EXHIBIT 10.34
CFC CONSOLIDATING LOAN AGREEMENT
AGREEMENT, dated March 30, 1993, between CAP ROCK ELECTRIC
COOPERATIVE, INC., (herein called the "Borrower"), a corporation organized
and existing under the laws of the State of Texas (the "State") and NATIONAL
RURAL UTILITIES COOPERATIVE FINANCE CORPORATION (herein called "CFC"), a
corporation organized and existing under the laws of the District of Columbia.
RECITALS
WHEREAS, the Borrower is a corporation that survives the
consolidation of Cap Rock Electric Cooperative, Inc. and Lone Wolf Electric
Cooperative, Inc. (collectively, the "Consolidating Cooperatives"), and
WHEREAS, the Consolidating Cooperatives hereto have previously
entered into loan agreements dated as of the dates set forth in Schedule I
hereto (the "Previous Loan Agreements") and the Consolidating Cooperatives
have issued notes to CFC in connection therewith; and
WHEREAS, the Borrower has succeeded to the respective rights and
assumed the respective obligations of the Consolidating Cooperatives, and
WHEREAS, CFC and the Borrower desire to amend and restate the
Previous Loan Agreements and Notes as provided for herein and the Borrower
will, assume such debt;
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants hereinafter contained, the parties here to agree and bind
themselves as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
SECTION 1. The Borrower represents and warrants that:
A. GOOD STANDING. The Borrower is a corporation duly incorporated
and validly existing under the laws of the State, is duly qualified in those
states in which it is required to be qualified to conduct its business and
has corporate power to make and perform this Agreement, to borrow hereunder
and to give security as provided for herein.
B. AUTHORITY. The execution, delivery and performance by the
Borrower of this Agreement, the Note (as hereinafter defined) and the
Mortgage (as defined in Schedule I hereto) and the performance of the
transactions contemplated thereby have been duly authorized by all necessary
corporate action and will not violate any provision of law or of the Articles
of Incorporation or By-Laws of the Borrower or result in a breach of, or
constitute a default under, any agreement, indenture or other instrument to
which the Borrower is a party or by
Consolidated Loan Agreement
C37 Class A & B
REA Borrower, Mortgage
TX 107.MGR (MAK)
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which it may be bound. The Borrower is not in default of any of its
obligations to the Rural Electrification Administration (herein called "REA").
C. LITIGATION. There are no suits or proceedings pending or to the
knowledge of the Borrower threatened against or affecting the Borrower or its
properties which, if adversely determined, would have a material adverse
effect upon the financial condition or the business of the Borrower. The
Borrower is not, to its knowledge, in default with respect to any judgment,
order, rule or regulation of any court, governmental agency or other
instrumentality which would have a material adverse effect on the Borrower.
D. FINANCIAL STATEMENTS. The balance sheet of the Borrower most
recently submitted to CFC as at the date thereof and the statement of
operations of the Borrower for the period ending on said date, are complete
and correct. 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 obligation or unusual 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. The Borrower has heretofore furnished to CFC
true and complete copies of its financial and statistical reports to the REA
on REA Form 7 (or any successor form) for the month of December for each of
the three most recent calendar years, and a copy of its most recent such
report on REA Form 7 (or any successor form) and the facts stated therein are
true.
E. LOCATION OF OFFICE. The chief place of business of the Borrower
and the office where its records concerning accounts and contract rights are
kept is identified in Schedule l hereto.
F. LOCATION OF PROPERTIES. All property owned by the Borrower is
located in the counties identified in Schedule l hereto.
G. NO OTHER LIENS. As to property which is presently included in the
description of Mortgaged Property (as that term is defined in the Mortgage),
the Borrower has not, without the prior written approval of CFC, signed any
security agreement or filed or permitted to be filed any financing statement
with respect to assets owned by it, other than security agreements and
financing statements running in favor of REA and/or CFC, except as disclosed
in writing to CFC prior to the date hereof.
H. REQUIRED APPROVALS. No license, consent or approval of any
governmental agency or authority is required to enable the Borrower to enter
into this Agreement or to perform any of its obligations provided for herein
except that of the REA, and except as disclosed in Schedule l hereto.
I. SURVIVAL. All representations and warranties made by the Borrower
herein or made in any certificate delivered pursuant here to shall survive
the making of the Advances (as hereinafter defined) and the execution and
delivery to CFC of the Note.
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If the Borrower elects a fixed interest rate, the rate shall equal
the CFC long-term rate at the time of each Advance for loans similarly
classified pursuant to the long-term loan programs established by CFC from
time to time. Such rate shall apply until a date, determined by CFC,
approximately seven years after the first Advance (the "Adjustment Date"),
written notice of which shall be provided to the Borrower at least 90 days
prior to the Adjustment Date. After the Adjustment Date, the interest rate
shall be computed in like manner and fixed by CFC from time to time;
provided, however, that CFC will not change any such fixed interest rate
without giving the Borrower at least 60 days prior written notice (any such
90-day or 60-day notification period being herein called a "Notification
Period" and such period from January 1 to December 31 immediately following a
Notification Period being herein called a "Repricing Period").
If the Borrower elects a variable interest rate, the rate for each
month shall be equal to the rate established by CFC for such month for
variable interest rate long-term loans similarly classified pursuant to the
long-term loan programs established by CFC from time to time. Such variable
interest rate shall apply until the Maturity Date of the Note unless the
Borrower elects to convert to a fixed rate pursuant to the terms hereof.
The Borrower may, at any time, convert from a variable interest rate
to a converted fixed interest rate provided that the Borrower submits to CFC
a resolution of its Board of Directors requesting such conversion. The
converted fixed interest rate shall be equal to the rate of interest quoted
by CFC and communicated, or generally made known, to borrowers from CFC on
the date an authorized representative of the Borrower requests such
conversion. Such quoted rate shall remain available to the Borrower for 30
days; it being understood and agreed that the effective date of such quoted
rate as to all amounts outstanding on the Note shall be the day after the
Payment Date next following receipt by CFC of the resolution referred to in
the preceding sentence. Upon the election of the Borrower to convert to a
converted fixed rate, such rate shall remain in effect for seven years
beginning the January l next following the effective date of such converted
fixed interest rate; provided that during the period from January l to
December 31 of the seventh year (which shall be considered a Repricing
Period), the Borrower may elect either a variable interest rate or a fixed
interest rate pursuant to the long-term loan policies then in effect and
applicable to long-term loans similarly classified. CFC agrees that its
long-term loan policies will include a fixed interest rate option until the
Maturity Date.
The Borrower may at any time convert from a fixed interest rate to a
variable interest rate, if the Borrower: (i) submits to CFC a resolution of
its Board of Directors requesting that the variable interest rate apply to
any outstanding loan balance and future Advances; and (ii) pays to CFC,
promptly upon receipt of an invoice, a conversion fee calculated pursuant to
the long-term loan policies of CFC for long-term loans similarly classified.
SECTION 2.4. PREPAYMENT. Subject to the terms of the Mortgage, the
Borrower may at any time or from time to time, on not less than 30 days'
written notice to CFC, prepay the Note in whole, or in part together with the
interest accrued to the date of prepayment and any prepayment premium that
CFC may from
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time to time prescribe. Each prepayment on the Note shall be applied in
payment of installments of principal of the Note in inverse order of their
maturity.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3. The obligation of CFC to make any Advance hereunder is
subject to satisfaction of the following conditions:
A. LEGAL MATTERS. All legal matters incident to the consummation of
the transactions hereby contemplated shall be satisfactory to counsel for CFC
and, as to all matters of local law, to such local counsel as counsel for CFC
may associate with them.
B. DOCUMENTS. CFC shall have been furnished with executed copies,
satisfactory to CFC, of this Agreement, the Note and the Mortgage and
certified copies, satisfactory to CFC, of all such corporate documents and
proceedings of the Borrower authorizing the transactions hereby contemplated
as CFC or its counsel shall require. CFC shall have received an opinion of
counsel for the Borrower: (i) substantially in the form of Exhibit B hereto;
and (ii) addressing such other legal matters as CFC or its counsel shall
reasonably require.
C. GOVERNMENT APPROVALS. The Borrower shall have furnished to CFC
true and correct copies of all certificates, authorizations and consents,
including without limitation the consents referred to in Section 1.H. hereof,
necessary for the execution, delivery or performance by the Borrower of this
Agreement, the Note and the Mortgage.
D. REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained in Article I shall (except as affected by the
transactions contemplated by this Agreement) 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 specified in Article V and no event which, with the lapse of time or
the notice and lapse of time specified in Article V would become such an
Event of Default, shall have occurred and be continuing or will have occurred
after giving effect to the 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 and REA materially and adversely affects the
Borrower s ability to meet its obligations hereunder.
E. MORTGAGE FILING. The Mortgage shall have been duly recorded as a
mortgage on real property and duly filed, recorded or indexed as a security
interest in personal property wherever CFC shall have requested, all in
accordance with applicable law, and the Borrower shall have caused
satisfactory evidence thereof to be furnished to CFC.
F. SPECIAL CONDITIONS. The Borrower shall have complied with any
special conditions listed in Schedule l hereto.
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G. REQUISITIONS. The Borrower will requisition all Advances by
submitting its requisition to CFC on REA Form 595 or such other requisition
in form and substance satisfactory to CFC. Requisitions shall be made only
for the purpose of paying the costs associated with the Project. If the
requisition is approved by CFC, CFC will seek to obtain REA approval of the
requisition. CFC will make the requested Advance only if REA approval is
obtained. The Borrower agrees to apply the proceeds of the Advances in
accordance with its loan application with such modifications as may be
mutually agreed upon and to deposit all funds advanced hereunder in its
Trustee Special Construction Fund Account.
ARTICLE IV
AFFIRMATIVE COVENANTS
SECTION 4. After the date hereof and until payment in full of the
Note and performance of all obligations of the Borrower hereunder, the
Borrower agrees that it will:
A. MEMBERSHIP. Remain a member in good standing of CFC.
B. ANNUAL REPORT. Promptly upon its becoming available, furnish to
CFC a true and correct copy of the annual report of the Borrower to the
United States Department of the Treasury on Form 990 or any successor form
thereto.
C. FINANCIAL RATIOS. Subject to applicable laws and rules and orders
of regulatory bodies, and to events in the judgment of CFC beyond the control
of the Borrower, so operate and manage its business as to achieve both a
Times Interest Earned Ratio (as hereinafter defined and herein called "TIER")
of not less than 1.5, and a Debt Service Coverage Ratio (as hereinafter
defined and herein called "DSC") of not less than 1.25, each of said ratios
being determined by averaging the two highest annual ratios during the most
recent three calendar years. For the purpose of this subsection (C): TIER
shall mean the ratio determined in each year by adding Patronage Capital and
Margins (as computed for purposes of line A.27 on REA Form 7, rev. 8/88, and,
if applicable, line A.17 on said REA Form 7, or the comparable items on a
successor form) to Interest Expense (as computed for purposes of line A.15 on
said REA Form 7, or the comparable item on a successor form, minus an amount
as computed for purposes of line A.16 on said Form 7, or the comparable item
on a successor form), and dividing the total so obtained by Interest Expense
(as so computed); DSC shall mean the ratio determined in each year by adding
Patronage Capital and Margins and Interest Expense (each computed as set
forth above) to Depreciation and Amortization Expense (as computed for the
purpose of line A.12 on said Form 7, or the comparable item on a successor
form), and dividing the total so obtained by an amount equal to the sum of
all payments of principal and interest required to be made during such year
on account of Total Long-Term Debt (as computed for the purpose of line C.35
on said REA Form 7, or the comparable item on a successor form).
D. ANNUAL CERTIFICATE. Within 60 days after the close of each
calendar year, commencing with the year following the year in which the
initial Advance hereunder shall have been made, deliver to CFC a written
statement signed by its
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General Manager, stating that said person has furnished to the governing
board of the Borrower a report of the activities of the Borrower, and of its
performance under this Agreement, the Note and the Mortgage, during such
year, and that to the best of said person's knowledge, the Borrower has
fulfilled all of its obligations under this Agreement, the Note, and the
Mortgage throughout such year or, if there has been a default in the
fulfillment of any such obligations, specifying each such default known to
said person and the nature and status thereof.
E. LOAN CERTIFICATE PURCHASE. The Borrower has satisfied the
requirements as of the date hereof for the purchase of Purchase a Loan
Capital Term Certificates. The LCTC's shall bear not interest and shall
mature on the Maturity Date.
F. SPECIAL AFFIRMATIVE COVENANTS. Comply with any and all special
affirmative covenants as listed in Schedule 1.
ARTICLE V
EVENTS OF DEFAULT
SECTION 5. The following shall be Events of Default under this
Agreement:
A. REPRESENTATIONS AND WARRANTIES. Any representation or warranty
made by the Borrower in Article I hereof or any certificate furnished to CFC
hereunder shall prove to have been incorrect in any material respect at the
time made and shall at the time in question be untrue or incorrect in any
material respect and remain uncured;
B. PAYMENT. Default shall be made in the payment of or on account of
interest on or principal of the Note when and as the same shall be due and
payable, whether by acceleration or otherwise, which shall remain unsatisfied
for 5 business days;
C. OTHER COVENANTS. Default by the Borrower in the observance or
performance of any other covenant or agreement contained in this Loan
Agreement, in the Note or the Mortgage, which shall remain unremedied for 30
calendar days after written notice thereof shall have been given to the
Borrower by CFC;
D. CORPORATE EXISTENCE. The Borrower shall forfeit or otherwise be
deprived of its corporate charter, franchises, permits, easements, consents
or licenses required to carry on any material portion of its business;
E. OTHER OBLIGATIONS. Default by the Borrower in the payment of any
obligation, whether direct or contingent, for borrowed money or in the
performance or observance of the terms of any instrument pursuant to which
such obligation was created or securing such obligation;
F. BANKRUPTCY. A court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Borrower in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter
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in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official, or order the winding up or
liquidation of its affairs, and such decree or order shall remain unstayed
and in effect for a period of 90 consecutive days or the Borrower shall
commence a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or under any such law, or
consent to the appointment or taking possession by a receiver, liquidator,
assignee, custodian or trustee, of a substantial part of its property, or
make any general assignment for the benefit of creditors; or
G. DISSOLUTION OR LIQUIDATION. Other than as provided in subsection
F. 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 30 days. The term "dissolution or
liquidation of the Borrower", as used in this subsection, shall not be
construed to include the cessation of the corporate existence of the Borrower
resulting either from a merger or consolidation of the Borrower into or with
another corporation following a transfer of all or substantially all its
assets as an entirety, under the conditions permitting such actions.
ARTICLE VI
REMEDIES
SECTION 6. If any of the Events of Default listed in Section 5
hereof shall occur after the date of this Agreement and shall not have been
remedied, then CFC may pursue all rights and remedies available to CFC that
are contemplated by the Mortgage in the manner, upon the conditions, and with
the effect provided in the Mortgage, 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 listed in Section
S.F. hereof. 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 VII
MISCELLANEOUS
SECTION 7.1. NOTICES. All notices, requests and demands shall be
given to or made upon the respective parties hereto as follows:
National Rural Utilities
Cooperative Finance Corporation
Woodland Park
0000 Xxxxxxxxxxx Xxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Governor
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The Borrower:
The address set forth in Schedule 1 here to
or in such other manner, as to either party hereto, as such party shall
designate by written notice to the other party hereto.
SECTION 7.2. EXPENSES. The Borrower will pay all costs and expenses
of CFC, including reasonable fees of counsel, incurred in connection with the
enforcement of this Agreement, the Note, the Mortgage and the other
instruments provided for herein or with the preparation for such enforcement
if CFC has reasonable grounds to believe that such enforcement may be
necessary.
SECTION 7.3. LATE PAYMENTS. If payment of any principal and/or
interest due under the terms of the Note is not received at CFC's office in
Herndon, Virginia, or such location as CFC may designate to the borrower
within 5 business days after the due date thereof or such other time period
as CFC may prescribe in is policies (such unpaid amount of principal and/or
interest being herein called the "delinquent amount", and the period
beginning after such due date until payment of the delinquent amount being
herein called the "late-payment period"), the Borrower will pay to CFC, in
addition to all other amounts due under the terms of the Note, the Mortgage
and this Agreement, any late-payment charge as may be fixed by CFC from time
to time on the delinquent amount for the late-payment period.
SECTION 7.4. 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 enforcement of this
Agreement, the collection of amounts due hereunder or on account of the Note
or the filing or recordation of all financing statements and 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 recordation of any document or instrument in
connection herewith. 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 or due on
the Note.
SECTION 7.5. NO WAIVER. No failure on the part of CFC to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver
thereof nor shall any single or partial exercise by CFC of any right
hereunder preclude any other or further exercise thereof or the exercise of
any other right.
SECTION 7.6. GOVERNING LAW. THIS AGREEMENT AND THE DOCUMENTS PROVIDED
FOR HEREIN SHALL BE DEEMED TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF VIRGINIA.
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SECTION 7.7. HOLIDAY PAYMENTS. If any payment to be made by the
Borrower hereunder shall become due on a Saturday, Sunday or business holiday
under the laws of the Commonwealth of Virginia 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 7.8. RESCISSION FEE. The Borrower may elect not to borrow
all or any portion of the CFC Commitment in which event CFC shall release the
Borrower from its obligations hereunder provided the Borrower complies with
such terms and conditions as CFC may impose for such release including,
without limitation, payment of any rescission fee that CFC may from time to
time prescribe.
SECTION 7.9. AMENDING DOCUMENT, MODIFICATIONS. This Amending Loan
Agreement, including all attachments and matters incorporated by reference,
contains the entire agreement of the parties here to with respect to the
matters covered and the transactions for the Previous Loan Agreements. Not
modification or waiver of any provision of this Agreement or the Note and no
consent to any departure by Borrower therefrom, shall in any event be
effective unless the same shall be in writing.
SECTION 7.10. MERGER AND INTEGRATION. This Agreement and the
attached Exhibits and matters incorporated by reference contain the entire
agreement of the parties hereto with respect to the matters covered and the
transactions contemplated hereby.
SECTION 7.11. HEADINGS. The headings and subheadings contained in
the titling of this Agreement are intended to be used for convenience only
and do not constitute part of this Agreement.
SECTION 7.12. SEVERABILITY. If any term, provision or condition, or
any part thereof, of this Agreement or the Mortgage 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, the Note, and the Mortgage shall
survive and be construed as if such invalid or unenforceable term, provision
or condition had not been contained therein.
SECTION 7.13. SCHEDULE 1. Schedule 1 attached hereto is an integral
part of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
CAP ROCK ELECTRIC COOPERATIVE, INC.
(SEAL)
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Chairman
Attest: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Secretary
NATIONAL RURAL UTILITIES
COOPERATIVE FINANCE CORPORATION
(SEAL)
By: /s/ illegible
----------------------------
Governor
ATTEST: /s/ illegible
----------------------------
Assistant Secretary
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SCHEDULE I
1. The Previous Loan Agreements referred to in the recitals are as
follows:
Note Loan Original Maturity
Designation Agreement Principal Amount Date
----------- --------- ---------------- ----
Cap Rock Electric Cooperative, Inc.
9001 9/21/88 109,000 5/15/2008
9002 9/21/88 158,000 10/21/2009
9004 9/21/88 565,000 8/14/2010
9008 9/21/88 2,330,000 7/27/2013
9012 9/21/88 3,692,000 3/18/2017
9013 9/21/88 4,186,316 9/24/2020
9014 4/19/89 5,161,290 9/25/2022
9015 4/19/89 4,000,000 9/25/2022
9016 4/19/89 4,000,000 9/25/2022
9017 4/19/89 4,000,000 9/25/2022
9018 3/22/90 4,301,075 3/22/2025
9019 3/22/90 2,365,591 3/22/2025
9020 3/22/90 4,301,075 3/22/2025
9021 3/22/90 3,763,441 3/22/2025
9022 3/22/90 3,225,806 3/22/2025
9024 3/10/92 846,411 3/10/2027
9025 3/10/92 846,411 3/10/2027
9026 3/10/92 846,411 3/10/2027
9027 3/10/92 846,411 3/10/2027
Lone Wolf Electric Cooperative, Inc.
9001 11/12/71 10,000 2/17/2007
9004 1/12/77 105,000 3/28/2012
9011 6/11/79 146,000 10/16/2014
9012 4/17/81 641,000 6/4/2016
9013 2/1/84 257,000 5/15/2019
9008 9/15/86 390,625 1/20/2022
2. The term "Mortgage" as used in this Agreement shall mean the Restated
Mortgage and Security Agreement, dated as of even date herewith, among
the Borrower, CFC and REA, as it may have been or shall be
supplemented, amended, consolidated or restated from time to time.
3. The chief place of business of the Borrower, referred to in Section
1.E. is Xxxx Xxxx 000, Xxxxxxx, Xxxxx 00000-0000.
4. The governmental authority referred to in Section l.H is N/A.
5. All of the property of the Borrower is located in the Counties of
Andrews, Borden, Dawson, Ector, Xxxxxx, Xxxxxxxxx, Xxxxxx, Irion,
Martin, Midland, Mitchell, Nolan, Reagan, Scurry, Sterling, Xxx Xxxxx
and Upton.
6. The term "CFC Commitment" as referred to in Section 2.1 is
$17,074,468.00.
7. The months referred to in the first paragraph of Section 2.2. are
February, May, August and November.
8. Amortization of Advances shall be based upon the method indicated
below:
level principal
----------
XX level debt service
----------
9. The special condition(s) referred to in Section 3.F. is (are): N/A
10. The special affirmative covenant(s) referred to in Section 4.F. is
(are): N/A
11. The address of the Borrower referred to in Section 7.1. is Xxxx Xxxx
000, X.X. Xxx 000, Xxxxxxx, XX 00000-0000.
IN WITNESS WHEREOF the Borrower has caused this Note to be signed in
its corporate name and its corporate seal to be hereunto affixed and to be
attested by its duly authorized officers, all as of the day and year first above
written.
CAP ROCK ELECTRIC COOPERATIVE, INC.
(SEAL)
Attest: By:
------------------------------- -------------------------------
(Secretary) (President)
Loan No.: TX 107-C-9028
Exhibit A-2
SUBSTITUTE
SECURED PROMISSORY NOTE
$105,000.00 , 19
CAP ROCK ELECTRIC COOPERATIVE, INC., a Texas corporation (herein called the
"Borrower"), for value received promises to pay, without setoff, deduction,
recoupment or counterclaim, to the order of NATIONAL RURAL UTILITIES
COOPERATIVE FINANCE CORPORATION (herein called the "Payee") at its office in
Herndon, Virginia, the sum of the aggregate unpaid principal amount of all
Advances made by the Payee pursuant to the Loan Agreement dated as of even
date herewith, between the Borrower and the Payee (herein called the "Loan
Agreement"), with interest thereon from the respective dates of each Advance
hereunder at the rate of 8.25% per annum, in lawful money of the United
Sates, in installments as follows: interest only accrued on said principal
amount to the last day of February, May, August and November next ensuing the
termination date (as such term is defined in said Loan Agreement, shall be
paid on or before said day, and thereafter equal quarterly installments in
the amounts shown in the Payment Schedule (described herein below) shall be
paid on the last day of each February, May, August and November; except that,
if not sooner paid, any balance of the principal amount and interest accrued
thereon shall be due and payable on March 28, 2012 (such date being the
"Maturity Date"). Each quarterly instalment shall be applied first to
interest accrued on the principal amount to the due date of such installment
(or, at the election of the holder hereof, to the date of payment of such
installment if the same is not paid on its due date) and the balance to the
reduction of principal. All Advances made by the Payee pursuant to said Loan
Agreement shall be endorsed by the Payee on the reverse side hereof on or
before any assignment or transfer hereof by the Payee. On or after the
Termination Date (as so defined), the Payee will furnish to the Borrower a
Payment Schedule indicating the precise amount of each quarterly installment
of principal and interest, and the total amount of each such quarterly
installment, to be paid by the Borrower pursuant to such Payment Schedule.
The Borrower may at its option make prepayments of the principal
hereof, in the manner and to the extent provided in said Loan Agreement.
This Note is secured by a Restated Mortgage and Security Agreement
dated as of even date herewith, among the Borrower, the Payee and the United
States of America, as it may have been or shall be supplemented, amended,
consolidated or restated from time to time (herein called the "Mortgage").
This Note is executed as a renewal of the Secured Promissory Note dated as of
March 28, 1977 and executed to the order of the Payee. This Note is the Note
referred to in, and has been executed and delivered pursuant to the Loan
Agreement. This Note is the Note referred to in, and has been executed and
delivered pursuant to, the Loan Agreement.
IN WITNESS WHEREOF the Borrower has caused this Note to be signed in
its corporate name and its corporate seal to be hereunto affixed and to be
attested by its duly authorized officers, all as of the day and year first
above written.
CAP ROCK ELECTRIC COOPERATIVE, INC.
(SEAL)
Attest: By:
------------------------------- -------------------------------
(Secretary) (President)
Loan No.: TX 107-C-9029
Exhibit A-3
SUBSTITUTE
SECURED PROMISSORY NOTE
$146,000.00 , 19
CAP ROCK ELECTRIC COOPERATIVE, INC., a Texas corporation (herein called the
"Borrower"), for value received promises to pay, without setoff, deduction,
recoupment or counterclaim, to the order of NATIONAL RURAL UTILITIES
COOPERATIVE FINANCE CORPORATION (herein called the "Payee") at the Payee's
office in Herndon, Virginia, or such other place as Payee may designate, in
lawful money of the United States, the sum of the aggregate unpaid principal
amount of all Advances made by the Payee pursuant to the Loan Agreement dated
as of even date herewith, between the Borrower and the Payee (herein called
the "Loan Agreement"), on the dates provided in the Loan Agreement (except
that if not sooner paid, any balance shall be due and payable on October 16,
2014, such date being the Maturity Date), with interest thereon in like money
from the respective dates of each Advance (as defined in the Loan Agreement)
hereunder, at the rate or rates and payable at the times provided in said
Loan Agreement.
All Advances made by the Payee pursuant to said Loan Agreement shall
be endorsed by the Payee on the reverse side hereof on or before any
assignment or transfer hereof by the Payee.
This Note is secured under a Restated Mortgage and Security
Agreement dated as of even date herewith, among the Borrower, the Payee and
the United States of America, as it may have been or shall be supplemented,
amended, consolidated or restated from time to time (herein called the
"Mortgage"). This Note is executed as a renewal of the Secured Promissory
Note dated as of October 16, 1979 and executed to the order of the Payee.
This Note is the Note referred to in, and has been executed and delivered
pursuant to, the Loan Agreement.
Upon the occurrence of an event of default under the Mortgage, the
principal hereof and interest accrued thereon may be declared to be forthwith
due and payable in the manner, upon the conditions, and with the effect
provided in the Mortgage.
The Borrower waives demand, presentment for payment, notice of
dishonor, protest, notice of protest, and notice of non-payment of this Note.
IN WITNESS WHEREOF the Borrower has caused this Note to be signed in
its corporate name and its corporate seal to be hereunto affixed and to be
attested by its duly authorized officers, all as of the day and year first
above written.
CAP ROCK ELECTRIC COOPERATIVE, INC.
(SEAL)
Attest: By:
------------------------------- -------------------------------
(Secretary) (President)
Loan No.: TX 107-C-9030
Exhibit A-4
SUBSTITUTE
SECURED PROMISSORY NOTE
$641,000.00 , 19
CAP ROCK ELECTRIC COOPERATIVE, INC., a Texas corporation (herein called the
"Borrower"), for value received promises to pay, without setoff, deduction,
recoupment or counterclaim, to the order of NATIONAL RURAL UTILITIES
COOPERATIVE FINANCE CORPORATION (herein called the "Payee") at its office in
Herndon, Virginia, the sum of the aggregate unpaid principal amount of all
Advances made by the Payee pursuant to the Loan Agreement dated as of even
date herewith, between the Borrower and the Payee (herein called the "Loan
Agreement"), with interest thereon from the respective dates of each Advance
hereunder at the rate of 12.5% per annum, in lawful money of the United
Sates, in installments as follows: interest only accrued on said principal
amount to the last day of February, May, August and November next ensuing the
termination date (as such term is defined in said Loan Agreement, shall be
paid on or before said day, and thereafter equal quarterly installments in
the amounts shown in the Payment Schedule (described herein below) shall be
paid on the last day of each February, May, August and November; except that,
if not sooner paid, any balance of the principal amount and interest accrued
thereon shall be due and payable on June 4, 2016 (such date being the
"Maturity Date"). Each quarterly instalment shall be applied first to
interest accrued on the principal amount to the due date of such installment
(or, at the election of the holder hereof, to the date of payment of such
installment if the same is not paid on its due date) and the balance to the
reduction of principal. All Advances made by the Payee pursuant to said Loan
Agreement shall be endorsed by the Payee on the reverse side hereof on or
before any assignment or transfer hereof by the Payee. On or after the
Termination Date (as so defined), the Payee will furnish to the Borrower a
Payment Schedule indicating the precise amount of each quarterly installment
of principal and interest, and the total amount of each such quarterly
installment, to be paid by the Borrower pursuant to such Payment Schedule.
The Borrower may at its option make prepayments of the principal
hereof, in the manner and to the extent provided in said Loan Agreement.
This Note is secured by a Restated Mortgage and Security Agreement
dated as of even date herewith, among the Borrower, the Payee and the United
States of America, as it may have been or shall be supplemented, amended,
consolidated or restated from time to time (herein called the "Mortgage").
This Note is executed as a renewal of the Secured Promissory Note dated as of
June 4, 1981 and executed to the order of the Payee. This Note is the Note
referred to in, and has been executed and delivered pursuant to the Loan
Agreement. This Note is the Note referred to in, and has been executed and
delivered pursuant to, the Loan Agreement.
IN WITNESS WHEREOF the Borrower has caused this Note to be signed in
its corporate name and its corporate seal to be hereunto affixed and to be
attested by its duly authorized officers, all as of the day and year first
above written.
CAP ROCK ELECTRIC COOPERATIVE, INC.
(SEAL)
Attest: By:
------------------------------- -------------------------------
(Secretary) (President)
Loan No.: TX 107-C-9031
Exhibit A-6
SUBSTITUTE
SECURED PROMISSORY NOTE
$390,625.00 , 19
CAP ROCK ELECTRIC COOPERATIVE, INC., a Texas corporation (herein called the
"Borrower"), for value received promises to pay, without setoff, deduction,
recoupment or counterclaim, to the order of NATIONAL RURAL UTILITIES
COOPERATIVE FINANCE CORPORATION (herein called the "Payee") at the Payee's
office in Herndon, Virginia, or such other place as Payee may designate, in
lawful money of the United States, the sum of the aggregate unpaid principal
amount of all Advances made by the Payee pursuant to the Loan Agreement dated
as of even date herewith, between the Borrower and the Payee (herein called
the "Loan Agreement"), on the dates provided in the Loan Agreement (except
that if not sooner paid, any balance shall be due and payable on January 20,
2022, such date being the Maturity Date), with interest thereon in like money
from the respective dates of each Advance (as defined in the Loan Agreement)
hereunder, at the rate or rates and payable at the times provided in said
Loan Agreement.
All Advances made by the Payee pursuant to said Loan Agreement shall
be endorsed by the Payee on the reverse side hereof on or before any
assignment or transfer hereof by the Payee.
This Note is secured under a Restated Mortgage and Security
Agreement dated as of even date herewith, among the Borrower, the Payee and
the United States of America, as it may have been or shall be supplemented,
amended, consolidated or restated from time to time (herein called the
"Mortgage"). This Note is executed as a renewal of the Secured Promissory
Note dated as of January 20, 1987 and executed to the order of the Payee.
This Note is the Note referred to in, and has been executed and delivered
pursuant to, the Loan Agreement.
Upon the occurrence of an event of default under the Mortgage, the
principal hereof and interest accrued thereon may be declared to be forthwith
due and payable in the manner, upon the conditions, and with the effect
provided in the Mortgage.
The Borrower waives demand, presentment for payment, notice of
dishonor, protest, notice of protest, and notice of non-payment of this Note.
IN WITNESS WHEREOF the Borrower has caused this Note to be signed in
its corporate name and its corporate seal to be hereunto affixed and to be
attested by its duly authorized officers, all as of the day and year first
above written.
CAP ROCK ELECTRIC COOPERATIVE, INC.
(SEAL)
Attest: By:
------------------------------- -------------------------------
(Secretary) (President)
Loan No.: TX 107-C-9033
Exhibit B
Date:
-------------------
Governor
National Rural Utilities
Cooperative Finance Corporation
Woodland Park
0000 Xxxxxxxxxxx Xxx
Xxxxxxx, Xxxxxxxx 00000
Re:
--------------------------------------------------------------
Dear Sir:
I am counsel for __________________________________________ , organized under
the laws of the State of __________ (hereinafter called the "Borrower") and
render this opinion to you in connection with the loans in the aggregate of
$___________________________ provided for in the consolidating loan agreement
(hereinafter called the "CFC Loan Agreement"), dated as of
____________________ 19____ , made by and between the Borrower and National
Rural Utilities Cooperative Finance Corporation (hereinafter called "CFC").
I have examined such corporate records and proceedings of the Borrower, and
such other documents as I have deemed necessary as a basis for the opinions
hereinafter expressed.
I have also examined the following documents as executed and delivered: (1)
the CFC Loan Agreement, (2) the Secured Promissory Note (hereinafter called
the "CFC Notes"), dated _______________ , 19____, in the principal amount of
$_____________________ , payable to the order of CFC, and (3) the
Consolidated Mortgage and Security Agreement, (hereinafter called the
"Mortgage"), dated as of ______________ , 19____ , made by and Among the
Borrower, the United States of America and CFC.
I have also examined, or caused to be examined by competent and trustworthy
persons, the records and files of all offices in which there might be
recorded, filed or indexed evidence of the Borrower's title, and any liens of
any nature whatsoever affecting the title, to any real or personal property
of the Borrower other than easements or rights of way relating to the
electric lines of the Borrower.
I have supervised, examined, or caused to be examined by competent and
trustworthy persons, the recordation of the Mortgage as a mortgage of
-1-
Based upon the foregoing, I am of the opinion that:
(i) the Borrower is a duly organized and validly existing
corporation in good standing under the laws of the jurisdiction of its
organization, and the Borrower has full corporate power (l) to execute and
deliver the CFC Note, the CFC Loan Agreement and the Mortgage; (2) to perform
all acts required to be done by it under the CFC Note, the CFC Loan Agreement
and the Mortgage; and (3) to own, operate and maintain its properties and
operate its business as conducted at the date of this Opinion;
(ii) to the extent reasonably required for the maintenance and
operation of its properties and business taken as a whole, the Borrower has
complied with all requirements of the laws of all states in which it operates
or does business and holds all certificates, licenses, consents or approvals
of governmental authorities required to be obtained on or prior to the date
of this Opinion to enable it to engage in the business then transacted by it;
(iii) the CFC Note, the CFC Loan Agreement, and the Mortgage have
been duly authorized, executed and delivered by the Borrower and constitute
the valid and binding obligations of the Borrower, enforceable against the
Borrower in accordance with their respective terms;
(iv) the execution and performance by the Borrower of the CFC Note,
the CFC Loan Agreement and the Mortgage, and the transactions contemplated
thereby will not violate any provision of law, the articles of incorporation,
or bylaws* of the Borrower, or result in the breach of, or constitute a
default under, any agreement, indenture or other instrument to which the
Borrower is a party, or by which it may be bound, known to counsel;
(v) the Mortgage has been duly recorded and filed, in such manner
and to such extent as specified in paragraph "7" under COVENANTS AND
WARRANTIES contained in Attachment B to this Opinion, to constitute the
Mortgage a validly recorded and filed mortgage lien upon the real and
personal property of the Borrower therein described, subject and subordinate
only to liens and encumbrances, if any, permitted by paragraph "2" of
COVENANTS AND WARRANTIES contained in Attachment B to this Opinion;
-----------------------------------------------
*NOTE: As used herein, "articles of incorporation" includes "certificate of
incorporation", "articles of association" or "charter"; and "bylaws"
includes "code of regulations".
-2-
(vi) no authorization from any regulatory body is required in
connection with the execution and delivery of the CFC Note, the CFC Loan
Agreement, or the Mortgage; and
(vii) I know of no litigation pending or threatened against or
affecting the Borrower or its property which, in my opinion, would have a
material adverse effect upon the business, operations or financial condition
of the Borrower.
I also wish to advise you that nothing has occurred since the date of the
opinion of counsel of ____________________, 19_____, heretofore delivered to
you, which in any manner changes the effect or application of such opinion
with reference to the matters therein set forth, and I confirm that said
opinion is true and correct as of the date hereof.
This Opinion (or a true copy thereof) may be relied upon by Manufacturers
Hanover Trust Company, as Trustee under the CFC Indenture dated as of
December 1, 1972, as amended and supplemented, as if this Opinion were
addressed to it. I have read the conditions contained in paragraph (5) of
Section 3.01(b) of said Indenture and the definitions in Article I of said
Indenture relating thereto*; in my opinion I have made such examination or
investigation as is necessary to enable me to express an informed opinion as
to whether or not said conditions will be complied with upon delivery of this
Opinion (or a true copy thereof) to said Trustee; and in my opinion, such
conditions will be complied with upon such delivery.
Sincerely,
-----------------------------------------------
*NOTE: The conditions and definitions referred to are attached to this Opinion
as Attachment A and Attachment B.
-3-
ATTACHMENT A
I. Conditions contained in Section 3.01(b), paragraph (5) of the
Indenture, dated as of December 1, 1972, made by and between CFC and
Manufacturers Hanover Trust Company, Trustee, relating to the
requirements that Opinions of Counsel for a member state in substance
that as of the date of such Opinion:
(i) such Member is duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization and
has full corporate power to execute and deliver such Mortgage Note, the
Loan Agreement pursuant to which it was issued (if any) and the
Mortgage securing the same, to perform all acts required to be done by
it under such Mortgage Note, Loan Agreement (if any) and Mortgage and
to own, operate and maintain its properties and operate its business as
conducted at the date of such opinion;
(ii) to the extent reasonably required for the maintenance
and operation of its properties and business taken as a whole, such
Member has complied with all requirements of the laws of all States
in which it operates or does business and holds all certificates,
licenses, consents or approvals of governmental authorities required
to be obtained on or prior to the date of such Opinion to enable it
to engage in the business then transacted by it;
(iii) such Mortgage Note, Loan Agreement (if any) and Mortgage
have been duly authorized, executed and delivered by said Member and
constitute the valid and binding obligations of such Member,
enforceable against such Member in accordance with their respective
terms;
(iv) the execution and performance by such Member of such
Mortgage Note, Loan Agreement (if any) and Mortgage, and the
transactions contemplated thereby, will not violate any provisions of
law, the Articles of Incorporation or by-laws of such Member, or result
in the breach of, or constitute a default under, any agreement,
indenture or other instrument to which such Member is a party, or by
which it may be bound, known to such Counsel;
(v) such Mortgage has been duly recorded and filed (in such
manner and to such extent, as shown by such Opinion, as specified in
paragraph 7 under COVENANTS AND WARRANTIES in Schedule l to this
Indenture)* to constitute such Mortgage a validly recorded and filed
lien upon the real and personal property of such Member therein
described, shown by such Opinion to be subject and subordinate only to
liens and encumbrances, if any, permitted by paragraph 2 under said
PAGE COVENANTS AND WARRANTIES;*
-----------------------------------------------
*NOTE: Provisions of paragraphs 2 and 7 under COVENANTS AND WARRANTIES in
Schedule 1 of the Indenture are attached as Attachment B.
ATTACHMENT A
Page 2
(vi) no authorization from any regulatory body is required in
connection with the execution and delivery of such Mortgage Note, Loan
Agreement (if any) or Mortgage or that each such authorization so
required has been obtained; and
(vii) such Counsel knows of no litigation pending or
threatened against or affecting such Member or its property which, in
the opinion of such Counsel (or in the opinion of such Member as
evidenced by a certificate of the manager or other responsible officer
of such Member annexed to said Opinion), would have a material adverse
effect upon the business, operations or financial condition of such
Member.
II. Definitions, contained in Article I of the Indenture, relating to the
foregoing conditions:
COMPANY - means National Rural Utilities Cooperative Finance
Corporation until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
DISTRIBUTION SYSTEM MEMBER - means a Member 50% or more of
whose gross operating revenues are derived from sales of electricity to
ultimate consumers, determined as of the end of the last Completed
Calendar Year.
INDENTURE - means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof.
LOAN AGREEMENT - means a loan agreement (if any) between a
Member and the Company (or between a Member and a wholly-owned
subsidiary of the Company whose interest has been assigned to the
Company) providing for the issuance of Mortgage Notes.
MEMBER - means any Person which is a member or patron of the
Company, or any Person which at any time has been or is eligible to
borrow from REA under the Rural Electrification Act of 1936, as from
time to time in effect.
MORTGAGE - means a mortgage or deed of trust or pledge of
revenues securing one or more Mortgage Notes (i) which complies with
the requirements set forth in Schedule 1 here to annexed and made a
part hereof, or, in the case of a change in the status of a
Distribution System Member to a Power System Member, or vice versa,
which complies with the requirements set forth in Schedule l either
with respect to mortgages or deeds of trust or pledges of revenues of
Power System Members or with respect to mortgages or deeds of trust or
pledges of revenues of Distribution System Members, as said Schedule 1
shall have
ATTACHMENT A
Page 2
been amended from time to time in accordance with the provisions
hereof, (ii) which was made to the Company (or to a wholly-owned
subsidiary of the Company whose interest has been assigned to the
Company) or to a Trustee or Trustees under a trust indenture,
(iii) as to which the interest of the Company (if any) has been
assigned to the Trustee and (iv) an executed or true copy of which
has been delivered to the Trustee.
MORTGAGE NOTE - means a note or bond of a Member payable to
the Company (or a wholly-owned subsidiary of the Company whose interest
has been assigned to the Company) and pledged with the Trustee.
OPINION OF COUNSEL - means a written opinion of counsel, who
may (except as otherwise expressly provided in this Indenture) be
counsel for the Company or for a Member.
PERSON - means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
POWER SYSTEM MEMBER - means a Member, other than a
Distribution System Member.
