the New York Courts and agree not to plead or claim in any New
York Court that such litigation brought therein has been brought in any
inconvenient forum. Each of the parties hereto agrees (i) to the
extent such party is not otherwise subject to service of process in the State of
New York, to appoint and maintain an agent in the State of New York as such
party’s agent for acceptance of legal process and (ii) that service of
process may also be made on such party by prepaid certified mail with a proof of
mailing receipt validated by the United States Postal Service constituting
evidence of valid service. Service made pursuant to (i) or
(ii) above shall have the same legal force and effect as if served upon
such party personally within the State of New York.
SECTION
13.07. Waiver of Jury Trial. Each of the parties hereto hereby waives
to the fullest extent permitted by applicable Law any right it may have to a
trial by jury with respect to any litigation directly or indirectly arising out
of, under or in connection with this Agreement or the transactions contemplated
by this Agreement. Each of the parties hereto (a) certifies that
no representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce that foregoing waiver and (b) acknowledges that
it and the other hereto have been induced to enter into this Agreement and the
transactions contemplated by this Agreement, as applicable, by, among other
things, the mutual waivers and certifications in this Section 5.7.
SECTION
13.08. Headings. The descriptive headings contained in this Agreement
are included for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION
13.09. Counterparts. This Agreement may be executed and delivered,
including by facsimile transmission, in two or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
SECTION
13.10. Waiver. Except as provided in this Agreement, no action taken
pursuant to this Agreement, including, without limitation, any investigation by
or on behalf of any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representations, warranties, covenants
or agreements contained in this Agreement. The waiver by any party
hereto of a breach of any provision hereunder shall not operate or be construed
as a waiver of any prior or subsequent breach of the same or any other provision
hereunder.
IN
WITNESS WHEREOF, each party has caused this Agreement to be duly executed on its
behalf by an authorized officer as of the date first above written.
|
FEDERAL
AGRICULTURAL
|
||
|
MORTGAGE
CORPORATION
|
||
|
By:
|
|
|
|
Name:
|
||
|
Title:
|
||
|
[COUNTERPARTY
NAME]
|
||
|
By:
|
|
|
|
Name:
|
||
|
Title:
|
||
ANNEX
D
SAMPLE
|
Coopid
|
Facilityid
|
Indenture
|
Name
|
Class
|
Facility Risk Rating
|
Coop Risk Rating
|
Facility O/s Balance
|
|||||||||||||||
|
AK002
|
9033 |
FMCT
|
Matanuska
Electric Association, Inc.
|
A
|
2.5 | 3 | $ | 3,250,000.00 | ||||||||||||||
|
AK002
|
9034 |
FMCT
|
Matanuska
Electric Association, Inc.
|
A
|
2.5 | 3 | $ | 3,350,000.00 | ||||||||||||||
|
AK002
|
9035 |
FMCT
|
Matanuska
Electric Association, Inc.
|
A
|
2.5 | 3 | $ | 3,470,000.00 | ||||||||||||||
NOTE: The
“Indenture” designation may not be changed in subsequent reporting periods once
established with respect to an Eligible Loan.
ANNEX
E
SAMPLE
|
COOP
IDS
|
year
|
dep_amort_exp
|
interest_ltd_exp
|
patcap_op_margins
|
non_op_margins_interest
|
g_and_t_capital_credits
|
other_capital_credits_pat_div
|
net_utility_plant
|
||||||||||||||||||||||||
|
MN048
|
2008
|
8417985
|
6310184
|
-3177921
|
174637
|
6333697
|
993039
|
192833241
|
||||||||||||||||||||||||
|
tot_assets_other_debits
|
tot_margins_equities
|
tot_ltd
|
long_term_lease_rental_tot
|
tot_pmt_ltd_bc
|
tot_pmt_ltd_ffb
|
tot_pmt_ltd_rus_edl
|
tot_pmt_ltd_other1
|
tot_pmt_ltd_other2
|
||||||||||||||||||||||||
|
311655261
|
127968457
|
112263396
|
||||||||||||||||||||||||||||||
|
payee_ltd_other4
|
payee_ltd_other5
|
tot_pmt_ltd_other6
|
tot_pmt_ltd_other7
|
tot_pmt_ltd_other8
|
tot_pmt_ltd_other9
|
tot_pmt_ltd_other10
|
cfc_bill_debt_service_tot
|
rus_bill_debt_service_tot
|
||||||||||||||||||||||||
|
11079647
|
||||||||||||||||||||||||||||||||
ANNEX
F
Eligible
Loan Criteria
“Eligible Member”
means any Class A Member or Class B Member of Nat Rural as described in Nat
Rural’s Bylaws currently in effect.
“Eligible Loan” means
a note or bond of any Eligible Member payable or registered to, or to the order
of, Nat Rural, (A) in respect of which (i) the outstanding principal
amount under such note or bond, together with the outstanding principal amount
of any other notes or bonds of such Eligible Member pledged hereunder or pledged
to secure any other notes or bonds issued by Nat Rural to Farmer Mac or any
affiliate or sold by Nat Rural or any affiliate to any trust whose beneficial
ownership is owned or controlled by Farmer Mac, does not aggregate more than $35
million; (ii) no default has occurred in the payment of principal or interest in
accordance with the terms of such note or bond that is continuing beyond the
contractual grace period (if any) provided in such note or bond for such payment
and (iii) no “event of default” as defined in such note or bond (or in any
instrument creating a security interest in favor of Nat Rural in respect of such
note or bond), shall exist that has resulted in the exercise of any right or
remedy described in such note or bond (or in any such instrument);
(B) which is not classified by Nat Rural as a non-performing loan under
generally accepted accounting principles in the United States; and (C) which
otherwise satisfies the additional criteria set forth below.
Additional Criteria for
Eligible Loan of Class A Eligible Member: Each Class A
Eligible Member must satisfy the following criteria only on the date of the
pledge of such Eligible Loan:
|
|
·
|
Long-Term
Debt to Net Utility Plant Ratio, as the average ratio of the most recent
three full calendar years for which financial information is available,
does not exceed 90%.
|
|
|
·
|
Modified
Debt Service Coverage Ratio—Distribution, as the average ratio of the most
recent three full calendar years for which financial information is
available, is greater than or equal to
1.35.
|
|
|
·
|
Equity
to Total Assets Ratio, as the average ratio of the most recent three full
calendar years for which financial information is available, is greater
than or equal to 20%.
|
|
|
·
|
The
Eligible Loan has a Facility Rating by Nat Rural of “4.9” or
lower.
|
Additional Criteria for
Eligible Loan of Class B Eligible Member: Each Class B
Eligible Member must satisfy the following criteria only on the date of the
pledge of such Eligible Loan:
|
|
·
|
Equity
to Total Capitalization Ratio, as the average ratio of the most recent
three full calendar years for which financial information is available, is
greater than or equal to 25%.
|
|
|
·
|
Modified
Debt Service Coverage Ratio—G&T, as the average ratio of the most
recent three full calendar years for which financial information is
available, is greater than or equal to
1.10.
|
|
|
·
|
Equity
to Total Assets Ratio, as the average ratio of the most recent three full
calendar years for which financial information is available, is greater
than or equal to 10%.
|
The
Eligible Loan has a Facility Rating by Nat Rural of “4.9” or lower