revolvingcredit_amend2.htm


    Execution
Version

     

    AMENDMENT
NO. 2 TO CREDIT AGREEMENT

     

    AMENDMENT
No. 2 (this “Amendment”)
dated as of December 19, 2008 to the Revolving Credit Agreement dated as of
March 14, 2008 among NATIONAL RURAL UTILITIES COOPERATIVE FINANCE CORPORATION
(the “Borrower”), the
BANKS party thereto (the “Banks”), DEUTSCHE BANK
SECURITIES INC., UBS LOAN FINANCE LLC and THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD., New York Branch, as Co-Documentation Agents, THE ROYAL BANK OF SCOTLAND
PLC, as Syndication Agent, and THE BANK OF NOVA SCOTIA, as Administrative Agent
(the “Administrative
Agent”), as amended by Amendment No. 1 dated as of December 9, 2008
(collectively, the “Credit
Agreement”).

     

    WITNESSETH:

     

    WHEREAS,
the parties hereto desire further to amend the Credit Agreement to add certain
provisions thereto;

     

    NOW,
THEREFORE, the parties hereto agree as follows:

     

    Section
1.  Defined Terms;
References.  Unless otherwise specifically defined herein, each
term used herein that is defined in the Credit Agreement has the meaning
assigned to such term in the Credit Agreement.  Each reference to
“hereof”, “hereunder”, “herein” and “hereby” and each other similar reference
and each reference to “this Agreement” and each other similar reference
contained in the Credit Agreement shall, from and after the Amendment Effective
Date (as defined in Section 8 below), refer to the Credit Agreement as amended
hereby.

     

    Section
2.  Definition of
Defaulting Bank.  Section 1.01 of the Credit Agreement is
hereby amended by adding the following definition of “Defaulting Bank”
immediately after the definition of “Default”:

     

    ‘ “Defaulting Bank” means any
Bank that,
at any time during the term of this Agreement, has
(a) failed to fund any portion of
any of its Loans within three Domestic Business
Days of the date required to be funded by
it hereunder, (b) notified the Borrower or the Administrative Agent in writing that it
does not intend to comply with any of its funding obligations under this
Agreement, (c) otherwise failed to pay over to the Administrative
Agent any other amount required to be paid
by it hereunder within three Domestic
Business Days of the date when
due, unless the subject of a good-faith
dispute, or (d) become the
subject of a bankruptcy or insolvency proceeding, or has had a receiver,
conservator, trustee or custodian appointed for it or consented to,
approved of or acquiesced in such proceeding
or appointment.’

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    Section
3.  Replacement of
Banks.  Article 2 of the Credit Agreement is hereby amended by
adding immediately after Section 2.17 thereof a new Section 2.18 that reads as
follows:

     

     ‘Section
2.18.  Replacement
of Banks.  If (i) any Bank
requests payment of, or the Borrower is otherwise required to pay to any Bank,
any amount pursuant to Section 8.03, or (ii) if any Bank becomes a Defaulting
Bank, then the Borrower may, at its sole expense and effort, upon notice to such
Bank and the Administrative Agent, require such Bank to assign and delegate,
without recourse, all its interests, rights and obligations under this Agreement
to an Assignee (which Assignee may be another Bank, if such other Bank agrees to
accept such assignment) that shall assume such obligations pursuant to an
Assignment and Assumption Agreement in substantially the form of Exhibit H
hereto which shall be executed by such Assignee and (except as otherwise
provided in this Section 2.18) such transferor Bank; provided, that (A) the
Borrower shall have received the prior written consent of the Administrative
Agent, which consent shall not unreasonably be withheld, (B) such
transferor Bank shall have received payment of an amount equal to the
outstanding principal of its Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder (in each case, if any), from the
Assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts), which amounts shall be
the only amounts payable to such transferor Bank in respect of such assignment
and delegation, (C) any Bank being replaced pursuant to this Section 2.18
shall be deemed to have granted to the Administrative Agent the authority to act
as its attorney-in-fact solely for the purpose of executing such Assignment and
Assumption Agreement, and (D) in the case of any such assignment and
delegation resulting from a request or claim for payment under Section 8.03,
such assignment will result in a reduction in any payments due to such
transferor Bank on a dollar-for-dollar basis to the extent that such assignment
eliminates or reduces the amount that such transferor Bank is entitled to
receive under Section 8.03.  A Bank shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Bank or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.  With respect to a demand
for compensation from a Bank pursuant to Section 8.03(a), the Borrower’s rights
under this Section 2.18 shall be an alternative to the Borrower’s rights under
Section 8.04.  Upon execution and delivery by the Assignee and (except
as otherwise provided in this Section 2.18) the transferor Bank of the
Assignment and Assumption Agreement referred to above and payment by such
Assignee to such transferor Bank of the amount (if any) payable by such Assignee
pursuant to clause (B) above: (1) such Assignee shall be a Bank party
to this Agreement and shall have all the rights and obligations of a Bank with a
Commitment equal to such transferor Bank’s Commitment immediately prior to the
effectiveness of such assignment and delegation (or, if there is more than one
Assignee, the respective portion of such Commitment agreed to be assumed by each
such Assignee); provided, that if any


     

    
      
         

      

      
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    Assignee
is the Borrower, a Subsidiary or a Consolidated Subsidiary of the Borrower, the
transferor Bank’s rights and obligations with respect to its Commitment may be
so assigned provided that such transferor Bank does not hold any Loans, and, so
long as such Assignee holds such Commitment, with respect to (I) any waiver,
amendment or modification of the Credit Agreement or (II) any instruction or
authorization given to the Administrative Agent under the Credit Agreement, such
Assignee shall be deemed to have approved or joined in such waiver, amendment or
modification, such request or such instruction or authorization if it has
otherwise been agreed or consented to, or joined in, by the Required Banks,
calculated for this purpose on a basis that disregards (for the avoidance of
doubt, in both the numerator and the denominator) the amount of such Commitment;
and (2) the transferor Bank shall be released from its future obligations
hereunder (but not from any obligation or liability arising prior to the
effectiveness of such assignment and delegation, nor, in the case of a
Defaulting Bank, from any obligation or liability arising in respect of the
matter(s) as a result of which such Bank is a Defaulting Bank).  Upon
the consummation of any such assignment and delegation, the transferor Bank, the
Administrative Agent and the Borrower shall make appropriate arrangements so
that, if required, a new Note is issued to the Assignee.  If the
Assignee is not incorporated under the laws of the United States of America or a
state thereof, it shall, prior to the first date on which interest or fees are
payable hereunder for its account, deliver to the Borrower and the
Administrative Agent certification as to exemption from deduction or withholding
of any United States federal income taxes in accordance with Section 2.16. In
connection with any assignment pursuant to this Section 2.18, (I) the
Borrower shall cause to be paid to the Administrative Agent an administrative
fee for processing such assignment in the amount of $3,500, and
(II) notwithstanding anything to the contrary set forth herein, if the
transferor Bank does not execute and deliver to the Administrative Agent a duly
completed Assignment and Assumption Agreement reflecting such assignment within
five Domestic Business Days of the date on which the Assignee executes and
delivers such Assignment and Assumption Agreement to the transferor Bank, then
such transferor Bank shall be deemed to have executed and delivered such
Assignment and Assumption Agreement.’

     

    Section
4.  Representations
of Borrower.  The Borrower represents and warrants that (i) the
representations and warranties of the Borrower set forth in Article 4 of the
Credit Agreement will be true on and as of the Amendment Effective Date,
provided that, for purposes of this Section 5, (A) with respect to Section
4.02(a), all references to balance sheets and financial statements as at and for
the fiscal year ended May 31, 2007 shall refer to the Borrower’s financial
statements as at and for the fiscal year ended May 31, 2008, (B) with respect to
Section 4.02(b), all references to balance sheets and financial statements shall
refer to the Borrower’s financial statements as of and for the three-month
period ended August 31, 2008 and references to the six-month period ended
November 30, 2007 shall refer to the three-month period ended August 31,


     

    
      
         

      

      
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    2008, and
(C) with respect to Section 4.02(c), the reference to November 30, 2007 shall
refer to August 31, 2008.

     

    Section
5.  Governing
Law.  This Amendment shall be governed
by and construed in accordance with the laws of the State of New
York.

     

    Section
6.  Counterparts.  This
Amendment may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.

     

    Section
7.  Effectiveness.  This
Amendment shall become effective as of the date hereof (the “Amendment Effective Date”)
when the Administrative Agent shall have received from each of the Borrower and
the Required Banks a counterpart hereof signed by such party or facsimile or
other written confirmation (in form satisfactory to the Administrative Agent)
that such party has signed a counterpart hereof.

     

    Section
8.  Continuing
Effectiveness of Credit Agreement as Amended.  From and after
the Amendment Effective Date, the Credit Agreement and this Amendment shall be
construed together as a single instrument, and the Credit Agreement, as amended
hereby, shall remain in full force and effect and is hereby ratified, approved
and confirmed all respects.

     

    Section
9.  Severability.  Any
provision of this Amendment that is prohibited or unenforceable in any
jurisdiction shall, as to such provision and such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Amendment or affecting the validity or
enforceability of such provision in any other jurisdiction.

     

    Section
10.  Headings.  The
various headings of this Amendment are inserted for convenience only and shall
not affect the meaning or interpretation of this Amendment or any provisions
hereof or of the Credit Agreement as amended hereby.

     

    Section
11.  Successors and
Assigns.  This Amendment shall be binding upon and shall inure
to the benefit of the parties hereto, the other Banks and the respective
successors and assigns of the foregoing.

     

    


    


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    IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first above written.

     

    
      	
               
      

            	
              NATIONAL
      RURAL UTILITIES 

                  COOPERATIVE
      FINANCE 

                  CORPORATION

            


    

    


    


    
      	
               
      

            	
              By:
      /s/ STEVEN L. LILLY

            


    

    
      	
               
      

            	
              Name:
      Steven L. Lilly

            


    

    
      	
               
      

            	
              Title:
      Sr. Vice President & Chief Financial
Officer

            


    

     

     

     

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    REVOLVING
CREDIT AGREEMENT DATED AS OF MARCH 14, 2008

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                  THE BANK OF NOVA SCOTIA,
      as 

                      Administrative
      Agent and as a Bank

                
	
                  By:

                	/s/
      THANE RATTEW
	
                  Name:
      Thane Rattew

                
	
                  Title:
      Managing Director

                


        

      

       

      
        


        
          
             

          

          
             

            
              

            

          

          
             

          

        

      

    

     

    
      
        


        
          
            
              	
                      The Bank of Tokyo-Mitsubishi UFJ, LTD,

                          New
      York Branch

                    
	
                      By:

                    	/s/
      MARY COSEO  
	
                      Name:
      Mary Coseo

                    
	
                      Title:
      Authorized Signatory

                    


            

          

        

         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            



        

      

      
         

        

          
            
              
                	
                        Commerica Bank

                      
	
                        By:

                      	/s/ MARK
      SKRZYNSKI  
	
                        Name:
      Mark Skrzynski

                      
	
                        Title:
      Corporate Banking
Officer

                      


              

            

          

           

           

           

           

          
            
              
              

            

            
              
              

              
                

              

            

            
              
              

            

          

           

           

          
             

            

              
                
                  
                    	
                            DEUTSCHE BANK AG NEW YORK

                                BRANCH

                          
	
                            By:

                          	/s/
      MING K. CHU  
	
                            Name:
      Ming K. Chu

                          
	
                            Title:
      Vice President

                          


                  

                

              

               

            

          

          
            

              
                
                  
                    	
                             

                          
	
                            By:

                          	/s/ HEIDI
      SANDQUIST  
	
                            Name:
      Heidi Sandquist

                          
	
                            Title:
      Vice President

                          


                  

                

              

               

            

             

          

           

          
            
              
              

            

            
              
              

              
                

              

            

            
              
              

            

          

           

          
             

            

              
                
                  
                    	
                            HSBC BANK USA, NATIONAL

                                ASSOCIATION

                          
	
                            By:

                          	/s/
      JIMMY TSE  
	
                            Name:
      Jimmy Tse

                          
	
                            Title: Vice
      President

                          


                  

                

              

               

              
                
                  
                  

                

                
                  
                  

                  
                    

                  

                

                
                  
                  

                

              

            

          

        

      

       

      
        
          
             

            

              
                
                  
                    	
                            JPMORGAN
      CHASE BANK, N.A. as Administrative Agent and as a Bank

                          
	
                            By:

                          	/s/
      MICHAEL DEFORGE  
	
                            Name:
      Michael DeForge

                          
	
                            Title:
      Executive Director

                          


                  

                

              

               

               

               

              
                
                  
                  

                

                
                  
                  

                  
                    

                  

                

                
                  
                  

                

              

               

              
                 

                
                  
                     

                    

                      
                        
                          
                            	
                                    MERRILL LYNCH BANK
  USA

                                  
	
                                    By:

                                  	/s/
      LOUIS ALDER  
	
                                    Name:
      Louis Alder

                                  
	
                                    Title:
      First Vice President

                                  


                          

                        

                      

                       

                       

                       

                      
                        
                          
                          

                        

                        
                          
                          

                          
                            

                          

                        

                        
                          
                          

                        

                      

                    

                  

                

                 

                 

                
                  
                     

                    

                      
                        
                          
                            	
                                    Mizuho Corporate Bank,
    Ltd.

                                  
	
                                    By:

                                  	/s/RAYMOND
      VENTURA  
	
                                    Name:
      Raymond Ventura

                                  
	
                                    Title:
      Deputy General Manager

                                  


                          

                        

                      

                       

                      
                         

                        

                          
                            
                              
                                	
                                         

                                      
	
                                        By:

                                      	 
      
	
                                        Name:
      

                                      
	
                                        Title:
      

                                      


                              

                            

                          

                           

                        

                      

                       

                       

                      
                        
                          
                          

                        

                        
                          
                          

                          
                            

                          

                        

                        
                          
                          

                        

                      

                    

                  

                

                 

                 

                 

                
                  
                     

                    

                      
                        
                          
                            	
                                    PNC Bank, N.A.

                                  
	
                                    By:

                                  	/s/
      D. JERMAINE JOHNSON
	
                                    Name:
      D. Jermaine Johnson

                                  
	
                                    Title:
      Vice President

                                  


                          

                        

                      

                       

                       

                       

                      
                        
                          
                          

                        

                        
                          
                          

                          
                            

                          

                        

                        
                          
                          

                        

                      

                    

                  

                

                 

                 

                 

                
                  
                    

                      
                        
                          
                            	
                                    The Royal Bank of Scotland

                                        PLC 

                                  
	
                                    By:

                                  	/s/
      BELINDA TUCKER  
	
                                    Name:
      Belinda Tucker

                                  
	
                                    Title:
      Senior Vice President

                                  


                          

                        

                      

                       

                       

                       

                      
                        
                          
                          

                        

                        
                          
                          

                          
                            

                          

                        

                        
                          
                          

                        

                         

                         

                        
 

                        
                          
                            
                              
                                
                                  
                                    	
                                            SunTrust Bank

                                          
	
                                            By:

                                          	/s/ANDREW JOHNSON 
      
	
                                            Name:
      Andrew Johnson

                                          
	
                                            Title:
      Director

                                          


                                  

                                

                              

                               

                               

                               

                              
                                
                                  
                                  

                                

                                
                                  
                                  

                                  
                                    

                                  

                                

                                
                                  
                                  

                                

                                 

                                 

                                
                                  
                                    

                                      
                                        
                                          
                                            	
                                                    UBS Loan Finance LLC

                                                  
	
                                                    By:

                                                  	/s/
      IRJA R. OTSA
	
                                                    Name:
      Irja R. Otsa

                                                  
	
                                                    Title:
      Associate Director

                                                  


                                          

                                        

                                      

                                      

                                        
                                          
                                            
                                              	
                                                       

                                                    
	
                                                      By:

                                                    	/s/
      MARY E. EVANS  
	
                                                      Name:
      Mary E. Evans

                                                    
	
                                                      Title:
      Associate Director

                                                    


                                            

                                          

                                        

                                         

                                      

                                       

                                       

                                      
                                        
                                          
                                          

                                        

                                        
                                          
                                          

                                          
                                            

                                          

                                        

                                        
                                          
                                          

                                        

                                         

                                         

                                        
                                          
                                             

                                            

                                              
                                                
                                                  
                                                    	
                                                            U.S. Bank, N.A. 

                                                          
	
                                                            By:

                                                          	/s/ ERIC
      J. COSGROVE   
	
                                                            Name:
      Eric J. Cosgrove

                                                          
	
                                                            Title:
      Vice President