Loan No. RI0214
MASTER LOAN AGREEMENT
THIS MASTER LOAN AGREEMENT (this "Agreement") is entered into as of May 3,
2005 between CHUGACH ELECTRIC ASSOCIATION, INC., Anchorage, Alaska, an Alaska
cooperative association (the "Company") and CoBANK, ACB, a federally chartered
instrumentality of the United States ("CoBank").
BACKGROUND
From time to time, the Company may borrow from CoBank. In order to reduce
the amount of paperwork associated therewith, CoBank and the Company would like
to enter into a master loan agreement. Such is the purpose of this Agreement.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and CoBank agree as follows:
SECTION 1. Note and Supplements. In the event the Company desires to borrow
from CoBank and CoBank is willing to lend to the Company, or in the event the
parties desire to consolidate any existing loans hereunder, the parties will
enter into a Promissory Note and Supplement to this Agreement (a "Note and
Supplement"). Each Note and Supplement will set forth CoBank's commitment to
make a loan or loans to the Company, the amount of the loan(s), the purpose of
the loan(s), the interest rate or rate options applicable to the loan(s), the
repayment terms of the loan(s), and any other terms and conditions applicable to
the particular loan(s). Each Note and Supplement will also contain a promissory
note of the Company setting forth the Company's obligation to make payments of
interest on the unpaid principal balance of the loan(s), and fees and premiums,
if any, and to repay the principal balance of the loan(s). Each loan will be
governed by the terms and conditions contained in this Agreement and in the Note
and Supplement relating to that loan.
SECTION 2. Notice and Manner of Borrowing. Loans will be made available on
any day on which CoBank and the Federal Reserve Banks are open for business (a
"Business Day") upon the telephonic or written request of an authorized employee
of the Company. Requests for loans must be received by 12:00 noon Company's
local time on the date the loan is desired. Loans will be made available by wire
transfer of immediately available funds. Wire transfers will be made to such
account or accounts as may be authorized by the Company.
SECTION 3. Payments. Payments under each Note and Supplement shall be made
by wire transfer of immediately available funds, by check, or by automated
clearing house (ACH) or other similar cash handling processes as specified by
separate agreement between the Company and CoBank. Wire transfers shall be made
to ABA No. 307088754 for advice to and credit of "CoBANK" (or to such other
account as CoBank may direct by notice). The Company shall give CoBank
telephonic notice no later than 12:00 noon Company's local time of its intent to
pay by wire, and funds received after 3:00 p.m. Company's local time shall be
credited on the next Business Day. Checks shall be mailed to CoBANK, Department
167, Denver, Colorado 80291-0167 (or to such other place as CoBank may direct by
notice). Credit for payment by check will not be given until the latter of the
next Business Day after receipt of the check or the day on which CoBank receives
immediately available funds.
SECTION 4. Security.
(A) Company Security. The Company's obligations under this Agreement
and each Note and Supplement shall be secured by a statutory first lien on all
equity that the Company may now own or hereafter acquire or be allocated in
CoBank. Except as provided in the preceding sentence or as otherwise provided in
any Note and Supplement or in Section 8(B) hereof, the Company's obligations
shall be unsecured.
SECTION 5. Conditions Precedent.
(A) Conditions to Initial Note and Supplement. CoBank's obligation to
extend credit under the initial Note and Supplement hereto is subject to the
condition precedent that CoBank receive, in form and substance satisfactory to
CoBank, each of the following:
(1) This Agreement. A duly executed original copy of
this Agreement and the Note and Supplement.
(2) Delegation Form. A duly completed and executed original copy
of a CoBank Delegation and Wire and Electronic Transfer Authorization Form.
(B) Conditions to Each Note and Supplement. CoBank's obligations to
extend credit under each Note and Supplement hereto, including the initial Note
and Supplement, is subject to the condition precedent that CoBank receive, in
form and substance satisfactory to CoBank, each of the following:
(1) Note and Supplement. A duly executed original copy of the
Note and Supplement and all instruments and documents contemplated by the Note
and Supplement.
(2) Evidence of Authority. Such certified board resolutions,
certificates of incumbency, and other evidence that CoBank may require that the
Note and Supplement, all instruments and documents executed in connection
therewith, and, in the case of the initial Note and Supplement hereto, this
Agreement and all instruments and documents executed in connection herewith,
including any security documents, have been duly authorized and executed.
(3) Consents and Approvals. Such evidence as CoBank may require
that all regulatory and other consents and approvals referred to in Subsection
6(D) hereof have been obtained and are in full force and effect.
(4) Fees and Other Charges. Any fees or other charges
provided for herein or in the Note and Supplement.
(5) Insurance. Such evidence as CoBank may require that the
Company is in compliance with Subsection 7(C) hereof.
(6) Opinion of Counsel. An opinion of counsel to the Company
(which counsel must be acceptable to CoBank).
(C) Conditions to Each Loan. CoBank's obligation under each Note and
Supplement to make any loan to the Company thereunder is subject to the
condition that no "Event of Default" (as defined in Section 10 hereof) or event
which, with the giving of notice and/or the passage of time and/or the
occurrence of any other condition, would ripen into an Event of Default (a
"Potential Default") shall have occurred and be continuing.
SECTION 6. Representations and Warranties. The execution by the Company
of each Note and Supplement hereto shall constitute a representation and
warranty that:
(A) Application. Each representation and warranty and all information
set forth in any application or officer's certificate submitted in connection
with, or to induce CoBank to enter into, such Note and Supplement is correct in
all material respects as of the date of such Note and Supplement. In addition,
the renewal or extension by CoBank of any Note and Supplement hereto shall
constitute a representation and warranty that each representation and warranty
and all information concerning environmental matters related to the Company's
property set forth in such application or any officer's certificate submitted in
connection with, or to induce CoBank to enter into such renewal, is correct in
all material respects as of the date of renewal or extension of such Note and
Supplement.
(B) Budgets. All budgets, projections, feasibility studies, and other
documentation submitted by the Company to CoBank in connection with, or to
induce CoBank to enter into, such Note and Supplement are based upon assumptions
that are reasonable, and as of the date of such Note and Supplement, no fact has
come to light, and no event has occurred, which would cause any assumption made
therein to not be reasonable.
(C) Conflicting Agreements. Neither this Agreement nor any Note and
Supplement or other instrument or document securing or otherwise relating hereto
or to any Note and Supplement (collectively, at any time, the "Loan Documents")
conflicts with, or constitutes (with or without the giving of notice and/or the
passage of time and/or the occurrence of any other condition) a default under,
any other material agreement to which the Company is a party or by which it or
any of its property may be bound or affected, and does not conflict with any
provision of its bylaws, articles of incorporation or other organizational
documents.
(D) Consents and Approvals. No consent, permission, authorization,
order or license of any governmental authority or of any party to any agreement
to which the Company is a party or by which it or any of its property may be
bound or affected, is necessary in connection with the project, acquisition or
other activity being financed by such Note and Supplement, or the execution,
delivery, performance or enforcement of the Loan Documents, except as have been
obtained and are in full force and effect and except that future rate increases
may be subject to the approval of the appropriate regulatory authority.
(E) Compliance. The Company is in compliance with all of the terms of
the Loan Documents and no Event of Default or Potential Default exists.
(F) Binding Agreement. The Loan Documents create legal, valid, and
binding obligations of the Company which are enforceable in accordance with
their terms, except to the extent that enforcement may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally.
SECTION 7. Affirmative Covenants. Unless otherwise agreed to in writing
by CoBank, while this Agreement is in effect, the Company agrees to:
(A) Corporate Existence, Etc. Preserve and keep in full force and
effect its existence and good standing in the jurisdiction of its incorporation
or formation, qualify and remain qualified to transact business in all
jurisdictions where such qualification is required, and obtain and maintain all
licenses, certificates, permits, authorizations, approvals, and the like which
are material to the conduct of its business or required by law, rule,
regulation, code, ordinance, order or the like (collectively, "Laws").
(B) Compliance With Laws. Comply in all material respects with all
applicable Laws (including, without limitation, all Laws relating to
environmental protection) which, if not complied with, could have a material
adverse effect on the condition (financial or otherwise), operations,
properties, margins or business of the Company or the ability of the Company to
perform its obligations under the Loan Documents ("Material Adverse Effect"). In
addition, the Company agrees to use reasonable efforts to cause all persons
occupying or present on any of its properties that the Company knows or should
know is in violation of any Laws to comply in all material respects with all
Laws relating to such properties.
(C) Insurance. Maintain insurance with insurance companies or
associations acceptable to CoBank in such amounts and covering such risks as are
usually carried by companies engaged in the same business and similarly
situated. At CoBank's request, the Company agrees to deliver to CoBank such
proof of compliance with this Subsection as CoBank may require.
(D) Property Maintenance. Maintain all of its property that is
necessary to or useful in the proper conduct of its business in good repair,
working order, and condition, ordinary wear and tear excepted, and make all
alterations, replacements, and improvements thereto as may from time to time be
necessary in order to ensure that its properties remain in good working order
and condition.
(E) Books and Records. Keep adequate records and books of account in
which complete entries will be made in accordance with generally accepted
accounting principles ("GAAP") consistently applied.
(F) Inspection. Permit CoBank or its agents, upon reasonable notice and
during normal business hours or at such other times as the parties may agree, to
examine its properties, books and records, and to discuss its affairs, finances
and accounts with its officers, directors, employees, and independent certified
public accountants.
(G) Reports and Notices. Furnish to CoBank:
(1) Annual Financial Statements. As soon as available, but in no
event more than 120 days after the end of each fiscal year of the Company
occurring during the term hereof, annual consolidated and consolidating
financial statements of the Company and its consolidated subsidiaries, if any,
prepared in accordance with GAAP consistently applied. Such financial statements
shall: (a) be audited by independent certified public accountants selected by
the Company and acceptable to CoBank; (b) be accompanied by a report of such
accountants containing an opinion thereon acceptable to CoBank; (c) be prepared
in reasonable detail and in comparative form; and (d) include a balance sheet, a
statement of revenues, expenses and patronage capital, a statement of cash
flows, and all notes and schedules relating thereto.
(2) Interim Financial Statements. As soon as available, but in
no event more than 60 days after the end of each fiscal quarter of the Company,
a consolidated balance sheet of the Company and its consolidated subsidiaries,
if any, as of the end of such fiscal quarter, a SEC form 10Q, when filed, for
the Company and its consolidated subsidiaries, if any, for such period and for
the period year-to-date, and such other interim statements as CoBank may
specifically request, all prepared in reasonable detail and in comparative form
and on a consolidated basis in accordance with GAAP consistently applied (or the
appropriate standards of the regulatory agency having jurisdiction over the
Company) and, if required by written notice from CoBank, certified by an
authorized officer or employee of the Company acceptable to CoBank.
(3) Notice of Default. Promptly after becoming aware thereof,
notice of the occurrence of an Event of Default or a Potential Default,
including, without limitation, the occurrence of any breach, default, event of
default or event which, with the giving of notice and/or the passage of time
and/or the occurrence of any other condition, would become a breach, default or
event of default under any loan agreement, indenture, mortgage, or other
material credit or security agreement or instrument to which the Company is a
party or by which it or any of its property may be bound or affected.
(4) Notice of Litigation, Environmental Matters, Etc. Promptly
after becoming aware thereof, notice of: (a) the commencement of any action,
suit or proceeding before any court, arbitrator or governmental instrumentality
which, if adversely decided, could have a Material Adverse Effect; (b) the
receipt of any notice, indictment, pleading or other communication alleging a
condition that (i) may require the Company to undertake or to contribute to a
clean-up or other response under any environmental Law, or which seeks
penalties, damages, injunctive relief, criminal sanctions or other relief as a
result of an alleged violation of any such Law, or which claims personal injury
or property damage as a result of environmental factors or conditions, and (ii)
if true or proven, could have a Material Adverse Effect; and (c) any order,
judgment ruling or the like which could have a Material Adverse Effect,
including any decision of any regulatory authority or commission.
(5) Notice of Certain Events. Notice of each of the following at
least 30 days prior thereto: (a) any change in the Company's name or corporate
structure; and (b) any change in the principal place of business of the Company
or the office where its records concerning its accounts are kept.
(6) Other Information. Such other information regarding the
condition or operations, financial or otherwise, of the Company as CoBank may
from time to time reasonably request, including, but not limited to, copies of
all pleadings, notices and communications referred to in Subsection (G)(4)
above.
(H) Capital. Acquire voting stock in CoBank in such amounts and at such
times as CoBank may from time to time require in accordance with its Bylaws and
Capital Plan (as each may be amended from time to time), except that the maximum
amount of voting stock that the Company may be required to purchase in
connection with a loan may not exceed the maximum amount permitted by the Bylaws
at the time the Note and Supplement relating to such loan is entered into or
such loan is renewed or refinanced by CoBank. The rights and obligations of the
parties with respect to such voting stock and any patronage or other
distributions made by CoBank shall be governed by CoBank's Bylaws.
SECTION 8. Negative Covenants. Unless otherwise agreed to in writing by
CoBank, while this Agreement is in effect, the Company will not:
(A) Other Indebtedness. Create, incur, assume or allow to exist,
directly or indirectly, any indebtedness or liability for borrowed money or for
the deferred purchase price of property or services (including leases which
should be capitalized on the books of the lessee in accordance with GAAP),
except for: (1) debt to CoBank; (2) accounts payable to trade creditors; (3)
current operating liabilities (other than for borrowed money) incurred in the
ordinary course of business; (4) capital leases in an aggregate amount not to
exceed $500,000.00 at any one time; (5) unsecured indebtedness; (6) purchase
money indebtedness incurred with respect to non-utility property and secured by
a lien on the property being financed; and (7) indebtedness secured by Liens
permitted under Subsection 8(B) hereof.
(B) Liens. Create, incur, assume, or allow to exist any mortgage, deed
of trust, pledge, lien (including the lien of an attachment, judgment, or
execution), security interest, or other encumbrance of any kind upon any of its
property, real or personal (collectively, "Liens"). The forgoing restrictions
shall not apply to: (1) Liens in favor of CoBank; (2) Liens for taxes,
assessments, or governmental charges that are not past due; (3) Pledges and
deposits under workers' compensation, unemployment insurance, and social
security Laws; (4) Pledges and deposits to secure the performance of bids,
tenders, contracts (other than contracts for the payment of money), and like
obligations arising in the ordinary course of business as conducted on the date
hereof; (5) Liens imposed by Law in favor of mechanics, material suppliers,
warehouses, and like persons that secure obligations that are not past due; (6)
easements, rights-of-way, restrictions, and other similar encumbrances which, in
the aggregate, do not materially interfere with the occupation, use, and
enjoyment of the property or assets encumbered thereby in the normal course of
its business or materially impair the value of the property subject thereto; (7)
Liens permitted under Section 6.01 of that certain Master Loan Agreement No.
000976 dated as of December 27, 2002 between the Company and CoBank, as it may
be amended from time to time; and (8) liens to secure indebtedness permitted
hereunder.
(C) Mergers, Acquisitions, Etc. Merge or consolidate with any other
entity or acquire all or a material part of the assets of any other person or
entity, or commence operations under any other name, organization, or entity,
including any joint venture.
(D) Transfer of Assets. Sell, transfer, lease, or otherwise dispose of
any of its assets, except in the ordinary course of business.
(E) Distributions. Declare or pay any dividends or patronage refunds,
or declare or grant any general cancellation or abatement of charges for
electric energy or services furnished by the Company, or purchase, retire, or
redeem any patronage or other capital, or make any other distribution of any
kind (whether in cash or property) to its members, stockholders or consumers
(collectively, "Distributions"), if, at the time thereof or after giving effect
thereto: (i) an Event of Default or Potential Event of Default shall exist; or
(ii) the Company's equities and margins (determined in accordance with GAAP) as
of the end of the Company's most recent fiscal quarter would be less than thirty
percent (30%) of the sum of the Company's total long-term debt plus equities and
margins (determined in accordance with GAAP) at such time; provided, however,
that as long as no Event of Default exists and the ratio of the Company's
equities and margins to the sum of total long-term debt plus equities and
margins (all as determined above) would not be less than 22%, the Company may,
in any fiscal year, make a Distribution of up to the lesser of (x) five percent
(5%) of the Company's aggregate equities and margins on the books of the Company
as of the end of the immediately preceding fiscal year or (y) fifty percent
(50%) of the prior fiscal year's margins. Notwithstanding the foregoing the term
"Distribution" shall not be deemed to include the repayment, in the ordinary
course of business, of a membership fee upon termination of a membership or the
rebate of an abatement of costs incurred by the Company, such as a reduction of
wholesale power cost previously incurred.
(F) Loans and Investments. INTENTIONALLY OMITTED.
(G) Contingent Liabilities. Assume, guarantee, become liable as a
surety, endorse, contingently agree to purchase, or otherwise be or become
liable, directly or indirectly (including, but not limited to, by means of a
maintenance agreement, an asset or stock purchase agreement, or any other
agreement designed to ensure any creditor against loss), for or on account of
the obligation of any person or entity, except by the endorsement of negotiable
instruments for deposit or collection or similar transactions in the ordinary
course of the Company's business, if the Company would be in violation of this
Agreement (including all financial covenants set forth herein) if such
obligations were treated as direct obligations of the Company.
(H) Change in Business. Engage in any business activities or operations
substantially different from or unrelated to the Company's present business
activities or operations, where such expenditures exceed $5,000,000 in any
calendar year or result in a book value for such assets exceeding $5,000,000.
(I) Transactions with Affiliates. Enter into any transaction with any
affiliate except in the ordinary course of and pursuant to the reasonable
requirements of its business and upon fair and reasonable terms no less
favorable to it than would obtain in a comparable arm's-length transaction with
a person or entity that was not an affiliate.
SECTION 9. Financial Covenants. INTENTIONALLY OMITTED.
SECTION 10. Events of Default. Each of the following shall
constitute an "Event of Default" hereunder:
(A) Payment Default. The Company should fail to make any payment to
CoBank when due and such failure shall continue for five days.
(B) Representations and Warranties. Any opinion, certificate or like
document furnished to CoBank by or on behalf of the Company, or any
representation or warranty made by the Company herein, in any security
instrument or document, or in any other Loan Document, shall prove to have been
false or misleading in any material respect on or as of the date furnished or
made.
(C) Covenants. The Company should fail to perform or comply with any
covenant set forth in Section 7 hereof (other than Subsections 7(G)(3), (4) and
(5) hereof), Section 8 hereof or any Note and Supplement and such failure
continues for 30 days after written notice thereof shall have been delivered to
the Company by CoBank.
(D) Other Covenants and Agreements. The Company should fail to perform
or comply with Sections 7(G)(3), (4) or (5) hereof or shall use the proceeds of
any loan for any unauthorized purpose.
(E) Cross Default. The Company should, after any applicable grace
period, breach or be in default under the terms of any other Loan Document
(including, without limitation, any security instrument or document) or any
other agreement between the Company and CoBank.
(F) Other Indebtedness. The Company's obligation to pay any
indebtedness for borrowed money or any long-term obligation for the deferred
purchase price of property or services in either case exceeding $10,000,000
shall be accelerated or declared due and payable prior to its scheduled due date
as a result of the occurrence of any breach or default under any agreement
relating to such indebtedness or obligation. Notwithstanding the foregoing or
any other provision hereof, the Company agrees that upon the occurrence and
during the continuance of any event giving rise to the right to accelerate such
indebtedness or obligation (whether or not such right is conditioned upon the
giving of notice and/or the passage of time and/or the occurrence of any other
condition), a Potential Default shall be deemed to have occurred and be
continuing hereunder.
(G) INTENTIONALLY OMITTED.
(H) Insolvency, Etc. The Company shall: (1) become insolvent or shall
generally not, or shall be unable to, or shall admit in writing its inability
to, pay its debts as they become due; or (2) suspend its business operations or
a material part thereof; or (3) apply for, consent to, or acquiesce in the
appointment of a trustee, receiver, or other custodian for it or any of its
property; or (4) have entered against it (i) a decree or order for relief in
respect of the Company in an involuntary case under any applicable Federal or
state bankruptcy, insolvency, reorganization or other similar law or (ii) a
decree or order adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable Federal or
state law, or appointing a custodian, received, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any material part of
its property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of sixty (60) consecutive days; or (5)
make a general assignment for the benefit of creditors or commence any
proceeding under any bankruptcy, reorganization, arrangement, readjustment of
debt, dissolution, or liquidation law of any jurisdiction.
SECTION 11. Remedies. Upon the occurrence and during the continuance of an
Event of Default or Potential Default, CoBank shall have no obligation to extend
or continue to extend credit to the Company and may discontinue doing so at any
time without prior notice or other limitation. In addition, upon the occurrence
and during the continuance of any Event of Default, CoBank may, upon notice to
the Company:
(A) Termination and Acceleration. Terminate any commitment and declare
the unpaid principal balance of the loans, all accrued interest thereon, and all
other amounts payable under this Agreement, each Note and Supplement, and all
other Loan Documents to be immediately due and payable. Upon such a declaration,
the unpaid principal balance of the loans and all such other amounts shall
become immediately due and payable, without protest, presentment, demand, or
further notice of any kind, all of which are hereby expressly waived by the
Company.
(B) Enforcement. Proceed to protect, exercise, and enforce such rights
and remedies as may be provided by this Agreement, any security instrument or
document, any other Loan Document, or under Law. Each and every one of such
rights and remedies shall be cumulative and may be exercised from time to time,
and no failure on the part of CoBank to exercise, and no delay in exercising,
any right or remedy shall operate as a waiver thereof, and no single or partial
exercise of any right or remedy shall preclude any future or other exercise
thereof, or the exercise of any other right. Without limiting the foregoing,
CoBank may hold and/or set off and apply against the Company's obligations to
CoBank under the Loan Documents the proceeds of any equity in CoBank, any cash
collateral held by CoBank, or any balances held by CoBank for the Company's
account (whether or not such balances are then due).
(C) Application of Funds. CoBank may apply all payments received by it
to the Company's obligations to CoBank under the Loan Documents in such order
and manner as CoBank may elect in its sole discretion.
In addition to the rights and remedies set forth above and notwithstanding any
Note and Supplement: (i) if the Company fails to make any payment required to be
made under the terms of this Agreement or any Note and Supplement hereto when
due, then at CoBank's option in each instance (and automatically following
acceleration), such payment shall bear interest from the due date until the date
such amount is paid in full at 4% per annum in excess of the rate(s) of interest
that would otherwise be in effect on the loans under the terms of the Note and
Supplements; and (ii) after the maturity of any loan (whether as a result of
acceleration or otherwise), the unpaid principal balance of such loan (including
without limitation, principal, interest, fees and expenses) shall automatically
bear interest at 4% per annum in excess of the rate(s) of interest that would
otherwise be in effect on that loan under the terms of the Note and Supplement.
All interest provided for herein shall be payable on demand and shall be
calculated on the basis of a year consisting of 360 days.
SECTION 12. Miscellaneous.
(A) Broken Funding Surcharge. Notwithstanding the terms of any Note and
Supplement giving the Company the right to repay any loan prior to the date it
would otherwise be due and payable, the Company agrees to provide three Business
Days' prior written notice for any prepayment of a fixed rate balance and to pay
to CoBank a broken funding surcharge in the amount set forth below in the event
the Company: (1) repays any fixed rate balance prior to the last day of its
fixed rate period (whether such payment is made voluntarily, as a result of an
acceleration, or otherwise); (2) converts any fixed rate balance to another
fixed rate or to a variable rate prior to the last day of the fixed rate period
applicable to such balance; or (3) fails to borrow any fixed rate balance on the
date scheduled therefor. The surcharge shall be in an amount equal to the
greater of: (i) the sum of: (a) the present value of any funding losses imputed
by CoBank to have been incurred as a result of such payment, conversion or
failure; plus (b) a per annum yield of 1/2 of 1% of the amount repaid, converted
or not borrowed for the period such amount was scheduled to have been
outstanding at such fixed rate, and (ii) $300.00. Such surcharge shall be
determined and calculated in accordance with methodology established by CoBank,
a copy of which will be made available upon request. Notwithstanding the
foregoing, in the event of a conflict between the provisions of this subsection
and of the broken funding charge section of a forward fix agreement between
CoBank and the Company, the provisions of the forward fix agreement shall
control.
(B) Complete Agreement, Amendments, Etc. The Loan Documents are
intended by the parties to be a complete and final expression of their
agreement. No amendment, modification, or waiver of any provision of this
Agreement or the other Loan Documents, and no consent to any departure by the
Company herefrom or therefrom, shall be effective unless approved by CoBank and
contained in a writing signed by or on behalf of CoBank, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given. In the event this Agreement is amended or restated,
each such amendment or restatement shall be applicable to all Note and
Supplements hereto. Each Note and Supplement shall be deemed to incorporate all
of the terms and conditions of this Agreement as if fully set forth therein.
Without limiting the foregoing, any capitalized term utilized in any Note and
Supplement (or in any amendment to this Agreement or Note and Supplement) and
not otherwise defined in the Note and Supplement (or amendment) shall have the
meaning set forth herein.
(C) Applicable Law. Except to the extent governed by federal Law, this
Agreement and each Note and Supplement shall be governed by the Laws of the
State of Colorado, without reference to choice of law doctrine.
(D) Notices. All notices hereunder shall be in writing and shall be
deemed to have been duly given upon delivery if personally delivered or sent by
facsimile or similar transmission, or three (3) days after mailing if sent by
express, certified or registered mail, to the parties at the following addresses
(or such other address as either party may specify by like notice):
If to CoBank, as follows: If to the Company, as follows:
For general correspondence purposes: Chugach Electric Association, Inc.
P.O. Box 5110 P.O. Box 196300
Denver, Colorado 80217-5110 Anchorage, Alaska 99519-6300
For direct delivery purposes, when desired: For direct delivery purposes, when
desired:
5500 South Quebec Street 5601 Electron Drive
Greenwood Village, Colorado 80111-1914 Anchorage, Alaska 99518
Attention: Credit Information Services Attention: Chief Financial Officer
Fax No.: 303-224-6101 Fax No.: (907) 762-4514
(E) Costs, Expenses, and Taxes. To the extent allowed by Law, the
Company agrees to pay all reasonable out-of-pocket costs and expenses (including
the fees and expenses of counsel retained or employed by CoBank) incurred by
CoBank and any participants from CoBank in connection with the collection and
enforcement of this Agreement and the other Loan Documents, including, without
limitation, all costs and expenses incurred in obtaining, perfecting,
maintaining, determining the priority of, and releasing any security for the
Company's obligations to CoBank, and any stamp, intangible, transfer or like tax
incurred in connection with this Agreement or any other Loan Document or the
recording hereof or thereof.
(F) Effectiveness and Severability. This Agreement shall continue in
effect until: (1) all indebtedness and obligations of the Company under this
Agreement and the other Loan Documents shall have been paid or satisfied; (2)
CoBank has no commitment to extend credit to or for the account of the Company
under any Note and Supplement; and (3) either party sends written notice to the
other party terminating this Agreement. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall be ineffective to the extent of such prohibition or unenforceable without
invalidating the remaining provisions hereof or thereof.
(G) Successors and Assigns. This Agreement and the other Loan Documents
shall be binding upon and inure to the benefit of the Company and CoBank and
their respective successors and assigns, except that the Company may not assign
or transfer its rights or obligations under this Agreement or the other Loan
Documents without the prior written consent of CoBank.
(H) Participations, Etc. INTENTIONALLY OMITTED.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized officers as of the date shown above.
CoBANK, ACB CHUGACH ELECTRIC ASSOCIATION, INC.
By: /s/ Pat Schulz By: /s/ Evan J. Griffith
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Title: Assistant Corporate Secretary Title: CEO
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