Market Access Agreement, 5565-5576 [2017-01054]
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Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Notices
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Comment Date: 5:00 p.m. Eastern
Time on February 1, 2017.
Dated: January 11, 2017.
Kimberly D. Bose,
Secretary.
[FR Doc. 2017–00986 Filed 1–17–17; 8:45 am]
BILLING CODE 6717–01–P
FARM CREDIT ADMINISTRATION
Market Access Agreement
Farm Credit Administration.
Notice of approval of the Draft
Third Amended and Restated Market
Access Agreement.
AGENCY:
ACTION:
The Farm Credit
Administration (FCA) announces that it
has approved the Draft Third Amended
and Restated Market Access Agreement
(Draft Third Restated MAA) proposed to
be entered into by all of the banks of the
Farm Credit System (System or FCS)
and the Federal Farm Credit Banks
Funding Corporation (Funding
Corporation). The Draft Third Restated
MAA sets forth the rights and
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SUMMARY:
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responsibilities of each of the parties
when the condition of a System bank
falls below pre-established financial
thresholds. In prior draft amended and
restated MAAs, although not required,
the FCA published the draft document
for comment prior to its approval. The
revisions in this draft are minor,
consisting primarily of replacing
references to the previous FCA
regulatory capital standards with
references to the new FCA regulatory
capital standards that became effective
on January 1, 2017, as well as updating
addresses. Therefore, the FCA has
determined to approve the Draft Third
Restated MAA without a request for
comments prior to approval; we will,
however, review and consider any
subsequent comments we may receive.
DATES: You may send comments on or
before February 17, 2017.
ADDRESSES: For accuracy and efficiency
reasons, commenters are encouraged to
submit comments by e-mail or through
the FCA’s Web site. We are no longer
accepting comments submitted by
facsimile (fax). Please do not submit
your comment multiple times via
different methods. You may submit
comments by any of the following
methods:
• E-mail: Send us an e-mail at regcomm@fca.gov.
• FCA Web site: https://www.fca.gov.
Select ‘‘Public Commenters,’’ then
‘‘Public Comments,’’ and follow the
directions for ‘‘Submitting a Comment.’’
• Federal E-Rulemaking Web site:
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Send mail to Barry F.
Mardock, Deputy Director, Office of
Regulatory Policy, Farm Credit
Administration, 1501 Farm Credit Drive,
McLean, VA 22102–5090.
You may review copies of comments
we receive at our office in McLean,
Virginia, or on our Web site at https://
www.fca.gov. Once you are in the Web
site, select ‘‘Public Commenters,’’ then
‘‘Public Comments,’’ and follow the
directions for ‘‘Reading Submitted
Public Comments.’’ We will show your
comments as submitted, but for
technical reasons we may omit items
such as logos and special characters.
Identifying information that you
provide, such as phone numbers and
addresses, will be publicly available.
However, we will attempt to remove email addresses to help reduce Internet
spam.
FOR FURTHER INFORMATION, CONTACT:
David J. Lewandrowski, Senior Policy
Analyst, Office of Regulatory Policy,
Farm Credit Administration, McLean,
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5565
VA 22102–5090, (703) 883–4212, TTY
(703) 883–4434,
or
Rebecca S. Orlich, Senior Counsel,
Office of General Counsel, Farm Credit
Administration, McLean, VA 22102–
5090, (703) 883–4020, TTY (703) 883–
4020.
SUPPLEMENTARY INFORMATION: System
banks and the Funding Corporation
entered into the original Market Access
Agreement (original MAA) on
September 1, 1994, to help control the
risk of each System bank by outlining
each party’s respective rights and
responsibilities in the event the
condition of a System bank fell below
certain financial thresholds. As part of
the original MAA, System banks and the
Funding Corporation agreed to periodic
reviews of the terms of the MAA to
consider whether any amendments were
appropriate. The original MAA was
updated by the parties in 2003 in the
Amended and Restated MAA and
received FCA approval following notice
and request for public comments in the
Federal Register.1
On December 3, 2010, the FCA Board
approved amendments to the Amended
and Restated MAA that would conform
its provisions to the System banks’
proposed Joint and Several Liability
Reallocation Agreement (Reallocation
Agreement) to ensure that the MAA
provisions did not impede operation of
the Reallocation Agreement; the
amendments also provided that the
MAA and the Reallocation Agreement
are separate agreements, and
invalidation of one does not affect the
other. The FCA published these
amendments in the Federal Register.2
The proposed Reallocation Agreement is
an agreement among the banks and the
Funding Corporation that establishes a
procedure for non-defaulting banks to
pay maturing System-wide debt on
behalf of defaulting banks prior to a
statutory joint and several call by the
FCA under section 4.4 of the Farm
Credit Act of 1971, as amended (Act).3
The FCA Board approved the proposed
Reallocation Agreement on October 14,
2010, and notice of the approval was
published in the Federal Register.4
The MAA was updated again by the
parties in 2011 in the Second Amended
and Restated MAA, as the first
Amended and Restated MAA was set to
expire at the end of 2011. The FCA
approved the draft document on
December 9, 2011 following notice and
request for public comments, and notice
1 68
FR 19539 (April 21, 2003).
FR 76729 (December 9, 2010).
3 12 U.S.C. 2155.
4 75 FR 64727 (October 20, 2010).
2 75
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of approval was published in the
Federal Register.5
The Second Amended and Restated
MAA established certain financial
thresholds at which conditions are
placed on the activities of a bank or
restrictions are placed on a bank’s
access to participation in System-wide
and consolidated obligations. The MAA
established three categories, which are
based on each bank’s net collateral ratio,
permanent capital ratio, and scores
under the Contractual Inter-bank
Performance Agreement, which is an
agreement among the banks and the
Funding Corporation that establishes
certain financial performance criteria.
The Second Amended and Restated
MAA has a termination date of
December 31, 2025. The System banks
and the Funding Corporation have
requested the FCA to approve the Draft
Third Restated MAA at this time in
order to incorporate references to the
FCA’s new capital regulations, which
became effective at on January 1, 2017.
The parties propose to enter into the
Draft Third Restated MAA by January
31, 2017, with a retroactive effective
date of January 1, 2017.
The Draft Third Restated MAA retains
the same general framework and most of
the provisions of the Second Amended
and Restated MAA. In Sections 1.04
through 1.07, the Net Collateral and
Permanent Capital ratio levels would be
replaced with the Tier 1 Leverage and
Total Capital ratio levels, respectively,
that would place a bank in either
Category I, Category II, or Category III.
The revisions take into account the new
capital requirements set forth in
§ 628.10—Minimum Capital Standards
and § 628.11—Capital Buffer Amounts.
A bank would fall into revised Category
I when either its Tier 1 Leverage or its
Total Capital ratio drops below the
relevant Capital Buffer floor. Further
declines in either or both ratios below
specified thresholds would cause the
bank to fall into Category II and
Category III. In addition, paragraph (g)
of Section 6.03 has been revised to
include ‘‘whether the Bank has
evaluated and disclosed that it has
substantial doubt about its ability to
continue as a Going Concern’’ in
addition to the criterion in the Second
Amended and Restated MAA that the
committee consider whether a Bank’s
independent public accountants have
included a Going Concern qualification
in the Bank’s most recent combined
financial statements. In addition, the
addresses of the System banks and the
Funding Corporation have been
updated.
5 76
FR 77998 (December 15, 2011).
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The FCA Board hereby approves the
Draft Third Amended and Restated
MAA pursuant to sections 4.2(c), 4.2(d)
and 4.9(b)(2) of the Farm Credit Act of
1971, as amended. The FCA’s approval
of the Draft Third Amended and
Restated MAA is conditioned on the
board of directors of each bank and the
Funding Corporation approving the
Draft Third Amended and Restated
MAA. Neither the Draft Third Amended
and Restated MAA, when it becomes
effective, nor FCA approval of it shall in
any way restrict or qualify the authority
of the FCA or the FCSIC to exercise any
powers, rights, or duties granted by law
to the FCA or the FCSIC. Finally, the
FCA retains the right to modify or
revoke its approval of the Draft Third
Amended and Restated MAA at any
time.
The Draft Third Amended and
Restated MAA, together with the recitals
to the amendment, is as follows:
THIRD AMENDED AND RESTATED
MARKET ACCESS AGREEMENT
AMONG
AgFirst Farm Credit Bank, AgriBank,
FCB, CoBank, ACB, Farm Credit Bank of
Texas and Federal Farm Credit Banks
Funding Corporation
This THIRD AMENDED AND
RESTATED MARKET ACCESS
AGREEMENT (the ‘‘Restated MAA’’) is
entered into among AgFirst Farm Credit
Bank, AgriBank, FCB, CoBank, ACB, the
Farm Credit Bank of Texas,
(collectively, the ‘‘Banks’’) and the
Federal Farm Credit Banks Funding
Corporation (‘‘Funding Corporation’’).
Capitalized terms used herein shall be
as defined in Article IX.
Whereas, the Banks and the Funding
Corporation entered into that certain
Market Access Agreement dated
September 1, 1994 and effective as of
November 23, 1994, (the ‘‘Original
Agreement’’) for the reasons stated
therein; and
Whereas, the Original Agreement was
subsequently amended by that certain
Amended and Restated Market Access
Agreement, dated July 1, 2003, referred
to herein as the ‘‘First Restated MAA,’’
for the reasons stated therein; and
Whereas, the First Restated MAA was
subsequently amended by that certain
Second Amended and Restated Market
Access Agreement, dated December 14,
2011, and effective January 1, 2012,
referred to herein as the ‘‘Second
Restated MAA,’’ for the reasons stated
therein; and
Whereas, pursuant to Section 7.05 of
the Second Restated MAA, the Banks
and the Funding Corporation have
reviewed the Second Restated MAA to
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consider whether any amendments to it
are appropriate in view of recent
changes to new FCA capital
requirements applicable to the Banks;
and
Whereas, representatives of the Banks
and the Funding Corporation met
various times in connection with such
review and recommended certain
amendments to the Second Restated
MAA for presentation to the Committee;
and
Whereas, the Committee met various
times in connection with the review and
recommended certain amendments to
the Second Restated MAA for
presentation to the Banks and the
Funding Corporation; and
Whereas, the boards of directors of the
Banks and of the Funding Corporation
approved this Restated MAA in
principle; and
Whereas, thereafter, this Restated
MAA was submitted to the FCA for
approval and to the Insurance
Corporation for an expression of
support; and
Whereas, the FCA published this
Restated MAA in the Federal Register
and sought comments thereon; and
Whereas, the FCA approved this
Restated MAA, subject to approval of
this Restated MAA by the boards of
directors of the Banks and the Funding
Corporation, and a notice of such
approval was published in the Federal
Register; and
Whereas, the Insurance Corporation
expressed its support of this Restated
MAA; and
Whereas, the Parties are mindful of
the FCA’s independent authority under
section 5.17(a)(10) of the Act to ensure
the safety and soundness of the Banks,
the FCA’s independent authority under
sections 4.2 and 4.9 of the Act to
approve the terms of specific issuances
of Debt Securities, the Insurance
Corporation’s independent authority
under section 5.61 of the Act to assist
troubled Banks, and the Banks’
independent obligations under section
4.3(c) of the Act to maintain necessary
collateral levels for Debt Securities; and
Whereas, the Banks are entering into
this Restated MAA pursuant to, inter
alia, section 4.2(c) and (d) of the Act;
and
Whereas, the Funding Corporation is
prepared to adopt as the ‘‘conditions of
participation’’ that it understands to be
required by section 4.9(b)(2) of the Act
each Bank’s compliance with the terms
and conditions of this Restated MAA;
and
Whereas, the Funding Corporation
believes the execution and
implementation of this Restated MAA
will materially accomplish the
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objectives which it has concluded are
appropriate for a market access program
under section 4.9(b)(2) of the Act; and
Whereas, prior to the adoption of the
Original Agreement, the Funding
Corporation adopted and maintained in
place a Market Access and Risk Alert
Program designed to fulfill what it
understood to be its responsibilities
under section 4.9(b)(2) of the Act with
respect to determining ‘‘conditions of
participation,’’ which Program was
discontinued by the Funding
Corporation in accordance with the
terms of the Original Agreement; and
Whereas, the Funding Corporation is
entering into this Restated MAA
pursuant to, inter alia, section 4.9(b)(2)
of the Act; and
Whereas, the Parties believe that the
execution and implementation of this
Restated MAA will accomplish the
objectives intended to be achieved by
the Original Agreement,
Now therefore, in consideration of the
foregoing, the mutual promises and
agreements herein contained, and other
good and valuable consideration, receipt
of which is hereby acknowledged, the
Parties, intending to be legally bound
hereby, agree as follows:
ARTICLE I—CATEGORIES
Section 1.01. Scorekeeper. The
Scorekeeper, for purposes of this
Restated MAA, shall be the Funding
Corporation.
Section 1.02. CIPA Oversight Body.
The CIPA Oversight Body, for purposes
of this Restated MAA, shall be the same
as the Oversight Body under Section 5.1
of CIPA.
Section 1.03. CIPA Scores. Net
Composite Scores and Average Net
Composite Scores, for purposes of this
Restated MAA, shall be the same as
those determined under Article II of
CIPA and the Model referred to therein,
as in effect on June 30, 2011, and as
amended under CIPA or replaced by
successor provisions under CIPA in the
future, to the extent such future
amendments or replacements are by
agreement of all the Banks.
Section 1.04. Tier 1 Leverage Ratio
and Total Capital Ratio. Each Bank
shall report to the Scorekeeper within
15 days after the end of each month its
Tier 1 Leverage Ratio and Total Capital
Ratio as of the last day of that month.
Should any Bank later correct or revise,
or be required to correct or revise, any
past financial data in a way that would
cause any previously reported Tier 1 or
Total Capital Ratio hereunder to have
been different, the Bank shall promptly
report a revised Ratio to the
Scorekeeper. Should the Scorekeeper
consider it necessary to verify any Tier
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1 Leverage Ratio and Total Capital
Ratio, it shall so report to the
Committee, or, if the Committee is not
in existence, to the CIPA Oversight
Body, and the Committee or the CIPA
Oversight Body, as the case may be, may
verify the Ratios as it deems
appropriate, through reviews of Bank
records by its designees (including
experts or consultants retained by it) or
otherwise. The reporting Bank shall
cooperate in any such verification, and
the other Banks shall provide such
assistance in conducting any such
verification as the Committee or the
CIPA Oversight Body, as the case may
be, may reasonably request.
Section 1.05. Category I. A Bank shall
be in Category I if it (a) has an Average
Net Composite Score of 50.0 or more,
but less than 60.0, for the most recent
calendar quarter for which an Average
Net Composite Score is available, (b) has
a Net Composite Score of 45.0 or more,
but less than 60.0, for the most recent
calendar quarter for which a Net
Composite Score is available, (c) has a
Tier 1 Leverage Ratio of 4.00 percent or
more, but less than 5.00 percent for the
last day of the most recent month or (d)
has a Total Capital Ratio of 8.00 percent
or more, but less than 10.50 percent for
the period ending on the last day of the
most recent month.
Section 1.06. Category II. A Bank shall
be in Category II if it (a) has an Average
Net Composite Score of 35.0 or more,
but less than 50.0, for the most recent
calendar quarter for which an Average
Net Composite Score is available, (b) has
a Net Composite Score of 30.0 or more,
but less than 45.0, for the most recent
calendar quarter for which a Net
Composite Score is available, (c) has a
Tier 1 Leverage Ratio of 3.00 percent or
more, but less than 4.00 percent for the
last day of the most recent month, (d)
has a Total Capital Ratio of 7.00 percent
or more, but less than 8.00 percent for
the period ending on the last day of the
most recent month, or (e) is in Category
I and has failed to provide information
to the Committee as required by Article
III within 2 Business Days after receipt
of written notice from the Committee of
such failure.
Section 1.07. Category III. A Bank
shall be in Category III if it (a) has an
Average Net Composite Score of less
than 35.0 for the most recent calendar
quarter for which an Average Net
Composite Score is available, (b) has a
Net Composite Score of less than 30.0
for the most recent calendar quarter for
which a Net Composite Score is
available, (c) has a Tier 1 Leverage Ratio
of less than 3.00 percent for the last day
of the most recent month, (d) has a Total
Capital Ratio of less than 7.00 percent
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5567
for the period ending on the last day of
the most recent month, or (e) is in
Category II and has failed to provide
information to the Committee as
required by Article III within 2 Business
Days after receipt of written notice from
the Committee of such failure.
Section 1.08. Highest Category. If a
Bank would come within more than one
Category by reason of the various
provisions of Sections 1.05 through
1.07, it shall be considered to be in the
highest-numbered Category for which it
qualifies (e.g., Category III rather than
Category II).
Section 1.09. Notice by Scorekeeper.
Within 20 days of the end of each
month, after receiving the reports due
under Section 1.04 within 15 days of the
end of the prior month, the Scorekeeper
shall provide to all Banks, all
Associations discounting with or
otherwise receiving funding from a
Bank that is in Category I, Category II or
Category III, the FCA, the Insurance
Corporation, the Funding Corporation,
and either the CIPA Oversight Body or,
if it is in existence, the Committee a
notice identifying the Banks, if any, that
are in Categories I, II and III, or stating
that no Banks are in such Categories.
ARTICLE II—THE COMMITTEE
Section 2.01. Formation. A
Monitoring and Advisory Committee
(the ‘‘Committee’’) shall be formed at
the instance of the CIPA Oversight Body
within 7 days of the date that it receives
a notice from the Scorekeeper under
Section 1.09 that any Bank is in
Category I, Category II or Category III
(unless such a Committee is already in
existence). The Committee shall remain
in existence thereafter for so long as the
most recent notice from the Scorekeeper
under Section 1.09 indicates that any
Bank is in Category I, Category II or
Category III. If not already in existence,
the Committee may also be formed (a)
at the instance of the CIPA Oversight
Body at any other time, in order to
consider a Continued Access Request
that has been submitted or is expected
to be submitted, (b) for purposes of
preparing the reports described in
Section 7.05, and (c) as provided for in
Section 8.04(b).
Section 2.02. Composition. The
Committee shall be made up of two
representatives of each Bank and two
representatives of the Funding
Corporation. One of the representatives
of each Bank shall be that Bank’s
representative on the CIPA Oversight
Body. The other representative of each
Bank shall be an individual designated
by the Bank’s board of directors, who
may be a member of the Bank’s board
of directors or a senior officer of the
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Bank, in the discretion of the Bank’s
board. One of the representatives of the
Funding Corporation shall be an outside
director of the Funding Corporation
designated by the Funding Corporation
board of directors. The other
representative of the Funding
Corporation shall be designated by the
board of directors of the Funding
Corporation from among the members of
its board and/or its senior officers. The
removal and replacement of the
Committee members designated directly
by Bank boards of directors and by the
Funding Corporation shall be in the sole
discretion of each Bank board and of the
Funding Corporation, respectively. A
replacement for a member of the CIPA
Oversight Body shall automatically
replace such member on the Committee.
Section 2.03. Authority and
Responsibilities. The Committee shall
have the authority and responsibilities
specified in this Article II, in Sections
1.04, 3.01, 3.02, 3.05, 3.06, 4.02, 7.05,
8.04 and 8.08, and in Article VI, and
such incidental powers as are necessary
and appropriate to effectuating such
authority and responsibilities.
Section 2.04. Meetings.
Notwithstanding anything herein to the
contrary, at all times, the Banks entitled
to vote on Committee business shall be
all Banks other than (i) those in
Category II and Category III, as indicated
in the most recent notice from the
Scorekeeper under Section 1.09, and (ii)
in the case of a Bank requesting a
Continued Access Decision, such Bank.
The initial meeting of the Committee
shall be held at the call of the Chairman
of the CIPA Oversight Body or a
majority of the Parties entitled to vote
on Committee business. Thereafter, the
Committee shall meet at such times and
such places at the call of the Chairman
of the Committee or a majority of the
Parties entitled to vote on Committee
business. For all voting and quorum
purposes each Party entitled to vote on
Committee business shall act through at
least one of its representatives. Written
notice of each meeting shall be given to
each member by the Chairman or his or
her designee not less than 48 hours
prior to the time of the meeting. A
meeting may be held without such
notice upon the signing of a waiver of
notice by all of the Parties entitled to
vote on Committee business. All of the
Parties entitled to vote on Committee
business shall constitute a quorum for
the conduct of business. A meeting may
be held by a telephone conference
arrangement or similar communication
method allowing each speaker to be
heard by all others in attendance at the
same time.
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Section 2.05. Action Without a
Meeting. Action may be taken by the
Committee without a meeting if each
Bank and the Funding Corporation
consent in writing to consideration of a
matter without a meeting and all of the
Parties entitled to vote on Committee
business approve the action in writing,
which writings shall be kept with the
minutes of the Committee.
Section 2.06. Voting. The Funding
Corporation and each Bank entitled to
vote on Committee business shall have
one vote on Committee business. Voting
on Committee business (including
recommendations on Continued Access
Decisions, but not the ultimate vote on
Continued Access Decisions, which is
addressed in Article VI) shall be by
unanimity of the Parties entitled to vote
on Committee business that are present
(physically, by telephone conference or
similar communication method
allowing each speaker to be heard by all
others in attendance at the same time)
through at least one representative. If a
Bank or the Funding Corporation has
two representatives present, they shall
agree in casting the vote of the Bank or
the Funding Corporation, and if they
cannot agree on a particular matter, that
Bank or the Funding Corporation shall
not cast a vote on that matter, and, in
determining unanimity, shall not be
counted as a Party entitled to vote on
that matter.
Section 2.07. Officers. The Committee
shall elect from among its members a
Chairman, a Vice Chairman, a Secretary
and such other officers as it shall from
time to time deem appropriate. The
Chairman shall chair the meetings of the
Committee and have such other duties
as the Committee may delegate to him
or her. The Vice Chairman shall perform
such duties of the Chairman as the
Chairman is unable or fails to perform,
and shall have such other duties as the
Committee may delegate to him or her.
The Secretary shall keep the minutes
and maintain the minute book of the
Committee. Other officers shall have
such duties as the Committee may
delegate to them. Should the Chairman
be a representative of either a Category
II or Category III Bank, such individual
will no longer be eligible to serve as
Chairman. The Vice Chairman will
thereafter perform the duties of
Chairman, and if the Vice Chairman is
unable, the Committee may elect a new
Chairman from among its members.
Section 2.08. Retention of Staff,
Consultants and Experts. The
Committee shall be authorized to retain
staff, consultants and experts as it
deems necessary and appropriate in its
sole discretion.
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Section 2.09. Expenses. Any
compensation of each member of the
Committee for time spent on Committee
business and for his or her out-of-pocket
expenses, such as travel, shall be paid
by the Party that designated that
member to the Committee or to the CIPA
Oversight Body. All other expenses
incurred by the Committee shall be
borne by the Banks and assessed by the
Funding Corporation based on the
formula then used by the Funding
Corporation to allocate its operating
expenses.
Section 2.10. Custody of Records. All
information received by the Committee
pursuant to this Restated MAA, and all
Committee minutes, shall be lodged,
while not in active use by the
Committee, at the Funding Corporation,
and shall be deemed records of the
Funding Corporation for purposes of
FCA examination. The Parties agree that
documents in active use by the
Committee may also be examined by the
FCA.
ARTICLE III—PROVISION OF
INFORMATION
Section 3.01. Information To Be
Provided By All Banks in Categories I,
II and III. If a Bank is in Category I,
Category II or Category III, as indicated
in the most recent notice from the
Scorekeeper under Section 1.09, and if
the prior monthly notice by the
Scorekeeper did not indicate that the
Bank was in any Category, then the
Bank shall within 30 days of receipt of
the latest notice provide to the
Committee: (a) a detailed explanation of
the causes of its being in that Category,
(b) an action plan to improve its
financial situation so that it is no longer
in any of the three Categories, (c) a
timetable for achieving that result, (d) at
the discretion of the Committee, the
materials and information listed in
Attachment 1 hereto (in addition to
fulfilling the other obligations specified
in Attachment 1 hereto) and (e) such
other pertinent materials and
information as the Committee shall,
within 7 days of receiving notice from
the Scorekeeper, request in writing from
the Bank. Such Bank shall summarize,
aggregate or analyze data, as well as
provide raw data, in such manner as the
Committee may request. Such
information shall be promptly updated
(without any need for a request by the
Committee) whenever the facts
significantly change, and shall also be
updated or supplemented as the
Committee so requests in writing of the
Bank by such deadlines as the
Committee may reasonably specify.
Section 3.02. Additional Information
To Be Provided By Banks in Categories
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II and III. If a Bank is in Category II or
Category III, as indicated in the most
recent notice from the Scorekeeper
under Section 1.09, and if the prior
monthly notice by the Scorekeeper did
not indicate that the Bank was in
Category II or Category III, then the Bank
shall within 30 days of receipt of the
latest notice provide to the Committee,
in addition to the information required
by Section 3.01, at the discretion of the
Committee, the materials and
information listed in Attachment 2
hereto (in addition to fulfilling the other
obligations specified in Attachment 2
hereto). Such information shall be
promptly updated (without any need for
a request by the Committee) whenever
the facts significantly change, and shall
also be updated or supplemented as the
Committee so requests in writing of the
Bank by such deadlines as the
Committee may reasonably specify.
Section 3.03. Documents or
Information Relating to
Communications With FCA or the
Insurance Corporation. Notwithstanding
Sections 3.01 and 3.02, a Bank shall not
disclose to the Committee any
communications between the Bank and
the FCA or the Insurance Corporation,
as the case may be, or documents
describing such communications,
except as consented to by, and subject
to such restrictive conditions as may be
imposed by, the FCA or the Insurance
Corporation, as the case may be.
However, facts regarding the Bank’s
condition or plans that pre-existed a
communication with the FCA or the
Insurance Corporation and then were
included in such a communication are
not barred from disclosure by this
section. The Committee shall decide on
a case-by-case basis whether to request
copies of such communications and
documents from the FCA or the
Insurance Corporation, as the case may
be. Each Bank hereby consents to the
disclosure of such communications and
documents to the Committee if
consented to by the FCA or the
Insurance Corporation, as the case may
be. Nothing in this section shall
preclude a Bank from making
disclosures to the System Disclosure
Agent necessary to allow the System
Disclosure Agent to comply with its
obligations under the securities laws or
other applicable law or regulations with
regard to disclosure to investors.
Section 3.04. Sources of Information;
Certification. Information provided to
the Committee under Sections 3.01 and
3.02 shall, to the extent applicable, be
data used in the preparation of financial
statements in accordance with generally
accepted accounting principles, or data
used in the preparation of call reports
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submitted to the FCA pursuant to 12
CFR 621, as amended from time to time,
or any successor thereto. A Bank shall
certify, through its chief executive
officer or, if there is no chief executive
officer, a senior executive officer, the
completeness and accuracy of all
information provided to the Committee
under Sections 3.01 and 3.02.
Section 3.05. Failure to Provide
Information. If a Bank fails to provide
information to the Committee as and
when required under Sections 3.01 and
3.02, and does not correct such failure
within 2 Business Days of receipt of the
written notice by the Committee of the
failure, then the Committee shall so
advise the Scorekeeper.
Section 3.06. Provision of Information
to Banks. Any information provided to
the Committee under Sections 3.01 and
3.02 shall be provided by the Committee
to any Bank upon request. A Bank shall
not have the right under this Restated
MAA to obtain information directly
from another Bank.
Section 3.07. Cessation of Obligations.
A Bank’s obligation to provide
information to the Committee under
Section 3.01 shall cease as soon as the
Bank is no longer in Category I, Category
II or Category III, as indicated in the
most recent notice from the Scorekeeper
under Section 1.09. A Bank’s obligation
to provide to the Committee information
under Section 3.02 shall cease as soon
as the Bank is no longer in Category II
or Category III, as indicated in the most
recent notice from the Scorekeeper
under Section 1.09.
ARTICLE IV—RESTRICTIONS ON
MARKET ACCESS
Section 4.01. Final Restrictions. As of
either,
(i) The 10th day after a Bank receives
a notification from the Scorekeeper that
it is in Category II, as indicated in the
most recent notice from the Scorekeeper
under Section 1.09, if it has not by said
10th day submitted a Continued Access
Request to the Committee; or
(ii) If the Bank has submitted a
Continued Access Request to the
Committee by the 10th day after its
receipt of notice from the Scorekeeper
that it is in Category II, the 7th day
following the day a submitted
Continued Access Request is denied,
A Bank in Category II, as indicated in
the most recent notice from the
Scorekeeper under Section 1.09, (a)
shall be permitted to participate in
issues of Debt Securities only to the
extent necessary to roll over the
principal (net of any original issue
discount) of maturing debt, and (b) shall
comply with the Additional
Restrictions.
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Section 4.02. Category II Interim
Restrictions. From the day that a Bank
receives a notice from the Scorekeeper
that it is in Category II until: (a) 10 days
thereafter, if the Bank does not by that
day submit a Continued Access Request
to the Committee, or (b) if the Bank by
such 10th day after it has received a
notice from the Scorekeeper that it is in
Category II does submit a Continued
Access Request to the Committee, the
7th day following the day that notice is
received by the Bank that the Continued
Access Request is granted or denied, the
Bank (i) may participate in issues of
Debt Securities only to the extent
necessary to roll over the principal (net
of any original issue discount) of
maturing debt unless the Committee,
taking into account the criteria in
Section 6.03, shall specifically authorize
participation to a greater extent, and (ii)
shall comply with the Additional
Restrictions. Notwithstanding the
foregoing, the Category II Interim
Restrictions shall not go into effect if a
Continued Access Request has already
been granted in anticipation of the
formal notice that the Bank is in
Category II.
Section 4.03. FCA Action. The Final
Restrictions and the Category II Interim
Restrictions shall go into effect without
the need for case-by-case approval by
FCA.
Section 4.04. Cessation of
Restrictions. The Final Restrictions and
the Category II Interim Restrictions shall
cease as soon as the Bank is no longer
in Category II, as indicated in the most
recent notice from the Scorekeeper
under Section 1.09. The Bank shall
continue, however, to be subject to such
other obligations under this Restated
MAA as may apply to it by reason of its
being in another Category.
Section 4.05. Relationship to the Joint
and Several Liability Reallocation
Agreement. A Category II Bank shall not
be subject to the Final Restrictions and
Category II Interim Restrictions, to the
extent that the Final Restrictions and
Category II Interim Restrictions would
prohibit such Category II Bank from
issuing debt required to fund such
Category II Bank’s liabilities and
obligations under the Joint and Several
Liability Reallocation Agreement, if and
when the Joint and Several Liability
Reallocation Agreement is in effect
among the Parties.
ARTICLE V—PROHIBITION OF
MARKET ACCESS
Section 5.01. Final Prohibition. As of
either,
(i) The 10th day after a Bank receives
a notification from the Scorekeeper that
it is in Category III, as indicated in the
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most recent notice from the Scorekeeper
under Section 1.09, if it has not by said
10th day submitted a Continued Access
Request to the Committee; or
(ii) If the Bank has submitted a
Continued Access Request to the
Committee by the 10th day after its
receipt of notice from the Scorekeeper
that it is in Category III, the 7th day
following the day a submitted
Continued Access Request is denied,
A Bank in Category III, as indicated in
the most recent notice from the
Scorekeeper under Section 1.09, (a)
shall be prohibited from participating in
issues of Debt Securities, and (b) shall
comply with the Additional
Restrictions.
Section 5.02. Category III Interim
Restrictions. From the day that a Bank
receives a notice from the Scorekeeper
that it is in Category III until: (a) 10 days
thereafter, if the Bank does not by that
day submit a Continued Access Request
to the Committee, or (b) if the Bank by
such 10th day after it has received a
notice from the Scorekeeper that it is in
Category III does submit a Continued
Access Request to the Committee, the
7th day following the day that notice is
received by the Bank that the Continued
Access Request is granted or denied, the
Bank (i) may participate in issues of
Debt Securities only to the extent
necessary to roll over the principal (net
of any original issue discount) of
maturing debt, and (ii) shall comply
with the Additional Restrictions.
Notwithstanding the foregoing, the
Category III Interim Restrictions shall
not go into effect if a Continued Access
Request has already been granted in
anticipation of the formal notice that the
Bank is in Category III.
Section 5.03. FCA Action. The
Category III Interim Restrictions shall go
into effect without the need for case-bycase approval by the FCA. The Parties
agree that the Final Prohibition shall go
into effect without the need for approval
by the FCA; provided, however, that the
FCA may override the Final Prohibition,
for such time period up to 60 days as
the FCA may specify (or, if the FCA
does not so specify, for 60 days), by so
ordering before the date upon which the
Final Prohibition becomes effective
pursuant to Section 5.01, and may
renew such an override once only, for
such time period up to 60 additional
days as the FCA may specify (or, if the
FCA does not so specify, for 60 days),
by so ordering before the expiration of
the initial override period. If the Final
Prohibition is overridden by the FCA,
the Category III Interim Restrictions
shall remain in effect.
Section 5.04. Cessation of
Restrictions. The Final Prohibition and
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the Category III Interim Restrictions
shall cease as soon as the Bank is no
longer in Category III, as indicated in
the most recent notice from the
Scorekeeper under Section 1.09. The
Bank shall continue, however, to be
subject to such other obligations under
this Restated MAA as may apply to it by
reason of its being in another Category.
Section 5.05. Relationship to the Joint
and Several Liability Reallocation
Agreement. A Category III Bank shall
not be subject to the Final Prohibition
or Category III Interim Restrictions, to
the extent that the Final Prohibition or
Category III Interim Restrictions would
prohibit such Category III Bank from
issuing debt required to fund such
Category III Bank’s liabilities and
obligations under the Joint and Several
Liability Reallocation Agreement, if and
when the Joint and Several Liability
Reallocation Agreement is in effect
among the Parties.
ARTICLE VI—CONTINUED ACCESS
DECISIONS
Section 6.01. Process. The process for
action on Continued Access Requests
shall be as follows:
(a) Submission of Request. A Bank
may submit a Continued Access Request
for consideration by the Committee at
any time, including (i) prior to formal
notice from the Scorekeeper that it is in
Category II or Category III, if the Bank
anticipates such notice, and (ii) prior to
the 10th day after a Bank receives a
notification from the Scorekeeper that it
is in Category II or the 10th day after a
Bank receives a notification from the
Scorekeeper that it is in Category III.
(b) Committee Recommendation.
After a review of the Request, the
supporting information and any other
pertinent information available to the
Committee, the Committee shall arrive
at a recommendation regarding the
Request (including, if the
recommendation is to grant the Request,
recommendations as to the expiration
date of the Continued Access Decision
and as to any conditions to be imposed
on the Decision). The Funding
Corporation, drawing upon its expertise
and specialized knowledge, shall
provide to the Committee all pertinent
information in its possession (and the
Banks authorize the Funding
Corporation to provide such information
to the Committee for its use as provided
herein, and, to that limited extent only,
waive their right to require the Funding
Corporation to maintain the
confidentiality of such information).
The Committee shall send its
recommendation and a statement of the
reasons therefor, including a description
of any considerations that were
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expressed for and against the
recommendation by members of the
Committee during its deliberations,
together with the Request, the
supporting information, a report of how
the members of the Committee voted on
the recommendation, a report by the
Funding Corporation concerning its
position on the recommendation, and
any other material information that was
considered by the Committee, to all
Banks and the Funding Corporation by
a nationally recognized overnight
delivery service within 14 days after
receiving the Request. If the Committee
fails to act within such 14-day period,
the Continued Access Request shall be
deemed forwarded to all Banks entitled
to vote thereon for their consideration.
If the Committee has failed to act, the
Funding Corporation shall send to all
Banks, within 2 days following the
deadline for Committee action, a report
concerning the position of the Funding
Corporation on the Continued Access
Request.
(c) Vote on the Request. Unless
otherwise expressly stated herein, the
Banks entitled to vote on the Request
shall be all Banks other than those in
Category II and Category III, as indicated
in the most recent notice from the
Scorekeeper under Section 1.09, and
other than the Bank requesting the
Continued Access Decision. Within 10
days of receiving the Committee’s
recommendation and the accompanying
materials (or, if the Committee failed to
act within 14 days, within 10 days
following the 14th day), the board of
directors of each Bank entitled to vote
on the Request, or its designee, after
review of the recommendation, the
accompanying materials, the report of
the Funding Corporation, and any other
pertinent information, shall vote to
grant or deny the Request (as modified
or supplemented by any
recommendations of the Committee as
to the expiration date of the Continued
Access Decision and as to conditions to
be imposed on the Decision), and shall
provide written notice of its vote to the
Committee. If the Committee has
recommended in favor of a Continued
Access Decision, the vote of a Bank
shall be either to accept or reject the
Committee’s recommendation,
including the recommended expiration
date and conditions; if the Committee
has recommended against a Continued
Access Decision or has failed to act, the
vote of a Bank shall be either to grant
the Continued Access Request on the
terms requested by the requesting Bank,
or to deny it. Failure to vote within the
10-day period shall be considered a
‘‘no’’ vote. A Continued Access Request
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shall be granted only upon a 100percent Vote within the 10-day period,
and shall be considered denied if a 100percent Vote is not forthcoming by that
day.
(d) Notice. The Committee shall
promptly provide written notice to the
Parties, the FCA and the Insurance
Corporation of the granting or denial of
the Continued Access Request, and, if
the Continued Access Request was
granted, of all the particulars of the
Continued Access Decision.
Section 6.02. Provision of Information
to FCA and the Insurance Corporation.
The FCA and the Insurance Corporation
shall be advised by the Committee of the
submission of a Continued Access
Request, shall be provided by the
Committee with appropriate materials
relating to the Request, and shall be
advised by the Committee of the
recommendation made by the
Committee concerning the Request.
Section 6.03. Criteria. The Committee,
in arriving at its recommendation on a
Continued Access Request, and the
voting Banks, in voting on a Continued
Access Request, shall consider (a) the
present financial strength of the Bank in
issue, (b) the prospects for financial
recovery of the Bank in issue, (c) the
probable costs of particular courses of
action to the Banks and the Insurance
Fund, (d) any intentions expressed by
the Insurance Corporation with regard
to assisting or working with the Bank in
issue, (e) any existing lending
commitments and any particular highquality new lending opportunities of the
Bank, (f) seasonal variations in the
borrowing needs of the Bank, (g)
whether either the Bank has evaluated
and disclosed that it has substantial
doubt about its ability to continue as a
Going Concern or the Bank’s
independent public accountants have
included a Going Concern Qualification
in the most recent combined financial
statements of the Bank and its
constituent Associations, and (h) any
other matters deemed pertinent.
Section 6.04. Expiration Date. A
Continued Access Decision shall have
such expiration date as the Committee
recommends and is approved by a 100percent Vote. If the Committee
recommends against or fails to act on a
Continued Access Request, and it is
subsequently approved by a 100-percent
Vote, the expiration date of the
Continued Access Decision shall be the
earlier of the date requested by the Bank
or 180 days from the date the Request
is granted. A Continued Access Decision
may be terminated prior to that date, or
renewed for an additional term, upon a
new recommendation by the Committee
and 100-percent Vote.
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Section 6.05. Conditions. A Continued
Access Decision shall be subject to such
conditions as the Committee
recommends and are approved by a 100percent Vote. If specifically approved by
a 100-percent Vote, administration of
the details of the conditions and
ongoing refinement of the conditions to
take account of changing circumstances
can be left to the Committee or such
subcommittee as it may establish for
that purpose. Among the conditions that
may be imposed on a Continued Access
Decision are (a) a requirement of
remedial action by the Bank, failing
which the Continued Access Decision
will terminate, (b) a requirement of
other appropriate conduct on the part of
the Bank (such as compliance with the
Additional Restrictions), failing which
the Continued Access Decision will
terminate, and (c) specific restrictions
on continued borrowing by the Bank,
such as a provision allowing a Bank in
Category II to borrow only for specified
types of business in addition to rolling
over the principal of maturing debt, or
allowing such a Bank only to roll over
interest on maturing debt in addition to
rolling over the principal of maturing
debt, or a provision allowing a Bank in
Category III to roll over a portion of its
maturing debt. The Committee shall be
responsible for monitoring and
determining compliance with
conditions, and shall promptly advise
the Parties of any failure by a Bank to
comply with conditions. The
Committee’s determination with respect
to compliance with conditions shall be
final, until and unless overturned or
modified in arbitration pursuant to
Section 7.08.
Section 6.06. FCA Action. The Parties
agree that a Continued Access Decision
shall go into effect without the need for
approval by the FCA, but that the FCA
may override the Continued Access
Decision, for such time period as the
FCA may specify (or, if the FCA does
not so specify, until a new Continued
Access Decision is made pursuant to a
recommendation of the Committee and
a 100-percent Vote, in which case it is
again subject to override by the FCA), by
so ordering at any time.
Section 6.07. Notice to FCA of Intent
to File Continued Access Request. A
Bank that receives notice that it is in
Category III shall advise the FCA, within
10 days of receiving such notice,
whether it intends to file a Continued
Access Request.
ARTICLE VII—OTHER
Section 7.01. Conditions Precedent.
This Restated MAA shall go into effect
on January 1, 2017, provided, however,
that on or before January 31, 2017 each
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Party has executed a certificate in
substantially the form of Attachment 3
hereto that all of the following
conditions precedent have been
satisfied: (a) the delivery to the Banks of
an opinion by an outside law firm
reasonably acceptable to all of the
Parties and in substantially the form of
Attachment 4 hereto, (b) the delivery to
the Funding Corporation of an opinion
by an outside law firm reasonably
acceptable to all of the Parties and in
substantially the form of Attachment 5
hereto, (c) adoption by each of the
Banks and the Funding Corporation of
a resolution in substantially the form of
Attachment 6 hereto, (d) action by the
Insurance Corporation, through its
board, expressing its support for this
Restated MAA, and (e) action by FCA,
through its board, approving this
Restated MAA pursuant to section 4.2(c)
and (d) of the Act, and (without
necessarily expressing any view as to
the proper interpretation of section
4.9(b)(2) of the Act) approving this
Restated MAA pursuant to section
4.9(b)(2) of the Act insofar as such
approval may be required, which action
shall (i) indicate that the entry into and
compliance with this Restated MAA by
the Funding Corporation fully satisfy
such obligations as the Funding
Corporation may have with respect to
establishing ‘‘conditions of
participation’’ for market access under
section 4.9(b)(2), and (ii) contain no
reservations or other conditions or
qualifications except for those which
may be specifically agreed to by the
Funding Corporation’s board of
directors and the other Parties.
Upon execution of its certificate, each
Party shall forward a copy to the
Funding Corporation, attn. General
Counsel, which shall advise all other
Parties when a complete set of
certificates is received.
If this Restated MAA becomes
effective in accordance with this Section
7.01, the Second Restated MAA shall be
amended and restated by this Restated
MAA as of that date without further
action of the Parties. If any term,
provision, covenant or restriction of this
Restated MAA is held by a court of
competent jurisdiction or other
authority to be invalid, void or
unenforceable, the remainder of the
terms, provisions, covenants and
restrictions of this Restated MAA shall
remain in full force and effect and shall
in no way be affected, impaired or
invalidated. If any term, provision,
covenant or restriction of this Restated
MAA that purports to amend a term,
provision, covenant or restriction of the
Original Agreement, the First Restated
MAA or the Second Restated MAA is
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held by a court of competent
jurisdiction or other authority to be
invalid, void or unenforceable, such
term, provision, covenant or restriction
of the Original Agreement, the First
Restated MAA or the Second Restated
MAA shall be considered to have
continued and to be continuing in full
force and effect at all times since this
Restated MAA has purported to be in
effect. The Parties agree that
notwithstanding the occurrence of any
of the foregoing events they will treat,
to the maximum extent permitted by
law, all actions theretofore taken
pursuant to this Restated MAA as valid
and binding actions of the Parties.
Section 7.02. Representations and
Warranties. Each Party represents and
warrants to the other Parties that (a) it
has duly executed and delivered this
Restated MAA, (b) its performance of
this Restated MAA in accordance with
its terms will not conflict with or result
in the breach of or violation of any of
the terms or conditions of, or constitute
(or with notice or lapse of time or both
constitute) a default under any order,
judgment or decree applicable to it, or
any instrument, contract or other
agreement to which it is a party or by
which it is bound, (c) it is duly
constituted and validly existing under
the laws of the United States, (d) it has
the corporate and other authority, and
has obtained all necessary approvals, to
enter into this Restated MAA and
perform all of its obligations hereunder,
and (e) its performance of this Restated
MAA in accordance with its terms will
not conflict with or result in the breach
of or violation of any of the terms or
conditions of, or constitute (or with
notice or lapse of time or both
constitute) a default under its charter
(with respect to the Banks), or its
bylaws.
Section 7.03. Additional Covenants.
(a) Each Bank agrees to notify the
other Parties and the Scorekeeper if, at
any time, it anticipates that within the
following 3 months it will come to be
in Category I, Category II or Category III,
or will move from one Category to
another.
(b) Whenever a Bank is subject to
Final Restrictions, a Final Prohibition,
Category II Interim Restrictions,
Category III Interim Restrictions, or a
Continued Access Decision, the
Committee shall promptly so notify the
Funding Corporation, and the Funding
Corporation shall take all necessary
steps to ensure that the Bank
participates in issues of Debt Securities
only to the extent permitted thereunder.
The Funding Corporation may rely on
the determination of the Committee as
to whether a Bank has complied with a
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condition to a Continued Access
Decision.
(c) Each Bank agrees that it will not
at any time that it is in Category I,
Category II or Category III, as indicated
in the most recent notice from the
Scorekeeper under Section 1.09, and
will not without 12-months’ prior notice
to all other Banks and the Funding
Corporation at any other time, either (i)
withdraw, or (ii) modify, in a fashion
that would impede the issuance of Debt
Securities, the funding resolution it has
adopted pursuant to section 4.4(b) of the
Act. Should a violation of this covenant
be asserted, and should the Bank deny
same, the funding resolution shall be
deemed still to be in full effect, without
modification, until arbitration of the
matter is completed, and each Bank, by
entering into this Restated MAA,
consents to emergency injunctive relief
to enforce this provision. Nothing in
this Restated MAA shall be construed to
restrict any Party’s ability to take the
position that a Bank’s withdrawal or
modification of its funding resolution is
not authorized by law.
(d) Each Bank agrees that it will not
at any time that it is in Category I,
Category II or Category III, as indicated
in the most recent notice from the
Scorekeeper under Section 1.09, and
will not without 12-months’ prior notice
to all other Banks and the System
Disclosure Agent at any other time, fail
to report information to the System
Disclosure Agent pursuant to the
Disclosure Program for the issuance of
Debt Securities and for the System
Disclosure Agent to have a reasonable
basis for making disclosures pursuant to
the Disclosure Program. Should the
System Disclosure Agent assert a
violation of this covenant, and should
the Bank deny same, the Bank shall
furnish such information as the System
Disclosure Agent shall request until
arbitration of the matter is completed,
and each Bank, by entering into this
Restated MAA, consents to emergency
injunctive relief to enforce this
provision. Nothing in this Restated
MAA shall be construed to restrict the
ability of the System Disclosure Agent
to comply with its obligations under the
securities laws or other applicable law
or regulations with regard to disclosure
to investors.
(e) Without implying that suit may be
brought on any other matter, each Bank
and the Funding Corporation
specifically agree not to bring suit to
challenge this Restated MAA or to
challenge any Final Prohibition, Final
Restrictions, Category II Interim
Restrictions, Category III Interim
Restrictions, Continued Access
Decision, denial of a Continued Access
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Request or recommendation of the
Committee with respect to a Continued
Access Request arrived at in accordance
with this Restated MAA. This provision
shall not be construed to preclude
judicial actions under the U.S.
Arbitration Act, 9 U.S.C. sections 1–15,
to enforce or vacate arbitration decisions
rendered pursuant to Section 7.08, or for
an order that arbitration proceed
pursuant to Section 7.08.
(f) The Funding Corporation agrees
that it will not reinstitute the Market
Access and Risk Alert Program, or adopt
a similar such program for so long as
both (i) this Restated MAA is in effect
and (ii) section 4.9(b)(2) of the Act is not
amended in a manner which would
require, nor is there any other change in
applicable law or regulations which
would require, the Funding Corporation
to establish ‘‘conditions of
participation’’ different from those
contained in this Restated MAA. Should
the condition described in (ii) no longer
apply and the Funding Corporation
adopt a market access program, this
Restated MAA shall be deemed
terminated. All Banks reserve the right
to argue, if the conditions described in
clauses (i) or (ii) of the preceding
sentence should no longer apply and the
Funding Corporation should adopt such
a program, that any such program
adopted by the Funding Corporation is
contrary to law, either because section
4.9(b)(2) of the Act does not authorize
such a program, or for any other reason,
and the entry by any Bank into this
Restated MAA shall not be construed as
waiving such right.
(g) It is expressly agreed that the
Original Agreement, the FCA approval
of the Original Agreement, the First
Restated MAA, the Second Restated
MAA and the FCA approval of this
Restated MAA do not provide any
grounds for challenging the FCA or
Insurance Corporation actions with
respect to the creation of or the conduct
of receiverships or conservatorships.
Without limiting the preceding
statement, each Bank specifically and
expressly agrees and acknowledges that
it cannot, and agrees that it shall not,
attempt to challenge the FCA’s
appointment of a receiver or conservator
for itself or any other System institution
or the FCA’s or the Insurance
Corporation’s actions in the conduct of
any receivership or conservatorship (i)
on the basis of this Restated MAA or the
FCA’s approval of this Restated MAA;
or (ii) on the grounds that Category II
Interim Restrictions, Final Restrictions,
Category III Interim Restrictions, or
Final Prohibitions were or were not
imposed, whether by reason of the
FCA’s or the Insurance Corporation’s
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action or inaction or otherwise. The
Banks jointly and severally agree that
they shall indemnify and hold harmless
the FCA and the Insurance Corporation
against all costs, expenses, and
damages, including without limitation,
attorneys’ fees and litigation costs,
resulting from any such challenge by
any Party.
Section 7.04. Termination. This
Restated MAA shall terminate upon the
earliest of (i) December 31, 2025, (ii) an
earlier date if so agreed in writing by
100-percent Vote of the Banks, or (iii) in
the event that all Banks shall be in
either Category II or Category III.
Commencing a year before December 31,
2025, the Parties shall meet to consider
its extension. Except as provided in
Section 7.03(f), it is understood that the
termination of this Restated MAA shall
not affect (i) any rights and obligations
of the Funding Corporation under
section 4.9(b)(2) of the Act, and (ii) any
Bank’s rights pursuant to any Final
Restrictions, a Final Prohibition,
Category II Interim Restrictions,
Category III Interim Restrictions, or a
Continued Access Decision then-ineffect.
Section 7.05. Periodic Review.
Commencing every third anniversary of
the effective date of this Restated MAA,
beginning January 1, 2020, and at such
more frequent intervals as the Parties
may agree, the Banks and the Funding
Corporation, through their boards of
directors, shall conduct a formal review
of this Restated MAA and consider
whether any amendments to it are
appropriate. In connection with such
review, the Committee shall report to
the boards on the operation of the
Restated MAA and recommend any
amendments it considers appropriate.
Section 7.06. Confidentiality. The
Parties may disclose this Restated MAA
and any amendments to it and any
actions taken pursuant to this Restated
MAA to restrict or prohibit borrowing
by a Bank. All other information relating
to this Restated MAA shall be kept
confidential and shall be used solely for
purposes of this Restated MAA, except
that, to the extent permitted by
applicable law and regulations, such
information may be disclosed by (a) the
System Disclosure Agent under the
Disclosure Program, (b) a Bank, upon
coordination of such disclosure with the
System Disclosure Agent, as the Bank
deems appropriate for purposes of the
Bank’s disclosures to borrowers or
shareholders; (c) a Bank as deemed
appropriate for purposes of disclosure to
transacting parties (subject, to the extent
the Bank reasonably can obtain such
agreement, to such a transacting party’s
agreeing to keep the information
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confidential) of material information
relating to that Bank, or (d) any Party in
order to comply with legal or regulatory
obligations. Notwithstanding the
preceding sentence, the Parties shall
make every effort, to the extent
consistent with legal requirements,
securities disclosure obligations and
other business necessities, to preserve
the confidentiality of information
provided to the Committee by a Bank
and designated as ‘‘Proprietary and
Confidential.’’ Any expert or consultant
retained in connection with this
Restated MAA shall execute a written
undertaking to preserve the
confidentiality of any information
received in connection with this
Restated MAA. Notwithstanding the
foregoing, nothing in this Restated MAA
shall prevent Parties from disclosing
information to the FCA or the Insurance
Corporation.
Section 7.07. Amendments. This
Restated MAA may be amended only by
the written agreement of all the Parties.
Section 7.08. Dispute Resolution. All
disputes between or among Parties
relating to this Restated MAA shall be
submitted to final and binding
arbitration pursuant to the U.S.
Arbitration Act, 9 U.S.C. sections 1–15,
provided, however, that any
recommendation by the Committee
regarding a Continued Access Request
(including, if the recommendation is to
grant the Request, recommendations as
to the expiration date of the Continued
Access Decision and as to any
conditions to be imposed on the
Decision), and any vote by a Bank on a
Continued Access Request, shall be final
and not subject to arbitration.
Arbitrations shall be conducted under
the Commercial Arbitration Rules of the
American Arbitration Association before
a single arbitrator. An arbitrator shall be
selected within 14 days of the initiation
of arbitration by any Party, and the
arbitrator shall render a decision within
30 days of his or her selection, or as
otherwise agreed to by the parties
thereto.
Section 7.09. Governing Law. This
Restated MAA shall be governed by and
construed in accordance with the
Federal laws of the United States of
America, and, to the extent of the
absence of Federal law, in accordance
with the laws of the State of New York
excluding any conflict of law provisions
that would cause the law of any
jurisdiction other than New York to be
applied; provided, however, that in the
event of any conflict between the U.S.
Arbitration Act and applicable Federal
or New York law, the U.S. Arbitration
Act shall control.
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Section 7.10. Notices. Any notices
required or permitted under this
Restated MAA shall be in writing and
shall be deemed given if delivered in
person or by a nationally recognized
overnight courier, in each case
addressed as follows, unless such
address is changed by written notice
hereunder:
To AgFirst Farm Credit Bank: AgFirst
Farm Credit Bank, 1901 Main Street,
Columbia, SC 29201, Attention:
President and Chief Executive Officer.
To AgriBank, FCB: AgriBank, FCB, 30
East 7th Street, Suite 1600, St. Paul,
MN 55101, Attention: President and
Chief Executive Officer.
To CoBank, ACB: CoBank, ACB, 6340 S.
Fiddlers Green Circle, Greenwood
Village, CO 80111, Attention:
President and Chief Executive Officer
To the Farm Credit Bank of Texas: Farm
Credit Bank of Texas, 4801 Plaza on
the Lake Drive, Austin, TX 78746,
Attention: President and Chief
Executive Officer
To Federal Farm Credit Banks Funding
Corporation: Federal Farm Credit
Banks Funding Corporation, 101
Hudson Street, Suite 3505, Jersey
City, NJ 07302, Attention: President
and Chief Executive Officer
To the Farm Credit System Insurance
Corporation: Farm Credit System
Insurance Corporation, 1501 Farm
Credit Drive, McLean, Virginia 22102,
Attention: Chair
To the Farm Credit Administration:
Farm Credit Administration, 1501
Farm Credit Drive, McLean, Virginia
22102–5090, Attention: Chair
To the CIPA Oversight Body: At such
address and e-mail address as shall be
supplied to the Parties from time to
time by the Chairman of the CIPA
Oversight Body.
To the Committee: At such address and
e-mail address as shall be supplied by
the Committee, which the Committee
shall promptly transmit to each Party.
Any notice sent by the courier shall
be deemed given 1 Business Day after
depositing with the overnight courier.
Any notice given in person, or by e-mail
shall be deemed given instantaneously.
Section 7.11. Headings; Conjunctive/
Disjunctive; Singular/Plural. The
headings of any article or section of this
Restated MAA are for convenience only
and shall not be used to interpret any
provision of the Restated MAA. Uses of
the conjunctive include the disjunctive,
and vice versa, unless the context
clearly requires otherwise. Uses of the
singular include the plural, and vice
versa, unless the context clearly requires
otherwise.
Section 7.12. Successors and Assigns.
Except as provided in the definitions of
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‘‘Bank’’ and ‘‘Banks’’ in Article IX, this
Restated MAA shall inure to the benefit
of and be binding upon the successors
and assigns of the Parties, including
entities resulting from the merger or
consolidation of one or more Banks.
Section 7.13. Counterparts. This
Restated MAA, and any document
provided for hereunder, may be
executed in one or more counterparts.
Transmission by facsimile or other form
of electronic transmission of an
executed counterpart of this Restated
MAA shall be deemed to constitute due
and sufficient delivery of such
counterpart.
Section 7.14. Waiver. Any provision
of this Restated MAA may be waived,
but only if such waiver is in writing and
is signed by all Parties to this Restated
MAA.
Section 7.15. Entire Agreement.
Except as provisions of CIPA are cited
in this Restated MAA (which provisions
are expressly incorporated herein by
reference), this Restated MAA sets forth
the entire agreement of the Parties and
supersedes all prior understandings or
agreements, oral or written, among the
Parties with respect to the subject matter
hereof.
Section 7.16. Relation to CIPA. This
Restated MAA and CIPA are separate
agreements, and invalidation of one
does not affect the other. Should CIPA
be invalidated or terminated, the Parties
will take the necessary steps to maintain
those aspects of CIPA that are referred
to in Sections 1.01, 1.02 and 1.03 of this
Restated MAA, and to replace the CIPA
Oversight Body for purposes of
continued administration of this
Restated MAA.
Section 7.17. Third Parties. Except as
provided in sections 2.10, 3.03, 7.03(g),
7.21 and 7.22, this Restated MAA is for
the benefit of the Parties and their
respective successors and assigns, and
no rights are intended to be, or are,
created hereunder for the benefit of any
third party.
Section 7.18. Time Is Of The Essence.
Time is of the essence in interpreting
and performing this Restated MAA.
Section 7.19. Statutory Collateral
Requirement. Nothing in this Restated
MAA shall be construed to permit a
Bank to participate in issues of Debt
Securities or other obligations if it does
not satisfy the collateral requirements of
section 4.3(c) of the Act. For purposes
of this Section, ‘‘Bank’’ shall include
any System bank in conservatorship or
receivership.
Section 7.20. Termination of System
Status. Nothing in this Restated MAA
shall be construed to preclude a Bank
from terminating its status as a System
institution pursuant to section 7.10 of
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the Act, or from at that time
withdrawing, as from that time forward,
the funding resolution it has adopted
pursuant to section 4.4(b) of the Act. A
Bank that terminates its System status
shall cease to have any rights or
obligations under this Restated MAA,
except that it shall continue to be
subject to Article VIII with respect to
claims accruing through the date of such
termination of System status.
Section 7.21. Restrictions Concerning
Subsequent Litigation. It is expressly
agreed by the Banks that (a)
characterization or categorization of
Banks, (b) information furnished to the
Committee or other Banks, and (c)
discussions or decisions of the Banks or
Committee under this Restated MAA
shall not be used in any subsequent
litigation challenging the FCA’s or the
Insurance Corporation’s action or
inaction.
Section 7.22. Effect of this Agreement.
Neither this Restated MAA nor the FCA
approval hereof shall in any way restrict
or qualify the authority of the FCA or
the Insurance Corporation to exercise
any of the powers, rights, or duties
granted by law to the FCA or the
Insurance Corporation.
Section 7.23. Relationship to the Joint
and Several Liability Reallocation
Agreement. This Restated MAA and the
Joint and Several Liability Reallocation
Agreement are separate agreements, and
invalidation of one does not affect the
other.
ARTICLE VIII—INDEMNIFICATION
Section 8.01. Definitions. As used in
this Article VIII:
(a) ‘‘Indemnified Party’’ means any
Bank, the Funding Corporation, the
Committee, the Scorekeeper, or any of
the past, present or future directors,
officers, stockholders, employees or
agents of the foregoing.
(b) ‘‘Damages’’ means any and all
losses, costs, liabilities, damages and
expenses, including, without limitation,
court costs and reasonable fees and
expenses of attorneys expended in
investigation, settlement and defense (at
the trial and appellate levels and
otherwise), which are incurred by an
Indemnified Party as a result of or in
connection with a claim alleging
liability to any non-Party for actions
taken pursuant to or in connection with
this Restated MAA. Except to the extent
otherwise provided in this Article VIII,
Damages shall be deemed to have been
incurred by reason of a final settlement
or the dismissal with prejudice of any
such claim, or the issuance of a final
non-appealable order by a court of
competent jurisdiction which ultimately
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disposes of such a claim, whether
favorably or unfavorably.
Section 8.02. Indemnity. To the extent
consistent with governing law, the
Banks, jointly and severally, shall
indemnify and hold harmless each
Indemnified Party against and in respect
of Damages, provided, however, that an
Indemnified Party shall not be entitled
to indemnification under this Article
VIII in connection with conduct of such
Indemnified Party constituting gross
negligence, willful misconduct,
intentional tort or criminal act, or in
connection with civil money penalties
imposed by the FCA. In addition, the
Banks, jointly and severally, shall
indemnify an Indemnified Party for all
costs and expenses (including, without
limitation, fees and expenses of
attorneys) incurred reasonably and in
good faith by an Indemnified Party in
connection with the successful
enforcement of rights under any
provision of this Article VIII.
Section 8.03. Advancement of
Expenses. The Banks, jointly and
severally, shall advance to an
Indemnified Party, as and when
incurred by the Indemnified Party, all
reasonable expenses, court costs and
attorneys’ fees incurred by such
Indemnified Party in defending any
proceeding involving a claim against
such Indemnified Party based upon or
alleging any matter that constitutes, or
if sustained would constitute, a matter
in respect of which indemnification is
provided for in Section 8.02, so long as
the Indemnified Party provides the
Banks with a written undertaking to
repay all amounts so advanced if it is
ultimately determined by a court in a
final non-appealable order or by
agreement of the Banks and the
Indemnified Party that the Indemnified
Party is not entitled to be indemnified
under Section 8.02.
Section 8.04. Assertion of Claim.
(a) Promptly after the receipt by an
Indemnified Party of notice of the
assertion of any claim or the
commencement of any action against
him, her or it in respect of which
indemnity may be sought against the
Banks hereunder (an ‘‘Assertion’’), such
Indemnified Party shall apprise the
Banks, through a notice to each of them,
of such Assertion. The failure to so
notify the Banks shall not relieve the
Banks of liability they may have to such
Indemnified Party hereunder, except to
the extent that failure to give such
notice results in material prejudice to
the Banks.
(b) Any Bank receiving a notice under
paragraph (a) shall forward it to the
Committee (which, if not in existence,
shall be formed at the instance of such
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Bank to consider the matter). The Banks,
through the Committee, shall be entitled
to participate in, and to the extent the
Banks, through the Committee, elect in
writing on 30-days’ notice, to assume,
the defense of an Assertion, at their own
expense, with counsel chosen by them
and satisfactory to the Indemnified
Party. Notwithstanding that the Banks,
through the Committee, shall have
elected by such written notice to assume
the defense of any Assertion, such
Indemnified Party shall have the right to
participate in the investigation and
defense thereof, with separate counsel
chosen by such Indemnified Party, but
in such event the fees and expenses of
such separate counsel shall be paid by
such Indemnified Party and shall not be
subject to indemnification by the Banks
unless (i) the Banks, through the
Committee, shall have agreed to pay
such fees and expenses, (ii) the Banks
shall have failed to assume the defense
of such Assertion and to employ
counsel satisfactory to such Indemnified
Party, or (iii) in the reasonable judgment
of such Indemnified Party, based upon
advice of his, her or its counsel, a
conflict of interest may exist between
the Banks and such Indemnified Party
with respect to such Assertion, in which
case, if such Indemnified Party notifies
the Banks, through the Committee, that
such Indemnified Party elects to employ
separate counsel at the Banks’ expense,
the Banks shall not have the right to
assume the defense of such Assertion on
behalf of such Indemnified Party.
Notwithstanding anything to the
contrary in this Article VIII, neither the
Banks, through the Committee, nor the
Indemnified Party shall settle or
compromise any action or consent to the
entering of any judgment (x) without the
prior written consent of the other,
which consent shall not be
unreasonably withheld, and (y) without
obtaining, as an unconditional term of
such settlement, compromise or
consent, the delivery by the claimant or
plaintiff to such Indemnified Party of a
duly executed written release of such
Indemnified Party from all liability in
respect of such Assertion, which release
shall be satisfactory in form and
substance to counsel to such
Indemnified Party. The Funding
Corporation shall not be entitled to vote
on actions by the Committee under this
paragraph (b) or Section 8.08.
Section 8.05. Remedies; Survival. The
indemnification, rights and remedies
provided to an Indemnified Party under
this Article VIII shall be (i) in addition
to and not in substitution for any other
rights and remedies to which any of the
Indemnified Parties may be entitled,
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under any other agreement with any
other Person, or otherwise at law or in
equity, and (ii) provided prior to and
without regard to any other
indemnification available to any
Indemnified Party. This Article VIII
shall survive the termination of this
Restated MAA.
Section 8.06. No Rights in Third
Parties. This Restated MAA shall not
confer upon any Person other than the
Indemnified Party any rights or
remedies of any nature or kind
whatsoever under or by reason of the
indemnification provided for in this
Article VIII.
Section 8.07. Subrogation; Insurance.
Upon the payment by the Banks to an
Indemnified Party of any amounts for
which an Indemnified Party shall be
entitled to indemnification under this
Article VIII, if the Indemnified Party
shall also have the right to recover such
amount under any commercial
insurance, the Banks shall be subrogated
to such rights to the extent of the
indemnification actually paid. Where
coverage under such commercial
insurance may exist, the Indemnified
Party shall promptly file and diligently
pursue a claim under said insurance.
Any amounts paid pursuant to such
claim shall be refunded to the Banks to
the extent the Banks have provided
indemnification payments under this
Article VIII, provided, however, that
recovery under such insurance shall not
be deemed a condition precedent to the
indemnification obligations of the Banks
under this Article VIII.
Section 8.08. Sharing in Costs. The
Banks shall share in the costs of any
indemnification payment hereunder as
the Committee shall determine.
ARTICLE IX—DEFINITIONS
The following definitions are used in
this Restated MAA:
‘‘Act’’ means the Farm Credit Act of
1971, 12 U.S.C. section 2001, et seq., as
amended from time to time, or any
successors thereto.
The ‘‘Additional Restrictions’’ are that
a Bank (a) shall manage its asset/
liability mix so as not to increase, and,
to the extent possible, so as to reduce or
eliminate, any Interest-Rate Sensitivity
Deduction in its Net Composite Score,
and (b) shall not increase the dollar
amount of any liabilities, or take any
action giving rise to a lien or pledge on
its assets, senior to its liability on Debt
Securities other than (i) tax liabilities
and secured liabilities arising in the
ordinary course of business through
activities other than borrowing, such as
mechanic’s liens or judgment liens, and
(ii) secured liabilities, or an action
giving rise to such a lien or pledge,
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incurred in the ordinary course of
business as the result of issuing secured
debt or entering into repurchase
agreements, provided, however, that
such debt issuances and agreements
may be undertaken to the extent that the
proceeds therefrom are used to repay
the principal of outstanding Debt
Securities and the value of the collateral
securing the debt issuances or the
agreements (computed in the same
manner as provided under section 4.3(c)
of the Act) does not exceed the amount
of principal so repaid.
‘‘Associations’’ means agricultural
credit associations, federal land bank
associations, Federal land credit
associations and production credit
associations.
‘‘Average Net Composite Score’’ is
defined in Section 1.03.
‘‘Bank’’ means a bank (including its
consolidated subsidiaries) of the Farm
Credit System, other than (except where
noted) any bank in conservatorship or
receivership (and its consolidated
subsidiaries).
‘‘Banks’’ means the banks (including
their consolidated subsidiaries) of the
Farm Credit System, other than (except
where noted) any banks in
conservatorship or receivership (and
their consolidated subsidiaries).
‘‘Business Day’’ means any day other
than a Saturday, Sunday or Federal
holiday.
‘‘Business Plan’’ means the business
plan required under 12 CFR 618.8440,
as amended from time to time, or any
successors thereto.
‘‘Category’’ means Category I,
Category II, or Category III, as the
circumstances require.
‘‘Category I’’ is defined in Section
1.05.
‘‘Category II’’ is defined in Section
1.06.
‘‘Category II Interim Restrictions’’
means the requirements set forth in
Section 4.02.
‘‘Category III’’ is defined in Section
1.07.
‘‘Category III Interim Restrictions’’
means the requirements set forth in
Section 5.02.
‘‘CIPA’’ means that certain Amended
and Restated Contractual Interbank
Performance Agreement among the
Banks of the Farm Credit System and
the Federal Farm Credit Banks Funding
Corporation, the Scorekeeper, dated as
of June 30, 2011, as amended from time
to time, or any successor thereto.
‘‘CIPA Oversight Body’’ is defined in
Section 1.02.
‘‘Collateral’’ is defined as in section
4.3(c) of the Act and the regulations
thereunder, as amended from time to
time, or any successors thereto.
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The ‘‘Committee’’ is defined in
Section 2.01.
‘‘Continued Access Decision(s)’’
means a decision, subject to the
procedures, terms and conditions
described in Article VI, that Final
Restrictions or a Final Prohibition not
go into effect, or be lifted.
‘‘Continued Access Request’’ means a
request for a Continued Access
Decision.
‘‘Days’’ means calendar days, unless
the term Business Days is used.
‘‘Debt Securities’’ means System-wide
and consolidated obligations issued
through the Funding Corporation,
within the meaning of sections 4.2(c),
4.2(d) and 4.9 of the Act.
‘‘Disclosure Program’’ means the
program established, pursuant to
resolutions of the Banks and the
Funding Corporation as approved on
December 6, 2007 and amended in 2008,
2011 and 2013, for disclosure at the
System-wide level of financial and other
information in connection with the
issuance of Debt Securities, as amended
from time to time, or any successor
thereto.
‘‘FCA’’ means the Farm Credit
Administration.
‘‘Final Prohibition’’ means the
requirements set forth in Section 5.01.
‘‘Final Restrictions’’ means the
requirements set forth in Section 4.01.
‘‘First Restated MAA’’ means that
certain Amended and Restated Market
Access Agreement, dated July 1, 2003,
among the Banks and the Funding
Corporation.
‘‘Funding Corporation’’ means the
Federal Farm Credit Banks Funding
Corporation.
‘‘Going Concern’’ means an entity that
is able to continue as a going concern
as set forth in Financial Accounting
Standards Board Accounting Standards
Update 2014–15.
‘‘Insurance Corporation’’ means the
Farm Credit System Insurance
Corporation.
‘‘Insurance Fund’’ means the Farm
Credit Insurance Fund maintained by
the Insurance Corporation pursuant to
section 5.60 of the Act.
‘‘Interest-Rate Sensitivity Deduction’’
is defined as in Article II of CIPA, and
the Model referred to therein, as
amended from time to time, or any
successor thereto.
‘‘Joint and Several Liability
Reallocation Agreement’’ means that
certain Joint and Several Liability
Reallocation Agreement among the
Banks and the Funding Corporation.
‘‘Liquidity Deficiency Deduction’’ is
defined as in Article II of CIPA, and the
Model referred to therein, as amended
from time to time, or any successor
thereto.
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‘‘Model’’ means the term Model as it
is defined in the CIPA.
‘‘Net Composite Score’’ is defined in
Section 1.03.
‘‘100-Percent Vote’’ means an
affirmative vote, through each voting
Bank’s board of directors or its designee,
of all Banks that are entitled to vote on
a matter.
‘‘Original Agreement’’ means that
certain Market Access Agreement, dated
September 1, 1994 and effective as of
November 23, 1994, among the Banks
and the Funding Corporation.
‘‘Parties’’ mean the parties to this
Restated MAA. A bank in
conservatorship or receivership is not a
party to this Restated MAA.
‘‘Person’’ means any human being,
partnership, association, joint venture,
corporation, legal representative or
trust, or any other entity.
‘‘Ratio(s)’’ means either the Tier 1
Leverage Ratio, or Total Capital Ratio, as
the circumstances require.
‘‘Second Restated MAA’’ means that
certain Second Amended and Restated
Market Access Agreement, dated
December 14, 2011, among the Banks
and the Funding Corporation.
‘‘Scorekeeper’’ is defined in Section
1.01.
‘‘System’’ means the Farm Credit
System.
‘‘System Disclosure Agent’’ means the
Funding Corporation or such other
disclosure agent as all Banks shall
unanimously agree upon, to the extent
permitted by law or regulation. For
purposes of this definition, ‘‘Banks’’
shall include any System bank in
conservatorship or receivership.
‘‘Tier 1 Leverage Ratio’’ is defined in
12 CFR 628.10(c)(4).
‘‘Total Capital Ratio’’ is defined in 12
CFR 628.10(c)(3).
In witness whereof, the Parties have
caused this Restated Agreement to be
executed by their duly authorized
officers as of the date first above written.
lllllllllllllllllllll
Witness
AgFirst Farm Credit Bank
By: lllllllllllllllllll
Title: llllllllllllllllll
lllllllllllllllllllll
Witness:
AgriBank, FCB
By: lllllllllllllllllll
Title: llllllllllllllllll
lllllllllllllllllllll
Witness
CoBank, FCB
By: lllllllllllllllllll
Title: llllllllllllllllll
lllllllllllllllllllll
Witness
Farm Credit Bank of Texas
PO 00000
Frm 00055
Fmt 4703
Sfmt 4703
By: lllllllllllllllllll
Title: llllllllllllllllll
lllllllllllllllllllll
Witness
Federal Farm Credit Banks Funding
Corporation, the Scorekeeper
By: lllllllllllllllllll
Title: llllllllllllllllll
[end of Draft Third Amended and Restated
MAA]
Dated: January 12, 2017.
Dale L. Aultman,
Secretary, Farm Credit Administration Board.
[FR Doc. 2017–01054 Filed 1–17–17; 8:45 am]
BILLING CODE 6705–01–P
FEDERAL RESERVE SYSTEM
Formations of, Acquisitions by, and
Mergers of Bank Holding Companies
The companies listed in this notice
have applied to the Board for approval,
pursuant to the Bank Holding Company
Act of 1956 (12 U.S.C. 1841 et seq.)
(BHC Act), Regulation Y (12 CFR part
225), and all other applicable statutes
and regulations to become a bank
holding company and/or to acquire the
assets or the ownership of, control of, or
the power to vote shares of a bank or
bank holding company and all of the
banks and nonbanking companies
owned by the bank holding company,
including the companies listed below.
The applications listed below, as well
as other related filings required by the
Board, are available for immediate
inspection at the Federal Reserve Bank
indicated. The applications will also be
available for inspection at the offices of
the Board of Governors. Interested
persons may express their views in
writing on the standards enumerated in
the BHC Act (12 U.S.C. 1842(c)). If the
proposal also involves the acquisition of
a nonbanking company, the review also
includes whether the acquisition of the
nonbanking company complies with the
standards in section 4 of the BHC Act
(12 U.S.C. 1843). Unless otherwise
noted, nonbanking activities will be
conducted throughout the United States.
Unless otherwise noted, comments
regarding each of these applications
must be received at the Reserve Bank
indicated or the offices of the Board of
Governors not later than February 13,
2017.
A. Federal Reserve Bank of Atlanta
(Chapelle Davis, Assistant Vice
President) 1000 Peachtree Street NE.,
Atlanta, Georgia 30309. Comments can
also be sent electronically to
Applications.Comments@atl.frb.org:
1. People Independent Bancshares,
Inc., Boaz, Alabama; to acquire 100
E:\FR\FM\18JAN1.SGM
18JAN1
Agencies
[Federal Register Volume 82, Number 11 (Wednesday, January 18, 2017)]
[Notices]
[Pages 5565-5576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-01054]
=======================================================================
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FARM CREDIT ADMINISTRATION
Market Access Agreement
AGENCY: Farm Credit Administration.
ACTION: Notice of approval of the Draft Third Amended and Restated
Market Access Agreement.
-----------------------------------------------------------------------
SUMMARY: The Farm Credit Administration (FCA) announces that it has
approved the Draft Third Amended and Restated Market Access Agreement
(Draft Third Restated MAA) proposed to be entered into by all of the
banks of the Farm Credit System (System or FCS) and the Federal Farm
Credit Banks Funding Corporation (Funding Corporation). The Draft Third
Restated MAA sets forth the rights and responsibilities of each of the
parties when the condition of a System bank falls below pre-established
financial thresholds. In prior draft amended and restated MAAs,
although not required, the FCA published the draft document for comment
prior to its approval. The revisions in this draft are minor,
consisting primarily of replacing references to the previous FCA
regulatory capital standards with references to the new FCA regulatory
capital standards that became effective on January 1, 2017, as well as
updating addresses. Therefore, the FCA has determined to approve the
Draft Third Restated MAA without a request for comments prior to
approval; we will, however, review and consider any subsequent comments
we may receive.
DATES: You may send comments on or before February 17, 2017.
ADDRESSES: For accuracy and efficiency reasons, commenters are
encouraged to submit comments by e-mail or through the FCA's Web site.
We are no longer accepting comments submitted by facsimile (fax).
Please do not submit your comment multiple times via different methods.
You may submit comments by any of the following methods:
E-mail: Send us an e-mail at reg-comm@fca.gov.
FCA Web site: https://www.fca.gov. Select ``Public
Commenters,'' then ``Public Comments,'' and follow the directions for
``Submitting a Comment.''
Federal E-Rulemaking Web site: https://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Send mail to Barry F. Mardock, Deputy Director,
Office of Regulatory Policy, Farm Credit Administration, 1501 Farm
Credit Drive, McLean, VA 22102-5090.
You may review copies of comments we receive at our office in
McLean, Virginia, or on our Web site at https://www.fca.gov. Once you
are in the Web site, select ``Public Commenters,'' then ``Public
Comments,'' and follow the directions for ``Reading Submitted Public
Comments.'' We will show your comments as submitted, but for technical
reasons we may omit items such as logos and special characters.
Identifying information that you provide, such as phone numbers and
addresses, will be publicly available. However, we will attempt to
remove e-mail addresses to help reduce Internet spam.
FOR FURTHER INFORMATION, CONTACT:
David J. Lewandrowski, Senior Policy Analyst, Office of Regulatory
Policy, Farm Credit Administration, McLean, VA 22102-5090, (703) 883-
4212, TTY (703) 883-4434,
or
Rebecca S. Orlich, Senior Counsel, Office of General Counsel, Farm
Credit Administration, McLean, VA 22102-5090, (703) 883-4020, TTY (703)
883-4020.
SUPPLEMENTARY INFORMATION: System banks and the Funding Corporation
entered into the original Market Access Agreement (original MAA) on
September 1, 1994, to help control the risk of each System bank by
outlining each party's respective rights and responsibilities in the
event the condition of a System bank fell below certain financial
thresholds. As part of the original MAA, System banks and the Funding
Corporation agreed to periodic reviews of the terms of the MAA to
consider whether any amendments were appropriate. The original MAA was
updated by the parties in 2003 in the Amended and Restated MAA and
received FCA approval following notice and request for public comments
in the Federal Register.\1\
---------------------------------------------------------------------------
\1\ 68 FR 19539 (April 21, 2003).
---------------------------------------------------------------------------
On December 3, 2010, the FCA Board approved amendments to the
Amended and Restated MAA that would conform its provisions to the
System banks' proposed Joint and Several Liability Reallocation
Agreement (Reallocation Agreement) to ensure that the MAA provisions
did not impede operation of the Reallocation Agreement; the amendments
also provided that the MAA and the Reallocation Agreement are separate
agreements, and invalidation of one does not affect the other. The FCA
published these amendments in the Federal Register.\2\ The proposed
Reallocation Agreement is an agreement among the banks and the Funding
Corporation that establishes a procedure for non-defaulting banks to
pay maturing System-wide debt on behalf of defaulting banks prior to a
statutory joint and several call by the FCA under section 4.4 of the
Farm Credit Act of 1971, as amended (Act).\3\ The FCA Board approved
the proposed Reallocation Agreement on October 14, 2010, and notice of
the approval was published in the Federal Register.\4\
---------------------------------------------------------------------------
\2\ 75 FR 76729 (December 9, 2010).
\3\ 12 U.S.C. 2155.
\4\ 75 FR 64727 (October 20, 2010).
---------------------------------------------------------------------------
The MAA was updated again by the parties in 2011 in the Second
Amended and Restated MAA, as the first Amended and Restated MAA was set
to expire at the end of 2011. The FCA approved the draft document on
December 9, 2011 following notice and request for public comments, and
notice
[[Page 5566]]
of approval was published in the Federal Register.\5\
---------------------------------------------------------------------------
\5\ 76 FR 77998 (December 15, 2011).
---------------------------------------------------------------------------
The Second Amended and Restated MAA established certain financial
thresholds at which conditions are placed on the activities of a bank
or restrictions are placed on a bank's access to participation in
System-wide and consolidated obligations. The MAA established three
categories, which are based on each bank's net collateral ratio,
permanent capital ratio, and scores under the Contractual Inter-bank
Performance Agreement, which is an agreement among the banks and the
Funding Corporation that establishes certain financial performance
criteria.
The Second Amended and Restated MAA has a termination date of
December 31, 2025. The System banks and the Funding Corporation have
requested the FCA to approve the Draft Third Restated MAA at this time
in order to incorporate references to the FCA's new capital
regulations, which became effective at on January 1, 2017. The parties
propose to enter into the Draft Third Restated MAA by January 31, 2017,
with a retroactive effective date of January 1, 2017.
The Draft Third Restated MAA retains the same general framework and
most of the provisions of the Second Amended and Restated MAA. In
Sections 1.04 through 1.07, the Net Collateral and Permanent Capital
ratio levels would be replaced with the Tier 1 Leverage and Total
Capital ratio levels, respectively, that would place a bank in either
Category I, Category II, or Category III. The revisions take into
account the new capital requirements set forth in Sec. 628.10--Minimum
Capital Standards and Sec. 628.11--Capital Buffer Amounts. A bank
would fall into revised Category I when either its Tier 1 Leverage or
its Total Capital ratio drops below the relevant Capital Buffer floor.
Further declines in either or both ratios below specified thresholds
would cause the bank to fall into Category II and Category III. In
addition, paragraph (g) of Section 6.03 has been revised to include
``whether the Bank has evaluated and disclosed that it has substantial
doubt about its ability to continue as a Going Concern'' in addition to
the criterion in the Second Amended and Restated MAA that the committee
consider whether a Bank's independent public accountants have included
a Going Concern qualification in the Bank's most recent combined
financial statements. In addition, the addresses of the System banks
and the Funding Corporation have been updated.
The FCA Board hereby approves the Draft Third Amended and Restated
MAA pursuant to sections 4.2(c), 4.2(d) and 4.9(b)(2) of the Farm
Credit Act of 1971, as amended. The FCA's approval of the Draft Third
Amended and Restated MAA is conditioned on the board of directors of
each bank and the Funding Corporation approving the Draft Third Amended
and Restated MAA. Neither the Draft Third Amended and Restated MAA,
when it becomes effective, nor FCA approval of it shall in any way
restrict or qualify the authority of the FCA or the FCSIC to exercise
any powers, rights, or duties granted by law to the FCA or the FCSIC.
Finally, the FCA retains the right to modify or revoke its approval of
the Draft Third Amended and Restated MAA at any time.
The Draft Third Amended and Restated MAA, together with the
recitals to the amendment, is as follows:
THIRD AMENDED AND RESTATED MARKET ACCESS AGREEMENT AMONG
AgFirst Farm Credit Bank, AgriBank, FCB, CoBank, ACB, Farm Credit Bank
of Texas and Federal Farm Credit Banks Funding Corporation
This THIRD AMENDED AND RESTATED MARKET ACCESS AGREEMENT (the
``Restated MAA'') is entered into among AgFirst Farm Credit Bank,
AgriBank, FCB, CoBank, ACB, the Farm Credit Bank of Texas,
(collectively, the ``Banks'') and the Federal Farm Credit Banks Funding
Corporation (``Funding Corporation''). Capitalized terms used herein
shall be as defined in Article IX.
Whereas, the Banks and the Funding Corporation entered into that
certain Market Access Agreement dated September 1, 1994 and effective
as of November 23, 1994, (the ``Original Agreement'') for the reasons
stated therein; and
Whereas, the Original Agreement was subsequently amended by that
certain Amended and Restated Market Access Agreement, dated July 1,
2003, referred to herein as the ``First Restated MAA,'' for the reasons
stated therein; and
Whereas, the First Restated MAA was subsequently amended by that
certain Second Amended and Restated Market Access Agreement, dated
December 14, 2011, and effective January 1, 2012, referred to herein as
the ``Second Restated MAA,'' for the reasons stated therein; and
Whereas, pursuant to Section 7.05 of the Second Restated MAA, the
Banks and the Funding Corporation have reviewed the Second Restated MAA
to consider whether any amendments to it are appropriate in view of
recent changes to new FCA capital requirements applicable to the Banks;
and
Whereas, representatives of the Banks and the Funding Corporation
met various times in connection with such review and recommended
certain amendments to the Second Restated MAA for presentation to the
Committee; and
Whereas, the Committee met various times in connection with the
review and recommended certain amendments to the Second Restated MAA
for presentation to the Banks and the Funding Corporation; and
Whereas, the boards of directors of the Banks and of the Funding
Corporation approved this Restated MAA in principle; and
Whereas, thereafter, this Restated MAA was submitted to the FCA for
approval and to the Insurance Corporation for an expression of support;
and
Whereas, the FCA published this Restated MAA in the Federal
Register and sought comments thereon; and
Whereas, the FCA approved this Restated MAA, subject to approval of
this Restated MAA by the boards of directors of the Banks and the
Funding Corporation, and a notice of such approval was published in the
Federal Register; and
Whereas, the Insurance Corporation expressed its support of this
Restated MAA; and
Whereas, the Parties are mindful of the FCA's independent authority
under section 5.17(a)(10) of the Act to ensure the safety and soundness
of the Banks, the FCA's independent authority under sections 4.2 and
4.9 of the Act to approve the terms of specific issuances of Debt
Securities, the Insurance Corporation's independent authority under
section 5.61 of the Act to assist troubled Banks, and the Banks'
independent obligations under section 4.3(c) of the Act to maintain
necessary collateral levels for Debt Securities; and
Whereas, the Banks are entering into this Restated MAA pursuant to,
inter alia, section 4.2(c) and (d) of the Act; and
Whereas, the Funding Corporation is prepared to adopt as the
``conditions of participation'' that it understands to be required by
section 4.9(b)(2) of the Act each Bank's compliance with the terms and
conditions of this Restated MAA; and
Whereas, the Funding Corporation believes the execution and
implementation of this Restated MAA will materially accomplish the
[[Page 5567]]
objectives which it has concluded are appropriate for a market access
program under section 4.9(b)(2) of the Act; and
Whereas, prior to the adoption of the Original Agreement, the
Funding Corporation adopted and maintained in place a Market Access and
Risk Alert Program designed to fulfill what it understood to be its
responsibilities under section 4.9(b)(2) of the Act with respect to
determining ``conditions of participation,'' which Program was
discontinued by the Funding Corporation in accordance with the terms of
the Original Agreement; and
Whereas, the Funding Corporation is entering into this Restated MAA
pursuant to, inter alia, section 4.9(b)(2) of the Act; and
Whereas, the Parties believe that the execution and implementation
of this Restated MAA will accomplish the objectives intended to be
achieved by the Original Agreement,
Now therefore, in consideration of the foregoing, the mutual
promises and agreements herein contained, and other good and valuable
consideration, receipt of which is hereby acknowledged, the Parties,
intending to be legally bound hereby, agree as follows:
ARTICLE I--CATEGORIES
Section 1.01. Scorekeeper. The Scorekeeper, for purposes of this
Restated MAA, shall be the Funding Corporation.
Section 1.02. CIPA Oversight Body. The CIPA Oversight Body, for
purposes of this Restated MAA, shall be the same as the Oversight Body
under Section 5.1 of CIPA.
Section 1.03. CIPA Scores. Net Composite Scores and Average Net
Composite Scores, for purposes of this Restated MAA, shall be the same
as those determined under Article II of CIPA and the Model referred to
therein, as in effect on June 30, 2011, and as amended under CIPA or
replaced by successor provisions under CIPA in the future, to the
extent such future amendments or replacements are by agreement of all
the Banks.
Section 1.04. Tier 1 Leverage Ratio and Total Capital Ratio. Each
Bank shall report to the Scorekeeper within 15 days after the end of
each month its Tier 1 Leverage Ratio and Total Capital Ratio as of the
last day of that month. Should any Bank later correct or revise, or be
required to correct or revise, any past financial data in a way that
would cause any previously reported Tier 1 or Total Capital Ratio
hereunder to have been different, the Bank shall promptly report a
revised Ratio to the Scorekeeper. Should the Scorekeeper consider it
necessary to verify any Tier 1 Leverage Ratio and Total Capital Ratio,
it shall so report to the Committee, or, if the Committee is not in
existence, to the CIPA Oversight Body, and the Committee or the CIPA
Oversight Body, as the case may be, may verify the Ratios as it deems
appropriate, through reviews of Bank records by its designees
(including experts or consultants retained by it) or otherwise. The
reporting Bank shall cooperate in any such verification, and the other
Banks shall provide such assistance in conducting any such verification
as the Committee or the CIPA Oversight Body, as the case may be, may
reasonably request.
Section 1.05. Category I. A Bank shall be in Category I if it (a)
has an Average Net Composite Score of 50.0 or more, but less than 60.0,
for the most recent calendar quarter for which an Average Net Composite
Score is available, (b) has a Net Composite Score of 45.0 or more, but
less than 60.0, for the most recent calendar quarter for which a Net
Composite Score is available, (c) has a Tier 1 Leverage Ratio of 4.00
percent or more, but less than 5.00 percent for the last day of the
most recent month or (d) has a Total Capital Ratio of 8.00 percent or
more, but less than 10.50 percent for the period ending on the last day
of the most recent month.
Section 1.06. Category II. A Bank shall be in Category II if it (a)
has an Average Net Composite Score of 35.0 or more, but less than 50.0,
for the most recent calendar quarter for which an Average Net Composite
Score is available, (b) has a Net Composite Score of 30.0 or more, but
less than 45.0, for the most recent calendar quarter for which a Net
Composite Score is available, (c) has a Tier 1 Leverage Ratio of 3.00
percent or more, but less than 4.00 percent for the last day of the
most recent month, (d) has a Total Capital Ratio of 7.00 percent or
more, but less than 8.00 percent for the period ending on the last day
of the most recent month, or (e) is in Category I and has failed to
provide information to the Committee as required by Article III within
2 Business Days after receipt of written notice from the Committee of
such failure.
Section 1.07. Category III. A Bank shall be in Category III if it
(a) has an Average Net Composite Score of less than 35.0 for the most
recent calendar quarter for which an Average Net Composite Score is
available, (b) has a Net Composite Score of less than 30.0 for the most
recent calendar quarter for which a Net Composite Score is available,
(c) has a Tier 1 Leverage Ratio of less than 3.00 percent for the last
day of the most recent month, (d) has a Total Capital Ratio of less
than 7.00 percent for the period ending on the last day of the most
recent month, or (e) is in Category II and has failed to provide
information to the Committee as required by Article III within 2
Business Days after receipt of written notice from the Committee of
such failure.
Section 1.08. Highest Category. If a Bank would come within more
than one Category by reason of the various provisions of Sections 1.05
through 1.07, it shall be considered to be in the highest-numbered
Category for which it qualifies (e.g., Category III rather than
Category II).
Section 1.09. Notice by Scorekeeper. Within 20 days of the end of
each month, after receiving the reports due under Section 1.04 within
15 days of the end of the prior month, the Scorekeeper shall provide to
all Banks, all Associations discounting with or otherwise receiving
funding from a Bank that is in Category I, Category II or Category III,
the FCA, the Insurance Corporation, the Funding Corporation, and either
the CIPA Oversight Body or, if it is in existence, the Committee a
notice identifying the Banks, if any, that are in Categories I, II and
III, or stating that no Banks are in such Categories.
ARTICLE II--THE COMMITTEE
Section 2.01. Formation. A Monitoring and Advisory Committee (the
``Committee'') shall be formed at the instance of the CIPA Oversight
Body within 7 days of the date that it receives a notice from the
Scorekeeper under Section 1.09 that any Bank is in Category I, Category
II or Category III (unless such a Committee is already in existence).
The Committee shall remain in existence thereafter for so long as the
most recent notice from the Scorekeeper under Section 1.09 indicates
that any Bank is in Category I, Category II or Category III. If not
already in existence, the Committee may also be formed (a) at the
instance of the CIPA Oversight Body at any other time, in order to
consider a Continued Access Request that has been submitted or is
expected to be submitted, (b) for purposes of preparing the reports
described in Section 7.05, and (c) as provided for in Section 8.04(b).
Section 2.02. Composition. The Committee shall be made up of two
representatives of each Bank and two representatives of the Funding
Corporation. One of the representatives of each Bank shall be that
Bank's representative on the CIPA Oversight Body. The other
representative of each Bank shall be an individual designated by the
Bank's board of directors, who may be a member of the Bank's board of
directors or a senior officer of the
[[Page 5568]]
Bank, in the discretion of the Bank's board. One of the representatives
of the Funding Corporation shall be an outside director of the Funding
Corporation designated by the Funding Corporation board of directors.
The other representative of the Funding Corporation shall be designated
by the board of directors of the Funding Corporation from among the
members of its board and/or its senior officers. The removal and
replacement of the Committee members designated directly by Bank boards
of directors and by the Funding Corporation shall be in the sole
discretion of each Bank board and of the Funding Corporation,
respectively. A replacement for a member of the CIPA Oversight Body
shall automatically replace such member on the Committee.
Section 2.03. Authority and Responsibilities. The Committee shall
have the authority and responsibilities specified in this Article II,
in Sections 1.04, 3.01, 3.02, 3.05, 3.06, 4.02, 7.05, 8.04 and 8.08,
and in Article VI, and such incidental powers as are necessary and
appropriate to effectuating such authority and responsibilities.
Section 2.04. Meetings. Notwithstanding anything herein to the
contrary, at all times, the Banks entitled to vote on Committee
business shall be all Banks other than (i) those in Category II and
Category III, as indicated in the most recent notice from the
Scorekeeper under Section 1.09, and (ii) in the case of a Bank
requesting a Continued Access Decision, such Bank. The initial meeting
of the Committee shall be held at the call of the Chairman of the CIPA
Oversight Body or a majority of the Parties entitled to vote on
Committee business. Thereafter, the Committee shall meet at such times
and such places at the call of the Chairman of the Committee or a
majority of the Parties entitled to vote on Committee business. For all
voting and quorum purposes each Party entitled to vote on Committee
business shall act through at least one of its representatives. Written
notice of each meeting shall be given to each member by the Chairman or
his or her designee not less than 48 hours prior to the time of the
meeting. A meeting may be held without such notice upon the signing of
a waiver of notice by all of the Parties entitled to vote on Committee
business. All of the Parties entitled to vote on Committee business
shall constitute a quorum for the conduct of business. A meeting may be
held by a telephone conference arrangement or similar communication
method allowing each speaker to be heard by all others in attendance at
the same time.
Section 2.05. Action Without a Meeting. Action may be taken by the
Committee without a meeting if each Bank and the Funding Corporation
consent in writing to consideration of a matter without a meeting and
all of the Parties entitled to vote on Committee business approve the
action in writing, which writings shall be kept with the minutes of the
Committee.
Section 2.06. Voting. The Funding Corporation and each Bank
entitled to vote on Committee business shall have one vote on Committee
business. Voting on Committee business (including recommendations on
Continued Access Decisions, but not the ultimate vote on Continued
Access Decisions, which is addressed in Article VI) shall be by
unanimity of the Parties entitled to vote on Committee business that
are present (physically, by telephone conference or similar
communication method allowing each speaker to be heard by all others in
attendance at the same time) through at least one representative. If a
Bank or the Funding Corporation has two representatives present, they
shall agree in casting the vote of the Bank or the Funding Corporation,
and if they cannot agree on a particular matter, that Bank or the
Funding Corporation shall not cast a vote on that matter, and, in
determining unanimity, shall not be counted as a Party entitled to vote
on that matter.
Section 2.07. Officers. The Committee shall elect from among its
members a Chairman, a Vice Chairman, a Secretary and such other
officers as it shall from time to time deem appropriate. The Chairman
shall chair the meetings of the Committee and have such other duties as
the Committee may delegate to him or her. The Vice Chairman shall
perform such duties of the Chairman as the Chairman is unable or fails
to perform, and shall have such other duties as the Committee may
delegate to him or her. The Secretary shall keep the minutes and
maintain the minute book of the Committee. Other officers shall have
such duties as the Committee may delegate to them. Should the Chairman
be a representative of either a Category II or Category III Bank, such
individual will no longer be eligible to serve as Chairman. The Vice
Chairman will thereafter perform the duties of Chairman, and if the
Vice Chairman is unable, the Committee may elect a new Chairman from
among its members.
Section 2.08. Retention of Staff, Consultants and Experts. The
Committee shall be authorized to retain staff, consultants and experts
as it deems necessary and appropriate in its sole discretion.
Section 2.09. Expenses. Any compensation of each member of the
Committee for time spent on Committee business and for his or her out-
of-pocket expenses, such as travel, shall be paid by the Party that
designated that member to the Committee or to the CIPA Oversight Body.
All other expenses incurred by the Committee shall be borne by the
Banks and assessed by the Funding Corporation based on the formula then
used by the Funding Corporation to allocate its operating expenses.
Section 2.10. Custody of Records. All information received by the
Committee pursuant to this Restated MAA, and all Committee minutes,
shall be lodged, while not in active use by the Committee, at the
Funding Corporation, and shall be deemed records of the Funding
Corporation for purposes of FCA examination. The Parties agree that
documents in active use by the Committee may also be examined by the
FCA.
ARTICLE III--PROVISION OF INFORMATION
Section 3.01. Information To Be Provided By All Banks in Categories
I, II and III. If a Bank is in Category I, Category II or Category III,
as indicated in the most recent notice from the Scorekeeper under
Section 1.09, and if the prior monthly notice by the Scorekeeper did
not indicate that the Bank was in any Category, then the Bank shall
within 30 days of receipt of the latest notice provide to the
Committee: (a) a detailed explanation of the causes of its being in
that Category, (b) an action plan to improve its financial situation so
that it is no longer in any of the three Categories, (c) a timetable
for achieving that result, (d) at the discretion of the Committee, the
materials and information listed in Attachment 1 hereto (in addition to
fulfilling the other obligations specified in Attachment 1 hereto) and
(e) such other pertinent materials and information as the Committee
shall, within 7 days of receiving notice from the Scorekeeper, request
in writing from the Bank. Such Bank shall summarize, aggregate or
analyze data, as well as provide raw data, in such manner as the
Committee may request. Such information shall be promptly updated
(without any need for a request by the Committee) whenever the facts
significantly change, and shall also be updated or supplemented as the
Committee so requests in writing of the Bank by such deadlines as the
Committee may reasonably specify.
Section 3.02. Additional Information To Be Provided By Banks in
Categories
[[Page 5569]]
II and III. If a Bank is in Category II or Category III, as indicated
in the most recent notice from the Scorekeeper under Section 1.09, and
if the prior monthly notice by the Scorekeeper did not indicate that
the Bank was in Category II or Category III, then the Bank shall within
30 days of receipt of the latest notice provide to the Committee, in
addition to the information required by Section 3.01, at the discretion
of the Committee, the materials and information listed in Attachment 2
hereto (in addition to fulfilling the other obligations specified in
Attachment 2 hereto). Such information shall be promptly updated
(without any need for a request by the Committee) whenever the facts
significantly change, and shall also be updated or supplemented as the
Committee so requests in writing of the Bank by such deadlines as the
Committee may reasonably specify.
Section 3.03. Documents or Information Relating to Communications
With FCA or the Insurance Corporation. Notwithstanding Sections 3.01
and 3.02, a Bank shall not disclose to the Committee any communications
between the Bank and the FCA or the Insurance Corporation, as the case
may be, or documents describing such communications, except as
consented to by, and subject to such restrictive conditions as may be
imposed by, the FCA or the Insurance Corporation, as the case may be.
However, facts regarding the Bank's condition or plans that pre-existed
a communication with the FCA or the Insurance Corporation and then were
included in such a communication are not barred from disclosure by this
section. The Committee shall decide on a case-by-case basis whether to
request copies of such communications and documents from the FCA or the
Insurance Corporation, as the case may be. Each Bank hereby consents to
the disclosure of such communications and documents to the Committee if
consented to by the FCA or the Insurance Corporation, as the case may
be. Nothing in this section shall preclude a Bank from making
disclosures to the System Disclosure Agent necessary to allow the
System Disclosure Agent to comply with its obligations under the
securities laws or other applicable law or regulations with regard to
disclosure to investors.
Section 3.04. Sources of Information; Certification. Information
provided to the Committee under Sections 3.01 and 3.02 shall, to the
extent applicable, be data used in the preparation of financial
statements in accordance with generally accepted accounting principles,
or data used in the preparation of call reports submitted to the FCA
pursuant to 12 CFR 621, as amended from time to time, or any successor
thereto. A Bank shall certify, through its chief executive officer or,
if there is no chief executive officer, a senior executive officer, the
completeness and accuracy of all information provided to the Committee
under Sections 3.01 and 3.02.
Section 3.05. Failure to Provide Information. If a Bank fails to
provide information to the Committee as and when required under
Sections 3.01 and 3.02, and does not correct such failure within 2
Business Days of receipt of the written notice by the Committee of the
failure, then the Committee shall so advise the Scorekeeper.
Section 3.06. Provision of Information to Banks. Any information
provided to the Committee under Sections 3.01 and 3.02 shall be
provided by the Committee to any Bank upon request. A Bank shall not
have the right under this Restated MAA to obtain information directly
from another Bank.
Section 3.07. Cessation of Obligations. A Bank's obligation to
provide information to the Committee under Section 3.01 shall cease as
soon as the Bank is no longer in Category I, Category II or Category
III, as indicated in the most recent notice from the Scorekeeper under
Section 1.09. A Bank's obligation to provide to the Committee
information under Section 3.02 shall cease as soon as the Bank is no
longer in Category II or Category III, as indicated in the most recent
notice from the Scorekeeper under Section 1.09.
ARTICLE IV--RESTRICTIONS ON MARKET ACCESS
Section 4.01. Final Restrictions. As of either,
(i) The 10th day after a Bank receives a notification from the
Scorekeeper that it is in Category II, as indicated in the most recent
notice from the Scorekeeper under Section 1.09, if it has not by said
10th day submitted a Continued Access Request to the Committee; or
(ii) If the Bank has submitted a Continued Access Request to the
Committee by the 10th day after its receipt of notice from the
Scorekeeper that it is in Category II, the 7th day following the day a
submitted Continued Access Request is denied,
A Bank in Category II, as indicated in the most recent notice from
the Scorekeeper under Section 1.09, (a) shall be permitted to
participate in issues of Debt Securities only to the extent necessary
to roll over the principal (net of any original issue discount) of
maturing debt, and (b) shall comply with the Additional Restrictions.
Section 4.02. Category II Interim Restrictions. From the day that a
Bank receives a notice from the Scorekeeper that it is in Category II
until: (a) 10 days thereafter, if the Bank does not by that day submit
a Continued Access Request to the Committee, or (b) if the Bank by such
10th day after it has received a notice from the Scorekeeper that it is
in Category II does submit a Continued Access Request to the Committee,
the 7th day following the day that notice is received by the Bank that
the Continued Access Request is granted or denied, the Bank (i) may
participate in issues of Debt Securities only to the extent necessary
to roll over the principal (net of any original issue discount) of
maturing debt unless the Committee, taking into account the criteria in
Section 6.03, shall specifically authorize participation to a greater
extent, and (ii) shall comply with the Additional Restrictions.
Notwithstanding the foregoing, the Category II Interim Restrictions
shall not go into effect if a Continued Access Request has already been
granted in anticipation of the formal notice that the Bank is in
Category II.
Section 4.03. FCA Action. The Final Restrictions and the Category
II Interim Restrictions shall go into effect without the need for case-
by-case approval by FCA.
Section 4.04. Cessation of Restrictions. The Final Restrictions and
the Category II Interim Restrictions shall cease as soon as the Bank is
no longer in Category II, as indicated in the most recent notice from
the Scorekeeper under Section 1.09. The Bank shall continue, however,
to be subject to such other obligations under this Restated MAA as may
apply to it by reason of its being in another Category.
Section 4.05. Relationship to the Joint and Several Liability
Reallocation Agreement. A Category II Bank shall not be subject to the
Final Restrictions and Category II Interim Restrictions, to the extent
that the Final Restrictions and Category II Interim Restrictions would
prohibit such Category II Bank from issuing debt required to fund such
Category II Bank's liabilities and obligations under the Joint and
Several Liability Reallocation Agreement, if and when the Joint and
Several Liability Reallocation Agreement is in effect among the
Parties.
ARTICLE V--PROHIBITION OF MARKET ACCESS
Section 5.01. Final Prohibition. As of either,
(i) The 10th day after a Bank receives a notification from the
Scorekeeper that it is in Category III, as indicated in the
[[Page 5570]]
most recent notice from the Scorekeeper under Section 1.09, if it has
not by said 10th day submitted a Continued Access Request to the
Committee; or
(ii) If the Bank has submitted a Continued Access Request to the
Committee by the 10th day after its receipt of notice from the
Scorekeeper that it is in Category III, the 7th day following the day a
submitted Continued Access Request is denied,
A Bank in Category III, as indicated in the most recent notice from
the Scorekeeper under Section 1.09, (a) shall be prohibited from
participating in issues of Debt Securities, and (b) shall comply with
the Additional Restrictions.
Section 5.02. Category III Interim Restrictions. From the day that
a Bank receives a notice from the Scorekeeper that it is in Category
III until: (a) 10 days thereafter, if the Bank does not by that day
submit a Continued Access Request to the Committee, or (b) if the Bank
by such 10th day after it has received a notice from the Scorekeeper
that it is in Category III does submit a Continued Access Request to
the Committee, the 7th day following the day that notice is received by
the Bank that the Continued Access Request is granted or denied, the
Bank (i) may participate in issues of Debt Securities only to the
extent necessary to roll over the principal (net of any original issue
discount) of maturing debt, and (ii) shall comply with the Additional
Restrictions. Notwithstanding the foregoing, the Category III Interim
Restrictions shall not go into effect if a Continued Access Request has
already been granted in anticipation of the formal notice that the Bank
is in Category III.
Section 5.03. FCA Action. The Category III Interim Restrictions
shall go into effect without the need for case-by-case approval by the
FCA. The Parties agree that the Final Prohibition shall go into effect
without the need for approval by the FCA; provided, however, that the
FCA may override the Final Prohibition, for such time period up to 60
days as the FCA may specify (or, if the FCA does not so specify, for 60
days), by so ordering before the date upon which the Final Prohibition
becomes effective pursuant to Section 5.01, and may renew such an
override once only, for such time period up to 60 additional days as
the FCA may specify (or, if the FCA does not so specify, for 60 days),
by so ordering before the expiration of the initial override period. If
the Final Prohibition is overridden by the FCA, the Category III
Interim Restrictions shall remain in effect.
Section 5.04. Cessation of Restrictions. The Final Prohibition and
the Category III Interim Restrictions shall cease as soon as the Bank
is no longer in Category III, as indicated in the most recent notice
from the Scorekeeper under Section 1.09. The Bank shall continue,
however, to be subject to such other obligations under this Restated
MAA as may apply to it by reason of its being in another Category.
Section 5.05. Relationship to the Joint and Several Liability
Reallocation Agreement. A Category III Bank shall not be subject to the
Final Prohibition or Category III Interim Restrictions, to the extent
that the Final Prohibition or Category III Interim Restrictions would
prohibit such Category III Bank from issuing debt required to fund such
Category III Bank's liabilities and obligations under the Joint and
Several Liability Reallocation Agreement, if and when the Joint and
Several Liability Reallocation Agreement is in effect among the
Parties.
ARTICLE VI--CONTINUED ACCESS DECISIONS
Section 6.01. Process. The process for action on Continued Access
Requests shall be as follows:
(a) Submission of Request. A Bank may submit a Continued Access
Request for consideration by the Committee at any time, including (i)
prior to formal notice from the Scorekeeper that it is in Category II
or Category III, if the Bank anticipates such notice, and (ii) prior to
the 10th day after a Bank receives a notification from the Scorekeeper
that it is in Category II or the 10th day after a Bank receives a
notification from the Scorekeeper that it is in Category III.
(b) Committee Recommendation. After a review of the Request, the
supporting information and any other pertinent information available to
the Committee, the Committee shall arrive at a recommendation regarding
the Request (including, if the recommendation is to grant the Request,
recommendations as to the expiration date of the Continued Access
Decision and as to any conditions to be imposed on the Decision). The
Funding Corporation, drawing upon its expertise and specialized
knowledge, shall provide to the Committee all pertinent information in
its possession (and the Banks authorize the Funding Corporation to
provide such information to the Committee for its use as provided
herein, and, to that limited extent only, waive their right to require
the Funding Corporation to maintain the confidentiality of such
information). The Committee shall send its recommendation and a
statement of the reasons therefor, including a description of any
considerations that were expressed for and against the recommendation
by members of the Committee during its deliberations, together with the
Request, the supporting information, a report of how the members of the
Committee voted on the recommendation, a report by the Funding
Corporation concerning its position on the recommendation, and any
other material information that was considered by the Committee, to all
Banks and the Funding Corporation by a nationally recognized overnight
delivery service within 14 days after receiving the Request. If the
Committee fails to act within such 14-day period, the Continued Access
Request shall be deemed forwarded to all Banks entitled to vote thereon
for their consideration. If the Committee has failed to act, the
Funding Corporation shall send to all Banks, within 2 days following
the deadline for Committee action, a report concerning the position of
the Funding Corporation on the Continued Access Request.
(c) Vote on the Request. Unless otherwise expressly stated herein,
the Banks entitled to vote on the Request shall be all Banks other than
those in Category II and Category III, as indicated in the most recent
notice from the Scorekeeper under Section 1.09, and other than the Bank
requesting the Continued Access Decision. Within 10 days of receiving
the Committee's recommendation and the accompanying materials (or, if
the Committee failed to act within 14 days, within 10 days following
the 14th day), the board of directors of each Bank entitled to vote on
the Request, or its designee, after review of the recommendation, the
accompanying materials, the report of the Funding Corporation, and any
other pertinent information, shall vote to grant or deny the Request
(as modified or supplemented by any recommendations of the Committee as
to the expiration date of the Continued Access Decision and as to
conditions to be imposed on the Decision), and shall provide written
notice of its vote to the Committee. If the Committee has recommended
in favor of a Continued Access Decision, the vote of a Bank shall be
either to accept or reject the Committee's recommendation, including
the recommended expiration date and conditions; if the Committee has
recommended against a Continued Access Decision or has failed to act,
the vote of a Bank shall be either to grant the Continued Access
Request on the terms requested by the requesting Bank, or to deny it.
Failure to vote within the 10-day period shall be considered a ``no''
vote. A Continued Access Request
[[Page 5571]]
shall be granted only upon a 100-percent Vote within the 10-day period,
and shall be considered denied if a 100-percent Vote is not forthcoming
by that day.
(d) Notice. The Committee shall promptly provide written notice to
the Parties, the FCA and the Insurance Corporation of the granting or
denial of the Continued Access Request, and, if the Continued Access
Request was granted, of all the particulars of the Continued Access
Decision.
Section 6.02. Provision of Information to FCA and the Insurance
Corporation. The FCA and the Insurance Corporation shall be advised by
the Committee of the submission of a Continued Access Request, shall be
provided by the Committee with appropriate materials relating to the
Request, and shall be advised by the Committee of the recommendation
made by the Committee concerning the Request.
Section 6.03. Criteria. The Committee, in arriving at its
recommendation on a Continued Access Request, and the voting Banks, in
voting on a Continued Access Request, shall consider (a) the present
financial strength of the Bank in issue, (b) the prospects for
financial recovery of the Bank in issue, (c) the probable costs of
particular courses of action to the Banks and the Insurance Fund, (d)
any intentions expressed by the Insurance Corporation with regard to
assisting or working with the Bank in issue, (e) any existing lending
commitments and any particular high-quality new lending opportunities
of the Bank, (f) seasonal variations in the borrowing needs of the
Bank, (g) whether either the Bank has evaluated and disclosed that it
has substantial doubt about its ability to continue as a Going Concern
or the Bank's independent public accountants have included a Going
Concern Qualification in the most recent combined financial statements
of the Bank and its constituent Associations, and (h) any other matters
deemed pertinent.
Section 6.04. Expiration Date. A Continued Access Decision shall
have such expiration date as the Committee recommends and is approved
by a 100-percent Vote. If the Committee recommends against or fails to
act on a Continued Access Request, and it is subsequently approved by a
100-percent Vote, the expiration date of the Continued Access Decision
shall be the earlier of the date requested by the Bank or 180 days from
the date the Request is granted. A Continued Access Decision may be
terminated prior to that date, or renewed for an additional term, upon
a new recommendation by the Committee and 100-percent Vote.
Section 6.05. Conditions. A Continued Access Decision shall be
subject to such conditions as the Committee recommends and are approved
by a 100-percent Vote. If specifically approved by a 100-percent Vote,
administration of the details of the conditions and ongoing refinement
of the conditions to take account of changing circumstances can be left
to the Committee or such subcommittee as it may establish for that
purpose. Among the conditions that may be imposed on a Continued Access
Decision are (a) a requirement of remedial action by the Bank, failing
which the Continued Access Decision will terminate, (b) a requirement
of other appropriate conduct on the part of the Bank (such as
compliance with the Additional Restrictions), failing which the
Continued Access Decision will terminate, and (c) specific restrictions
on continued borrowing by the Bank, such as a provision allowing a Bank
in Category II to borrow only for specified types of business in
addition to rolling over the principal of maturing debt, or allowing
such a Bank only to roll over interest on maturing debt in addition to
rolling over the principal of maturing debt, or a provision allowing a
Bank in Category III to roll over a portion of its maturing debt. The
Committee shall be responsible for monitoring and determining
compliance with conditions, and shall promptly advise the Parties of
any failure by a Bank to comply with conditions. The Committee's
determination with respect to compliance with conditions shall be
final, until and unless overturned or modified in arbitration pursuant
to Section 7.08.
Section 6.06. FCA Action. The Parties agree that a Continued Access
Decision shall go into effect without the need for approval by the FCA,
but that the FCA may override the Continued Access Decision, for such
time period as the FCA may specify (or, if the FCA does not so specify,
until a new Continued Access Decision is made pursuant to a
recommendation of the Committee and a 100-percent Vote, in which case
it is again subject to override by the FCA), by so ordering at any
time.
Section 6.07. Notice to FCA of Intent to File Continued Access
Request. A Bank that receives notice that it is in Category III shall
advise the FCA, within 10 days of receiving such notice, whether it
intends to file a Continued Access Request.
ARTICLE VII--OTHER
Section 7.01. Conditions Precedent. This Restated MAA shall go into
effect on January 1, 2017, provided, however, that on or before January
31, 2017 each Party has executed a certificate in substantially the
form of Attachment 3 hereto that all of the following conditions
precedent have been satisfied: (a) the delivery to the Banks of an
opinion by an outside law firm reasonably acceptable to all of the
Parties and in substantially the form of Attachment 4 hereto, (b) the
delivery to the Funding Corporation of an opinion by an outside law
firm reasonably acceptable to all of the Parties and in substantially
the form of Attachment 5 hereto, (c) adoption by each of the Banks and
the Funding Corporation of a resolution in substantially the form of
Attachment 6 hereto, (d) action by the Insurance Corporation, through
its board, expressing its support for this Restated MAA, and (e) action
by FCA, through its board, approving this Restated MAA pursuant to
section 4.2(c) and (d) of the Act, and (without necessarily expressing
any view as to the proper interpretation of section 4.9(b)(2) of the
Act) approving this Restated MAA pursuant to section 4.9(b)(2) of the
Act insofar as such approval may be required, which action shall (i)
indicate that the entry into and compliance with this Restated MAA by
the Funding Corporation fully satisfy such obligations as the Funding
Corporation may have with respect to establishing ``conditions of
participation'' for market access under section 4.9(b)(2), and (ii)
contain no reservations or other conditions or qualifications except
for those which may be specifically agreed to by the Funding
Corporation's board of directors and the other Parties.
Upon execution of its certificate, each Party shall forward a copy
to the Funding Corporation, attn. General Counsel, which shall advise
all other Parties when a complete set of certificates is received.
If this Restated MAA becomes effective in accordance with this
Section 7.01, the Second Restated MAA shall be amended and restated by
this Restated MAA as of that date without further action of the
Parties. If any term, provision, covenant or restriction of this
Restated MAA is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Restated MAA
shall remain in full force and effect and shall in no way be affected,
impaired or invalidated. If any term, provision, covenant or
restriction of this Restated MAA that purports to amend a term,
provision, covenant or restriction of the Original Agreement, the First
Restated MAA or the Second Restated MAA is
[[Page 5572]]
held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, such term, provision, covenant or
restriction of the Original Agreement, the First Restated MAA or the
Second Restated MAA shall be considered to have continued and to be
continuing in full force and effect at all times since this Restated
MAA has purported to be in effect. The Parties agree that
notwithstanding the occurrence of any of the foregoing events they will
treat, to the maximum extent permitted by law, all actions theretofore
taken pursuant to this Restated MAA as valid and binding actions of the
Parties.
Section 7.02. Representations and Warranties. Each Party represents
and warrants to the other Parties that (a) it has duly executed and
delivered this Restated MAA, (b) its performance of this Restated MAA
in accordance with its terms will not conflict with or result in the
breach of or violation of any of the terms or conditions of, or
constitute (or with notice or lapse of time or both constitute) a
default under any order, judgment or decree applicable to it, or any
instrument, contract or other agreement to which it is a party or by
which it is bound, (c) it is duly constituted and validly existing
under the laws of the United States, (d) it has the corporate and other
authority, and has obtained all necessary approvals, to enter into this
Restated MAA and perform all of its obligations hereunder, and (e) its
performance of this Restated MAA in accordance with its terms will not
conflict with or result in the breach of or violation of any of the
terms or conditions of, or constitute (or with notice or lapse of time
or both constitute) a default under its charter (with respect to the
Banks), or its bylaws.
Section 7.03. Additional Covenants.
(a) Each Bank agrees to notify the other Parties and the
Scorekeeper if, at any time, it anticipates that within the following 3
months it will come to be in Category I, Category II or Category III,
or will move from one Category to another.
(b) Whenever a Bank is subject to Final Restrictions, a Final
Prohibition, Category II Interim Restrictions, Category III Interim
Restrictions, or a Continued Access Decision, the Committee shall
promptly so notify the Funding Corporation, and the Funding Corporation
shall take all necessary steps to ensure that the Bank participates in
issues of Debt Securities only to the extent permitted thereunder. The
Funding Corporation may rely on the determination of the Committee as
to whether a Bank has complied with a condition to a Continued Access
Decision.
(c) Each Bank agrees that it will not at any time that it is in
Category I, Category II or Category III, as indicated in the most
recent notice from the Scorekeeper under Section 1.09, and will not
without 12-months' prior notice to all other Banks and the Funding
Corporation at any other time, either (i) withdraw, or (ii) modify, in
a fashion that would impede the issuance of Debt Securities, the
funding resolution it has adopted pursuant to section 4.4(b) of the
Act. Should a violation of this covenant be asserted, and should the
Bank deny same, the funding resolution shall be deemed still to be in
full effect, without modification, until arbitration of the matter is
completed, and each Bank, by entering into this Restated MAA, consents
to emergency injunctive relief to enforce this provision. Nothing in
this Restated MAA shall be construed to restrict any Party's ability to
take the position that a Bank's withdrawal or modification of its
funding resolution is not authorized by law.
(d) Each Bank agrees that it will not at any time that it is in
Category I, Category II or Category III, as indicated in the most
recent notice from the Scorekeeper under Section 1.09, and will not
without 12-months' prior notice to all other Banks and the System
Disclosure Agent at any other time, fail to report information to the
System Disclosure Agent pursuant to the Disclosure Program for the
issuance of Debt Securities and for the System Disclosure Agent to have
a reasonable basis for making disclosures pursuant to the Disclosure
Program. Should the System Disclosure Agent assert a violation of this
covenant, and should the Bank deny same, the Bank shall furnish such
information as the System Disclosure Agent shall request until
arbitration of the matter is completed, and each Bank, by entering into
this Restated MAA, consents to emergency injunctive relief to enforce
this provision. Nothing in this Restated MAA shall be construed to
restrict the ability of the System Disclosure Agent to comply with its
obligations under the securities laws or other applicable law or
regulations with regard to disclosure to investors.
(e) Without implying that suit may be brought on any other matter,
each Bank and the Funding Corporation specifically agree not to bring
suit to challenge this Restated MAA or to challenge any Final
Prohibition, Final Restrictions, Category II Interim Restrictions,
Category III Interim Restrictions, Continued Access Decision, denial of
a Continued Access Request or recommendation of the Committee with
respect to a Continued Access Request arrived at in accordance with
this Restated MAA. This provision shall not be construed to preclude
judicial actions under the U.S. Arbitration Act, 9 U.S.C. sections 1-
15, to enforce or vacate arbitration decisions rendered pursuant to
Section 7.08, or for an order that arbitration proceed pursuant to
Section 7.08.
(f) The Funding Corporation agrees that it will not reinstitute the
Market Access and Risk Alert Program, or adopt a similar such program
for so long as both (i) this Restated MAA is in effect and (ii) section
4.9(b)(2) of the Act is not amended in a manner which would require,
nor is there any other change in applicable law or regulations which
would require, the Funding Corporation to establish ``conditions of
participation'' different from those contained in this Restated MAA.
Should the condition described in (ii) no longer apply and the Funding
Corporation adopt a market access program, this Restated MAA shall be
deemed terminated. All Banks reserve the right to argue, if the
conditions described in clauses (i) or (ii) of the preceding sentence
should no longer apply and the Funding Corporation should adopt such a
program, that any such program adopted by the Funding Corporation is
contrary to law, either because section 4.9(b)(2) of the Act does not
authorize such a program, or for any other reason, and the entry by any
Bank into this Restated MAA shall not be construed as waiving such
right.
(g) It is expressly agreed that the Original Agreement, the FCA
approval of the Original Agreement, the First Restated MAA, the Second
Restated MAA and the FCA approval of this Restated MAA do not provide
any grounds for challenging the FCA or Insurance Corporation actions
with respect to the creation of or the conduct of receiverships or
conservatorships. Without limiting the preceding statement, each Bank
specifically and expressly agrees and acknowledges that it cannot, and
agrees that it shall not, attempt to challenge the FCA's appointment of
a receiver or conservator for itself or any other System institution or
the FCA's or the Insurance Corporation's actions in the conduct of any
receivership or conservatorship (i) on the basis of this Restated MAA
or the FCA's approval of this Restated MAA; or (ii) on the grounds that
Category II Interim Restrictions, Final Restrictions, Category III
Interim Restrictions, or Final Prohibitions were or were not imposed,
whether by reason of the FCA's or the Insurance Corporation's
[[Page 5573]]
action or inaction or otherwise. The Banks jointly and severally agree
that they shall indemnify and hold harmless the FCA and the Insurance
Corporation against all costs, expenses, and damages, including without
limitation, attorneys' fees and litigation costs, resulting from any
such challenge by any Party.
Section 7.04. Termination. This Restated MAA shall terminate upon
the earliest of (i) December 31, 2025, (ii) an earlier date if so
agreed in writing by 100-percent Vote of the Banks, or (iii) in the
event that all Banks shall be in either Category II or Category III.
Commencing a year before December 31, 2025, the Parties shall meet to
consider its extension. Except as provided in Section 7.03(f), it is
understood that the termination of this Restated MAA shall not affect
(i) any rights and obligations of the Funding Corporation under section
4.9(b)(2) of the Act, and (ii) any Bank's rights pursuant to any Final
Restrictions, a Final Prohibition, Category II Interim Restrictions,
Category III Interim Restrictions, or a Continued Access Decision then-
in-effect.
Section 7.05. Periodic Review. Commencing every third anniversary
of the effective date of this Restated MAA, beginning January 1, 2020,
and at such more frequent intervals as the Parties may agree, the Banks
and the Funding Corporation, through their boards of directors, shall
conduct a formal review of this Restated MAA and consider whether any
amendments to it are appropriate. In connection with such review, the
Committee shall report to the boards on the operation of the Restated
MAA and recommend any amendments it considers appropriate.
Section 7.06. Confidentiality. The Parties may disclose this
Restated MAA and any amendments to it and any actions taken pursuant to
this Restated MAA to restrict or prohibit borrowing by a Bank. All
other information relating to this Restated MAA shall be kept
confidential and shall be used solely for purposes of this Restated
MAA, except that, to the extent permitted by applicable law and
regulations, such information may be disclosed by (a) the System
Disclosure Agent under the Disclosure Program, (b) a Bank, upon
coordination of such disclosure with the System Disclosure Agent, as
the Bank deems appropriate for purposes of the Bank's disclosures to
borrowers or shareholders; (c) a Bank as deemed appropriate for
purposes of disclosure to transacting parties (subject, to the extent
the Bank reasonably can obtain such agreement, to such a transacting
party's agreeing to keep the information confidential) of material
information relating to that Bank, or (d) any Party in order to comply
with legal or regulatory obligations. Notwithstanding the preceding
sentence, the Parties shall make every effort, to the extent consistent
with legal requirements, securities disclosure obligations and other
business necessities, to preserve the confidentiality of information
provided to the Committee by a Bank and designated as ``Proprietary and
Confidential.'' Any expert or consultant retained in connection with
this Restated MAA shall execute a written undertaking to preserve the
confidentiality of any information received in connection with this
Restated MAA. Notwithstanding the foregoing, nothing in this Restated
MAA shall prevent Parties from disclosing information to the FCA or the
Insurance Corporation.
Section 7.07. Amendments. This Restated MAA may be amended only by
the written agreement of all the Parties.
Section 7.08. Dispute Resolution. All disputes between or among
Parties relating to this Restated MAA shall be submitted to final and
binding arbitration pursuant to the U.S. Arbitration Act, 9 U.S.C.
sections 1-15, provided, however, that any recommendation by the
Committee regarding a Continued Access Request (including, if the
recommendation is to grant the Request, recommendations as to the
expiration date of the Continued Access Decision and as to any
conditions to be imposed on the Decision), and any vote by a Bank on a
Continued Access Request, shall be final and not subject to
arbitration. Arbitrations shall be conducted under the Commercial
Arbitration Rules of the American Arbitration Association before a
single arbitrator. An arbitrator shall be selected within 14 days of
the initiation of arbitration by any Party, and the arbitrator shall
render a decision within 30 days of his or her selection, or as
otherwise agreed to by the parties thereto.
Section 7.09. Governing Law. This Restated MAA shall be governed by
and construed in accordance with the Federal laws of the United States
of America, and, to the extent of the absence of Federal law, in
accordance with the laws of the State of New York excluding any
conflict of law provisions that would cause the law of any jurisdiction
other than New York to be applied; provided, however, that in the event
of any conflict between the U.S. Arbitration Act and applicable Federal
or New York law, the U.S. Arbitration Act shall control.
Section 7.10. Notices. Any notices required or permitted under this
Restated MAA shall be in writing and shall be deemed given if delivered
in person or by a nationally recognized overnight courier, in each case
addressed as follows, unless such address is changed by written notice
hereunder:
To AgFirst Farm Credit Bank: AgFirst Farm Credit Bank, 1901 Main
Street, Columbia, SC 29201, Attention: President and Chief Executive
Officer.
To AgriBank, FCB: AgriBank, FCB, 30 East 7th Street, Suite 1600, St.
Paul, MN 55101, Attention: President and Chief Executive Officer.
To CoBank, ACB: CoBank, ACB, 6340 S. Fiddlers Green Circle, Greenwood
Village, CO 80111, Attention: President and Chief Executive Officer
To the Farm Credit Bank of Texas: Farm Credit Bank of Texas, 4801 Plaza
on the Lake Drive, Austin, TX 78746, Attention: President and Chief
Executive Officer
To Federal Farm Credit Banks Funding Corporation: Federal Farm Credit
Banks Funding Corporation, 101 Hudson Street, Suite 3505, Jersey City,
NJ 07302, Attention: President and Chief Executive Officer
To the Farm Credit System Insurance Corporation: Farm Credit System
Insurance Corporation, 1501 Farm Credit Drive, McLean, Virginia 22102,
Attention: Chair
To the Farm Credit Administration: Farm Credit Administration, 1501
Farm Credit Drive, McLean, Virginia 22102-5090, Attention: Chair
To the CIPA Oversight Body: At such address and e-mail address as shall
be supplied to the Parties from time to time by the Chairman of the
CIPA Oversight Body.
To the Committee: At such address and e-mail address as shall be
supplied by the Committee, which the Committee shall promptly transmit
to each Party.
Any notice sent by the courier shall be deemed given 1 Business Day
after depositing with the overnight courier. Any notice given in
person, or by e-mail shall be deemed given instantaneously.
Section 7.11. Headings; Conjunctive/Disjunctive; Singular/Plural.
The headings of any article or section of this Restated MAA are for
convenience only and shall not be used to interpret any provision of
the Restated MAA. Uses of the conjunctive include the disjunctive, and
vice versa, unless the context clearly requires otherwise. Uses of the
singular include the plural, and vice versa, unless the context clearly
requires otherwise.
Section 7.12. Successors and Assigns. Except as provided in the
definitions of
[[Page 5574]]
``Bank'' and ``Banks'' in Article IX, this Restated MAA shall inure to
the benefit of and be binding upon the successors and assigns of the
Parties, including entities resulting from the merger or consolidation
of one or more Banks.
Section 7.13. Counterparts. This Restated MAA, and any document
provided for hereunder, may be executed in one or more counterparts.
Transmission by facsimile or other form of electronic transmission of
an executed counterpart of this Restated MAA shall be deemed to
constitute due and sufficient delivery of such counterpart.
Section 7.14. Waiver. Any provision of this Restated MAA may be
waived, but only if such waiver is in writing and is signed by all
Parties to this Restated MAA.
Section 7.15. Entire Agreement. Except as provisions of CIPA are
cited in this Restated MAA (which provisions are expressly incorporated
herein by reference), this Restated MAA sets forth the entire agreement
of the Parties and supersedes all prior understandings or agreements,
oral or written, among the Parties with respect to the subject matter
hereof.
Section 7.16. Relation to CIPA. This Restated MAA and CIPA are
separate agreements, and invalidation of one does not affect the other.
Should CIPA be invalidated or terminated, the Parties will take the
necessary steps to maintain those aspects of CIPA that are referred to
in Sections 1.01, 1.02 and 1.03 of this Restated MAA, and to replace
the CIPA Oversight Body for purposes of continued administration of
this Restated MAA.
Section 7.17. Third Parties. Except as provided in sections 2.10,
3.03, 7.03(g), 7.21 and 7.22, this Restated MAA is for the benefit of
the Parties and their respective successors and assigns, and no rights
are intended to be, or are, created hereunder for the benefit of any
third party.
Section 7.18. Time Is Of The Essence. Time is of the essence in
interpreting and performing this Restated MAA.
Section 7.19. Statutory Collateral Requirement. Nothing in this
Restated MAA shall be construed to permit a Bank to participate in
issues of Debt Securities or other obligations if it does not satisfy
the collateral requirements of section 4.3(c) of the Act. For purposes
of this Section, ``Bank'' shall include any System bank in
conservatorship or receivership.
Section 7.20. Termination of System Status. Nothing in this
Restated MAA shall be construed to preclude a Bank from terminating its
status as a System institution pursuant to section 7.10 of the Act, or
from at that time withdrawing, as from that time forward, the funding
resolution it has adopted pursuant to section 4.4(b) of the Act. A Bank
that terminates its System status shall cease to have any rights or
obligations under this Restated MAA, except that it shall continue to
be subject to Article VIII with respect to claims accruing through the
date of such termination of System status.
Section 7.21. Restrictions Concerning Subsequent Litigation. It is
expressly agreed by the Banks that (a) characterization or
categorization of Banks, (b) information furnished to the Committee or
other Banks, and (c) discussions or decisions of the Banks or Committee
under this Restated MAA shall not be used in any subsequent litigation
challenging the FCA's or the Insurance Corporation's action or
inaction.
Section 7.22. Effect of this Agreement. Neither this Restated MAA
nor the FCA approval hereof shall in any way restrict or qualify the
authority of the FCA or the Insurance Corporation to exercise any of
the powers, rights, or duties granted by law to the FCA or the
Insurance Corporation.
Section 7.23. Relationship to the Joint and Several Liability
Reallocation Agreement. This Restated MAA and the Joint and Several
Liability Reallocation Agreement are separate agreements, and
invalidation of one does not affect the other.
ARTICLE VIII--INDEMNIFICATION
Section 8.01. Definitions. As used in this Article VIII:
(a) ``Indemnified Party'' means any Bank, the Funding Corporation,
the Committee, the Scorekeeper, or any of the past, present or future
directors, officers, stockholders, employees or agents of the
foregoing.
(b) ``Damages'' means any and all losses, costs, liabilities,
damages and expenses, including, without limitation, court costs and
reasonable fees and expenses of attorneys expended in investigation,
settlement and defense (at the trial and appellate levels and
otherwise), which are incurred by an Indemnified Party as a result of
or in connection with a claim alleging liability to any non-Party for
actions taken pursuant to or in connection with this Restated MAA.
Except to the extent otherwise provided in this Article VIII, Damages
shall be deemed to have been incurred by reason of a final settlement
or the dismissal with prejudice of any such claim, or the issuance of a
final non-appealable order by a court of competent jurisdiction which
ultimately disposes of such a claim, whether favorably or unfavorably.
Section 8.02. Indemnity. To the extent consistent with governing
law, the Banks, jointly and severally, shall indemnify and hold
harmless each Indemnified Party against and in respect of Damages,
provided, however, that an Indemnified Party shall not be entitled to
indemnification under this Article VIII in connection with conduct of
such Indemnified Party constituting gross negligence, willful
misconduct, intentional tort or criminal act, or in connection with
civil money penalties imposed by the FCA. In addition, the Banks,
jointly and severally, shall indemnify an Indemnified Party for all
costs and expenses (including, without limitation, fees and expenses of
attorneys) incurred reasonably and in good faith by an Indemnified
Party in connection with the successful enforcement of rights under any
provision of this Article VIII.
Section 8.03. Advancement of Expenses. The Banks, jointly and
severally, shall advance to an Indemnified Party, as and when incurred
by the Indemnified Party, all reasonable expenses, court costs and
attorneys' fees incurred by such Indemnified Party in defending any
proceeding involving a claim against such Indemnified Party based upon
or alleging any matter that constitutes, or if sustained would
constitute, a matter in respect of which indemnification is provided
for in Section 8.02, so long as the Indemnified Party provides the
Banks with a written undertaking to repay all amounts so advanced if it
is ultimately determined by a court in a final non-appealable order or
by agreement of the Banks and the Indemnified Party that the
Indemnified Party is not entitled to be indemnified under Section 8.02.
Section 8.04. Assertion of Claim.
(a) Promptly after the receipt by an Indemnified Party of notice of
the assertion of any claim or the commencement of any action against
him, her or it in respect of which indemnity may be sought against the
Banks hereunder (an ``Assertion''), such Indemnified Party shall
apprise the Banks, through a notice to each of them, of such Assertion.
The failure to so notify the Banks shall not relieve the Banks of
liability they may have to such Indemnified Party hereunder, except to
the extent that failure to give such notice results in material
prejudice to the Banks.
(b) Any Bank receiving a notice under paragraph (a) shall forward
it to the Committee (which, if not in existence, shall be formed at the
instance of such
[[Page 5575]]
Bank to consider the matter). The Banks, through the Committee, shall
be entitled to participate in, and to the extent the Banks, through the
Committee, elect in writing on 30-days' notice, to assume, the defense
of an Assertion, at their own expense, with counsel chosen by them and
satisfactory to the Indemnified Party. Notwithstanding that the Banks,
through the Committee, shall have elected by such written notice to
assume the defense of any Assertion, such Indemnified Party shall have
the right to participate in the investigation and defense thereof, with
separate counsel chosen by such Indemnified Party, but in such event
the fees and expenses of such separate counsel shall be paid by such
Indemnified Party and shall not be subject to indemnification by the
Banks unless (i) the Banks, through the Committee, shall have agreed to
pay such fees and expenses, (ii) the Banks shall have failed to assume
the defense of such Assertion and to employ counsel satisfactory to
such Indemnified Party, or (iii) in the reasonable judgment of such
Indemnified Party, based upon advice of his, her or its counsel, a
conflict of interest may exist between the Banks and such Indemnified
Party with respect to such Assertion, in which case, if such
Indemnified Party notifies the Banks, through the Committee, that such
Indemnified Party elects to employ separate counsel at the Banks'
expense, the Banks shall not have the right to assume the defense of
such Assertion on behalf of such Indemnified Party. Notwithstanding
anything to the contrary in this Article VIII, neither the Banks,
through the Committee, nor the Indemnified Party shall settle or
compromise any action or consent to the entering of any judgment (x)
without the prior written consent of the other, which consent shall not
be unreasonably withheld, and (y) without obtaining, as an
unconditional term of such settlement, compromise or consent, the
delivery by the claimant or plaintiff to such Indemnified Party of a
duly executed written release of such Indemnified Party from all
liability in respect of such Assertion, which release shall be
satisfactory in form and substance to counsel to such Indemnified
Party. The Funding Corporation shall not be entitled to vote on actions
by the Committee under this paragraph (b) or Section 8.08.
Section 8.05. Remedies; Survival. The indemnification, rights and
remedies provided to an Indemnified Party under this Article VIII shall
be (i) in addition to and not in substitution for any other rights and
remedies to which any of the Indemnified Parties may be entitled, under
any other agreement with any other Person, or otherwise at law or in
equity, and (ii) provided prior to and without regard to any other
indemnification available to any Indemnified Party. This Article VIII
shall survive the termination of this Restated MAA.
Section 8.06. No Rights in Third Parties. This Restated MAA shall
not confer upon any Person other than the Indemnified Party any rights
or remedies of any nature or kind whatsoever under or by reason of the
indemnification provided for in this Article VIII.
Section 8.07. Subrogation; Insurance. Upon the payment by the Banks
to an Indemnified Party of any amounts for which an Indemnified Party
shall be entitled to indemnification under this Article VIII, if the
Indemnified Party shall also have the right to recover such amount
under any commercial insurance, the Banks shall be subrogated to such
rights to the extent of the indemnification actually paid. Where
coverage under such commercial insurance may exist, the Indemnified
Party shall promptly file and diligently pursue a claim under said
insurance. Any amounts paid pursuant to such claim shall be refunded to
the Banks to the extent the Banks have provided indemnification
payments under this Article VIII, provided, however, that recovery
under such insurance shall not be deemed a condition precedent to the
indemnification obligations of the Banks under this Article VIII.
Section 8.08. Sharing in Costs. The Banks shall share in the costs
of any indemnification payment hereunder as the Committee shall
determine.
ARTICLE IX--DEFINITIONS
The following definitions are used in this Restated MAA:
``Act'' means the Farm Credit Act of 1971, 12 U.S.C. section 2001,
et seq., as amended from time to time, or any successors thereto.
The ``Additional Restrictions'' are that a Bank (a) shall manage
its asset/liability mix so as not to increase, and, to the extent
possible, so as to reduce or eliminate, any Interest-Rate Sensitivity
Deduction in its Net Composite Score, and (b) shall not increase the
dollar amount of any liabilities, or take any action giving rise to a
lien or pledge on its assets, senior to its liability on Debt
Securities other than (i) tax liabilities and secured liabilities
arising in the ordinary course of business through activities other
than borrowing, such as mechanic's liens or judgment liens, and (ii)
secured liabilities, or an action giving rise to such a lien or pledge,
incurred in the ordinary course of business as the result of issuing
secured debt or entering into repurchase agreements, provided, however,
that such debt issuances and agreements may be undertaken to the extent
that the proceeds therefrom are used to repay the principal of
outstanding Debt Securities and the value of the collateral securing
the debt issuances or the agreements (computed in the same manner as
provided under section 4.3(c) of the Act) does not exceed the amount of
principal so repaid.
``Associations'' means agricultural credit associations, federal
land bank associations, Federal land credit associations and production
credit associations.
``Average Net Composite Score'' is defined in Section 1.03.
``Bank'' means a bank (including its consolidated subsidiaries) of
the Farm Credit System, other than (except where noted) any bank in
conservatorship or receivership (and its consolidated subsidiaries).
``Banks'' means the banks (including their consolidated
subsidiaries) of the Farm Credit System, other than (except where
noted) any banks in conservatorship or receivership (and their
consolidated subsidiaries).
``Business Day'' means any day other than a Saturday, Sunday or
Federal holiday.
``Business Plan'' means the business plan required under 12 CFR
618.8440, as amended from time to time, or any successors thereto.
``Category'' means Category I, Category II, or Category III, as the
circumstances require.
``Category I'' is defined in Section 1.05.
``Category II'' is defined in Section 1.06.
``Category II Interim Restrictions'' means the requirements set
forth in Section 4.02.
``Category III'' is defined in Section 1.07.
``Category III Interim Restrictions'' means the requirements set
forth in Section 5.02.
``CIPA'' means that certain Amended and Restated Contractual
Interbank Performance Agreement among the Banks of the Farm Credit
System and the Federal Farm Credit Banks Funding Corporation, the
Scorekeeper, dated as of June 30, 2011, as amended from time to time,
or any successor thereto.
``CIPA Oversight Body'' is defined in Section 1.02.
``Collateral'' is defined as in section 4.3(c) of the Act and the
regulations thereunder, as amended from time to time, or any successors
thereto.
[[Page 5576]]
The ``Committee'' is defined in Section 2.01.
``Continued Access Decision(s)'' means a decision, subject to the
procedures, terms and conditions described in Article VI, that Final
Restrictions or a Final Prohibition not go into effect, or be lifted.
``Continued Access Request'' means a request for a Continued Access
Decision.
``Days'' means calendar days, unless the term Business Days is
used.
``Debt Securities'' means System-wide and consolidated obligations
issued through the Funding Corporation, within the meaning of sections
4.2(c), 4.2(d) and 4.9 of the Act.
``Disclosure Program'' means the program established, pursuant to
resolutions of the Banks and the Funding Corporation as approved on
December 6, 2007 and amended in 2008, 2011 and 2013, for disclosure at
the System-wide level of financial and other information in connection
with the issuance of Debt Securities, as amended from time to time, or
any successor thereto.
``FCA'' means the Farm Credit Administration.
``Final Prohibition'' means the requirements set forth in Section
5.01.
``Final Restrictions'' means the requirements set forth in Section
4.01.
``First Restated MAA'' means that certain Amended and Restated
Market Access Agreement, dated July 1, 2003, among the Banks and the
Funding Corporation.
``Funding Corporation'' means the Federal Farm Credit Banks Funding
Corporation.
``Going Concern'' means an entity that is able to continue as a
going concern as set forth in Financial Accounting Standards Board
Accounting Standards Update 2014-15.
``Insurance Corporation'' means the Farm Credit System Insurance
Corporation.
``Insurance Fund'' means the Farm Credit Insurance Fund maintained
by the Insurance Corporation pursuant to section 5.60 of the Act.
``Interest-Rate Sensitivity Deduction'' is defined as in Article II
of CIPA, and the Model referred to therein, as amended from time to
time, or any successor thereto.
``Joint and Several Liability Reallocation Agreement'' means that
certain Joint and Several Liability Reallocation Agreement among the
Banks and the Funding Corporation.
``Liquidity Deficiency Deduction'' is defined as in Article II of
CIPA, and the Model referred to therein, as amended from time to time,
or any successor thereto.
``Model'' means the term Model as it is defined in the CIPA.
``Net Composite Score'' is defined in Section 1.03.
``100-Percent Vote'' means an affirmative vote, through each voting
Bank's board of directors or its designee, of all Banks that are
entitled to vote on a matter.
``Original Agreement'' means that certain Market Access Agreement,
dated September 1, 1994 and effective as of November 23, 1994, among
the Banks and the Funding Corporation.
``Parties'' mean the parties to this Restated MAA. A bank in
conservatorship or receivership is not a party to this Restated MAA.
``Person'' means any human being, partnership, association, joint
venture, corporation, legal representative or trust, or any other
entity.
``Ratio(s)'' means either the Tier 1 Leverage Ratio, or Total
Capital Ratio, as the circumstances require.
``Second Restated MAA'' means that certain Second Amended and
Restated Market Access Agreement, dated December 14, 2011, among the
Banks and the Funding Corporation.
``Scorekeeper'' is defined in Section 1.01.
``System'' means the Farm Credit System.
``System Disclosure Agent'' means the Funding Corporation or such
other disclosure agent as all Banks shall unanimously agree upon, to
the extent permitted by law or regulation. For purposes of this
definition, ``Banks'' shall include any System bank in conservatorship
or receivership.
``Tier 1 Leverage Ratio'' is defined in 12 CFR 628.10(c)(4).
``Total Capital Ratio'' is defined in 12 CFR 628.10(c)(3).
In witness whereof, the Parties have caused this Restated Agreement
to be executed by their duly authorized officers as of the date first
above written.
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Witness
AgFirst Farm Credit Bank
By:--------------------------------------------------------------------
Title:-----------------------------------------------------------------
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Witness:
AgriBank, FCB
By:--------------------------------------------------------------------
Title:-----------------------------------------------------------------
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Witness
CoBank, FCB
By:--------------------------------------------------------------------
Title:-----------------------------------------------------------------
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Witness
Farm Credit Bank of Texas
By:--------------------------------------------------------------------
Title:-----------------------------------------------------------------
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Witness
Federal Farm Credit Banks Funding Corporation, the Scorekeeper
By:--------------------------------------------------------------------
Title:-----------------------------------------------------------------
[end of Draft Third Amended and Restated MAA]
Dated: January 12, 2017.
Dale L. Aultman,
Secretary, Farm Credit Administration Board.
[FR Doc. 2017-01054 Filed 1-17-17; 8:45 am]
BILLING CODE 6705-01-P