EXHIBIT 10.7
LIQUIDITY PROTECTION AGREEMENT
LIQUIDITY PROTECTION AGREEMENT dated as of December 20, 1996 by and
between Kansas Electric Power Cooperative, Inc., a Kansas non-profit electric
generation and transmission cooperative corporation (the "Cooperative"), and
Xxxxxx Guaranty Trust Company of New York ("Xxxxxx").
W I T N E S S E T H:
WHEREAS, in 1988 the Cooperative prepaid certain of its loans from the
Federal Financing Bank, which were guaranteed by the United States of America,
acting through the Administrator (the "Administrator") of the Rural
Electrification Administration of the Department of Agriculture (which has been
succeeded with respect to the administration of certain electric and telephone
loan programs by the Rural Utilities Service, an agency of the United States
Department of Agriculture established pursuant to Section 232 of the Federal
Cooperative Insurance Reform and Department of Agriculture Reorganization Act of
1994 (Pub.L. 103-354, 108 Stat. 3178) (together with its successors, the
"RUS")), with amounts borrowed from the National Rural Utilities Cooperative
Finance Corporation, a District of Columbia cooperative association (together
with its successors, "CFC"), pursuant to a Loan Agreement dated as of February
15, 1988 between CFC and the Cooperative (the "Original Loan Agreement" and, as
amended by the First Amendment to Loan Agreement dated as of December 20, 1996
and effective as provided therein (the "First Amendment to Loan Agreement") and
as further amended and supplemented from time to time in accordance with the
terms thereof and hereof, the "Loan Agreement");
WHEREAS, CFC established the Rural Electric Cooperative Grantor Trusts
(KEPCO) Series 1988 K1-1988 K3 (collectively, the "Original Trusts") for the
purpose of holding the notes (the "Original Notes") evidencing the Cooperative's
repayment obligations under the loan (the "1988 Loan") made by CFC to the
Cooperative pursuant to the Original Loan Agreement, which obligations were
guaranteed by the United States of America acting through the Administrator of
the RUS (as amended and supplemented from time to time in accordance with the
terms thereof and hereof, the "Federal Guaranty");
WHEREAS, the Cooperative and CFC desire to cause "Note One" and "Note
Two" of the Original Notes, evidencing portions of the 1988 Loan in the original
principal amounts of $11,075,000 and $51,340,000, respectively (as amended and
supplemented by the First Amendment to Loan Agreement and as further amended and
supplemented from time to time in accordance with the terms thereof and hereof,
collectively, the "Notes"), to be purchased on a date agreed to by CFC, the RUS
and the Cooperative and on which such purchase is permitted to occur (the
"Refinancing Date") and to cause the amendments of the 1988 Loan and the Notes
pursuant to the First Amendment to Loan Agreement to become effective on the
Refinancing Date;
WHEREAS, the Notes are eligible for purchase on any Business Day (as
defined in the Loan Agreement) on or after the Business Day immediately prior to
December 15, 1997;
WHEREAS, the Cooperative has notified the trustee under the Original
Trusts that, with the approval of the Administrator, it desires that CFC
purchase the Notes and that such trustee redeem the related certificates of
beneficial interest therein and terminate the related Original Trusts on the
Refinancing Date, for the purpose of amending certain terms of the 1988 Loan and
the Notes, depositing the Notes in a new trust created pursuant to the Trust
Agreement referred to below and issuing new certificates of beneficial interest
therein (as amended and supplemented in accordance with the terms thereof and
hereof, the "Certificates");
WHEREAS, CFC, as lender under the Loan Agreement, depositor of the
Original Trusts and servicer of the Notes, has agreed to cause the Notes, with
the Federal Guaranty endorsed thereon, to be delivered to the Trustee (as
defined below) on the Refinancing Date for deposit in the Rural Electric
Cooperative Grantor Trust (KEPCO) Series 1997 created pursuant to the Trust
Agreement dated as of December 20, 1996 and effective as provided therein (as
amended and supplemented from time to time in accordance with the terms thereof
and hereof, the "Trust Agreement") among CFC, the Cooperative and The First
National Bank of Chicago, as trustee;
WHEREAS, contemporaneously herewith, the Cooperative and Xxxxxx are
entering into the Swap Agreement (as defined below), which will be assigned by
the Cooperative to and deposited in the Trust on the Refinancing Date, pursuant
to which Xxxxxx will pay to the Trustee (as assignee of the Cooperative) a
variable rate of interest
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equivalent to the variable rate of interest distributable in respect of the
Certificates and the Trustee will pay to Xxxxxx a fixed rate of interest;
WHEREAS, the Cooperative and Xxxxxx each believe that they will derive
financial benefit with respect to the transactions contemplated by the Swap
Agreement if a liquidity facility is provided in respect of the Certificates;
and
WHEREAS, Xxxxxx is willing to provide, or cause to be provided, a
liquidity facility in respect of the Certificates until such time as all
outstanding Certificates have been paid in full or as otherwise provided herein,
all upon the terms and conditions set forth in this Agreement;
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants and agreements hereinafter set forth, it is agreed by and among
the parties hereto as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Unless otherwise defined herein, all
capitalized terms shall have the meanings set forth below and if not so defined
shall have the meaning ascribed thereto in the hereinabove defined Trust
Agreement:
"ALTERNATE LIQUIDITY FACILITY" means each replacement or substitute
irrevocable letter of credit and related reimbursement agreement, line of
credit, standby certificate purchase agreement or similar agreement providing
for the purchase of all or a portion of the Certificates, as the same may be
amended, supplemented and extended from time to time.
"FIRST AMENDMENT TO LOAN GUARANTEE AGREEMENT" means the First
Amendment to Loan Guarantee and Servicing Agreement dated as of December 20,
1996 and effective as provided therein, among the United States of America,
acting through the Administrator of the RUS, the Cooperative, CFC and The First
National Bank of Chicago, as trustee.
"LIQUIDITY FACILITY" means (i) at the time of issuance of the
Certificates, the irrevocable letter of credit and related reimbursement
agreement, line of credit, standby certificate purchase agreement or similar
agreement providing for the purchase of all or a portion of the
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Certificates, as the same may be amended and supplemented from time to time, and
(ii) upon the effectiveness thereof, any Alternate Liquidity Facility.
"LOAN GUARANTEE AGREEMENT" means the Original Loan Guarantee
Agreement, as amended by the First Amendment to Loan Guarantee Agreement and as
further amended and supplemented from time to time in accordance with the terms
thereof and hereof.
"MOODY'S" means Xxxxx'x Investors Service, Inc., a Delaware
corporation, and its successors.
"ORIGINAL LOAN GUARANTEE AGREEMENT" means the Loan Guarantee and
Servicing Agreement dated as of February 18, 1988 among CFC, The First National
Bank of Chicago, as trustee, the Cooperative and the United States of America,
acting through the Administrator of the RUS.
"RELATED DOCUMENTS" means the form of standby certificate purchase
agreement attached as Exhibit A hereto, the Trust Agreement, the Certificates,
the Original Loan Agreement, the First Amendment to Loan Agreement, the Loan
Agreement, the Original Notes, the Notes, the Original Loan Guarantee Agreement,
the First Amendment to Loan Guarantee Agreement, the Loan Guarantee Agreement,
the Federal Guaranty, the Remarketing Agreement, the Underwriting Agreement and
the Swap Agreement and any other agreement or instrument relating to the
transactions contemplated hereby or thereby.
"S&P" means Standard & Poor's Rating Services, a division of The
McGraw Hill Companies, Inc., and its successors.
"SWAP AGREEMENT" means the International Swap Dealers Association
("ISDA") Master Agreement dated as of December 20, 1996 between Xxxxxx and the
Cooperative, including the Schedule to the Master Agreement and the Credit
Support Annex to such Schedule, each dated as of December 20, 1996, and the
Confirmation with respect thereto dated the date of the execution and delivery
thereof by Xxxxxx and the Cooperative, in each case as amended and supplemented
from time to time, pursuant to which the Cooperative and Xxxxxx are entering
into a U.S. Dollar Interest Rate Swap Transaction relating to the transactions
contemplated by the Trust Agreement.
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ARTICLE II
PROVISION OF LIQUIDITY FACILITY
SECTION 2.1. As and to the extent provided herein, from the date
hereof until the termination of this Agreement, Xxxxxx agrees and shall be
obligated to provide or cause to be provided to the Cooperative a Liquidity
Facility upon the issuance of the Certificates and on or prior to the expiration
or termination of each Liquidity Facility then in effect in accordance with its
terms, and the Cooperative agrees to accept and shall be obligated to enter into
each such Liquidity Facility. The Cooperative shall notify Xxxxxx of any early
termination of any Liquidity Facility promptly upon receipt of notice thereof or
otherwise becoming aware thereof.
Each Liquidity Facility shall be for a term of not less than 364 days
(unless the remaining term of this Agreement is less than 364 days) as shall be
determined by Xxxxxx, but in no event shall such term extend beyond the final
maturity of the Certificates. Each Alternate Liquidity Facility shall comply
with the applicable requirements and conditions precedent of the Trust Agreement
for delivery of an Alternate Liquidity Facility (including opinions and
documentation as described in the Trust Agreement). The delivery of each
Liquidity Facility in accordance herewith shall result in a short-term rating of
the Certificates of not less than "A-1" in the case of S&P or "P-1" in the case
of Moody's (as evidenced by rating letters delivered when such Liquidity
Facility is delivered pursuant to the Trust Agreement).
SECTION 2.2. Xxxxxx agrees to deliver or cause to be delivered a
Liquidity Facility to the Cooperative (i) upon the issuance and sale of the
Certificates pursuant to the Underwriting Agreement, (ii) at least sixty (60)
days prior to a Xxxxxx-directed termination of the Liquidity Facility then in
effect in accordance with Section 2.3 hereof, (iii) at least sixty (60) days
prior to the scheduled expiration of the term of the Liquidity Facility then in
effect and (iv) no more than ninety (90) days following (x) a withdrawal,
suspension or reduction of the short-term rating of the Certificates below "A-1"
by S&P or below "P-1" by Moody's as a result of a withdrawal, suspension or
reduction in the rating by such Rating Agency with respect to the provider of
the Liquidity Facility then in effect or (y) a breach by the provider of the
Liquidity Facility of its obligations thereunder, as the case may be, but in no
event later than the fifth day preceding any termination of the Liquidity
Facility resulting from such
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rating withdrawal, suspension or reduction or such breach. The Cooperative,
subject to the provisions of the Trust Agreement, agrees to execute the initial
Liquidity Facility on or before the time of issuance and sale of the
Certificates pursuant to the Underwriting Agreement, and any Alternate Liquidity
Facility within ten Business Days following receipt of such Alternate Liquidity
Facility; provided that (i) the Cooperative shall have the authority to enter
into the initial Liquidity Facility or such Alternate Liquidity Facility, as the
case may be, pursuant to all governing laws and regulations and (ii) the
Cooperative's execution, delivery and performance of the initial Liquidity
Facility or such Alternate Liquidity Facility, as the case may be, shall not be
in conflict with any stated public policy of the Cooperative with respect to its
practices for doing business with a type or class of provider of the initial
Liquidity Facility or such Alternate Liquidity Facility. Any such Alternate
Liquidity Facility shall take effect upon the acceptance by and delivery to the
Trustee of such Alternate Liquidity Facility in accordance with the Trust
Agreement. Each Liquidity Facility shall be in substantially the form set forth
in Exhibit A hereto (if a standby certificate purchase agreement), with only
such changes and modifications thereto as shall be approved by each of the
parties (such approval to be evidenced by their execution thereof) and by Xxxxxx
(if Xxxxxx is not a party to such Liquidity Facility), including such changes as
are necessary to conform such form to a letter of credit structure in lieu of a
standby certificate purchase agreement as well as to the requirements of the
Trust Agreement for an Alternate Liquidity Facility.
SECTION 2.3. The Cooperative agrees that it shall not terminate any
Liquidity Facility or replace the provider thereof, as the case may be, unless
directed in writing by Xxxxxx.
SECTION 2.4. Notwithstanding the foregoing, Xxxxxx shall have no
obligation to provide or enter into any Liquidity Facility if (i) the Federal
Guaranty is terminated or cancelled, or the Administrator or any other Federal
governmental authority or official with competent jurisdiction shall claim or
assert in writing, or shall fail to contest any claim or assertion made in any
action or proceeding, or any governmental authority with competent jurisdiction
shall announce, find or rule, that the Federal Guaranty is null and void or
otherwise invalid or unenforceable against the United States of America, either
in whole or in part; (ii) at any time on or before the Refinancing Date, the
Cooperative shall fail to make any payment in respect of any indebtedness of the
Cooperative
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that is guaranteed by the United States of America (or any agency or
instrumentality thereof) when due or within any applicable grace period; (iii)
at any time on or before the Refinancing Date, a case or proceeding seeking
liquidation, reorganization or other relief with respect to the Cooperative or
its debts under any bankruptcy, insolvency or other similar law now or hereafter
in effect, or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of the Cooperative or any substantial part
of its property, shall be commenced by or against the Cooperative, or the
Cooperative shall take any action to authorize or consent to any of the
foregoing or (iv) any of the conditions described in Section 5.2 hereof shall
have occurred.
SECTION 2.5. (a) The Cooperative and Xxxxxx agree that, in the case
of any Liquidity Facility that is not provided by Xxxxxx, the fees and other
amounts required to be paid to such provider pursuant to Sections 2.03(e), 2.05,
2.06(e) and 8.03(c) and the first sentence of 8.03(a) of the form of standby
certificate purchase agreement attached as Exhibit A hereto (or any similar
provision of any other Liquidity Facility) shall be paid by Xxxxxx so long as
Xxxxxx has received all Swap Provider Payments and any Termination Amount then
due to it under the Swap Agreement. Notwithstanding the foregoing, it is
understood and agreed that the Cooperative shall be obligated to pay such fees
and other amounts to the extent that Xxxxxx has no obligation, or fails, to pay
such fees and other amounts; provided, however, that the Cooperative shall
have no obligation to pay the unpaid fees and other amounts payable under
Sections 2.05, 2.06(e) and 8.03(c) of the form of standby certificate purchase
agreement attached as Exhibit A hereto (or any similar provision of any other
Liquidity Facility) to the extent that the sum of such unpaid fees and other
amounts exceed an amount equal to 0.25% per annum (computed on the basis of a
year of 365 days (or 366 days in a leap year) and paid for the actual number of
days elapsed (including the first day but excluding the last day) in the period
for which payment is due) of the "Commitment" under (and as defined in) the
Liquidity Facility then in effect.
(b) The Cooperative and Xxxxxx further agree that, in the case of any
Liquidity Facility provided by Xxxxxx, the amounts required to be paid to Xxxxxx
pursuant to Sections 2.03(e), 2.05, 2.06(e) and 8.03(c) and the first sentence
of 8.03(a) of the form of standby certificate purchase agreement attached as
Exhibit A hereto (or any similar provision of any other Liquidity Facility)
shall be deemed to have been paid so long as the Swap Agreement is in
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effect and Xxxxxx has received all payments then due to it under the Swap
Agreement.
(c) The Cooperative and Xxxxxx agree that if Xxxxxx fails to receive
when due any amount due to it under the Swap Agreement, the Cooperative shall be
obligated to compensate Xxxxxx for its commitment hereunder to provide or enter
into a Liquidity Facility as follows:
(i) if Xxxxxx has not received payment in full of the initial
payment required to be paid to it under the Swap Agreement, the Cooperative
shall pay an amount equal to (x) 0.10% per annum of the Standby Amount as
set forth on the signature page hereof during the period from and after the
date hereof to but excluding the earlier of the Refinancing Date and the
termination of this Agreement as provided in Section 5.2 hereof plus, if
applicable, (y) 0.25% per annum of the "Available Commitment" under (and as
defined in) each Liquidity Facility then in effect during the period from
and after the Refinancing Date to but excluding the termination of this
Agreement as provided in Section 5.2 hereof; and
(ii) in all other cases, the Cooperative shall pay an amount equal to
0.25% per annum of the "Available Commitment" under (and as defined in)
each Liquidity Facility then in effect during the period from and after the
later of the Refinancing Date and the most recent date on which Xxxxxx
received payment in full of the amounts then required to be paid to it
under the Swap Agreement to but excluding the termination of this Agreement
as provided in Section 5.2 hereof.
The amounts payable under this Section 2.5(c) shall be computed on the basis of
a year of 365 days (or 366 days in a leap year) and paid for the actual number
of days elapsed (including the first day but excluding the last day) and shall
be payable upon the termination of this Agreement as provided in Section 5.2
hereof.
SECTION 2.6. Xxxxxx and the Cooperative hereby agree that in the event
either S&P or Moody's shall cease to exist or shall no longer be in the business
of rating debt securities, Xxxxxx and the Cooperative shall use their best
efforts to mutually agree upon a substitute or substitute rating agencies or
other mutually acceptable criteria for purposes of compliance with the foregoing
provisions of Article II of this Agreement.
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ARTICLE III
CERTAIN COVENANTS; EXPENSES
SECTION 3.1. In connection with the execution and delivery of any
Liquidity Facility and remarketing of Certificates supported thereby, Xxxxxx and
the Cooperative agree to cooperate, each with the other, in furnishing
prospectuses and other information, reports, certificates, opinions and
appropriate documentation, all as reasonably required for any registration,
qualification, offering or sale of Certificates (in each case to the extent
describing Xxxxxx or the provider of any Liquidity Facility), and each such
party shall provide such notices and other designations and documentation and
take all other actions and proceedings reasonably necessary to effectuate and
carry out the foregoing. It is understood that in connection with the offering,
sale or remarketing of Certificates, Xxxxxx shall, as between Xxxxxx and the
Cooperative be responsible for its compliance, and for causing the compliance by
any other provider of a Liquidity Facility, with any registration, qualification
or other requirements under any federal or state law or regulation applicable to
the provider of such Liquidity Facility, and Xxxxxx shall, as between Xxxxxx and
the Cooperative indemnify the Cooperative against any claims or liabilities
arising out of any failure to so comply; provided that nothing herein shall be
construed to require Xxxxxx to indemnify against or otherwise be responsible for
compliance with any requirements under federal or state law or regulations with
respect to any securities laws or any information provided in connection with
the offering, sale or remarketing of Certificates other than such information
provided by Xxxxxx as a description of Xxxxxx. The Cooperative agrees it shall
not refer to Xxxxxx in any offering statement, prospectus or other documentation
in connection with the offering, sale or remarketing of Certificates without
Xxxxxx'x prior written consent.
SECTION 3.2. The Cooperative agrees that all reasonable costs and
expenses of Xxxxxx, including the reasonable fees and expenses of special
counsel to Xxxxxx, in connection with the preparation, execution, delivery and
administration of this Agreement, the Swap Agreement, any Liquidity Facility and
any other documents which may be delivered in connection with this Agreement and
the transactions contemplated hereby, will be for the account of or paid by
Xxxxxx so long as Xxxxxx has received all amounts then due to it under the Swap
Agreement.
SECTION 3.3. (a) The Cooperative agrees to provide Xxxxxx with any
amendments or supplements to the
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Trust Agreement, the Liquidity Facility, the Remarketing Agreement and any other
Related Document as soon as practicable following execution thereof.
Notwithstanding the foregoing, the Cooperative agrees that it will not enter
into or consent to any amendment, supplement or modification to, or termination
or waiver of, the Trust Agreement, the Loan Agreement, the Loan Guaranty
Agreement, the Federal Guaranty, the Remarketing Agreement, the Notes or the
Certificates without Xxxxxx'x prior consent if such amendment, supplement,
modification, termination or waiver might in any way adversely affect the rights
or interests of any provider of any Liquidity Facility or of Xxxxxx under this
Agreement or as a potential provider of any Liquidity Facility.
(b) The Cooperative agrees to deliver to Xxxxxx: (i) a copy of each
report, certificate or other information delivered or required to be delivered
by the Cooperative to the provider of any Liquidity Facility (if other than
Xxxxxx) and (ii) from time to time such information regarding the Cooperative
(including, without limitation, the financial position, results of operations,
business or prospects of the Cooperative) as Xxxxxx may reasonably request, in
each case to the extent such report, certificate or other information has not
been otherwise provided under the Swap Agreement.
SECTION 3.4. No amendment or waiver of any provision of this
Agreement nor consent to any departure therefrom by any party shall be effective
unless the same shall be in writing and signed by Xxxxxx and the Cooperative.
ARTICLE IV
CLOSING OF LIQUIDITY FACILITY
SECTION 4.1. Subject to the provisions of Section 3.1 hereof to the
effect that Xxxxxx and not the Cooperative shall, as between Xxxxxx and the
Cooperative, be responsible for compliance with any registration, qualification
or other requirements under federal or state law or regulation applicable to the
provider of the Liquidity Facility, the Cooperative covenants and agrees that it
shall obtain all approvals and authorizations with respect to the execution,
delivery and performance by it of each Liquidity Facility.
SECTION 4.2. The Cooperative and Xxxxxx each agree to cause to be
delivered opinions of counsel
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reasonably satisfactory to the other party relating to the authority for, due
authorization, execution and delivery of and validity and enforceability of each
Liquidity Facility, including opinions of counsel to the provider of each
Alternate Liquidity Facility required by the Trust Agreement, and, in the case
of any provider of a Liquidity Facility that is a foreign bank, to the effect
that such provider would be considered a "bank" for purposes of Section 3(a)(2)
of the Securities Act of 1933, as amended, and certificates of the provider of
each Liquidity Facility to the effect that (x) such provider is a national bank
or is duly licensed as a banking institution, or has received a license to
maintain a branch or agency, under the laws of the United States or America or
any state or territory thereof or the District of Columbia and (y) the business
of such provider is substantially confined to banking.
SECTION 4.3. The Cooperative and Xxxxxx each agree to cause to be
provided such instruments, opinions, certifications and documents (in addition
to those referenced in Section 4.1 and 4.2 hereof) as the other party may
reasonably request in connection with the delivery of each Liquidity Facility.
ARTICLE V
EFFECTIVE DATE AND TERM; PARTIES IN INTEREST
SECTION 5.1. (a) The Cooperative hereby makes to the Xxxxxx the same
representations and warranties as are made by it in the Trust Agreement and each
other Related Document, which representations and warranties, as well as the
related defined terms contained therein (unless otherwise defined herein), are
hereby incorporated by reference with the same effect as if each and every such
representation and warranty and defined term were set forth herein in its
entirety (except that (i) the representation and warranty contained in Section
5.04 of the form of standby certificate purchase agreement attached as Exhibit A
hereto shall be made with respect to the audited financial statements of the
Cooperative for the fiscal year ended December 31, 1995, (ii) the representation
and warranty contained in Section 5.05 of such standby certificate purchase
agreement shall be modified by replacing the phrase "Except as disclosed in the
Offering Statement" with the phrase "Except as previously disclosed to Xxxxxx in
writing" and (iii) the representation and warranty contained in Section 5.07
shall be omitted).
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(b) This Agreement shall become effective upon the execution and
delivery hereof by the parties and the receipt by Xxxxxx of such opinions of
counsel, instruments, certifications and documents, in form and substance
satisfactory to Xxxxxx, as Xxxxxx may reasonably request, relating to the
Cooperative, this Agreement, the Related Documents and the transactions
contemplated hereby and thereby and the parties thereto, including, without
limitation, the opinions of counsel, instruments, certifications and documents
described in Annex I hereto. In addition, the effectiveness of this Agreement
shall be further subject to the conditions (i) that the representations and
warranties of the Cooperative contained (or incorporated by reference herein)
are true and correct on the date of such effectiveness as though made on and as
of such date, (ii) that no event has occurred and is continuing, or would result
from the effectiveness of this Agreement, which constitutes a "Default" (as
defined in the standby certificate purchase agreement attached as Exhibit A
hereto), (iii) that since December 31, 1995, there has been no material adverse
change in the business, financial position, results of operations or prospects
of the Cooperative and (iv) that all conditions precedent to the execution and
delivery of the Related Documents (other than the execution and delivery of the
Confirmation relating to the Swap Agreement and the issuance of the
Certificates) shall have occurred. Xxxxxx shall promptly notify the Cooperative
of the effectiveness of this Agreement, and such notice shall be conclusive and
binding on all parties hereto.
SECTION 5.2. This Agreement shall continue in force and effect until
the first to occur of (i) the expiration or earlier termination of the Swap
Agreement, (ii) the occurrence of any of the conditions described in Section 2.4
hereof, (iii) December 18, 1997, if on such date the Certificates shall not have
been issued and sold pursuant to a registered public offering or a private
placement transaction in accordance with Rule 144A promulgated under the
Securities Act of 1933, as amended, and (iv) December 15, 2017; provided that
the obligation of Xxxxxx set forth in Section 3.1 and the obligations of the
Cooperative set forth in Section 2.5 shall survive any such termination of this
Agreement.
SECTION 5.3. This Agreement is entered into solely for the benefit of
the parties hereto and nothing herein shall confer rights upon or be construed
to be to the benefit of or enforceable by the Trustee, the Certificateholders or
any third party.
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ARTICLE VI
SEVERABILITY; COUNTERPARTS
SECTION 6.1. In case any one or more of the provisions of this
Agreement shall for any reason be held to be illegal or invalid by a court of
competent jurisdiction, it is the intention of each of the parties hereto that
such illegality or invalidity shall not affect any other provision hereof, but
this Agreement shall be construed and enforced as if such illegal or invalid
provision had not been contained herein unless a court holds that the provisions
are not separable from the other provisions of this Agreement.
SECTION 6.2. This Agreement, and each written agreement relating
hereto, may be executed in counterparts, each of which will be deemed an
original.
ARTICLE VII
NOTICES
SECTION 7.1. Any notice, demand, or request provided for in this
Agreement shall be in writing and shall be deemed properly sent, given, or made
if delivered in person or sent by registered or certified mail, postage prepaid,
to the persons specified below, or at such other addresses or to the attention
of such other officers as may be designated by written notice to the other party
hereto:
Kansas Electric Power Cooperative, Inc.
X.X. Xxx 0000
Xxxxxx, Xxxxxx 00000
Attention: Executive Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxx Guaranty Trust Company of New York
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Public Finance Credit and Portfolio
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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IN WITNESS WHEREOF, this Agreement has been signed by the authorized
representatives of the parties hereto on the date set forth above:
KANSAS ELECTRIC POWER COOPERATIVE, INC.
By /s/ Xxxxxxx X. Xxxx
------------------------------------
Title: Executive Vice President and
Chief Executive Officer
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
Standby Amount:
By /s/ Xxxx X. Xxxxxxxx
--------------------------------------
$57,390,000 Title: Vice President
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ANNEX I
LIST OF PRINCIPAL CLOSING DOCUMENTS*
1. opinion of Xxxxxx & Xxxxxx L.L.P., special finance counsel for the
Cooperative, dated the effective date of the Agreement (the "Effective Date"),
substantially in the form of Exhibit F to the Trust Agreement
2. opinion of Xxxxxx Xxxx, Esq., General Counsel of the Cooperative,
dated the Effective Date, substantially in the form of Exhibit E to the Trust
Agreement
3. opinions of Xxxx X. List, Esq., Senior Vice President and General
Counsel of CFC, and of Milbank, Tweed, Xxxxxx & XxXxxx, special counsel to CFC,
each dated the Effective Date, substantially in the forms of Exhibits B and C,
respectively, to the Trust Agreement
4. copies of resolutions of the Board of Directors of the Cooperative
authorizing the execution, delivery and performance by the Cooperative of the
Agreement and the transactions contemplated thereby (including the execution,
delivery and performance of the Related Documents to be executed and delivered
by the Cooperative on the Effective Date), certified by the Secretary or an
Assistant Secretary of the Cooperative (which certificate, dated the Effective
Date, shall state that such resolutions are in full force and effect on the
Effective Date and have not been amended or supplemented in any manner)
5. certified copies of all approvals, authorizations or consents of,
or notices to or filings or registrations with, any governmental body, agency or
official required for the Cooperative to execute, deliver or perform the
Agreement, the form of Standby Agreement or any of the Related Documents
6. a certificate of the Secretary or an Assistant Secretary of the
Cooperative, dated the Effective Date, certifying as to the names and true
signatures of the officers of the Cooperative authorized to execute the
Agreement and any other document to be delivered by the Cooperative under the
Agreement
--------------
* Capitalized terms used, and not defined, in this Annex I have the meanings
assigned to such terms in the Liquidity Protection Agreement.
7. copy of the administrative record setting forth the recommendation
of the RUS for approval of the First Amendment to Loan Guarantee Agreement and
the transactions contemplated thereby
8. an executed copy of each document, instrument, certificate and
opinion delivered pursuant to, and in connection with the execution and delivery
of, each Related Document (together with, in the case of each such opinion
(other than any opinion of counsel to the underwriter delivered solely to the
underwriter), a letter from the counsel rendering such opinion to the effect
that Xxxxxx is entitled to rely on such opinion as if it were addressed to
Xxxxxx)
9. a certificate of the Executive Vice President and Chief Executive
Officer of the Cooperative, dated the Effective Date, stating that, to the best
of such officer's knowledge after due inquiry:
(i) the representations and warranties of the Cooperative
contained (or incorporated by reference in) in the Agreement are true and
correct on and as of the Effective Date as though made on and as of the
Effective Date;
(ii) since December 31, 1995, there has been no material adverse
change in the business, financial position, results of operations or
prospects of the Cooperative; and
(iii) no event has occurred and is continuing, or would result
from the effectiveness of the Agreement, which constitutes a Default (as
defined in the form of standby certificate purchase agreement attached as
Exhibit A to the Agreement).
2
