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National Rural Utilities Cooperative Finance Corporation
Revolving Line of Credit Agreement
("Agreement")
Name of Borrower: Chugach Electric Association, Inc.
Address: 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxx 00000
National Rural Utilities Cooperative Finance Corporation ("CFC"), a
District of Columbia corporation, has approved Borrower for a revolving line of
credit loan in an amount not to exceed Fifty Million Dollars ($50,000,000)
(hereinafter referred to as the "CFC Commitment"). Borrower hereby agrees that
the terms and conditions herein, plus any additional terms and conditions agreed
to in writing by the parties, shall constitute a valid and binding agreement
between Borrower and CFC. In consideration of their mutual promises hereunder
and other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, CFC and Borrower agree to the following terms and conditions:
1. Revolving Credit and Term. CFC agrees to advance funds to the Borrower
pursuant to the terms and conditions hereof (each such advance of funds
is referred to herein as an "Advance"), provided, however, that the
amount at any time outstanding under this line of credit shall not
exceed the CFC Commitment. The Borrower may borrow, repay and reborrow
funds at any time or from time to time for a period up to sixty months
from the effective date hereof at which time all principal amounts
outstanding and accrued, but unpaid interest thereon, shall be due and
payable in full.
2. Requisitions. Requests for Advances shall be in such written form as
CFC may reasonably require from time to time.
3. Interest Rate and Payment. The Borrower unconditionally promises
and agrees to pay, as and when due, interest on all amounts advanced
hereunder from the date of each Advance and to repay all amounts
advanced hereunder with interest on the date this Agreement
terminates as provided herein. Interest shall be due and payable in
accordance with CFC's regular billing cycles as may be in effect from
time to time. CFC shall send a payment notice to the Borrower at
least five days prior to the due date of any interest payment. All
amounts shall be payable at CFC's main office at Woodland Park,
0000 Xxxxxxxxxxx Xxx, Xxxxxxx, Xxxxxxxx 00000-0000 or at such other
location as designated by CFC from time to time. The interest rate on
all Advances will be equal to the total rate per annum as may be fixed
by CFC from time to time, which shall not exceed the Prevailing Bank
Prime Rate (as defined herein), plus one percent per annum.
Interest will be computed on the basis of a 365 day year for the
actual number of days that any Advance is outstanding. The
effective date of an interest rate adjustment will be determined
from time to time by CFC, provided that no such adjustment may be
effective on a date other than the first or sixteenth day of any
month, and any such adjustment shall remain in effect until any
subsequent change in the interest rate occurs.
The "Prevailing Bank Prime Rate" is that bank prime rate published in
the "Money Rates" column of the eastern edition of The Wall Street
Journal on the publication day immediately preceding the day on which
an adjustment in the interest rate hereof shall become effective. If
The Wall Street Journal shall cease to be published, then the
Prevailing Bank Prime Rate shall be determined by CFC by reference to
another publication reporting bank prime rates in a similar manner.
4. CFC Accounts. CFC shall maintain in accordance with its usual
practices an account or accounts evidencing the indebtedness of
the Borrower resulting from each Advance and the amounts of
principal and interest payable and paid hereunder. In any legal
action or proceeding in respect of this Agreement, the entries
made in such account or accounts (whether stored on computer
memory, microfilm, payment notices or otherwise) shall be
presumptive evidence (absent manifest error) of the existence and
amounts of the Borrower's transactions therein recorded.
5. Corporate and Regulatory Approvals. Borrower represents and
warrants that it has obtained any and all necessary corporate and
regulatory approvals for Borrower to execute, deliver and perform
its obligations under this Agreement.
6. Reports. During the term of this Agreement, Borrower agrees (a) to
provide CFC, within 120 days of the end of Borrower's fiscal year,
its annual financial statements, prepared in accordance with
generally accepted accounting principles ("GAAP") and audited by
an independent certified public accountant, or otherwise in form
and substance satisfactory to CFC, and (b) to provide CFC with any
other reports or information which CFC may from time to time
reasonably request.
7. Fees. If any amount outstanding and due hereunder shall not be paid
when due, Borrower agrees to pay on demand CFC's reasonable costs of
collection or enforcement of this Agreement, or preparation therefor,
including reasonable fees of counsel. If payment of any principal
and/or interest due under the terms of this Agreement is not
received at CFC's office in Herndon, Virginia, or such other
location designated by CFC within 5 business days after the due date
thereof, then Borrower shall pay to CFC, on demand, and in addition
to all other amounts due under the terms of this Agreement, any
late-payment and additional interest charges as may then be in effect
pursuant to CFC's then current policies without setoff or
counterclaim. For purposes of this Agreement, a "business day" means
a day that both CFC and the financial institution it employs for funds
remittance are open for business.
8. Limitation on Advances. While an Advance is outstanding, CFC
reserves the right to limit further Advances if the sum of (a) all
Advances outstanding, (b) the amount of any further Advance
requested, and (c) the total amount of Borrower's other unsecured
outstanding debt, would exceed the CFC Commitment. CFC may in its
sole discretion decline to make any Advance during any period when
the Borrower is in default hereunder.
9. Reduce Balance to Zero. In the event that the term of this
Agreement is greater than twelve months, then the Borrower agrees
that for each 12-month period while this Agreement is in effect,
Borrower shall, for a period of at least five consecutive business
days, reduce to zero all amounts outstanding hereunder. Borrower
shall make the first balance reduction within 360 days of the
first Advance hereunder. Each subsequent balance reduction shall
be made within 360 days of the last day of such five-day period.
10. Credit Support. With CFC's prior written approval, this Agreement
may be used as credit support for other financings.
11. Notices, Acceleration of Debt and Waivers. While an Advance is
outstanding, Borrower agrees to notify CFC in writing of (a) any
delinquency or default on any of its financial obligations in an
amount exceeding $500,000, (b) any material adverse change in its
financial or business condition, and (c) if any representation or
warranty made in this Agreement is no longer true in any material
respect. If any delinquency, default, or any other event as a
result of which any holder of indebtedness in an amount exceeding
$500,000 may declare the same due and payable shall occur and
continue uncorrected for more than any applicable grace period, or
any representation or warranty herein shall no longer be true in
any material respect, or Borrower shall fail to perform or to
comply with any material term of this Agreement, or if the financial
condition of Borrower shall have changed to the extent that such
change, in the reasonable judgment of CFC, materially increases CFC's
risk of repayment hereunder, then CFC may declare at any time all
outstanding principal, interest and other amounts due hereunder
immediately due and payable in full with accrued interest, without
presentment or demand, and may withhold Advances. The Borrower
waives the defense of usury and all rights to setoff, counterclaim,
deduction or recoupment.
12. Survival of Representations and Warranties and Payment
Obligations. Borrower agrees that its obligation to repay
principal, interest and all other amounts due hereunder, and the
representations and warranties made herein, shall survive
termination of this Agreement. Borrower further agrees that such
repayment obligations shall be automatically reinstated if and to
the extent that for any reason any payment by or on behalf of the
Borrower is rescinded, set aside or must be otherwise restored,
whether as a result of any proceeding in bankruptcy or
reorganization or otherwise.
13. Representations and Warranties. Borrower represents and warrants
that as of the date of its application for this line of credit,
and on the date of each Advance hereunder:
a) the Borrower is not in default of any of its financial obligations in
an amount exceeding $500,000;
b) there has been no material adverse change in the Borrower's
business or financial condition from that set forth in its most
recent audited financial statements;
c) no litigation is pending or, to the best of Borrower's knowledge,
threatened against the Borrower as to which there is a reasonable
possibility of a determination adverse to Borrower and which, if
adversely determined, would have a material adverse effect on the
Borrower's ability to perform under this Agreement;
d) the information contained in Borrower's audited financial
statements, its other financial reports and information otherwise
submitted in connection with this Agreement is complete and
accurate, and said financial statements and financial reports
fairly represent the financial condition of the Borrower as of the
dates reflected thereon;
e) the execution, delivery and performance of this Agreement has been
duly authorized by the Borrower, which authorization has not been
rescinded or modified;
f) all Advances hereunder will be used only for proper corporate
purposes;
g) All property owned by the Borrower is located in the boroughs
identified in Section 24; and
h) Section 24 hereto accurately sets forth: (a) The Borrower's exact
legal name, (b) the Borrower's organizational type and
jurisdiction of organization, (c) the Borrower's organizational
identification number or accurate statement that the Borrower has
none and (d) the Borrower's place of business or, if more than
one, its chief executive office as well as the Borrower's mailing
address if different.
14. Conditions of Lending. As a condition to CFC making Advances
hereunder, each of the following conditions shall be satisfied at
the time of each Advance:
a) CFC shall have received the Borrower's most recent annual
financial statements, prepared in accordance with GAAP and audited
by an independent certified public accountant, or otherwise in
form and substance satisfactory to CFC;
b) all representations and warranties set forth herein shall be true
and correct; and
c) the Borrower shall have obtained any and all necessary corporate,
regulatory and governmental approvals for the Borrower to execute,
deliver and perform its obligations under this Agreement.
15. Notice. Borrower agrees that it will not, directly or indirectly,
without giving written notice to CFC thirty (30) days prior to the
effective date of any change:
(a) Change of Location of Place of Business or Chief Executive
Office. Change the location of Borrower's place of business
or, if more than one, its chief executive office.
(b) Change of Name. Change the name of Borrower.
(c) Change of Mailing Address. Change the mailing address of
Borrower.
(d) Change of Organizational Identification Number. Change its
organizational identification number if it has one.
16. Organizational Change. Borrower agrees that it will not, directly or
indirectly, without the prior written consent of CFC change its type of
organization, jurisdiction of organization or other legal structure.
17. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) THE PERFORMANCE AND CONSTRUCTION OF THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
COMMONWEALTH OF VIRGINIA.
(b) BORROWER HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF
THE UNITED STATES COURTS LOCATED IN VIRGINIA AND OF ANY STATE
COURT SO LOCATED FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. BORROWER IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE ESTABLISHING OF THE VENUE
OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM
THAT ANY SUCH PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
(c) EACH OF THE BORROWER AND CFC HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
18. Severability. If any term, provision or condition, or any part thereof,
of this Agreement shall for any reason be found or held invalid or
unenforceable by any court or governmental agency of competent
jurisdiction, such invalidity or unenforceability shall not affect the
remainder of such term, provision or condition nor any other term,
provision or condition, and this Agreement shall survive and be
construed as if such invalid or unenforceable term, provision or
condition had not been contained herein.
19. Setoff. CFC is hereby authorized at any time and from time to time
without prior notice to the Borrower to exercise rights of setoff or
recoupment and apply any and all amounts held, or hereafter held, by
CFC or owed to the Borrower or for the credit or account of the
Borrower against any and all of the obligations of the Borrower now
or hereafter existing hereunder. CFC agrees to notify the Borrower
promptly after any such setoff or recoupment and the application
thereof, provided that the failure to give such notice shall not
affect the validity of such setoff, recoupment or application.
The rights of CFC under this section are in addition to any other
rights and remedies (including other rights of setoff or recoupment)
which CFC may have.
20. Additional Terms and Conditions. Additional terms and conditions as set
forth herein or attached hereto are an integral part of this Agreement.
21. Termination and Cancellation of Existing Agreement. Borrower agrees
that its existing line(s) of credit No(s). 09-60-008-R-5100 with CFC,
if any, and any agreement(s) relating thereto shall be terminated and
any outstanding principal, interest and other amounts outstanding
thereunder shall be transferred to the line of credit established
pursuant to this Agreement and deemed an Advance hereunder.
22. Miscellaneous. (a) This Agreement contains the entire agreement of the
parties hereto with respect to the matters covered and the transactions
contemplated hereby, and no other agreement, statement or promise made
in connection with this line of credit by any party hereto, or by any
employee, officer, agent or attorney of any party hereto which is not
contained herein shall be valid and binding. (b) Any amendment to this
Agreement must be in writing signed by both parties. (c) No failure or
delay by CFC in exercising any right or remedy hereunder shall operate
as a waiver or preclude the future exercise thereof or of any other
right or remedy. (d) If any payment is due from Borrower on a day which
CFC is not open for business, then such payment shall be made on the
next succeeding day on which CFC is open for business.
23. Notices. All notices, requests and other communications provided for
herein including, without limitation, any modifications of, or
waivers, requests or consents under, this Agreement shall be given
or made in writing (including, without limitation, by telecopy) and
delivered to the intended recipient at the "Address for Notices"
specified below; or, as to any party, at such other address as shall be
designated by such party in a notice to each other party. Except as
otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given when personally delivered or, in the
case of a telecopied or mailed notice, upon receipt, in each case given
or addressed as provided for herein. The Address for Notices of the
respective parties are as follows:
CFC:
National Rural Utilities
Cooperative Finance Corporation
Woodland Park
0000 Xxxxxxxxxxx Xxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Senior Vice President - Member Services
Fax: (000) 000-0000
The Borrower:
Chugach Electric Association, Inc.
X.X. Xxx 000000
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxx 00000-0000
Attention: Chief Financial Officer
Fax: (000) 000-0000
24. Additional Terms and Conditions.
The Borrower's exact legal name is: Chugach Electric Association, Inc.
The Borrower's organizational type is: Member owned electric cooperative
The Borrower is organized under the laws of the state of: Alaska
The Borrower's organizational identification number is: N/A
The principal place of business or, if more than one, the chief executive office
of the Borrower referred to in Section 13(h) is 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxx 00000.
The property of the Borrower referred to in Section 13(g) is located in the
boroughs of Municipality of Anchorage, Matanuska-Susitna Borough and Kenai
Peninsula Borough.
Name of Borrower: Chugach Electric Association, Inc.
Signed By: /s/ Xxxx X. Xxxxxxxx
Title: General Manager
Date Signed: December 9, 2002
NATIONAL RURAL UTILITIES COOPERATIVE FINANCE CORPORATION
By: /s/ Xxxxx X. Xxxxxxx Loan Number: AK 008-R-5101
Assistant Secretary-Treasurer
(To be filled in by CFC) The effective date of this Agreement is: October 15,
2002.
