EXHIBIT 10(c)
AMENDED AND RESTATED
MASTER LOAN AGREEMENT
THIS MASTER LOAN AGREEMENT is entered into as of March 14, 2001, between
COBANK, ACB ("CoBank") and TELMARK LLC, successor by merger to Telmark, Inc.
pursuant to the Certificate of Merger dated June 29, 1998, effective July 1,
1998, Syracuse, NY (the "Company").
BACKGROUND
CoBank and the Company are parties to a Master Loan Agreement dated
February 1, 1996 (as amended, the "Existing Agreement"). Pursuant to the terms
of the Existing Agreement, the parties entered into one or more Supplements
thereto. CoBank and the Company now desire to amend and restate the Existing
Agreement and to apply such new agreement to the existing Supplements, as well
as any new Supplements that may be issued thereunder. For that reason and for
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), CoBank and the Company hereby agree that the Existing Agreement
shall be amended and restated, in its entirety, to read as follows:
SECTION 1. SUPPLEMENTS. In the event the Company desires to borrow from
CoBank and CoBank is willing to lend to the Company, or in the event CoBank and
the Company desire to consolidate any existing loans hereunder, the parties will
enter into a Supplement to this agreement (a "Supplement"). Each Supplement will
set forth the amount of the loan, the purpose of the loan, the interest rate or
rate options applicable to that loan, the repayment terms of the loan, and any
other terms and conditions applicable to that particular loan. Each loan will be
governed by the terms and conditions contained in this agreement and in the
Supplement relating to the loan.
SECTION 2. AVAILABILITY. Loans will be made available on any day on which
CoBank and the Federal Reserve Banks are open for business upon the telephonic
or written request of the Company. Requests for loans must be received no later
than 12:00 noon Mountain Time on the date the loan is desired. Loans will be
made available by wire transfer of immediately available funds to such account
or accounts as may be authorized by the Company. The Company shall furnish to
CoBank a duly completed and executed copy of a CoBank Delegation and Wire
Transfer Authorization Form, and CoBank shall be entitled to rely on (and shall
incur no liability to the Company in acting on) any request or direction
furnished in accordance with the terms thereof.
SECTION 3. REPAYMENT. The Company's obligation to repay each loan shall be
evidenced by the promissory note set forth in the Supplement relating to that
loan or by such replacement note as CoBank shall require. CoBank shall maintain
a record of all loans, the interest accrued thereon, and all payments made with
respect thereto, and such record shall, absent proof of manifest error, be
conclusive evidence of the outstanding principal and interest on the loans. All
payments shall be made by wire transfer of immediately available funds or by
check. Wire transfers shall be made to ABA No. 000000000 for advice to and
credit of CoBANK (or to such other account as CoBank may direct by notice). The
Company shall give CoBank telephonic notice no later than 12:00 noon Mountain
Time of its intent to pay by wire and funds received after 3:00 p.m. Mountain
Time shall be credited on the next business day. Checks shall be mailed to
XxXxxx, Xxxxxxxxxx 000, Xxxxxx, Xxxxxxxx, 00000-0000 (or to such other place as
CoBank may direct by notice). Credit for payment by check will not be given
until the latter of: (a) the day on which CoBank receives immediately available
funds; or (b) the next business day after receipt of the check.
SECTION 4. CAPITALIZATION. The Company agrees to purchase such equity in
CoBank as CoBank may from time to time require in accordance with its Bylaws.
However, the maximum amount of equity which the Company shall be obligated to
purchase in connection with any loan may not exceed the maximum amount permitted
by the Bylaws at the time the Supplement relating to that loan is entered into
or such loan is renewed or refinanced by CoBank.
SECTION 5. SECURITY. The company's obligations under this agreement, all
Supplements (whenever executed), and all instruments and documents contemplated
hereby or thereby, shall be secured by a statutory first lien on all equity
which the Company may now own or hereafter acquire in CoBank. Except for
CoBank's lien on the Company's equity in CoBank, the Company's obligations
hereunder and under each Supplement shall be unsecured.
SECTION 6. CONDITIONS PRECEDENT.
(A) CONDITIONS TO INITIAL SUPPLEMENT. CoBank's obligation to
extend credit under the initial Supplement hereto is subject to the
conditions precedent that CoBank receive, in form and substance
satisfactory to CoBank, each of the following:
(i) THIS AGREEMENT, ETC. A duly executed copy of this
agreement and all instruments and documents contemplated hereby.
(ii) OPINION OF COUNSEL. An opinion of counsel to the
Company (which counsel must be acceptable to CoBank).
(iii) CERTIFICATION. A certification by an officer or
employee of the Company acceptable to CoBank stating that no
Event of Default or Potential Event of Default has occurred.
(B) CONDITIONS TO EACH SUPPLEMENT. CoBank's obligation to extend
credit under each Supplement, including the initial Supplement, is subject
to the conditions precedent that CoBank receive, in form and content
satisfactory to CoBank, each of the following:
(i) SUPPLEMENT. A duly executed copy of the Supplement and
all instruments and documents contemplated thereby.
(ii) EVIDENCE OF AUTHORITY. Such certified board
resolutions, evidence of incumbency, and other evidence that
CoBank may require that the Supplement, all instruments and
documents executed in connection therewith, and, in the case of
initial Supplement hereto, this agreement and all instruments and
documents executed in connection herewith, have been duly
authorized and executed.
(iii) FEES AND OTHER CHARGES. All fees and other charges
provided for herein or in the Supplement.
(iv) EVIDENCE OF PERFECTION, ETC. Such evidence as CoBank
may require that CoBank has a duly perfected first priority lien
on all security for the Company's obligations, and that the
Company is in compliance with Section 8(D) hereof.
(C) CONDITIONS TO EACH LOAN. CoBank's obligation under each
Supplement to make any loan to the Company thereunder is subject to the
condition that no "Event of Default" (as defined in Section 11 hereof) or
event which with the giving of notice and/or the passage of time would
become an Event of Default hereunder (a "Potential Default"), shall have
occurred and be continuing.
SECTION 7. REPRESENTATIONS AND WARRANTIES.
(A) THIS AGREEMENT. The Company represents and warrants to CoBank
that as of the date of this Agreement:
(i) COMPLIANCE. The Company is in compliance with all of the
terms of this agreement, and no Event of Default or Potential
Default exists hereunder.
(B) EACH SUPPLEMENT. The execution by the Company of each
Supplement hereto shall constitute a representation and warranty to CoBank
that:
(i) APPLICATIONS. Each representation and warranty and all
information set forth in any application or other documents
submitted in connection with, or to induce CoBank to enter into,
such Supplement, is correct in all material respects as of the
date of the Supplement.
(ii) CONFLICTING AGREEMENTS, ETC. This agreement, the
Supplements, and all security and other instruments and documents
relating hereto and thereto (collectively, at any time, the "Loan
Documents"), do not conflict with, or require the consent of any
party to, any other agreement to which the Company is a party or
by which it or its property may be bound or affected, and do not
conflict with any provision of the Company's bylaws, articles of
incorporation, or other organizational documents.
(iii) COMPLIANCE. The Company is in compliance with all of
the terms of the Loan Documents (including, without limitation,
Section 8(A) of this agreement on eligibility to borrow from
CoBank).
(iv) BINDING AGREEMENT. The Loan Documents create legal,
valid, and binding obligations of the Company which are
enforceable in accordance with their terms, except to the extent
that enforcement may be limited by applicable bankruptcy,
insolvency, or similar laws affecting creditors' rights
generally.
SECTION 8. AFFIRMATIVE COVENANTS. Unless otherwise agreed to in writing by
CoBank, while this agreement is in effect, the Company agrees to:
(A) ELIGIBILITY. Maintain its status as an entity eligible to
borrow from CoBank.
(B) CORPORATE EXISTENCE, LICENSES. ETC. (i) Preserve and keep in
full force and effect its existence and good standing in the jurisdiction
of its incorporation or formation; (ii) qualify and remain qualified to
transact business in all jurisdictions where such qualification is
required; and (iii) obtain and maintain all licenses, certificates,
permits, authorizations, approvals, and the like which are material to the
conduct of its business or required by law, rule, regulation, ordinance,
code, order, and the like (collectively, "Laws").
(C) COMPLIANCE WITH LAWS. Comply in all material respects with
all applicable Laws, including, without limitation, all Laws relating to
environmental protection and any patron or member investment program that
it may have. In addition, the Company agrees to cause all persons occupying
or present on any of its properties to comply in all material respects with
all environmental protection Laws.
(D) INSURANCE. Maintain insurance with insurance companies or
associations acceptable to CoBank in such amounts and covering such risks
as are usually carried by companies engaged in the same or similar business
and similarly situated, and make such increases in the type or amount of
coverage as CoBank may request. All such policies insuring any collateral
for the Company's obligations to CoBank shall have mortgagee or lender loss
payable clauses or endorsements in form and content acceptable to CoBank.
At CoBank's request, all policies (or such other proof of compliance with
this Subsection as may be satisfactory to CoBank) shall be delivered to
CoBank.
(E) PROPERTY MAINTENANCE. Maintain all of its property that is
necessary to or useful in the proper conduct of its business in good
working condition, ordinary wear and tear excepted.
(F) BOOKS AND RECORDS. Keep adequate records and books of account
in which complete entries will be made in accordance with generally
accepted accounting principles ("GAAP") consistently applied.
(G) INSPECTION. Permit CoBank or its agents, upon reasonable
notice and during normal business hours or at such other times as the
parties may agree, to examine its properties, books, and records including,
without limitation, the lease portfolio, and to discuss its affairs,
finances, and accounts, with its respective officers, directors, employees,
and independent certified public accountants.
(H) REPORTS AND NOTICES. Furnish to CoBank:
(i) ANNUAL FINANCIAL STATEMENTS. As soon as available, but
in no event more than 90 days after the end of each fiscal year
of the Company occurring during the term hereof, the Company
shall make available annual financial statements of the Company
prepared in accordance with GAAP consistently applied. Such
financial statements shall: (a) be audited by independent
certified public accountants selected by the Company and
acceptable to CoBank; (b) be accompanied by a report of such
accountants containing an opinion thereon acceptable to CoBank;
(c) be prepared in reasonable detail and in comparative form; and
(d) include a balance sheet, a statement of income and member's
equity, a statement of cash flows, and all notes and schedules
relating thereto.
(ii) INTERIM FINANCIAL STATEMENTS. As soon as available, but
in no event more than 45 days after the end of each quarter, a
balance sheet of the Company as of the end of such quarter, a
statement of income for the Company for such period and for the
period year to date, a report of the lease portfolio quality as
of the end of each fiscal quarter and such other interim
statements as CoBank may specifically request, all prepared in
reasonable detail and in comparative form in accordance with GAAP
consistently applied.
(iii) NOTICE OF DEFAULT. Promptly after becoming aware
thereof, notice of the occurrence of an Event of Default or a
Potential Default.
(iv) NOTICE OF NON-ENVIRONMENTAL LITIGATION. Promptly after
the commencement thereof, notice of the commencement of all
actions, suits, or proceedings before any court, arbitrator, or
governmental department, commission, board, bureau, agency, or
instrumentality affecting the Company which, if determined
adversely to the Company, could have a material adverse effect on
the financial condition, properties, profits, or operations of
the Company.
(v) NOTICE OF ENVIRONMENTAL LITIGATION, ETC. Promptly after
receipt thereof, notice of the receipt of all pleadings, orders,
complaints, indictments, or any other communication alleging a
condition that may require the Company to undertake or to
contribute to a cleanup or other response under environmental
Laws, or which seek penalties, damages, injunctive relief, or
criminal sanctions related to alleged violations of such Laws, or
which claim personal injury or property damage to any person as a
result of environmental factors or conditions.
(vi) NOTICE OF OTHER CREDIT ARRANGEMENTS. As soon as
possible, and in any event prior to incurring any indebtedness,
the Company will notify CoBank of the amount, terms, and
conditions of the subject indebtedness. Notice will not be
required with respect to: (A) indebtedness of the Company under
this agreement; (B) indebtedness incurred prior to the the date
of this agreement; and (C) accounts payable to trade creditors
for goods or services and current operating liabilities (other
than for borrowed money), in each case incurred in the ordinary
course of business, as presently conducted.
(vii) BYLAWS AND ARTICLES. Promptly after any change in the
Company's bylaws or articles of incorporation (or like
documents), copies of all such changes, certified by the
Company's Secretary.
(viii) DEFAULT CERTIFICATE. Together with each set of
financial statements furnished to CoBank pursuant to Section 8(H)
hereof, a certificate of an officer or employee of the Company
acceptable to CoBank certifying that no Event of Default or
Potential Default occurred during the period covered by such
statements, or, if such an Event of Default or Potential Default
occurred, a description thereof and all action taken or to be
taken to remedy same.
(ix) ANNUAL BUDGETS. As soon as available, but in no event
more than 30 days after the end of any fiscal year of the Company
occurring during the term hereof, copies of the Company's annual
budgets and forecasts of operations.
(x) OTHER INFORMATION. Such other information regarding the
condition or operations, financial or otherwise, of the Company
as CoBank may from time to time reasonably request, including but
not limited to copies of all pleadings, notices, and
communications referred to in Subsections 8(H)(iv) and (v) above.
SECTION 9. NEGATIVE COVENANTS. Unless otherwise agreed to in writing by
CoBank, while this agreement is in effect the Company will not:
(A) LIENS. Create, incur, assume, or allow to exist any mortgage,
deed of trust, pledge, lien (including the lien of an attachment, judgment,
or execution), security interest, or other encumbrance of any kind upon any
of its property, real or personal (collectively, "Liens"). The foregoing
restrictions shall not apply to: (i) Liens in favor of CoBank; (ii) Liens
for taxes, assessments, or governmental charges that are not past due;
(iii) Liens and deposits under workers' compensation, unemployment
insurance, and social security Laws; (iv) Liens and deposits to secure the
performance of bids, tenders, contracts (other than contracts for the
payment of money), and like obligations arising in the ordinary course of
business as conducted on the date hereof; (v) Liens imposed by Law in favor
of mechanics, materialmen, warehousemen, and like persons that secure
obligations that are not past due; (vi) easements, rights-of-way,
restrictions, and other similar encumbrances which, in the aggregate, do
not materially interfere with the occupation, use, and enjoyment of the
property or assets encumbered thereby in the normal course of its business
or materially impair the value of the property subject thereto; and (vii)
Liens on property acquired by the Company in the ordinary course of
business in satisfaction of debt owed to Company, provided that the Company
shall undertake, in accordance with industry practice, to dispose promptly
of any such property.
(B) MERGERS, ACQUISITIONS, ETC. Merge or consolidate with any
other entity or acquire all or a material part of the assets of any person
or entity, or form or create any new subsidiary or affiliate, or commence
operations under any other name, organization, or entity, including any
joint venture.
(C) TRANSFER OF ASSETS. Sell, transfer, lease, or otherwise
dispose of any of its assets, except in the ordinary course of business,
provided, however that during each fiscal year the Company may sell or
transfer assets (excluding sales of securitized leases) up to 5% of the
total assets of the Company as of the prior fiscal year end. Such sales may
include the sale of non- recourse interests in loans or leases sold to
other lenders. Notwithstanding the foregoing, the Company may securitize
leases in an amount not to exceed 25% of the total liabilities of the
company provided that such securitizations are accounted for as on-balance
sheet financing.
(D) LOANS. Lend or advance money, credit, or property to any
person or entity, except for credit extended in the ordinary course of
business.
(E) CONTINGENT LIABILITIES. Assume, guarantee, become liable as a
surety, endorse, contingently agree to purchase, or otherwise be or become
liable, directly or indirectly (including, but not limited to, by means of
a maintenance agreement, an asset or stock purchase agreement, or any other
agreement designed to ensure any creditor against loss), for or on account
of the obligation of any person or entity, except by the endorsement of
negotiable instruments for deposit or collection or similar transactions in
the ordinary course of the Company's business and except for recourse
obligations relative to the sale of assets.
(F) CHANGE IN BUSINESS. Engage in any business activities or
operations substantially different from or unrelated to the Company's
present business activities or operations.
(G) TRANSACTIONS WITH AFFILIATES. Invest in Agway Inc. or its
subsidiaries whether by lease, loan of funds, purchase of equity, or
otherwise. Notwithstanding the above, the Company may a) make short-term
loans of funds not to exceed $5,000,000.00 in the aggregate at any one time
outstanding to Agway Inc. or its subsidiaries and b) in the ordinary course
of business, enter into leasing transactions with Agway Inc. or its
subsidiaries in an aggregate amount not to exceed 5% of the total assets of
the Company.
(H) DISTRIBUTIONS. Declare or make, or incur any liability to
make, any distributions of any kind in respect of equity interests in the
Company in excess of 50% of Net Income (as determined in accordance with
GAAP consistently applied) earned by the Company after June 30, 2000.
SECTION 10. FINANCIAL COVENANTS. Unless otherwise agreed to in writing,
while this agreement is in effect:
(A) TOTAL LIABILITIES TO EQUITY. The Company will have at the end
of each reporting period a ratio of total liabilities to equity of no
greater than 6:1. For the purposes of this calculation, total liabilities
are defined as total liabilities less non-interest bearing subordinated
borrowings from Agway, Inc. and its subsidiaries. Equity is defined as net
worth plus subordinated borrowings from Agway, Inc. and its subsidiaries.
(B) INTEREST COVERAGE. The Company will have at the end of each
reporting period a ratio of net income (before taxes) plus interest expense
to interest expense for such period (all determined in accordance with GAAP
consistently applied) of not less than 1.25:1 measured on a rolling twelve
month basis.
(C) TANGIBLE NET WORTH. The Company will at all times maintain
Tangible Net Worth (as determined in accordance with GAAP consistently
applied) in an amount not less than $85,000,000 for each fiscal year ending
after June 30, 2000.
SECTION 11. EVENTS OF DEFAULT. Each of the following shall constitute an
"Event of Default" under this agreement:
(A) PAYMENT DEFAULT. The Company should fail to make any payment
to, or to purchase any equity in, CoBank when due.
(B) REPRESENTATIONS AND WARRANTIES. Any representation or
warranty made or deemed made by the Company herein or in any Supplement,
application, agreement, certificate, or other document related to or
furnished in connection with this agreement or any Supplement, shall prove
to have been false or misleading in any material respect on or as of the
date made or deemed made.
(C) CERTAIN AFFIRMATIVE COVENANTS. The Company should fail to
perform or comply with Sections 8(A) through 8(H)(ii), 8(H)(vi) through
8(H)(x), or any reporting covenant set forth in any Supplement hereto, and
such failure continues for 15 days after written notice thereof shall have
been delivered by CoBank to the Company.
(D) OTHER COVENANTS AND AGREEMENTS. The Company should fail to
perform or comply with any other covenant or agreement contained herein or
in any other Loan Document or shall use the proceeds of any loan for an
unauthorized purpose.
(E) CROSS-DEFAULT. The Company should, after any applicable grace
period, breach or be in default under the terms of any other agreement
between the Company and CoBank.
(F) OTHER INDEBTEDNESS. The Company should fail to pay when due
any indebtedness to any other person or entity for borrowed money or any
long-term obligation for the deferred purchase price of property (including
any capitalized lease), or any other event occurs which, under any
agreement or instrument relating to such indebtedness or obligation, has
the effect of accelerating or permitting the acceleration of such
indebtedness or obligation, whether or not such indebtedness or obligation
is actually accelerated or the right to accelerate is conditioned on the
giving of notice, the passage of time, or otherwise.
(G) JUDGMENTS. A judgment, decree, or order for the payment of
money shall be rendered against the Company and either: (i) enforcement
proceedings shall have been commenced; (ii) a Lien prohibited under Section
9(A) hereof shall have been obtained; or (iii) such judgment, decree, or
order shall continue unsatisfied and in effect for a period of 20
consecutive days without being vacated, discharged, satisfied, or stayed
pending appeal.
(H) INSOLVENCY, ETC. The Company shall: (i) become insolvent or
shall generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they come due; or (ii) suspend its business
operations or a material part thereof or make an assignment for the benefit
of creditors; or (iii) apply for, consent to, or acquiesce in the
appointment of a trustee, receiver, or other custodian for it or any of its
property or, in the absence of such application, consent, or acquiescence,
a trustee, receiver, or other custodian is so appointed; or (iv) commence
or have commenced against it any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution, or
liquidation Law of any jurisdiction.
(I) MATERIAL ADVERSE CHANGE. Any material adverse change occurs,
as reasonably determined by CoBank, in the Company's financial condition,
results of operation, or ability to perform its obligations hereunder or
under any instrument or document contemplated hereby.
SECTION 12. REMEDIES. Upon the occurrence and during the continuance of an
Event of Default or any Potential Default, CoBank shall have no obligation to
continue to extend credit to the Company and may discontinue doing so at any
time without prior notice. In addition, upon the occurrence and during the
continuance of any Event of Default, CoBank may, upon notice to the Company,
terminate any commitment and declare the entire unpaid principal balance of the
loans, all accrued interest thereon, and all other amounts payable under this
agreement, all Supplements, and the other Loan Documents to be immediately due
and payable. Upon such a declaration, the unpaid principal balance of the loans
and all such other amounts shall become immediately due and payable, without
protest, presentment, demand, or further notice of any kind, all of which are
hereby expressly waived by the Company. In addition, upon such an acceleration:
(A) ENFORCEMENT. CoBank may proceed to protect, exercise, and
enforce such rights and remedies as may be provided by this agreement, any
other Loan Document or under Law. Each and every one of such rights and
remedies shall be cumulative and may be exercised from time to time, and no
failure on the part of CoBank to exercise, and no delay in exercising, any
right or remedy shall operate as a waiver thereof, and no single or partial
exercise of any right or remedy shall preclude any other or future exercise
thereof, or the exercise of any other right. Without limiting the
foregoing, CoBank may hold and/or set off and apply against the Company's
obligations to CoBank the proceeds of any equity in CoBank, any cash
collateral held by CoBank, or any balances held by CoBank for the Company's
account (whether or not such balances are then due).
(B) APPLICATION OF FUNDS. CoBank may apply all payments received
by it to the Company's obligations to CoBank in such order and manner as
CoBank may elect in its sole discretion.
In addition to the rights and remedies set forth above: (i) if the Company fails
to purchase any equity in CoBank when required or fails to make any payment to
CoBank when due, then at CoBank's option in each instance, such obligation or
payment shall bear interest at 2% per annum in excess of CoBank's National
Variable Rate; and (ii) after the maturity of any loan, whether by reason of
acceleration or otherwise, the unpaid balance of the loan shall automatically
bear interest at 2% per annum in excess of the rates that would otherwise be in
effect on such loan. All interest provided for herein shall be payable on demand
and shall be calculated from the date such payment was due to the date paid on
the basis of a year consisting of 360 days.
SECTION 13. BROKEN FUNDING SURCHARGE. Notwithstanding any provision
contained in any Supplement giving the Company the right to repay any loan prior
to the date it would otherwise be due and payable, the Company agrees that in
the event it repays any fixed rate balance prior to its scheduled due date or
prior to the last day of the fixed rate period applicable thereto (whether such
payment is made voluntarily, as a result of an acceleration, or otherwise), the
Company will pay to CoBank a prepayment surcharge consisting of: (i) any funding
losses incurred by CoBank as as a result thereof, and (ii) a per annum yield of
1/2 of 1% on the amount prepaid for the period such amount was scheduled to to
have been outstanding at such fixed rate. Notwithstanding the foregoing, in the
event any fixed rate balance is repaid as a result of the Company refinancing
the loan with another lender or by other means, then in lieu of the foregoing,
the Company shall pay to CoBank a surcharge in an amount sufficient (on a
present value basis) to enable CoBank to maintain the yield it would have earned
during the fixed rate period on the amount repaid. Such surcharges will be
calculated in accordance with methodology established by CoBank (a copy of which
will be made available to the Company upon request).
SECTION 14. COMPLETE AGREEMENT, AMENDMENTS. This agreement, all
Supplements, and all other instruments and documents contemplated hereby and
thereby, are intended by the parties to be a complete and final expression of
their agreement. No amendment, modification, or waiver of any provision hereof
or thereof, and no consent to any departure by the Company herefrom or
therefrom, shall be effective unless approved by CoBank and contained in a
writing signed by or on behalf of CoBank, and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given. In the event this agreement is amended or restated, each such
amendment or restatement shall be applicable to all Supplements hereto.
SECTION 15. OTHER TYPES OF CREDIT. From time to time, CoBank may issue
letters of credit or extend other types of credit to or for the account of the
Company. In the event the parties desire to do so under the terms of this
agreement, such extensions of credit may be set forth in any Supplement hereto
and this agreement shall be applicable thereto.
SECTION 16. APPLICABLE LAW. Except to the extent governed by applicable
federal law, this agreement and each Supplement shall be governed by and
construed in accordance with the laws of the State of Colorado, without
reference to choice of law doctrine.
SECTION 17. NOTICES. All notices hereunder shall be in writing and shall be
deemed to be duly given upon delivery if personally delivered or sent by
telegram or facsimile transmission, or 3 days after mailing if sent by express,
certified or registered mail, to the parties at the following addresses (or such
other address for a party as shall be specified by like notice):
If to CoBank, as follows: If to the Company, as follows:
CoBank, ACB Telmark LLC
0000 Xxxxx Xxxxxx Xxxxxx ATTN: Secretary
Xxxxxxxxx Xxxxxxx, XX 00000 000 Xxxxxxxxx Xxxxx
ATTN: Corporate Finance XxXxxx, XX 00000
FAX#: (000) 000-0000 FAX#: (000) 000-0000
SECTION 18. TAXES AND EXPENSES. To the extent allowed by law, the Company
agrees to pay all reasonable out-of-pocket costs and expenses (including the
fees and expenses of counsel retained by CoBank) incurred by CoBank in
connection with the origination, administration, collection, and enforcement of
this agreement and the other Loan Documents, including, without limitation, all
costs and expenses incurred in perfecting, maintaining, determining the priority
of, and releasing any security for the Company's obligations to CoBank, and any
stamp, intangible, transfer, or like tax payable in connection with this
agreement or any other Loan Document.
SECTION 19. EFFECTIVENESS AND SEVERABILITY. This agreement shall continue
in effect until: (i) all indebtedness and obligations of the Company under this
agreement, all Supplements, and all other Loan Documents shall have been paid or
satisfied; (ii) CoBank has no commitment to extend credit to or for the account
of the Company under any Supplement; and (iii) either party sends written notice
to the other terminating this agreement. Any provision of this agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof or
thereof.
SECTION 20. SUCCESSORS AND ASSIGNS. This agreement, each Supplement, and
the other Loan Documents shall be binding upon and inure to the benefit of the
Company and CoBank and their respective successors and assigns, except that the
Company may not assign or transfer its rights or obligations under this
agreement, any Supplement or any other Loan Document without the prior written
consent of CoBank.
SECTION 21. PARTICIPATIONS, ETC. From time to time, CoBank may sell to one
or more banks, financial institutions or other lenders a participation in the
loans made pursuant to this agreement. However, no such participation shall
relieve CoBank of any commitment made to the Company under any Supplement
hereto. In connection with the foregoing, CoBank may disclose information
concerning the Company and its subsidiaries to any participant or prospective
participant provided that such participant or prospective participant agrees to
keep such information confidential. CoBank agrees that all loans made by CoBank
that are retained for its own account and are not included in a sale of
participation interest shall be entitled to patronage distributions in
accordance with the bylaws of CoBank and its practices and procedures related to
patronage distribution. Accordingly, and unless otherwise agreed to by CoBank,
all loans that are included in a sale of a participation interest shall not be
entitled to patronage distributions. A sale of a participation interest in a
loan may include the granting of certain voting rights to the participants
regarding the loan, including, but not limited to, rights regarding the
administration, servicing and enforcement of such Loan. The agreement of
participants (including CoBank, as the seller of participation interests) with
more than 66 2/3 percent of the Commitment (but in no case fewer than 2 lenders)
will be required for any loan modification; except that extending maturity
dates, increasing the size of the commitment, changing interest rates and/or
fees or the calculation thereof, increasing a participants share of the
commitment, or release of collateral (other than in the normal course of the
Company's business), shall require a unanimous vote of all participants.
Notwithstanding anything in this Agreement to the contrary, CoBank agrees that
it shall obtain the consent of the Company prior to the sale of any
participation interest, which consent shall not be unreasonably withheld.
IN WITNESS WHEREOF, the parties have caused this agreement to be executed
by their duly authorized officers as of the date shown above.
COBANK, ACB TELMARK LLC
BY: /S/XXXXX XXXXXXXX BY: /S/XXXXX X. XXXXXXX
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TITLE: VICE PRESIDENT TITLE: TREASURER
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