Exhibit 10.47.1
REVOLVING LINE OF CREDIT AGREEMENT
REVOLVING LINE OF CREDIT AGREEMENT (this "Agreement"), dated as of October
17, 2007, between CHUGACH ELECTRIC ASSOCIATION, INC. ("Borrower"), an electric
cooperative organized and existing under the laws of the State of Alaska, and
NATIONAL RURAL UTILITIES COOPERATIVE FINANCE CORPORATION ("CFC"), a cooperative
association organized and existing under the laws of the District of Columbia.
RECITALS
WHEREAS, the Borrower has applied to CFC for a line of credit for the
purposes set forth in Schedule 1 hereto, and CFC is willing to extend such a
line of credit to the Borrower on the terms and conditions stated herein.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto agree and bind themselves as
follows:
ARTICLE I
DEFINITIONS
Section 1.01 For purposes of this Agreement, the following capitalized
terms shall have the following meanings (such definitions to be equally
applicable to the singular and the plural form thereof).
"Advance" shall mean each advance of funds by CFC to Borrower pursuant to
the terms and conditions of this Agreement.
"Average TIER Ratio" shall mean the average of the Borrower's two highest
annual TIER Ratios during the most recent three calendar years.
"Business Day" shall mean any day that both CFC and the depository
institution CFC utilizes for funds transfers hereunder are open for business.
"CFC Commitment" shall have the meaning as defined in Schedule 1 hereto.
"CFC Line of Credit Rate" shall mean the rate published by CFC from time
to time, by electronic or other means, for similarly classified lines of credit,
but if not published, then the rate determined for such lines of credit by CFC
from time to time.
"Default Rate" shall mean a rate per annum equal to the interest rate in
effect for an Advance plus three hundred basis points.
"Effective Date" shall mean the date designated as such by CFC on the
signature page hereof.
"Event of Default" shall have the meaning as described in Article VI
hereof.
"GAAP" shall mean generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board.
"Governmental Authority" shall mean the government of the United States of
America, any other nation or government, any state or other political
subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
"Lien" shall mean any statutory or common law consensual or non-consensual
mortgage, pledge, security interest, encumbrance, lien, right of set off, claim
or charge of any kind, including, without limitation, any conditional sale or
other title retention transaction, any lease transaction in the nature thereof
and any secured transaction under the Uniform Commercial Code.
"Line of Credit" shall mean the line of credit extended by CFC to the
Borrower, pursuant to this Agreement, in an aggregate principal amount
outstanding at any time not to exceed the CFC Commitment.
"Loan Documents" shall mean this Agreement and all other documents or
instruments executed, delivered or executed and delivered by the Borrower and
evidencing, securing, governing or otherwise pertaining to the Line of Credit.
"Maturity Date" shall mean the date set forth in Schedule 1 hereto.
"Obligations" shall mean any and all liabilities, obligations or
indebtedness owing by the Borrower to CFC, of any kind or description,
irrespective of whether for the payment of money, whether direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter arising.
"Payment Date" shall mean the last day of March, June, September and
December.
"Person" shall mean natural persons, cooperatives, corporations, limited
liability companies, limited partnerships, general partnerships, limited
liability partnerships, joint ventures, associations, companies, trusts or other
organizations, irrespective of whether they are legal entities, and Governmental
Authorities.
"Times Interest Earned Ratio ("TIER")" shall mean the ratio determined as
follows: for each calendar year: (A) add (i) patronage capital or margins of the
Borrower, (ii) Interest Expense on Total Long-Term Debt of the Borrower and
(iii) the amount of any expenses or provisions for any non-recurring charge to
income or margins (including without limitation the recognition of expense due
to non-recoverability of assets or expenses and the accelerated portion of the
amortization of any deferred charges or regulatory assets carried on the books
of the company) that have been deducted in arriving at margins; and (B) divide
the total so obtained by Interest Expense on Total Long-Term Debt of the
Borrower.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01 The Borrower represents and warrants to CFC that as of the
date of this Agreement:
A. Good Standing. The Borrower is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
organization, is duly qualified to do business and is in good standing in those
states in which it is required to be qualified to conduct its business.
B. Authority; Validity. The Borrower has the power and authority to enter
into this Agreement; to make the borrowing hereunder; to execute and deliver all
documents and instruments required hereunder and to incur and perform the
obligations provided for herein, all of which have been duly authorized by all
necessary and proper action; and no consent or approval of any Person,
including, as applicable and without limitation, members of the Borrower, which
has not been obtained is required as a condition to the validity or
enforceability hereof or thereof.
This Agreement is, and when fully executed and delivered will be, legal, valid
and binding upon the Borrower and enforceable against the Borrower in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity.
C. No Conflicting Agreements. The execution and delivery of the Loan
Documents and performance by the Borrower of the obligations thereunder, and the
transactions contemplated hereby or thereby, will not: (i) violate any provision
of law, any order, rule or regulation of any court or other agency of
government, any award of any arbitrator, the articles of incorporation or
by-laws of the Borrower, or any indenture, contract, agreement, mortgage, deed
of trust or other instrument to which the Borrower is a party or by which it or
any of its property is bound; or (ii) be in conflict with, result in a breach of
or constitute (with due notice and/or lapse of time) a default under, any such
award, indenture, contract, agreement, mortgage, deed of trust or other
instrument, or result in the creation or imposition of any Lien upon any of the
property or assets of the Borrower.
The Borrower is not in default in any material respect under any agreement or
instrument to which it is a party or by which it is bound and no event or
condition exists which constitutes a default, or with the giving of notice or
lapse of time, or both, would constitute a default under any such agreement or
instrument.
D. Taxes. The Borrower has filed or caused to be filed all federal, state
and local tax returns which are required to be filed and has paid or caused to
be paid all federal, state and local taxes, assessments, and governmental
charges and levies thereon, including interest and penalties to the extent that
such taxes, assessments, and governmental charges and levies have become due,
except for such taxes, assessments, and governmental charges and levies which
the Borrower is contesting in good faith by appropriate proceedings for which
adequate reserves have been set aside.
E. Licenses and Permits. The Borrower has duly obtained and now holds all
licenses, permits, certifications, approvals and the like necessary to own and
operate its
property and business that are required by Governmental Authorities and each
remains valid and in full force and effect.
F. Litigation. There are no outstanding judgments, suits, claims, actions
or proceedings pending or, to the knowledge of the Borrower, threatened against
or affecting the Borrower or any of its properties which, if adversely
determined, either individually or collectively, would have a material adverse
effect upon the business, operations, prospects, assets, liabilities or
financial condition of the Borrower. The Borrower is not, to the Borrower's
knowledge, in default or violation with respect to any judgment, order, writ,
injunction, decree, rule or regulation of any Governmental Authority which would
have a material adverse effect upon the business, operations, prospects, assets,
liabilities or financial condition of the Borrower.
G. Financial Statements. The Borrower has heretofore furnished to CFC
complete and correct copies of the balance sheet of the Borrower as at the date
identified in Schedule 1 hereto, the statement of operations of the Borrower for
the period ending on said date, and the interim financial statements of the
Borrower. Said balance sheet fairly presents the financial condition of the
Borrower as at said date and said statement of operations fairly reflects its
operations for the period ending on said date. The Borrower has no contingent
obligations or extraordinary forward or long-term commitments except as
specifically stated in said balance sheet or herein. There has been no material
adverse change in the financial condition or operations of the Borrower from
that set forth in said financial statements except changes disclosed in writing
to CFC prior to the date hereof.
H. Required Approvals. No license, consent or approval of any Governmental
Authority is required to enable the Borrower to enter into this Agreement, or to
perform any of its Obligations provided for in such documents, including without
limitation (and if applicable), that of any state public utilities commission,
any state public service commission, and the Federal Energy Regulatory
Commission, except for licenses, consents or approvals of the Governmental
Authorities disclosed in Schedule 1 hereto, all of which Borrower has obtained
prior to the date hereof.
I. Compliance With Laws. The Borrower is in compliance, in all material
respects, with all applicable requirements of law and all applicable rules and
regulations of each Governmental Authority whose violation would have a material
adverse effect upon the business, operations, prospects, assets, liabilities or
financial condition of the Borrower.
J. Disclosure. To the Borrower's knowledge, information and belief,
neither this Agreement nor any document, certificate or financial statement
furnished to CFC by or on behalf of the Borrower in connection herewith (all
such documents, certificates and financial statements, taken as a whole), when
considered together with the reports filed by the Borrower under the Securities
Exchange Act of 1934, contains any untrue statement of a material fact or omits
to state any material fact necessary in order to make the statements contained
herein and therein not misleading.
ARTICLE III
CREDIT TERMS
Section 3.01 Advances. CFC agrees to advance funds to the Borrower
pursuant to the terms and conditions hereof, provided, however, that the
principal amount at any time outstanding
under this Agreement shall not exceed the CFC Commitment. The Borrower may
borrow, repay and reborrow funds at any time or from time up to, but not
including, the Maturity Date, at which time all principal amounts outstanding,
and accrued, but unpaid interest thereon, shall be due and payable in full.
Section 3.02 Payment and Interest Rate. The Line of Credit shall be
payable and bear interest as follows:
A. 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 Maturity Date, if not sooner paid. Interest shall be due and
payable on each Payment Date. CFC shall send a payment notice to the Borrower at
least five days prior to the due date of any interest payment, provided,
however, that CFC's failure to send a payment notice shall not constitute a
waiver by CFC or be deemed to relieve the Borrower of its obligation to make
payments as and when due as provided for herein. All amounts shall be payable at
CFC's main office at 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 CFC Line of Credit Rate in effect 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 publishing the Prevailing Bank Prime Rate, the Prevailing Bank Prime Rate
shall be determined by CFC by reference to another publication reporting bank
prime rates in a similar manner.
B. Application of Payments. Each payment shall be applied to the
Obligations, first to any fees, costs, expenses or charges other than interest
or principal then due on the Borrower's indebtedness to CFC, second to interest
accrued and the balance to principal.
Section 3.03 Paydown Requirement. For each 12-month period while this
Agreement is in effect, Borrower shall, for a period of at least five
consecutive business days, pay down the entire outstanding principal balance on
this line of credit ("Paydown"). Borrower shall make the initial Paydown within
360 days of the first Advance hereunder, and shall make each subsequent Paydown
within 360 days of the date of the first Advance following each Paydown.
Section 3.04 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 obligations to repay borrowed
money (excluding trade payables), 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.
Section 3.05 Mandatory Prepayment. If there is a change in the Borrower's
corporate structure (including without limitation by merger, consolidation,
conversion or acquisition, except
where the purchaser, successor or resulting entity meets the conditions
described in paragraph 7(a) of Schedule 1 hereto), then upon the effective date
of such change, (a) the Borrower shall no longer have the ability to request,
and CFC shall have no obligation to make, Advances hereunder and (b) the
Borrower shall repay the outstanding principal balance of all Obligations,
together with any accrued but unpaid interest thereon, any unpaid costs or
expenses provided for herein, and upon repayment thereof, this Agreement shall
automatically terminate without further action by either Borrower or CFC.
Notwithstanding the foregoing, Borrower shall retain the ability to request, and
CFC shall retain the obligation to make, Advances hereunder and no prepayment
shall be required under this Section 3.05 if, after giving effect to such
change, Borrower, or its successor in interest, is engaged in the furnishing of
electric utility services to its members and patrons for their use as ultimate
consumers and is organized as a cooperative, nonprofit corporation, public
utility district, municipality, or other public governmental body.
Section 3.06 Termination and Cancellation of Existing Agreement. Borrower
agrees that its existing line of credit No. AK008-R-5101 with CFC 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.
Section 3.07 Default Rate. If Borrower defaults on its obligation to make
a payment due hereunder by the applicable Payment Date, and such default
continues for thirty days thereafter, then beginning on the thirty-first day
after the Payment Date and for so long as such default continues, Advances shall
bear interest at the Default Rate.
ARTICLE IV
CONDITIONS OF LENDING
Section 4.01 The obligation of CFC to make any Advance hereunder is
subject to satisfaction of the following conditions in form and substance
satisfactory to CFC:
A. RESERVED.
B. Documents. CFC shall have been furnished with (i) the executed Loan
Documents, (ii) certified copies of all such organizational documents and
proceedings of the Borrower authorizing the transactions hereby contemplated as
CFC shall require, and (iii) all other such documents as CFC may reasonably
request.
C. Government Approvals. The Borrower shall have furnished to CFC true and
correct copies of all certificates, authorizations, consents, permits and
licenses from Governmental Authorities necessary for the execution or delivery
of the Loan Documents or performance by the Borrower of the obligations
thereunder.
D. Representations and Warranties. The representations and warranties
contained in Article II shall be true on the date of the making of each Advance
hereunder with the same effect as though such representations and warranties had
been made on such date; no Event of Default and no event which, with the lapse
of time or the notice and lapse of time would become such an Event of Default,
shall have occurred and be continuing or will have occurred after giving effect
to each Advance on the books of the Borrower; there shall have
occurred no material adverse change in the business or condition, financial or
otherwise, of the Borrower; and nothing shall have occurred which in the opinion
of CFC materially and adversely affects the Borrower's ability to perform its
obligations hereunder.
E. Requisitions. Borrower will requisition each Advance by submitting its
requisition to CFC in form and substance satisfactory to CFC no later than 12:00
noon local time at CFC's offices in Herndon, Virginia on the Business Day prior
to the Business Day Borrower seeks to have funds advanced.
CFC may require the Borrower to submit such additional information as it may
reasonably require prior to funding the Advance request.
F. Special Conditions. CFC shall be fully satisfied that the Borrower has
complied with all special conditions identified in Schedule 1 hereto.
ARTICLE V
COVENANTS
Section 5.01 The Borrower covenants and agrees with CFC that until payment
in full of the Line of Credit and performance of all obligations of the Borrower
hereunder:
A. Use of Proceeds. The Borrower shall use the proceeds of this Line of
Credit solely for the purposes identified on Schedule 1 hereto.
B. Notice. The Borrower shall promptly notify CFC in writing of:
(i) any material adverse change in the business, operations,
prospects, assets, liabilities or financial condition of the
Borrower or its subsidiaries;
(ii) the institution or threat of any litigation or administrative
proceeding of any nature involving the Borrower or any
subsidiary which could materially affect the business,
operations, prospects, assets, liabilities or financial
condition of the Borrower or any subsidiary;
(iii) the occurrence of an Event of Default hereunder, or any event
that, with the giving of notice or lapse of time, or both,
would constitute an Event of Default.
C. Default Notices. Upon receipt of any notices with respect to a default
by the Borrower or any subsidiary under the terms of any evidence of any
indebtedness with parties other than CFC or of any loan agreement, mortgage or
other agreement relating thereto, the Borrower shall, and shall cause each
subsidiary to, deliver copies of such notice to CFC.
D. Financial Books; Financial Reports; Right of Inspection. The Borrower
will at all times keep, and safely preserve, proper books, records and accounts
in which full and true entries will be made of all of the dealings, business and
affairs of the Borrower, in accordance with GAAP. The Borrower will cause to be
prepared and furnished to CFC within one hundred twenty (120) days of the end of
each of the Borrower's fiscal years during the term hereof, a full and complete
consolidated and consolidating report of its financial condition and of its
operations as of the end of such fiscal year, audited and certified by
independent certified public
accountants nationally recognized or otherwise satisfactory to CFC and
accompanied by a report of such audit in form and substance satisfactory to CFC,
including without limitation a consolidated and consolidating balance sheet and
the related consolidated and consolidating statements of income and cash flow.
CFC, through its representatives, shall at all times during reasonable business
hours and upon prior notice have access to, and the right to inspect and make
copies of, any or all books, records and accounts, and any or all invoices,
contracts, leases, payrolls, canceled checks, statements and other documents and
papers of every kind belonging to or in the possession of the Borrower or in
anyway pertaining to its property or business.
E. Compliance With Laws. The Borrower and each Subsidiary shall remain in
compliance, in all material respects, with all applicable requirements of law
and applicable rules and regulations of each Governmental Authority whose
violation would have a material adverse effect upon the business, operations,
prospects, assets, liabilities or financial condition of the Borrower.
F. Taxes. The Borrower shall pay, or cause to be paid all taxes,
assessments or governmental charges lawfully levied or imposed on or against it
and its properties prior to the time they become delinquent, except for any
taxes, assessments or charges that are being contested in good faith and with
respect to which adequate reserves as determined in good faith by Borrower have
been established and are being maintained.
G. Special Covenants. The Borrower will comply with any special covenants
identified in Schedule 1 hereto.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01 The following shall be "Events of Default" under this
Agreement:
A. Representations and Warranties. Any representation or warranty made by
the Borrower herein, or in any of the other Loan Documents, or in any
certificate or financial statement furnished to CFC hereunder or under any of
the other Loan Documents shall prove to be false or misleading in any material
respect.
B. Payment. The Borrower shall fail to pay (whether upon stated maturity,
by acceleration, or otherwise) any principal, interest, premium (if any) or
other amount payable under the Line of Credit within five (5) Business Days
after the due date thereof.
C. Other Covenants.
(i) No Grace Period. Failure of the Borrower to observe or perform any
covenant or agreement contained in Sections 5.01.A, 5.01.C, 5.01.D, or
5.01.G, of this Agreement.
(ii) Thirty Day Grace Period. Failure of the Borrower to observe or
perform any other covenant or agreement contained in this Agreement or
any of the other Loan Documents, which shall remain unremedied for
thirty (30) calendar days after written notice thereof shall have been
given to the Borrower by CFC.
D. Legal Existence, Permits and Licenses. The Borrower shall forfeit or
otherwise be deprived of (i) its authority to conduct business in the
jurisdiction in which it is organized or in any other jurisdiction where such
authority is required in order for the Borrower to conduct its business in such
jurisdiction or (ii) permits, easements, consents or licenses required to carry
on any material portion of its business.
E. Other CFC Obligations. The Borrower shall be in breach or default of
any other Obligation, which breach or default continues uncured beyond the
expiration of any applicable grace period.
F. Other Obligations. The Borrower shall (i) fail to make any payment of
any principal, premium or any other amount due or interest on any indebtedness
(other than trade payables arising in the ordinary course of business of the
Borrower) with parties other than CFC which shall remain unpaid beyond the
expiration of any applicable grace period, or (ii) be in breach or default with
respect to any other term of any evidence of any other indebtedness exceeding
$500,000.00 with parties other than CFC or of any loan agreement, mortgage or
other agreement relating thereto which breach or default continues uncured
beyond the expiration of any applicable grace period, if the effect of such
failure, default or breach is to cause the holder or holders of that
indebtedness to cause that indebtedness to become or be declared due prior to
its stated maturity (upon the giving or receiving of notice, lapse of time, both
or otherwise).
G. Involuntary Bankruptcy. An involuntary case or other proceeding shall
be commenced against the Borrower seeking liquidation, reorganization or other
relief with respect to it or its debts under 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 it or any
substantial part of its property and such involuntary case or other proceeding
shall continue without dismissal or stay for a period of sixty (60) days; or an
order for relief shall be entered against the Borrower under the federal
bankruptcy laws or applicable state law as now or hereafter in effect.
H. Insolvency. The Borrower shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to
itself 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 it or any substantial part of
its property, or shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or proceeding
commenced against it, or shall make a general assignment for the benefit of
creditors, or shall admit in writing its inability to, or be generally unable
to, pay its debts as they become due, or shall take any action to authorize any
of the foregoing.
I. Dissolution or Liquidation. Other than as provided in subsection H.
above, the dissolution or liquidation of the Borrower, or failure by the
Borrower promptly to forestall or remove any execution, garnishment or
attachment of such consequence as will impair its ability to continue its
business or fulfill its obligations and such execution, garnishment or
attachment shall not be vacated within sixty (60) days.
J. Material Adverse Change. Any adverse change in the business or
condition, financial or otherwise, of the Borrower or any subsidiary that would
materially impair the ability of the Borrower to perform its obligations under
the Loan Documents.
K. Monetary Judgment. The Borrower shall suffer any money judgment not
covered by insurance, writ or warrant of attachment or similar process involving
an amount in excess of $500,000 and shall not discharge, vacate, bond or stay
the same within a period of sixty (60) days.
L. Nonmonetary Judgment. One or more nonmonetary judgments or orders
(including, without limitation, injunctions, writs or warrants of attachment,
garnishment, execution, distraint, replevin or similar process) shall be
rendered against the Borrower that, either individually or in the aggregate,
could reasonably be expected to have a material adverse effect upon the
business, operations, prospects, assets, liabilities or financial condition of
the Borrower.
ARTICLE VII
REMEDIES
Section 7.01 If any of the Events of Default listed in Section 6 hereof
shall occur after the date of this Agreement and shall not have been remedied
within the applicable grace periods specified therein, then CFC may:
(a) Cease making Advances hereunder;
(b) Declare all unpaid principal outstanding on the Line of Credit, all
accrued and unpaid interest thereon, and all other Obligations to be
immediately due and payable and the same shall thereupon become
immediately due and payable without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived;
(c) Exercise rights of setoff or recoupment and apply any and all
amounts held, or hereby 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 or
under the Line of Credit, including, but not limited to, patronage
capital allocations and retirements, money due to Borrower from
equity certificates purchased from CFC, and any membership or other
fees that would otherwise be returned to Borrower. 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.
The Borrower waives all rights of setoff, deduction, recoupment or
counterclaim;
(d) Pursue all rights and remedies available to CFC at law or in equity,
including, but not limited to, a suit for specific performance,
injunctive relief or damages;
Nothing herein shall limit the right of CFC to pursue all rights and remedies
available to a creditor following the occurrence of an Event of Default. Each
right, power and remedy of CFC shall be cumulative and concurrent, and recourse
to one or more rights or remedies shall not constitute a waiver of any other
right, power or remedy.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 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. All such communications shall be deemed to have been duly
given (a) when personally delivered including, without limitation, by overnight
mail or courier service, (b) in the case of notice by United States mail,
certified or registered, postage prepaid, return receipt requested, upon receipt
thereof, or (c) in the case of notice by telecopy, upon transmission thereof,
provided such transmission is promptly confirmed by either of the methods set
forth in clauses (a) or (b) above in each case given or addressed as provided
for herein. The Address for Notices of each of the respective parties is as
follows:
National Rural Utilities Cooperative Finance
Corporation
0000 Xxxxxxxxxxx Xxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Senior Vice President - Member Services
Fax # 000-000-0000
The Borrower:
The address set forth in
Schedule 1 hereto
Section 8.02 Expenses. Borrower shall reimburse CFC for any reasonable
costs and out-of-pocket expenses paid or incurred by CFC (including, without
limitation, reasonable fees and expenses of outside attorneys, paralegals and
consultants) for all actions CFC takes, (a) to enforce the payment of any
Obligation or in preparation for such enforcement, (b) to restructure any of the
Obligations, (c) to review, approve or grant any consents or waivers hereunder,
(d) to amend or modify this Agreement, and (e) to prepare, negotiate, execute,
deliver, amend or modify any other agreements, documents and instruments deemed
necessary or appropriate by CFC in connection with any of the foregoing.
The amount of all such expenses identified in this Section 8.02 shall be payable
upon demand, and if not paid, shall accrue interest at the Default Rate.
Section 8.03 Late Payments. If payment of any amount due hereunder is not
received at CFC's office in Herndon, Virginia or such other location as CFC may
designate to the Borrower, within five (5) Business Days after the due date
thereof, the Borrower will pay to CFC, in addition to all other amounts due
under the terms of the Loan Documents, any late payment charge as may be fixed
by CFC from time to time pursuant to its policies of general application as in
effect from time to time.
Section 8.04. Non-Business Day Payments. If any payment to be made by the
Borrower hereunder shall become due on a day which is not a Business Day, such
payment
shall be made on the next succeeding Business Day and such extension of time
shall be included in computing any interest in respect of such payment.
Section 8.05 Filing Fees. To the extent permitted by law, the Borrower
agrees to pay all expenses of CFC (including the reasonable fees and expenses of
its counsel) in connection with the filing, registration, recordation or
perfection of any instruments as may be required by CFC in connection with this
Agreement, including, without limitation, all documentary stamps, recordation
and transfer taxes and other costs and taxes incident to execution, filing,
registration, recordation or perfection of any document or instrument in
connection herewith. The Borrower agrees to save harmless and indemnify CFC from
and against any liability resulting from the failure to pay any required
documentary stamps, recordation and transfer taxes, recording costs, or any
other expenses incurred by CFC in connection with this Agreement. The provisions
of this subsection shall survive the execution and delivery of this Agreement
and the payment of all other amounts due hereunder.
Section 8.06 CFC Accounts. Borrower agrees that the records of, and all
computations by, CFC (in whatever media they are recorded or maintained) as to
the amount of principal, interest and fees due on the Line of Credit shall be
presumptive evidence in the absence of manifest error.
Section 8.07 Waiver; Modification. No failure on the part of CFC to
exercise, and no delay in exercising, any right or power hereunder or under the
other Loan Documents shall operate as a waiver thereof, nor shall any single or
partial exercise by CFC of any right hereunder, or any abandonment or
discontinuance of steps to enforce such right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. No
modification or waiver of any provision of this Agreement or the other Loan
Documents and no consent to any departure by the Borrower therefrom shall in any
event be effective unless the same shall be in writing by the party granting
such modification, waiver or consent, and then such modification, waiver or
consent shall be effective only in the specific instance and for the purpose for
which given.
SECTION 8.08 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) THE BORROWER HEREBY SUBMITS TO THE NON-EXCLUSIVE 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. THE BORROWER IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTIONS THAT IT MAY NOW OR
HEREAFTER HAVE TO THE ESTABLISHING OF THE VENUE OF ANY SUCH PROCEEDINGS BROUGHT
IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM,
(C) THE BORROWER AND CFC EACH 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.
SECTION 8.09 INDEMNIFICATION. THE BORROWER HEREBY INDEMNIFIES AND AGREES
TO HOLD HARMLESS, AND DEFEND CFC AND ITS MEMBERS, DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, ATTORNEYS AND REPRESENTATIVES (EACH AN "INDEMNITEE") FOR,
FROM, AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS, AND EXPENSES
(INCLUDING, WITHOUT LIMITATION, COSTS AND EXPENSES OF LITIGATION AND REASONABLE
ATTORNEYS' FEES) ARISING FROM ANY CLAIM OR DEMAND IN RESPECT OF THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS DESCRIBED IN THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS AND ARISING AT ANY TIME, WHETHER BEFORE OR AFTER
PAYMENT AND PERFORMANCE OF ALL OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS IN FULL, EXCEPTING ANY SUCH MATTERS ARISING SOLELY FROM THE
NEGLIGENCE OR WILLFUL MISCONDUCT OF CFC OR ANY INDEMNITEE. NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED IN SECTION 8.11 HEREOF, THE OBLIGATIONS
IMPOSED UPON THE BORROWER BY THIS SECTION SHALL SURVIVE THE REPAYMENT OF THE
LINE OF CREDIT AND THE TERMINATION OF THIS AGREEMENT.
Section 8.10 Complete Agreement. This Agreement, together with the
schedules to this Agreement and the other Loan Documents, and the other
agreements and matters referred to herein or by their terms referring hereto, is
intended by the parties as a final expression of their agreement and is intended
as a complete statement of the terms and conditions of their agreement. In the
event of any conflict in the terms and provisions of this Agreement and any
other Loan Documents, the terms and provisions of this Agreement shall control.
Section 8.11 Survival; Successors and Assigns. All covenants, agreements,
representations and warranties of the Borrower which are contained in this
Agreement shall survive the execution and delivery to CFC of the Loan Documents
and the making of the Advances hereunder and shall continue in full force and
effect until all of the obligations under the Loan Documents have been paid in
full. All covenants, agreements, representations and warranties of the Borrower
which are contained in this Agreement shall inure to the benefit of the
successors and assigns of CFC. The Borrower shall not have the right to assign
its rights or obligations under this Agreement.
Section 8.12 Use of Terms. The use of the singular herein shall also refer
to the plural, and vice versa.
Section 8.13 Headings. The headings and sub-headings contained in this
Agreement are intended to be used for convenience only and do not constitute
part of this Agreement.
Section 8.14 Severability. If any term, provision or condition, or any
part thereof, of this Agreement or the other Loan Documents shall for any reason
be found or held invalid or unenforceable by any governmental agency or court 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 and the other Loan Documents shall survive and be
construed as if such invalid or unenforceable term, provision or condition had
not been contained therein.
Section 8.15 Binding Effect. This Agreement shall become effective when it
shall have been executed by both Borrower and CFC and thereafter shall be
binding upon and inure to the benefit of Borrower and CFC and their respective
successors and assigns.
Section 8.16 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same document. Signature pages may be detached from
the counterparts and attached to a single copy of this Agreement to physically
form one document.
Section 8.17 Schedule 1. Schedule 1 attached hereto is an integral part of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
CHUGACH ELECTRIC ASSOCIATION, INC.
(SEAL)
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------
Title: C.F.O
Attest: /s/ Xxxx Xxxxxx
-----------------------------
Secretary
NATIONAL RURAL UTILITIES COOPERATIVE
FINANCE CORPORATION
(SEAL)
By: XXXXXXXX L DUSOID
---------------------------------
Assistant Secretary-Treasurer
XXXXXXXX X XXXXXX
Attest: XXXXX XXXXXXX
-----------------------------
Assistant Secretary-Treasurer
XXXXX XXXXXXX
Effective Date: October 14, 2007 (to be filled in by CFC)
Loan Number: AK008-R-5102
SCHEDULE 1
1. The purpose of this Line of Credit is to provide funds for the Borrower's
general corporate use, consistent with the Borrower's articles of
incorporation, bylaws and applicable federal, state and local laws and
regulations.
2. The CFC Commitment shall mean $50,000,000.00.
3. Maturity Date shall mean the date sixty (60) months from the Effective
Date.
4. The date of the Borrower's balance sheet referred to in Section 2.01.G. is
December 31, 2006.
5. The Governmental Authority referred to in Section 2.01.H. is: None
6. The special conditions referred to in Section 4.01.F. are as follows:
None
7. The special covenants referred to in Section 5.01.I. are as follows:
(a) Borrower shall not consolidate with, merge, or sell all or
substantially all of its business or assets, or enter into an
agreement for such consolidation, merger or sale, to another entity
or person unless such action is either approved, as is evidenced by
the prior written consent of CFC, or the purchaser, successor or
resulting corporation is or becomes a member in good standing of CFC
and assumes the due and punctual performance of the covenants
contained in this Agreement; and
(b) Borrower shall maintain an Average TIER of not less than l.10.
8. The address for notices to the Borrower referred to in Section 8.01 is P.
O. Xxx 000000, Xxxxxxxxx, Xxxxxx 00000-0000, Attention: President/CEO,
Fax: (000) 000-0000.
