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Execution Version

 

REVOLVING CREDIT AGREEMENT

 

dated as of

 

October 21, 2011

 

among

 

NATIONAL RURAL UTILITIES

COOPERATIVE FINANCE CORPORATION,

 

THE BANKS LISTED HEREIN,

 

JPMORGAN CHASE BANK, N.A.,

as Administrative Agent and Initial Issuing Bank,

 

THE ROYAL BANK OF SCOTLAND PLC,

 

as Syndication Agent,

 

and

 

 

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,

KEYBANK NATIONAL ASSOCIATION,

 

and

 

ROYAL BANK OF CANADA

as Co-Documentation Agents

 

_________________________

 

J.P. MORGAN SECURITIES LLC,

 

RBS SECURITIES INC.,

 

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,

 

KEYBANK NATIONAL ASSOCIATION,

 

and

 

RBC CAPITAL MARKETS

 

as Co-Lead Arrangers and Joint Bookrunners

 

 

 

 

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TABLE OF CONTENTS

Page

 

 

 

 

ARTICLE 1

Definitions

 

Section 1.01 .  Definitions

1

Section 1.02 .  Accounting Terms and Determinations

20

Section 1.03 .  Types of Borrowings

20

Section 1.04 .  Letter of Credit

20

 

ARTICLE 2

The Credits

 

Section 2.01 .  Commitments to Lend and Issue Letters of Credit

21

Section 2.02 .  Notice of Committed Borrowings

23

Section 2.03 .  Money Market Borrowings

23

Section 2.04.   Notice to Banks; Funding of Loans

27

Section 2.05 .   Notes

28

Section 2.06.   Maturity of Loans

29

Section 2.07.   Interest Rates

29

Section 2.08.   Method of Electing Interest Rates

31

Section 2.09.   Fees

33

Section 2.10.   Optional Termination or Reduction of Commitments

34

Section 2.11.   Mandatory Termination of Commitments

34

Section 2.12.   Optional Prepayments

34

Section 2.13.   General Provisions as to Payments

35

Section 2.14 .  Funding Losses

36

Section 2.15.   Computation of Interest and Fees

36

Section 2.16 .  Taxes

36

Section 2.17 .  Increase of Commitments

40

Section 2.18 .  Replacement of Banks

41

Section 2.19 .  Defaulting Banks

43

Section 2.20 .  Issuance of Letters of Credit; Drawings and Reimbursements; Auto-Extension Letters of Credit; Funding of Participations.

45

 

ARTICLE 3

Conditions

 

Section 3.01.   Effectiveness

54

Section 3.02.   Prior Credit Agreement

55

Section 3.03.   Borrowings and L/C Credit Extensions

56

 

 

 

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ARTICLE 4

REPRESENTATIONS AND WARRANTIES

 

Section 4.01.   Corporate Existence, Power and Authority

57

Section 4.02.   Financial Statements

58

Section 4.03.   Litigation

59

Section 4.04.   Governmental Authorizations

59

Section 4.05.   Members’ Subordinated Certificates

59

Section 4.06.   No Violation of Agreements

59

Section 4.07.   No Event of Default under the Indentures

60

Section 4.08.   Compliance with ERISA

60

Section 4.09.   Compliance with Other Laws

60

Section 4.10.   Tax Status

60

Section 4.11.   Investment Company Act

61

Section 4.12.   Disclosure

61

Section 4.13.   Subsidiaries

61

Section 4.14.   Environmental Matters

61

 

ARTICLE 5

Covenants

 

Section 5.01.   Corporate Existence

62

Section 5.02.   Disposition of Assets, Merger, Character of Business, etc

62

Section 5.03.   Financial Information

62

Section 5.04.   Default Certificates

64

Section 5.05.   Notice of Litigation and Defaults

64

Section 5.06.   ERISA

64

Section 5.07.   Payment of Charges

65

Section 5.08.   Inspection of Books and Assets

65

Section 5.09.   Indebtedness

65

Section 5.10.   Liens

66

Section 5.11.   Maintenance of Insurance

67

Section 5.12.   Subsidiaries and Joint Ventures

67

Section 5.13.   Minimum TIER

68

Section 5.14.   Retirement of Patronage Capital

68

Section 5.15.   Use of Proceeds

68

 

ARTICLE 6

Defaults

 

Section 6.01.   Events of Default

69

Section 6.02.   Actions In Respect Of Letters Of Credit Upon Default

71

Section 6.03.   Notice of Default

72

 

ARTICLE 7

THE ADMINISTRATIVE AGENT

 

Section 7.01.   Appointment and Authorization

72

 

 

 

 

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Section 7.02.   Administrative Agent and Affiliates

72

Section 7.03.   Action by Adminstrative Agent

72

Section 7.04.   Consultation with Experts

72

Section 7.05.   Liability of Administrative Agent

72

Section 7.06.   Indemnification

73

Section 7.07.   Credit Decision

73

Section 7.08.   Successor Administrative Agent

74

Section 7.09 .  Co-Documentation Agents, Syndication Agent and Co-Lead Arrangers Not Liable.

74

 

ARTICLE 8

Change in Circumstances

 

Section 8.01.   Basis for Determining Interest Rate Inadequate or Unfair

74

Section 8.02.   Illegality

75

Section 8.03.   Increased Cost and Reduced Return

76

Section 8.04.  Base Rate Loans Substituted for Affected Euro-Dollar Loans

78

 

ARTICLE 9

Miscellaneous

 

Section 9.01 .   Notices

78

Section 9.02 .   No Waivers

80

Section 9.03 .   Expenses; Documentary Taxes; Indemnification

80

Section 9.04 .   Sharing of Set-offs

81

Section 9.05 .   Amendments and Waivers

81

Section 9.06 .   Successors and Assigns

82

Section 9.07 .   Collateral

85

Section 9.08 .   Governing Law

85

Section 9.09 .   Counterparts; Integration

85

Section 9.10 .   Several Obligations

85

Section 9.11 .   Severability

86

Section 9.12 .   Confidentiality

86

Section 9.13 .   WAIVER OF JURY TRIAL

86

Section 9.14. USA Patriot Act

86

Section 9.15 .  ICC Transactions

87

 

 

 

 

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Schedules

 

Agent Schedule

Commitment Schedule

Pricing Schedule

Schedule 5.03(a)                                        Non-GAAP Subsidiaries

Schedule 9.15                                             ICC Transactions

 

Exhibits

 

Exhibit A                                  -           Form of Note

Exhibits B-1 and B-2               -           Forms of RUS Guarantee

Exhibit C                                   -           Money Market Quote Request

Exhibit D                                   -           Invitation for Money Market Quotes

Exhibit E                                   -           Money Market Quote

Exhibit F                                   -           Opinion of General Counsel for the Borrower

Annex A - Legal Actions

Annex B - Subsidiaries and Joint Ventures

Exhibit G                                   -           Assignment and Assumption Agreement

Exhibit H                                   -           U.S. Tax Certificates

 

 

 

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REVOLVING CREDIT AGREEMENT

 

REVOLVING CREDIT AGREEMENT dated as of October 21, 2011, among NATIONAL RURAL UTILITIES COOPERATIVE FINANCE CORPORATION, a not-for-profit cooperative association incorporated under the laws of the District of Columbia, as Borrower, the BANKS listed on the signature pages hereof, JPMORGAN CHASE BANK, N.A., as Administrative Agent and as Initial Issuing Bank for the Letters of Credit issued or to be issued pursuant to this Agreement, THE ROYAL BANK OF SCOTLAND PLC, as Syndication Agent, and THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., KEYBANK NATIONAL ASSOCIATION and ROYAL BANK OF CANADA, as Co-Documentation Agents.

 

The parties hereto agree as follows:

 

 

ARTICLE 1

Definitions

 

Section 1.01.  Definitions.   The following terms, as used herein, have the following meanings:

 

1994 Indenture ” means the Indenture dated as of February 15, 1994 and as amended as of September 16, 1994 between the Borrower and U.S. Bank National Association, as trustee, as amended and supplemented from time to time, providing for the issuance in series of certain collateral trust bonds of the Borrower.

 

2007 Indenture ” means the Indenture dated as of October 25, 2007 between the Borrower and U.S. Bank National Association, as trustee, as amended and supplemented from time to time, providing for the issuance in series of certain collateral trust bonds of the Borrower.

 

Absolute Rate Auction ” means a solicitation of Money Market Quotes setting forth Money Market Absolute Rates pursuant to ‎Section 2.03.

 

Adjusted London Interbank Offered Rate ” has the meaning set forth in ‎Section 2.07(b).

 

Administrative Agent ” means JPMorgan Chase Bank, N.A., in its capacity as administrative agent for the Banks hereunder, and its successors in such capacity.

 

Administrative Questionnaire ” means, with respect to each Bank, the administrative questionnaire in the form submitted to such Bank by the Administrative Agent and submitted to the Administrative Agent (with a copy to the Borrower) duly completed by such Bank.

 

 

 

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Agreement ” means this Revolving Credit Agreement, as the same may be amended from time to time.

 

Applicable Law ” means, with respect to any Person, any and all laws, statutes, regulations, rules, orders, injunctions, decrees, judgments, writs determinations or awards having the force or effect of binding such Person at law and issued by any Governmental Authority, applicable to such Person, including all Environmental Laws.

 

Applicable Lending Office ” means, with respect to any Bank, (i) in the case of its Base Rate Loans, its Domestic Lending Office, (ii) in the case of its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case of its Money Market Loans, its Money Market Lending Office.

 

ASC 815 ” means Accounting Standards Codification No. 815 Derivatives and Hedging, as amended from time to time (or any successor provision thereto).

 

ASC 830 ” means Accounting Standards Codification No. 830 Foreign Currency Matters, as amended from time to time (or any successor provision thereto).

 

Assignee ” has the meaning set forth in ‎Section 9.06(c).

 

Auto-Extension Letter of Credit ” has the meaning specified in ‎Section 2.20(a)(iii).

 

Back-Up Letter of Credit ” has the meaning set forth in Section 2.01(b).

 

Bank ” means each bank listed on the signature pages hereof, each Assignee which becomes a Bank pursuant to ‎Section 9.06(c), and their respective successors.

 

Bankruptcy Event ” means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, provided , further , that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

 

 

 

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Bank Parties ” mean the Banks and the Issuing Banks.

 

Base Rate ” means, for any day, a rate per annum equal to the highest of (i) the Prime Rate for such day, (ii) the Federal Funds Rate for such day plus 0.50% and (iii) the Adjusted London Interbank Offered Rate for a one month Interest Period on such day (or if such day is not a Euro-Dollar Domestic Business Day, the immediately preceding Euro-Dollar Business Day) plus 1.00%.

 

Base Rate Loan ” means a Committed Loan that bears interest at the Base Rate pursuant to the applicable Notice of Committed Borrowing or Notice of Interest Rate Election or the last sentence of ‎Section 2.08(a) or ‎Article 8.

 

Base Rate Margin ” has the meaning set forth in the Pricing Schedule hereto.

 

Bonds ” means any bonds issued pursuant to any of the Indentures, as the context may require.

 

Borrower ” means the National Rural Utilities Cooperative Finance Corporation, a not-for-profit cooperative association incorporated under the laws of the District of Columbia, and its successors.

 

Borrowing ” has the meaning set forth in ‎Section 1.03.

 

Cash Collateral Account ” means a deposit account or a non-interest bearing securities account (as contemplated by ‎Section 2.20(e)) opened, or to be opened, by the Administrative Agent and in which a Lien has been granted to the Administrative Agent for the benefit of each Bank and each Issuing Bank pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and each Issuing Bank (which documents are hereby consented to by the Banks) to the extent that any Letter of Credit is required to be Cash Collateralized in accordance with this Agreement.

 

Cash Collateralize ” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of each Issuing Bank and each Bank, as collateral for the L/C Obligations, cash or deposit account balances, and “Cash Collateral” shall refer to such cash or deposit account balances.

 

Central Banking Authority ” means any central bank, reserve bank or monetary authority that is principally engaged in the regulation of the currency, money supply or commercial banking system of any given sovereign state or states.

 

Change in Law ” means (a) the adoption of any law, rule, regulation or treaty after the date of this Agreement, (b) any change in any law, rule, regulation or treaty or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Bank Party (or, for purposes of ‎Section 8.03(b), by its Applicable Lending Office or by such

 

 

 

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 Bank Party’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided however , that notwithstanding anything therein to the contrary, (i) any requirements imposed under the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives thereunder or enacted, adopted or issued in connection therewith and (ii) any requests, rules, guidelines or directives concerning capital adequacy promulgated by the Bank for International Settlements, the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority) or the United States financial regulatory authorities, in each case pursuant to Basel III, shall be deemed to be a “Change in Law”, regardless of the date adopted, issued, promulgated or implemented, but only if any such requirements are generally applicable to (and for which reimbursement is generally being sought by the Banks in respect of) credit transactions similar to this transaction from borrowers similarly situated to the Borrower.

 

Code ” means the Internal Revenue Code of 1986, as amended.

 

Co-Documentation Agents ” means The Bank of Tokyo-Mitsubishi UFJ, Ltd., KeyBank National Association, and Royal Bank of Canada, each in their respective capacity as documentation agent hereunder, and their respective successors in such capacity.

 

Co-Lead Arrangers ” means J.P. Morgan Securities LLC, RBS Securities Inc., The Bank of Tokyo-Mitsubishi UFJ, Ltd., KeyBank National Association, and RBC Capital Markets,   1 each in their capacity as co-lead arranger and joint bookrunner.

 

Commitment ” means (i) with respect to each Bank listed on the signature pages hereof, the amount set forth opposite the name of such Bank on the Commitment Schedule hereto and (ii) with respect to any Assignee that becomes a Bank pursuant to ‎Section 9.06(c), the amount of the transferor Bank’s Commitment assigned to it pursuant to ‎Section 9.06(c), in each case as such amount may from time to time be reduced pursuant to Sections ‎2.10 and ‎2.11; provided that, if the context so requires, the term “Commitment” means the obligation of a Bank to make loans pursuant to ‎Section 2.01(a) and purchase participations in L/C Obligations up to, in the aggregate, such amount to the Borrower hereunder.

 

Committed Borrowing ” means a Borrowing under ‎Section 2.01(a).

 

 

 

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Committed Loan ” means a Revolving Loan; provided that, if any such loan or loans (or portions thereof) are combined or subdivided pursuant to a Notice of Interest Rate Election, the term “Committed Loan” shall refer to the combined principal amount resulting from such combination or to each of the separate principal amounts resulting from such subdivision, as the case may be.

 

Commitment Termination Date ” means October 21, 2016 or, if such day is not a Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day.

 

Consolidated Entity ” means at any date any Subsidiary, and any other entity the accounts of which would be combined or consolidated with those of the Borrower in its combined or consolidated financial statements if such statements were prepared as of such date.

 

Credit Documentation ” has the meaning set forth in ‎Section 9.15.

 

Credit Exposure ” means with respect to any Bank at any time, (i) the aggregate principal amount of the Loans outstanding and (ii) the Outstanding Amount of all L/C Obligations (with the aggregate amount of each Bank’s participation in L/C Obligations deemed “held” by such Bank for purposes of this definition).

 

Default ” means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both (as specified in ‎Section 6.01) would, unless cured or waived, become an Event of Default.

 

Defaulting Bank ” means any Bank that (a) has failed, within two Domestic Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its participations in Letters of Credit or (iii) pay over to the Administrative Agent or any Bank Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Bank notifies the Administrative Agent and the Borrower, in writing that such failure is the result of such Bank’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Borrower, the Administrative Agent or any Bank Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Bank’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Domestic Business Days after request by the Administrative Agent (the Administrative Agent hereby agreeing to make any such written request upon a request from the Borrower) or any Bank Party, acting in good faith, to provide a certification in writing from an authorized officer of such Bank (with a copy of such certification to be provided to the Borrower) that it will comply with its

 

 

 

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obligations to fund prospective Loans and participations in then outstanding Letters of Credit under this Agreement, provided that such Bank shall cease to be a Defaulting Bank pursuant to this clause (c) upon such Bank Party’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent, or (d) has, or has a Parent, that has become the subject of a Bankruptcy Event.

 

Derivative Cash Settlements ” means, for any period, the line item “derivative cash settlements” as it appears on the statement of operations of the Borrower and its Consolidated Entities for such period delivered to the Banks pursuant to ‎Section 5.03(b), calculated in accordance with generally accepted accounting principles as in effect from time to time.

 

Derivatives Obligations ” of any Person means all obligations of such Person in respect of any rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of the foregoing transactions) or any combination of the foregoing transactions.

 

Determination Date ” has the meaning set forth in ‎Section 5.09.

 

Dollars ” or “ $ ” refers to lawful money of the United States of America.

 

Domestic Business Day ” means any day except a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close.

 

Domestic Lending Office ” means, as to each Bank Party, its office located at its address set forth in its Administrative Questionnaire (or identified in its Administrative Questionnaire as its Domestic Lending Office) or such other office as such Bank Party may hereafter designate as its Domestic Lending Office by notice to the Borrower and the Administrative Agent.

 

Effective Date ” means the date this Agreement becomes effective in accordance with ‎Section 3.01.

 

Environmental Laws ” means any and all federal, state, local and foreign statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions, permits, concessions, grants, franchises, licenses, agreements and governmental restrictions relating to the environment, the effect of the environment on human health or to emissions, discharges or releases of pollutants, contaminants, Hazardous Substances or wastes into the environment including, without limitation, ambient air, surface water, ground water, or land, or otherwise relating to the manufacture, processing, distribution, use, treatment,

 

 

 

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storage, disposal, transport or handling of pollutants, contaminants, Hazardous Substances or wastes or the clean-up or other remediation thereof.

 

ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, or any successor statute.

 

ERISA Group ” means the Borrower, any Subsidiary and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower or any Subsidiary, are treated as a single employer under Section 414(b) or (c) of the Internal Revenue Code or, for purposes of Section 412 of the Internal Revenue Code, under Section 414(b), (c), (m) or (o) of the Internal Revenue Code.

 

Euro-Dollar Business Day ” means any Domestic Business Day on which commercial banks are open for international business (including dealings in dollar deposits) in London.

 

Euro-Dollar Lending Office ” means, as to each Bank, its office, branch or affiliate located at its address set forth in its Administrative Questionnaire (or identified in its Administrative Questionnaire as its Euro-Dollar Lending Office) or such other office, branch or affiliate of such Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice to the Borrower and the Administrative Agent.

 

Euro-Dollar Loan ” means a Committed Loan that bears interest at a Euro-Dollar Rate pursuant to the applicable Notice of Committed Borrowing or Notice of Interest Rate Election.

 

Euro-Dollar Margin ” means a rate per annum determined in accordance with the Pricing Schedule.

 

Euro-Dollar Rate ” means, for any day, a rate per annum determined in accordance with ‎Section 2.07(b).

 

Euro-Dollar Reference Banks ” means the principal London offices of JPMorgan Chase Bank, N.A. and The Royal Bank of Scotland plc.

 

 “ Euro-Dollar Reserve Percentage ” has the meaning set forth in ‎Section 2.07(b).

 

Event of Default ” has the meaning set forth in ‎Section 6.01.

 

Excluded Taxes ” means, with respect to any payment made by the Borrower under this Agreement or the Notes, any of the following Taxes imposed on or with respect to a Recipient:

 

(a) income or franchise Taxes imposed on (or measured by) net income by the United States of America, or by the jurisdiction under the laws of which such

 

 

 

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Recipient is organized or in which its principal office is located or, in the case of any Bank Party, in which its applicable lending office is located, (b) any branch profits Taxes imposed by the United States of America or any similar Taxes imposed by any other jurisdiction in which the Borrower is located and (c) in the case of a Non U.S. Bank Party (other than an assignee pursuant to a request by the Borrower under ‎Section 2.19(b)), any U.S. Federal withholding Taxes resulting from any law in effect (including FATCA) on the date such Non U.S. Bank Party becomes a party to this Agreement (or designates a new lending office) or is attributable to such Non U.S. Bank Party’s failure to comply with ‎Section 2.16(f), except to the extent that such Non U.S. Bank Party (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding Taxes pursuant to ‎Section 2.17(a).

 

Facility Fee Rate ” means a rate per annum determined in accordance with the Pricing Schedule.

 

FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement and any regulations or official interpretations thereof.

 

Federal Funds Rate ” means, for any day, the rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Domestic Business Day next succeeding such day; provided that (i) if such day is not a Domestic Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Domestic Business Day as so published on the next succeeding Domestic Business Day, and (ii) if no such rate is so published on such next succeeding Domestic Business Day, the Federal Funds Rate for such day shall be the average rate quoted to JPMorgan Chase Bank, N.A. on such day on such transactions as determined by the Administrative Agent.

 

Fixed Rate Borrowing ” means either a Euro-Dollar Borrowing or a  Money Market LIBOR Borrowing.

 

Fixed Rate Loans ” means Euro-Dollar Loans or Money Market Loans (excluding Money Market LIBOR Loans bearing interest at the Base Rate pursuant to ‎Section 8.01) or any combination of the foregoing.

 

Foreclosed Asset ” has the meaning set forth in ‎Section 5.12.

 

Fronting Fee ” has the meaning specified in ‎Section 2.09(d).

 

Governmental Authority ” means any national, state, county, city, town, village, municipal or other government department, commission, board, bureau, agency, authority or instrumentality of a country or any political subdivision

 

 

 

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 thereof, exercising executive, legislative, judicial, regulatory or administrative powers or functions of or pertaining to government.

 

Group of Loans ” means, at any time, a group of Loans consisting of (i) all Committed Loans which are Base Rate Loans at such time or (ii) all Euro-Dollar Loans having the same Interest Period at such time; provided that if a Committed Loan of any particular Bank is converted to or made as a Base Rate Loan pursuant to ‎Article 8, such Loan shall be included in the same Group or Groups of Loans from time to time as it would have been in if it had not been so converted or made.

 

Guarantee ” by any Person means any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing any Indebtedness or lease payments of any other Person or otherwise in any manner assuring the holder of any Indebtedness of, or the obligee under any lease of, any other Person through an agreement, contingent or otherwise, to purchase Indebtedness or the property subject to such lease, or to purchase goods, supplies or services primarily for the purpose of enabling the debtor or obligor to make payment of the Indebtedness or under such lease or of assuring such Person against loss, or to supply funds to or in any other manner invest in the debtor or obligor, or otherwise; provided that the term “ Guarantee ” shall not include endorsements for collection or deposit in the ordinary course of business.  The term “ Guarantee ” when used as a verb has a correlative meaning.

 

Guaranteed Portion ” has the meaning set forth in the definition of RUS Guaranteed Loan.

 

Hazardous Substances ” means any toxic, radioactive, caustic or otherwise hazardous substance, including petroleum, its derivatives, by-products and other hydrocarbons, or any substance having any constituent elements displaying any of the foregoing characteristics.

 

Honor Date ” has the meaning specified in ‎Section 2.20(b)(i).

 

Increased Amount Date ” has the meaning set forth in ‎Section 2.17.

 

Incremental Bank ” has the meaning set forth in ‎Section 2.17.

 

Incremental Commitments ” has the meaning set forth in ‎Section 2.17 .

 

Indebtedness ” with respect to any Person means:

 

(1)           all indebtedness which would appear as indebtedness on a balance sheet of such Person prepared in accordance with generally accepted accounting principles (i) for money borrowed, (ii) which is evidenced by securities sold for money or (iii) which constitutes purchase money indebtedness;

 

(2)           all indebtedness of others Guaranteed by such Person;

 

 

 

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(3)           all indebtedness secured by any Lien upon property owned by such Person, even though such Person has not assumed or become liable for the payment of such indebtedness; and

 

(4)           all indebtedness of such Person created or arising under any conditional sale or other title retention agreement (including any lease in the nature of a title retention agreement) with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession of such property), but only if such property is included as an asset on the balance sheet of such Person;

 

provided that, in computing the “ Indebtedness ” of such Person, there shall be excluded any particular indebtedness if, upon or prior to the maturity thereof, there shall have been deposited with the proper depositary in trust money (or evidences of such indebtedness) in the amount necessary to pay, redeem or satisfy such indebtedness, and thereafter such money and evidences of indebtedness so deposited shall not be included in any computation of the assets of such Person; and provided further that no provision of this definition shall be construed to include as “ Indebtedness ” of the Borrower or its Consolidated Entities any indebtedness by virtue of any agreement by the Borrower or its Consolidated Entities to advance or supply funds to Members.

 

Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by the Borrower under this Agreement or the Notes and (b) Other Taxes.

 

Indenture ” means either the 1994 Indenture, the 2007 Indenture or any other Indenture that provides for borrowing on terms not materially more disadvantageous to the Borrower’s unsecured creditors than the borrowings under the 1994 Indenture or the 2007 Indenture, and “ Indentures ” means all such Indentures.

 

Initial Issuing Bank ” means JPMorgan Chase Bank, N.A. in its capacity as initial issuing bank for the letters of credit issued or to be issued pursuant to this Agreement, and its successors in such capacity as provided in ‎Section 2.20(b).

 

Interest Expense ” means, for any period, the line item “interest expense” as it appears on the statement of operations of the Borrower and its Consolidated Entities for such period delivered to the Banks pursuant to ‎Section 5.03(b), calculated in accordance with generally accepted accounting principles as in effect from time to time.

 

Interest Period ” means: (1) with respect to each Euro-Dollar Borrowing, the period commencing on the date of such Borrowing and ending one, two, three or six months thereafter, as the Borrower may elect in the applicable Notice of Borrowing; provided that:

 

 

 

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(a)           any Interest Period which would otherwise end on a day which is not a Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Euro-Dollar Business Day;

 

(b)           any Interest Period which begins on the last Euro-Dollar Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (c) below, end on the last Euro-Dollar Business Day of a calendar month; and

 

(c)           any Interest Period of any Euro-Dollar Loan included in such Borrowing which would otherwise end after the Maturity Date shall, with respect to such Euro-Dollar Loan, end on such Maturity Date;

 

(2)           with respect to each Base Rate Borrowing, the period commencing on the date of such Borrowing and ending 30 days thereafter; provided that:

 

(a)           any Interest Period which would otherwise end on a day which is not a Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar Business Day; and

 

(b)           any Interest Period of any Base Rate Loan included in such Borrowing which would otherwise end after the Maturity Date shall, with respect to such Base Rate Loan, end on such Maturity Date;

 

(3)           with respect to each Money Market LIBOR Borrowing, the period commencing on the date of such Borrowing and ending any whole number of months thereafter (but not less than one month) as the Borrower may elect in the applicable Notice of Borrowing; provided that:

 

(a)           any Interest Period which would otherwise end on a day which is not a Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Euro-Dollar Business Day;

 

(b)           any Interest Period which begins on the last Euro-Dollar Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (c) below, end on the last Euro-Dollar Business Day of a calendar month; and

 

(c)           any Interest Period which would otherwise end after the Commitment Termination Date shall end on the Commitment Termination Date; and

 

 

 

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(4)           with respect to each Money Market Absolute Rate Borrowing, the period commencing on the date of such Borrowing and ending such number of days thereafter (but not less than 30 days) as the Borrower may elect in the applicable Notice of Borrowing; provided that:

 

(a)           any Interest Period which would otherwise end on a day which is not a Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar Business Day; and

 

(b)           any Interest Period which would otherwise end after the Commitment Termination Date shall end on the Commitment Termination Date.

 

Investments ” has the meaning set forth in ‎Section 5.12.

 

IRS ” means the United States Internal Revenue Service.

 

ISP ” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance of such Letter of Credit).

 

Issuer Documents ” means, with respect to any Letter of Credit, the Letter of Credit Application and any other document, agreement and instrument entered into by any Issuing Bank and the Borrower (or any Consolidated Entity of the Borrower) or in favor of any Issuing Bank and relating to any such Letter of Credit.

 

Issuing Bank ” means the Initial Issuing Bank and any Bank appointed by the Borrower (with the consent of the Administrative Agent) as such and each Person that shall become an Issuing Bank hereunder pursuant to ‎Section 2.20(l) or ‎Section 9.06(f).  Each Issuing Bank may, with the consent of the Borrower (such consent not to be unreasonably withheld), arrange for one or more Letters of Credit to be issued by affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such affiliate with respect to Letters of Credit issued by such affiliate.

 

Joint Venture ” means any corporation, partnership, association, joint venture or other entity in which the Borrower, directly or indirectly through Subsidiaries or Joint Ventures, has an equity interest at the time of 10% or more but which is not a Subsidiary; provided that no Person whose only assets are RUS Guaranteed Loans and investments incidental thereto shall be deemed a Joint Venture; provided further that any investment by the Borrower, directly or indirectly through Subsidiaries or Joint Ventures, in (or any of their other interests in) any equity securities of the Federal Agricultural Mortgage Corporation shall not be deemed a Joint Venture.

 

L/C Advance ” means, with respect to each Bank, such Bank’s funding of its participation in any L/C Borrowing in accordance with its Pro Rata Share.

 

 

 

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L/C Borrowing ” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing.

 

L/C Credit Extension ” means, with respect to any Letter of Credit, the issuance thereof, the extension of the expiry date thereof or the increase of the amount thereof.

 

L/C Obligations ” means, as at any date of determination, the aggregate undrawn amount of all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings.  For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

 

Letter of Credit Application ” means an application and agreement for the issuance or amendment of a Letter of Credit to be issued hereunder by any Issuing Bank in the form from time to time in use by such Issuing Bank.

 

Letter of Credit Expiration Date ” means the day that is five Domestic Business Days prior to the Commitment Termination Date.

 

Letter of Credit Fee ” has the meaning specified in ‎Section 2.09(c).

 

Letter of Credit Sublimit ” means $100,000,000.  The Letter of Credit Sublimit is part of , and not in addition to, the aggregate Commitments.

 

Letters of Credit ” means letters of credit issued by any Issuing Bank pursuant to ‎Section 2.01(b).

 

LIBOR Auction ” means a solicitation of Money Market Quotes setting forth Money Market Margins based on the London Interbank Offered Rate pursuant to ‎Section 2.03.

 

Lien ” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset.  For the purposes of this Agreement, the Borrower or any Subsidiary shall be deemed to own subject to a Lien any asset which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such asset.

 

Loan ” means a Base Rate Loan or a Euro-Dollar Loan or a Money Market Loan and “ Loans ” means Base Rate Loans or Euro-Dollar Loans or Money Market Loans or any combination of the foregoing.

 

London Interbank Offered Rate ” has the meaning set forth in ‎Section 2.07(b).

 

 

 

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Maturity Date ” means (i) with respect to any Revolving Loan, the Commitment Termination Date and (ii) with respect to any Money Market Loan, the last day of the Interest Period applicable thereto.

 

Member ” means any Person which is a member or a patron of the Borrower.

 

Members’ Subordinated Certificate ” means a note of the Borrower or its Consolidated Entities substantially in the form of the membership subordinated subscription certificates and the loan and guarantee subordinated certificates outstanding on the date of the execution and delivery of this Agreement and any other Indebtedness of the Borrower or its Consolidated Entities having substantially similar provisions as to subordination as those contained in said outstanding membership subordinated subscription certificates and loan and guarantee subordinated certificates.

 

Money Market Absolute Rate ” has the meaning set forth in ‎Section 2.03(d).

 

Money Market Absolute Rate Loan ” means a loan to be made by a Bank pursuant to an Absolute Rate Auction.

 

Money Market Lending Office ” means, as to each Bank, its Domestic Lending Office or such other office, branch or affiliate of such Bank as it may hereafter designate as its Money Market Lending Office by notice to the Borrower and the Administrative Agent; provided that any Bank may from time to time by notice to the Borrower and the Administrative Agent designate separate Money Market Lending Offices for its Money Market LIBOR Loans, on the one hand, and its Money Market Absolute Rate Loans, on the other hand, in which case all references herein to the Money Market Lending Office of such Bank shall be deemed to refer to either or both of such offices, as the context may require.

 

Money Market LIBOR Loan ” means a loan to be made by a Bank pursuant to a LIBOR Auction (including such a loan bearing interest at the Prime Rate pursuant to ‎Section 8.01(a)).

 

Money Market Loan ” means a Money Market LIBOR Loan or a Money Market Absolute Rate Loan.

 

Money Market Margin ” has the meaning set forth in ‎Section 2.03(d).

 

Money Market Quote ” means an offer by a Bank to make a Money Market Loan in accordance with ‎Section 2.03.

 

Moody’s ” means Moody’s Investors Service, Inc., and its successors.

 

Multiple Employer Plan ” means a single employer plan, as defined in Section 4001 of ERISA and subject to Title IV of ERISA, which has two or more

 

 

 

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 contributing sponsors, one of whom is the Borrower or a Subsidiary of the Borrower or any member of the ERISA Group, at least two of whom are not under common control, within the meaning of Section 4063 of ERISA.

 

Net Income ” means, for any period, the line item “net income” on the consolidated statement of operations of the Borrower and its Consolidated Entities, as it appears in the financial statements for such period delivered to the Banks pursuant to ‎Section 5.03(b), and each calculated in accordance with generally accepted accounting principles as in effect from time to time; provided that non-cash adjustments (whether positive or negative) required to be made pursuant to ASC 815 and ASC 830 on each such line item shall be excluded from the calculation thereof to the extent otherwise included therein.

 

Non-Extension Notice Date ” has the meaning specified in ‎‎Section 2.20(a)(iii).

 

Non-U.S. Bank Party ” means a Bank Party   that is not a U.S. Person.

 

Notes ” means promissory notes of the Borrower, substantially in the form of Exhibit A hereto, evidencing the obligation of the Borrower to repay the Loans, and “ Note ” means any one of such promissory notes issued hereunder.

 

Notice of Borrowing ” means a Notice of Committed Borrowing or a Notice of Money Market Borrowing.

 

Notice of Committed Borrowing ” has the meaning set forth in ‎Section 2.02.

 

Notice of Interest Rate Election ” has the meaning set forth in ‎Section 2.08.

 

Notice of Money Market Borrowing ” has the meaning set forth in ‎Section 2.03(f).

 

Other Connection Taxes ” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Taxes (other than a connection arising from such Recipient having executed, delivered, enforced, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, or engaged in any other  transaction pursuant to, or enforced, this Agreement or the Notes, or sold or assigned an interest in this Agreement or the Notes).

 

Other Taxes ” means any present or future stamp, court, documentary, intangible, recording, filing or similar excise or property Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, or from the registration, receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or the Notes, except any such

 

 

 

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Taxes that are Other Connection Taxes imposed with respect to an  assignment (other than an assignment under ‎Section 2.18).

 

Outstanding Amount ” means with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any relevant L/C Credit Extension occurring on such date and any other changes in the aggregate amount of such L/C Obligations as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any relevant Letters of Credit or any reductions in the maximum amount available for drawing under any relevant Letters of Credit taking effect on such date.

 

Parent ” means, with respect to any Bank, any Person as to which such Bank is, directly or indirectly, a subsidiary.

 

Participant ” has the meaning set forth in ‎Section 9.06(b).

 

Patronage Capital Certificates ” means those certificates that evidence the portion of Net Income allocated by the Borrower among its Members in accordance with applicable cooperative principles.

 

PBGC ” means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.

 

Performance Letter of Credit ” means any Letter of Credit issued under this Agreement to guarantee performance under a contract.

 

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.

 

Plan ” means any multiemployer plan or single employer plan (including any Multiple Employer Plan), as defined in Section 4001 and subject to Title IV of ERISA, which is maintained or contributed to by, or at any time during the five calendar years preceding the date of this Agreement was maintained or contributed to by, the Borrower or a Subsidiary of the Borrower or any member of the ERISA Group.

 

Pricing Schedule ” means the Pricing Schedule attached hereto.

 

Prime Rate ” means the rate of interest publically announced by JPMorgan Chase Bank, N.A. as its prime rate in effect at such time at its principal office in New York City; provided that if JPMorgan Chase Bank, N.A. ceases to publically announce such rate of interest, then the Prime Rate shall mean the rate of interest published by the Wall Street Journal from time to time as the "Prime Rate".

 

Prior 3-Year Credit Agreement ” means the Revolving Credit Agreement dated as of March 10, 2010, among the Borrower, the banks named

 

 

 

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 therein, The Royal Bank of Canada, The Bank of Tokyo-Mitsubishi UFJ, Ltd., and U.S. Bank National Association, as co-documentation agents, The Royal Bank of Scotland plc, as syndication agent, and The Bank of Nova Scotia, as administrative agent.

 

Pro Rata Share ” means, with respect to each Bank at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Commitment of such Bank and the denominator of which is the total amount of the Commitments, subject to adjustment as provided in ‎Section 2.19(a)(iv); provided that if the commitment of each Bank to make Revolving Loans and the obligation of each Issuing Bank to make L/C Credit Extensions have been terminated pursuant to ‎Section 2.10 or ‎6.01, then the Pro Rata Share of each Bank shall be determined based on the Pro Rata Share of such Bank immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof.

 

Qualified Subordinated Indebtedness ” means the Borrower’s  (i) 6.10% Subordinated Deferrable Interest Notes Due 2044, (ii) 5.95% Subordinated Deferrable Interest Notes Due 2045, and (iii) any other Indebtedness of the Borrower having substantially similar terms as to subordination as those contained in the instruments and documents relating to the foregoing Indebtedness or that would be junior to any of the foregoing; provided that such Indebtedness (a) will not mature prior to the Maturity Date and (b) does not require payments of principal prior to the Commitment Termination Date, except pursuant to acceleration or at the option of the Borrower.

 

Recipient ” means, as applicable, (a) the Administrative Agent, (b) any Bank and (c) the Issuing Bank.

 

REDLG Program Liens ” means Liens on any asset of the Borrower required to be pledged as collateral to support obligations of the Borrower with respect to any government Guarantee provided pursuant to regulations issued under the Rural Electrification Act of 1936, 7 U.S.C. 901 et. seq., and the Food, Conservation and Energy Act of 2008, Pub. L. 110-234 Stat. 923 (“ REDLG Obligations ”) so long as such Guarantee supports long-term Indebtedness issued by the Borrower and permitted by ‎Section 5.09.

 

REDLG Obligations ” has the meaning set forth in the definition of REDLG Program Liens.

 

Regulation U ” means Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time.

 

Regulation X ” means Regulation X of the Board of Governors of the Federal Reserve System, as in effect from time to time.

 

Reportable Event ” means an event described in Section 4043(c) of ERISA or regulations promulgated by the Department of Labor thereunder (with

 

 

 

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respect to which the 30 day notice requirement has not been waived by the PBGC).

 

Required Banks ” means at any time Banks having at least 51% of the sum of (i) the aggregate amount of the unused Commitments, (ii) the aggregate principal outstanding amount of the Loans and (iii) the Outstanding Amount of all L/C Obligations (with the aggregate amount of each Bank’s participation in L/C Obligations deemed “held” by such Bank for purposes of this definition).

 

Responsible Officer ” means (i) with respect to the Borrower, the Chief Financial Officer, the Chief Executive Officer, the Treasurer, an Assistant Secretary-Treasurer, the Controller, the Vice President, Capital Markets Funding or, in each case, an authorized signatory of such Person and (ii) with respect to any other Person, the president, any vice-president, the chief financial officer, any assistant-treasurer or, in each case, an authorized signatory of such Person.

 

Revolving Credit Period ” means the period from and including the Effective Date to but excluding the Commitment Termination Date.

 

Revolving Loan ” means a loan made by a Bank pursuant to ‎Section 2.01(a).

 

RUS ” means the Rural Utilities Service of the Department of Agriculture of the United States of America (as successor to the Rural Electrification Administration of the Department of Agriculture of the United States of America) or any other regulatory body which succeeds to its functions.

 

RUS Guaranteed Loan ” means any loan made by any Person, which loan is guaranteed, in whole or in part, as to principal and interest by the United States of America through the RUS pursuant to a guarantee, which guarantee contains provisions no less favorable to the holder thereof than the provisions set forth in the form of Exhibit B-1 or Exhibit B-2 hereto; and “ Guaranteed Portion ” of any RUS Guaranteed Loan means that portion of principal of, and interest on, such RUS Guaranteed Loan which is guaranteed by the United States of America through the RUS.

 

S&P ” means Standard and Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors.

 

Securities and Exchange Commission ” means the Securities and Exchange Commission or any other U.S. federal governmental authority succeeding to any or all of the functions of the Securities and Exchange Commission.

 

Special Purpose Subsidiary ” has the meaning set forth in ‎Section 5.12.

 

Standby Letter of Credit ” means any Letter of Credit issued under this Agreement, other than (i) a Trade Letter of Credit, (ii) a Performance Letter of

 

 

 

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Credit or (iii) a Backup Letter of Credit in support of either a performance letter of credit or a trade letter of credit issued by the Borrower.

 

Start-up Investments ” has the meaning set forth in ‎Section 5.12.

 

Subsidiary ” of any Person means (i) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person directly or indirectly through its Subsidiaries, and (ii) any other Person in which such Person directly or indirectly through Subsidiaries has more than a 50% voting and equity interest; provided that no Person whose only assets are RUS Guaranteed Loans and investments incidental thereto shall be deemed a Subsidiary.

 

Superior Indebtedness ” means all Indebtedness of the Borrower and its Consolidated Entities (other than Members’ Subordinated Certificates and Qualified Subordinated Indebtedness), but excluding (i) Indebtedness of the Borrower or any of its Consolidated Entities to the extent that the proceeds of such Indebtedness are used to fund Guaranteed Portions of RUS Guaranteed Loans and (ii) any indebtedness of any Member Guaranteed by the Borrower or any of its Consolidated Entities (“ Guaranteed Indebtedness ”), to the extent that either (x) the long-term unsecured debt of such Member is rated at least BBB+ by S&P or Baal by Moody’s, (y) the long-term secured debt of such Member is rated at least A- by S&P or A3 by Moody’s or (z) the payment of principal and interest by the Borrower or any of its Consolidated Entities in respect of such Guaranteed Indebtedness is covered by insurance or reinsurance provided by an insurer having an insurance financial strength rating of AAA by S&P or a financial strength rating of Aaa by Moody’s.

 

Syndication Agent ” means The Royal Bank of Scotland plc, in its capacity as Syndication Agent hereunder, and its successors in such capacity.

 

Taxes ” means any present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

TIER ” means, for any period, the ratio of (x) Net Income plus Interest Expense plus Derivative Cash Settlements to (y) Interest Expense plus Derivative Cash Settlements, in each case for such period.

 

Trade Letter of Credit ” means any Letter of Credit that is issued under this Agreement for the benefit of a supplier of goods or services to effect payment for such goods or services, the conditions to drawing under which include the presentation to an Issuing Bank.

 

 

 

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Type ” refers to whether a Loan is a Base Rate Loan, a Euro-Dollar Loan, a Money Market Absolute Rate Loan or a Money Market LIBOR Loan.

 

Unreimbursed Amount ” has the meaning specified in ‎Section 2.20(b)(i).

 

U.S. Person ” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.

 

U.S. Tax Certificate ” has the meaning assigned to such term in Section 2.17(f)(ii)(D)(2).

 

Withholding Agent ” means the Borrower and the Administrative Agent.

 

Section 1.02.  Accounting Terms and Determinations.    Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made and all financial statements required to be delivered hereunder shall be prepared in accordance with generally accepted accounting principles as in effect from time to time, applied on a basis consistent (except for changes concurred in by the Borrower’s independent public accountants) with the most recent audited financial statements of the Borrower and its Consolidated Entities delivered to the Bank Parties.

 

Section 1.03.  Types of Borrowings.   The term “ Borrowing ” denotes the aggregation of Loans of one or more Banks to be made to the Borrower pursuant to ‎Article 2 on a single date and for a single Interest Period.  Borrowings are classified for purposes of this Agreement either by reference to the pricing of Loans comprising such Borrowing ( e.g. , a “ Euro-Dollar Borrowing ” is a Borrowing comprised of Euro-Dollar Loans) or by reference to the provisions of ‎Article 2 under which participation therein is determined ( i.e. , a “ Revolving  Borrowing ” is a Borrowing under ‎Section 2.01(a) in which all Banks participate in proportion to their Commitments, while a “ Money Market Borrowing ” is a Borrowing under ‎Section 2.03 in which the Bank participants are determined on the basis of their bids in accordance therewith).

 

Section 1.04.  Letter of Credit.   Unless otherwise specified, all references herein to the amount of a Letter of Credit at any time shall be deemed to mean the stated face amount of such Letter of Credit in effect at such time; provided , however , that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed the maximum stated amount of such Letter of Credit after giving effect to all increases thereof, whether or not such maximum face amount is in effect at such time.

 

 

 

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ARTICLE 2

The Credits

 

Section 2.01.  Commitments to Lend and Issue Letters of Credit.   (a) Revolving Loans .  During the Revolving Credit Period each Bank severally agrees, on the terms and conditions set forth in this Agreement, to make loans to the Borrower pursuant to this Section from time to time in amounts such that the sum of (x) the aggregate principal amount of Revolving Loans by such Bank at any one time outstanding plus (y) such Bank’s Pro Rata Share of the Outstanding Amount of all L/C Obligations shall not exceed the amount of its Commitment.  Each Borrowing shall be in an aggregate principal amount of $10,000,000 or any larger multiple of $1,000,000 (except that any such Borrowing may be in the maximum aggregate amount available in accordance with ‎Section 3.03(d)) and shall be made from the several Banks ratably in proportion to their respective Commitments.  Within the foregoing limits, the Borrower may borrow under this Section, repay or, to the extent permitted by ‎Section 2.12, prepay Loans and reborrow at any time during the Revolving Credit Period under this Section.

 

(b)    Letters of Credit .  Subject to the terms and conditions set forth herein, (i) each Issuing Bank agrees, in reliance upon the agreements of the other Banks set forth in ‎Section 2.20 , (A) from time to time on any Domestic Business Day during the period from the Effective Date until the Letter of Credit Expiration Date, to make L/C Credit Extensions either (i) for the account of the Borrower, its Consolidated Entities, its Members or members of its Consolidated Entities or (ii) in support of a letter of credit issued by the Borrower as a back-up confirmation or backup credit support of such letter of credit (" Back-Up Letter of Credit "), and to amend or extend Letters of Credit previously issued by it, in accordance with ‎Section 2.20(a)(i) and ‎(ii) , and (B) to honor drawings under the Letters of Credit issued by it; and (ii) the Banks severally agree to participate in Letters of Credit issued for the account of the Borrower, its Consolidated Entities, its Members or members of its Consolidated Entities and any L/C Borrowings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (1) the sum of (x) the aggregate principal amount of Revolving Loans of any Bank, plus (y) such Bank’s Pro Rata Share of the Outstanding Amount of all L/C Obligations shall not exceed such Bank’s Commitment and (2) the Outstanding Amount of all L/C Obligations shall not exceed the Letter of Credit Sublimit.  Each request by the Borrower for the issuance of, or an amendment to increase the amount of, any Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the condition set forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.

 

 

 

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        (c)    Letters of Credit Generally .  (i) No Issuing Bank shall issue any Letter of Credit if the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Banks have approved such expiry date; provided that in no event shall the expiry date of any requested Letter of Credit occur on or after the Domestic Business Day immediately preceding the Commitment Termination Date.

        

             (ii)    No Issuing Bank shall be under any obligation to make any L/C Credit Extension if:

            

              (A)   any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, or any Applicable Law applicable to such Issuing Bank or any request or directive (whether or not having the force of law, but if not having the force of law, being a request or directive which is generally complied with by comparable financial institutions) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or request that the Issuing Bank refrain from the issuance of Letters of Credit generally or such Letter of Credit in particular or shall impose upon such Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which such Issuing Bank in good faith reasonably deems material to it; provided , however , that in the event a Bank Party participating in the Letters of Credit is not affected by any such restriction, requirement or imposition, and is able to issue such Letter of Credit and expressly agrees in its sole discretion to issue such Letter of Credit, such Bank Party, subject to the consent of the Administrative Agent, such consent not to be unreasonably withheld, conditioned or delayed, shall issue such Letter of Credit and shall be deemed the Issuing Bank with regard to such Letter of Credit for all purposes of this Agreement;      

        

              (B)   the making of such L/C Credit Extension would violate any Applicable Laws;

 

              (C)   except as otherwise agreed by the Administrative Agent and such Issuing Bank, such Letter of Credit is in an initial face amount less than $25,000;

 

              (D)   such L/C Credit Extension is to be denominated in a currency other than Dollars;

      

 

 

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              (E)   such L/C Credit Extension contains any provisions for automatic reinstatement of the stated amount after any L/C Borrowing thereunder; or

            

              (F)   a default of any Bank’s obligations to fund under ‎Section 2.20 exists, or any Bank is then a Defaulting Bank, unless, after giving effect to ‎Section 2.19(a)(iv)) with respect to such Bank, such Issuing Bank has entered into satisfactory arrangements, including the delivery of Cash Collateral satisfactory to the Issuing Bank (in its sole discretion) with the Borrower or such Bank to eliminate such Issuing Bank’s risk.

 

(iii)    No Issuing Bank shall be under the obligation to amend any Letter of Credit if (A) such Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.

 

Section 2.02.  Notice of Committed Borrowings.   The Borrower shall give the Administrative Agent notice (a “ Notice of Committed Borrowing ”) not later than 12:00 noon (New York City time) on (x) the date of such Borrowing, in the case of each Base Rate Borrowing, and (y) the third Euro-Dollar Business Day before such Borrowing, in the case of each Euro-Dollar Borrowing, specifying:

 

(a)    the date of such Borrowing, which shall be a Domestic Business Day in the case of a Base Rate Borrowing or a Euro-Dollar Business Day in the case of a Euro-Dollar Borrowing,

 

(b)    the aggregate amount of such Borrowing,

 

(c)    whether the Loans comprising such Borrowing are to bear interest initially at the Base Rate or a Euro-Dollar Rate, and

 

(d)    in the case of a Euro-Dollar Borrowing, the duration of the Interest Period applicable thereto, subject to the provisions of the definition of Interest Period.

 

Notwithstanding the foregoing, no more than 15 Fixed Rate Borrowings  shall be outstanding at any one time, and any Borrowing which would exceed such limitation shall be made as a Base Rate Borrowing.

 

Section 2.03.  Money Market Borrowings.   (a)   In addition to Committed Borrowings pursuant to ‎Section 2.01(a), the Borrower may, as set forth in this Section, request the Banks during the Revolving Credit Period to make offers to make Money Market Loans to the Borrower.  The Banks may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers in the manner set forth in this Section.

 

 

 

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(b)    Money Market Quote Request .  When the Borrower wishes to request offers to make Money Market Loans under this Section, it shall transmit to the Administrative Agent by telex or facsimile transmission a Money Market Quote Request substantially in the form of Exhibit C hereto so as to be received no later than 10:00 A.M. (New York City time) on (x) the fourth Euro-Dollar Business Day prior to the date of Borrowing proposed therein, in the case of a LIBOR Auction or (y) the Domestic Business Day next preceding the date of Borrowing proposed therein, in the case of an Absolute Rate Auction (or, in either case, such other time or date as the Borrower and the Administrative Agent shall have mutually agreed and shall have notified to the Banks not later than the date of the Money Market Quote Request for the first LIBOR Auction or Absolute Rate Auction for which such change is to be effective) specifying:

 

(i)    the proposed date of Borrowing, which shall be a Euro-Dollar Business Day in the case of a LIBOR Auction or a Domestic Business Day in the case of an Absolute Rate Auction,

 

(ii)    the aggregate amount of such Borrowing, which shall be $10,000,000 or any larger multiple of $1,000,000,

 

(iii)    the duration of the Interest Period applicable thereto, subject to the provisions of the definition of Interest Period, and

 

(iv)    whether the Money Market Quotes requested are to set forth a Money Market Margin or a Money Market Absolute Rate.

 

The Borrower may request offers to make Money Market Loans for more than one Interest Period in a single Money Market Quote Request.  No Money Market Quote Request shall be given within four Euro-Dollar Business Days (or such other number of days as the Borrower and the Administrative Agent may agree) of any other Money Market Quote Request.

 

(c)    Invitation for Money Market Quotes .  Promptly upon receipt of a Money Market Quote Request, the Administrative Agent shall send to the Banks by telex or facsimile transmission an Invitation for Money Market Quotes substantially in the form of Exhibit D hereto, which shall constitute an invitation by the Borrower to each Bank to submit Money Market Quotes offering to make the Money Market Loans to which such Money Market Quote Request relates in accordance with this Section.

 

(d)    Submission and Contents of Money Market Quotes .  (i) Each Bank may submit a Money Market Quote containing an offer or offers to make Money Market Loans in response to any Invitation for Money Market Quotes.  Each Money Market Quote must comply with the requirements of this subsection (d) and must be submitted to the Administrative Agent by telex or facsimile transmission at its offices specified in or pursuant to ‎Section 9.01 not later than (x) 9:30 A.M. (New York City time) on the third Euro-Dollar Business Day prior to the proposed date of Borrowing, in the case of a LIBOR Auction or (y) 9:30

 

 

 

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A.M. (New York City time) on the proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in either case, such other time or date as the Borrower and the Administrative Agent shall have mutually agreed and shall have notified to the Banks not later than the date of the Money Market Quote Request for the first LIBOR Auction or Absolute Rate Auction for which such change is to be effective); provided that Money Market Quotes submitted by the Administrative Agent (or any affiliate of the Administrative Agent) in the capacity of a Bank may be submitted, and may only be submitted, if the Administrative Agent or such affiliate notifies the Borrower of the terms of the offer or offers contained therein not later than (x) 8:30 A.M. (New York City time) on the third Euro-Dollar Business Day prior to the proposed date of Borrowing, in the case of a LIBOR Auction or (y) 9:15 A.M. (New York City time) on the proposed date of Borrowing, in the case of an Absolute Rate Auction.  Subject to Articles ‎3 and ‎6, any Money Market Quote so made shall be irrevocable except with the written consent of the Administrative Agent given on the instructions of the Borrower.

 

(ii)    Each Money Market Quote shall be in substantially the form of Exhibit E hereto and shall in any case specify:

 

(A)   the proposed date of Borrowing,

 

(B)   the principal amount of the Money Market Loan for which each such offer is being made, which principal amount (w) may be greater than or less than the Commitment of the quoting Bank, (x) must be $1,000,000 or any larger multiple thereof, (y) may not exceed the principal amount of Money Market Loans for which offers were requested and (z) may be subject to an aggregate limitation as to principal amount of Money Market Loans for which offers being made by such quoting Bank may be accepted,

 

(C)   in the case of a LIBOR Auction, the margin above or below the applicable London Interbank Offered Rate (the “ Money Market Margin ”) offered for each such Money Market Loan, expressed as a percentage (rounded to the nearest 1/10,000th of 1%) to be added to or subtracted from such base rate,

 

(D)   in the case of an Absolute Rate Auction, the rate of interest per annum (rounded to the nearest 1/10,000 th of 1%) (the “ Money Market Absolute Rate ”) offered for each such Money Market Loan, and

 

(E)   the identity of the quoting Bank.

 

A Money Market Quote may set forth up to five separate offers by the quoting Bank with respect to each Interest Period specified in the related Invitation for Money Market Quotes.

 

 

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(iii)    Any Money Market Quote shall be disregarded if it:

 

(A)   is not substantially in conformity with Exhibit E hereto or does not specify all of the information required by subsection (d)(ii),

 

(B)   contains qualifying, conditional or similar language,

 

(C)   proposes terms other than or in addition to those set forth in the applicable Invitation for Money Market Quotes, or

 

(D)   arrives after the time set forth in subsection (d)(i).

 

(e)    Notice to Borrower .  The Administrative Agent shall promptly notify the Borrower of the terms (x) of any Money Market Quote submitted by a Bank that is in accordance with subsection (d) and (y) of any Money Market Quote that amends, modifies or is otherwise inconsistent with a previous Money Market Quote submitted by such Bank with respect to the same Money Market Quote Request.  Any such subsequent Money Market Quote shall be disregarded by the Administrative Agent unless such subsequent Money Market Quote is submitted solely to correct a manifest error in such former Money Market Quote.  The Administrative Agent’s notice to the Borrower shall specify (A) the aggregate principal amount of Money Market Loans for which offers have been received for each Interest Period specified in the related Money Market Quote Request, (B) the respective principal amounts and Money Market Margins or Money Market Absolute Rates, as the case may be, so offered and (C) if applicable, limitations on the aggregate principal amount of Money Market Loans for which offers in any single Money Market Quote may be accepted.

 

(f)    Acceptance and Notice by Borrower .  Not later than 10:30 A.M. (New York City time) on (x) the third Euro-Dollar Business Day prior to the proposed date of Borrowing, in the case of a LIBOR Auction or (y) the proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in either case, such other time or date as the Borrower and the Administrative Agent shall have mutually agreed and shall have notified to the Banks not later than the date of the Money Market Quote Request for the first LIBOR Auction or Absolute Rate Auction for which such change is to be effective), the Borrower shall notify the Administrative Agent of its acceptance or non-acceptance of the offers so notified to it pursuant to subsection (e).  In the case of acceptance, such notice (a “ Notice of Money Market Borrowing ”) shall specify the aggregate principal amount of offers for each Interest Period that are accepted.  The Borrower may accept any Money Market Quote in whole or in part; provided that:

 

(i)    the aggregate principal amount of each Money Market Borrowing may not exceed the applicable amount set forth in the related Money Market Quote Request,

 

 

 

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(ii)    the aggregate principal amount of each Money Market Borrowing must be $10,000,000 or any larger multiple of $1,000,000,

 

(iii)    acceptance of offers may only be made on the basis of ascending Money Market Margins or Money Market Absolute Rates, as the case may be, and

 

(iv)    the Borrower may not accept any offer that is described in subsection (d)(iii) or that otherwise fails to comply with the requirements of this Agreement.

 

(g)    Allocation by Agent .  If offers are made by two or more Banks with the same Money Market Margins or Money Market Absolute Rates, as the case may be, for a greater aggregate principal amount than the amount in respect of which such offers are accepted for the related Interest Period, the principal amount of Money Market Loans in respect of which such offers are accepted shall be allocated by the Administrative Agent among such Banks as nearly as possible (in such multiples, not greater than $100,000, as the Administrative Agent may deem appropriate) in proportion to the aggregate principal amounts of such offers.  Determinations by the Administrative Agent of the amounts of Money Market Loans shall be conclusive in the absence of manifest error.

 

Section 2.04.   Notice to Banks; Funding of Loans .  (a) Upon receipt of a Notice of Borrowing, the Administrative Agent shall promptly notify each Bank on the same Domestic Business Day of the contents thereof and of such Bank’s share (if any) of such Borrowing and such Notice of Borrowing shall not thereafter be revocable by the Borrower.

 

(b)    Not later than 2:00 P.M. (New York City time) on the date of each Borrowing, each Bank participating therein shall (except as provided in subsection (c) of this Section) make available its share of such Borrowing, in Federal or other funds immediately available in New York City, to the Administrative Agent at its address specified in or pursuant to ‎Section 9.01.  Unless the Administrative Agent determines that any applicable condition specified in ‎Article 3 has not been satisfied, the Administrative Agent will thereafter make the funds so received from the Banks available to the Borrower at the Administrative Agent’s aforesaid address, provided , however , that the Administrative Agent shall first make a portion of such funds equal to the aggregate principal amount of any L/C Borrowings made by any Issuing Bank and by any Bank, as the case may be, and outstanding on the date of such Borrowing, plus interest accrued and unpaid thereon to and as of such date, available to such Issuing Bank or such other Bank, as the case may be, for repayment of such L/C Borrowing.

 

(c)    If any Bank makes a new Loan hereunder on a day on which the Borrower is to repay all or any part of an outstanding Loan from such Bank, such Bank shall apply the proceeds of its new Loan to make such repayment and only an amount equal to the difference (if any) between the amount being borrowed

 

 

 

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and the amount being repaid shall be made available by such Bank to the Administrative Agent as provided in subsection (b), or remitted by the Borrower to the Administrative Agent as provided in ‎Section 2.13, as the case may be.

 

(d)    Unless the Administrative Agent shall have been notified by any Bank prior to the date of Borrowing (or prior to 2:00 P.M. (New York City time) on the date of Borrowing in the case of a Base Rate Borrowing) that such Bank does not intend to make available to the Administrative Agent such Bank’s portion of the Borrowing to be made on such date, the Administrative Agent may assume that such Bank has made such amount available to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount, subject to the provisions of subsection ‎(c).  If such corresponding amount is not in fact made available to the Administrative Agent by such Bank, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Bank.  If such Bank does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrower and the Borrower shall promptly pay such corresponding amount to the Administrative Agent.  The Administrative Agent shall also be entitled to recover from such Bank or the Borrower interest on such corresponding amount in respect of each day from the date such corresponding amount was made avai


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