[EXECUTION
COPY]
CONNECTICUT
DEVELOPMENT AUTHORITY
to
U.S.
BANK NATIONAL ASSOCIATION,
as
Trustee
INDENTURE
OF TRUST
Dated
as of December 1, 2009
Connecticut
Development Authority
$20,000,000
Water Facilities Revenue Bonds
(The
Connecticut Water Company Project - 2009A Series)
TABLE OF
CONTENTS
Page
Parties
and Preambles 1
Form of
Bond 4
ARTICLE
I
DEFINITIONS
AND INTERPRETATION
|
Section
1.2. Interpretation
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ARTICLE
II
AUTHORIZATION,
TERMS AND ISSUANCE OF BONDS
|
Section
2.1. Authorization for
Indenture
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|
Section
2.2. Authorization and Obligation of
Bonds
|
|
Section
2.3. Issuance and Terms of the
Bonds
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|
Section
2.4. Redemption of Bonds
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|
Section
2.5. Execution and Authentication of
Bonds
|
|
Section
2.6. Delivery of Bonds
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|
Section
2.7. No Additional Bonds
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ARTICLE
III
GENERAL
TERMS AND PROVISIONS OF BONDS
|
Section
3.1. Date of Bonds
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|
Section
3.2. Form and
Denominations
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|
Section
3.4. Medium of Payment
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Section
3.5. Bond Details
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|
Section
3.6. Interchangeability, Transfer and
Registry
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Section
3.7. Bonds Mutilated, Destroyed, Stolen or
Lost
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|
Section
3.8. Cancellation and Destruction of
Bonds
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|
Section
3.9. Requirements With Respect To
Transfers
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ARTICLE
IV
APPLICATION
OF BOND PROCEEDS AND OTHER AMOUNTS
|
Section
4.1. Accrued Interest
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Section
4.2. Bond Proceeds
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|
Section
4.3. Borrower
Contribution
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ARTICLE
V
CUSTODY
AND INVESTMENT OF FUNDS
|
Section
5.1. Creation of Funds
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|
Section
5.2. Project Fund
|
|
Section
5.3. Debt Service Fund
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Section
5.5. Renewal Fund
|
|
Section
5.6. Investment of Funds and
Accounts
|
|
Section
5.7. Non-presentment of
Bonds
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ARTICLE
VI
REDEMPTION
OF BONDS
|
Section
6.1. Privilege of Redemption and Redemption
Price
|
|
Section
6.2. Selection of Bonds to be
Redeemed
|
|
Section
6.3. Notice of
Redemption
|
|
Section
6.4. Payment of Redeemed
Bonds
|
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Section
6.5. Notice to Authority and Borrower of Deceased Bondholder
Redemption
|
|
Section
6.6. Cancellation of Redeemed
Bonds
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ARTICLE
VII
PARTICULAR
COVENANTS
|
Section
7.1. No Pecuniary Liability on Authority or
Officers
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|
Section
7.2. Payment of Principal, Redemption Price, if any, and
Interest
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|
Section
7.3. Performance of
Covenants
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|
Section
7.4. Further Assurances
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Section
7.5. Inspection of Project
Books
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|
Section
7.6. Rights under Financing
Documents
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Section
7.7. Creation of Liens,
Indebtedness
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|
Section
7.8. Recording and
Filing
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ARTICLE
VIII
REMEDIES
OF BONDHOLDERS
|
Section
8.1. Events of Default; Acceleration of Due
Dates
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|
Section
8.2. Enforcement of
Remedies
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|
Section
8.3. Application of Revenue and Other Moneys After
Default
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|
Section
8.4. Actions by Trustee
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|
Section
8.5. Majority Bondholders Control
Proceedings
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|
Section
8.6. Individual Bondholder Action
Restricted
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|
Section
8.7. Effect of Discontinuance of
Proceedings
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|
Section
8.8. Remedies Not
Exclusive
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|
Section
8.9. Delay or Omission Upon
Default
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Section
8.10. Notice of Default
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|
Section
8.11. Waivers of Default
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ARTICLE
IX
TRUSTEE
AND PAYING AGENTS
|
Section
9.1. Appointment and Acceptance of
Duties
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|
Section
9.3. Responsibilities of
Trustee
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|
Section
9.4. Compensation
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Section
9.5. Evidence on Which Trustee May
Act
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Section
9.6. Evidence of Signatures of Owners of the Bonds and
Ownership of Bonds
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Section
9.7. Trustee and any Paying Agent, May Deal in Bonds and With
Borrower
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Section
9.8. Resignation or Removal of
Trustee
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Section
9.9. Successor Trustee
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Section
9.10. Appointment and Responsibilities of Paying
Agent
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Section
9.11. Resignation or Removal of Paying Agent;
Successors
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Section
9.12. Monies Held for Particular
Bonds
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Section
9.13. Continuation
Statements
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Section
9.14. Obligation to Report
Defaults
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|
Section
9.15. Payments Due on non-Business
Day
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|
Section
9.16. Appointment of
Co-Trustee
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|
Section
9.17. Project
Description
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ARTICLE
X
AMENDMENTS
OF INDENTURE
|
Section
10.1. Limitation on
Modifications
|
|
Section
10.2. Supplemental Indentures Without Consent of Owners of the
Bonds
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Section
10.3. Supplemental Indentures With Consent of Owners of the
Bonds
|
|
Section
10.4. Supplemental Indenture Part of the
Indenture
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ARTICLE
XI
AMENDMENTS
OF FINANCING DOCUMENTS
|
Section
11.1. Rights of Borrower
|
|
Section
11.2. Amendments of Financing Documents Not Requiring Consent
of Owners of the Bonds
|
|
Section
11.3. Amendments of Financing Documents Requiring Consent of
Owners of the Bonds
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ARTICLE
XII
DISCHARGE
OF INDENTURE
ARTICLE
XIII
GENERAL
PROVISIONS
|
Section
13.2. Covenant Against
Discrimination
|
|
Section
13.3. Parties Interested
Herein
|
|
Section
13.4. Effective Date;
Counterparts
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|
Section
13.5. Date for Identification Purposes
Only
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|
Section
13.6. Separability of Invalid
Provisions
|
APPENDICES
Appendix
A - Form of Requisition
Appendix
B - Form of Redemption Request
THIS INDENTURE OF TRUST
, made
and dated as of December 1, 2009, by and between the
CONNECTICUT DEVELOPMENT
AUTHORITY
, a body corporate and politic constituting a public
instrumentality and political subdivision of the State of Connecticut, and
U.S. BANK NATIONAL
ASSOCIATION
, a national banking association organized, existing and
authorized to accept and execute trusts of the character herein set out under
and by virtue of the laws of the United States of America, with a corporate
trust office located in Hartford, Connecticut, as Trustee,
WITNESSETH
THAT:
WHEREAS
, the State Commerce
Act, constituting Connecticut General Statutes, Sections 32-1a through 32-23zz,
as amended (the “Act”), declares that there is a continuing need in the State
(1) for industrial development and activity to provide and maintain employment
and tax revenues and to control, abate and prevent pollution to protect the
public health and safety, (2) for the development of recreation facilities to
promote tourism, provide and maintain employment and tax revenues, and promote
the public welfare, (3) for the development of commercial and retail sales and
service facilities in urban areas to provide and maintain construction and
permanent employment and tax revenues, to improve conditions of deteriorated
physical development, slow economic growth and eroded financial health of the
public and private sectors in urban areas and to revitalize the economy of urban
areas, and (4) for assistance to public service businesses providing
transportation and utility services in the State, and that the availability of
financial assistance and suitable facilities are important inducements to
industrial and commercial enterprises to remain or locate in the State and to
provide industrial, recreation, urban and public service projects;
and
WHEREAS
, the Act provides that
(1) the term “project” as used therein means any facility, plant, works, system,
building, structure, utility, fixture or other real property improvement located
in the State, and the land on which it is located or which is reasonably
necessary in connection therewith, which is of a nature or which is to be used
or occupied by any person for purposes which would constitute it as an economic
development project, recreation project, urban project, public service project
or health care project, and any real property improvement reasonably related
thereto, and (2) a project may also include or consist exclusively of machinery,
equipment or fixtures; and
WHEREAS
, the Act provides that
the Authority shall have power to determine the location and character of, and
extend credit or make loans to any person for the planning, designing,
acquiring, improving and equipping of, a project which may be secured by loan,
lease or sale agreements, contracts and other instruments, upon such terms and
conditions as the Authority shall determine to be reasonable, to require the
inclusion in any contract, loan agreement or other instrument of such provisions
for the construction, use, operation, maintenance and financing of the project
as the Authority may deem necessary or desirable, to issue its bonds for such
purposes, subject to the approval of the Treasurer of the State, and, as
security for the payment of the principal or redemption price, if any, of and
interest on any such bonds, to pledge or assign such a loan, lease or sale
agreement and the revenues and receipts derived by the Authority from such a
project; and
WHEREAS
, by resolution adopted
on May 20, 2009, in furtherance of the purposes of the Act, the Authority has
accepted the application of The Connecticut Water Company (the “Borrower”) for
assistance in the financing of various capital projects located in the State of
Connecticut; and
WHEREAS
, the Borrower
currently owns certain existing facilities within certain municipalities in the
State and at this time requests assistance in the design, acquisition,
installation, improvement and construction of certain facilities consisting of
water treatment and storage facilities, transmission and distribution mains,
service lines, meters, hydrants and pumping equipment for the purpose of
supplying safe potable water to the general public within the
Borrower’s service area; and
WHEREAS
, the Authority has by
a further resolution adopted on October 21, 2009 authorized the issuance of not
to exceed $20,000,000 principal amount of its Water Facilities Revenue Bonds
(The Connecticut Water Company Project - 2009A Series) for the purpose of
providing funds for the Project; and
WHEREAS
, the Authority has
determined that the issuance, sale and delivery of the Bonds, as hereinafter
provided, is needed to finance the cost of the Project, and concurrently
herewith the Authority and the Borrower have entered into a Loan Agreement,
dated as of December 1, 2009, providing for a loan by the Authority to the
Borrower for such purpose in an aggregate amount equal to the principal amount
of the Bonds; and
WHEREAS
, the Connecticut
Department of Public Utility Control (the “DPUC”) has approved the issuance of
the Note; and
WHEREAS
, the Bonds shall be
special obligations of the Authority, payable solely out of the revenues and
other receipts, funds or monies derived by the Authority under the Agreement or
the Indenture and from any amounts otherwise available under this Indenture for
the payment of the Bonds; and
WHEREAS
, the Bonds are to be
originally issued as fully registered bonds and such Bonds and the Trustee’s
certificate of authentication to be endorsed thereon shall be in substantially
the following form, with appropriate variations, omissions and insertions as
permitted or required by this Indenture, to wit:
FORM OF
BOND
No.
AR- $20,000,000
NEITHER
THE STATE OF CONNECTICUT NOR ANY MUNICIPALITY THEREOF IS OBLIGATED TO PAY, AND
NEITHER THE FAITH AND CREDIT NOR TAXING POWER OF THE STATE OF CONNECTICUT NOR
ANY MUNICIPALITY THEREOF IS PLEDGED TO THE PAYMENT OF, THE PRINCIPAL, PREMIUM,
IF ANY, OF OR INTEREST ON THIS BOND.
CONNECTICUT
DEVELOPMENT AUTHORITY
WATER
FACILITIES REVENUE BOND
(THE
CONNECTICUT WATER COMPANY PROJECT - 2009A SERIES)
BOND
DATE: December 17, 2009
MATURITY
DATE: December 1, 2039
INTEREST
PAYMENT DATES: June 1 and December 1
INTEREST
RATE: 5.10%
REGISTERED
OWNER: CEDE & CO.
PRINCIPAL
AMOUNT: $20,000,000.00***
CUSIP
NUMBER: _________________
CONNECTICUT
DEVELOPMENT AUTHORITY (the “Authority”), a body corporate and politic
constituting a public instrumentality and political subdivision of the State of
Connecticut (the “State”), for value received, hereby promises to pay to the
REGISTERED OWNER or registered assigns, on the MATURITY DATE, solely from the
sources and in the manner hereinafter provided, upon presentation and surrender
hereof, in lawful money of the United States of America, the PRINCIPAL AMOUNT
and in like manner to pay interest on the unpaid principal balance thereof until
the Authority’s obligation with respect to the payment of such sum shall be
discharged. Interest shall be payable (computed on the basis of a
360-day year consisting of twelve 30-day months) from the most recent INTEREST
PAYMENT DATE, to which interest has been paid or duly provided for or, if no
interest has been paid, from the DATE OF THIS BOND at the INTEREST RATE per
annum, payable semi-annually on the INTEREST PAYMENT DATES until the date on
which this bond becomes due, whether at maturity or by acceleration or
redemption. From and after that date, any unpaid principal will bear
interest at the same rate until paid or duly provided for.
Payment of Principal and
Interest
. The principal and premium, if any, of this Bond is
payable to the REGISTERED OWNER hereof but only upon presentation and surrender
of this bond at the corporate trust office of U.S. Bank National Association, as
Paying Agent (with its successors, the “Paying Agent”). Interest is
payable by check or draft mailed by the Paying Agent to the REGISTERED OWNER of
this bond (or of one or more predecessor or successor Bonds (as defined below)),
determined as of the close of business on the applicable record date, at its
address as shown on the registration books maintained by the Paying
Agent. If any payment, redemption or maturity date for principal,
premium or interest shall not be a Business Day then the payment thereof may be
made on the next succeeding Business Day with the same force and effect as if
made on the specified payment date and no interest shall accrue for the period
after the specified payment date. Payment shall be in any coin or
currency of the United States of America, which, on the respective dates of
payment thereof, is legal tender for the payment of public and private
debts.
The
record date for payment of interest is the fifteenth day of the month
immediately preceding each INTEREST PAYMENT DATE, provided that, with respect to
overdue interest or interest payable on redemption of this bond other than on an
INTEREST PAYMENT DATE or interest on any overdue amount, the Trustee (as defined
below) may establish a special record date. The special record date
may be not more than thirty (30) days before the date set for
payment. The Paying Agent will mail notice of a special record date
to the registered owners of the Bonds (the “Bondholders”) at least ten (10) days
before the special record date. The Paying Agent will promptly
certify to the Authority and the Trustee that it has mailed such notice to all
Bondholders, and such certificate will be conclusive evidence that such notice
was given in the manner required hereby.
Authorization and
Purpose
. This bond is one of an authorized issue of Bonds of
the Authority in the aggregate principal amount of $20,000,000
designated: Water Facilities Revenue Bonds (The Connecticut Water
Company Project - 2009A Series) (the “Bonds”) which are issued for the purpose
of providing The Connecticut Water Company (the “Borrower”), a corporation
organized and existing under the laws of the State of Connecticut, with funds
for the purpose of financing various capital improvements constituting a portion
of the Borrower’s existing water system (the “Project”), and paying necessary
expenses incidental thereto. The Bonds are issued pursuant to the
State Commerce Act, constituting Connecticut General Statutes, Sections 32-1a
through 32-23zz, as amended, a resolution adopted by the Authority on October
21, 2009 and an Indenture of Trust, dated as of December 1, 2009 (which
Indenture as from time to time amended and supplemented is herein referred to as
the “Indenture”), duly executed and delivered by the Authority to U.S. Bank
National Association, as trustee (with its successors, the “Trustee”), and are
equally and ratably secured by and entitled to the protection of the Indenture,
which is on file in the office of the Trustee.
Pledge and
Security
. Pursuant to the Indenture, the Authority has
assigned to the Trustee all of its right, title and interest in and to a Loan
Agreement, dated as of December 1, 2009, as it may be amended or supplemented
from time to time (the “Agreement”), between the Authority and the
Borrower, and the Note evidencing the Borrower’s obligations under the Agreement
(except for certain enforcement and indemnification rights which are reserved in
the Indenture), including all rights to receive loan payments sufficient to pay
the principal and premium if any, of and interest and all other amounts due on
the Bonds as the same become due, to be made by the Borrower pursuant to the
Agreement. The Agreement sets forth the terms and conditions under
which the Authority will provide for the financing of the Project and under
which the Borrower will use and occupy the Project and the Borrower will make
loan payments to the Authority in such amounts as are necessary to pay the
principal of, premium if any, and interest on the Bonds. Reference is
hereby made to the Indenture for the definition of any capitalized word or term
used but not defined herein and for a description of the property pledged,
assigned and otherwise available for the payment of the Bonds, the provisions,
among others, with respect to the nature and extent of the security, the rights,
duties and obligations of the Authority, the Trustee and the owners of the
Bonds, and the terms upon which the Bonds are issued and secured, and the
holders of the Bonds are deemed to assent to the provisions of the Indenture by
the acceptance of this bond.
Event of
Default
. In case any Event of Default occurs and is
continuing, the principal amount of this bond together with accrued interest may
be declared due and payable in the manner and with the effect provided in the
Indenture.
General Optional
Redemption
. The Bonds are subject to redemption prior to
maturity from time to time pursuant to the Indenture at the option of the
Authority, which option shall be exercised at the direction of the Borrower, as
a whole or in part on any date on or after December 1, [2014], at a Redemption
Price equal to 100% of the principal amount thereof plus accrued interest to the
redemption date.
Extraordinary Optional
Redemption
. In addition, at the option of the Authority, which
option shall be exercised upon the giving of notice by the Borrower of its
election to redeem Bonds following completion of the Project in accordance with
the Indenture or its intention to prepay amounts due under the Agreement, the
Bonds are subject to redemption prior to maturity at a Redemption Price equal to
100% of the principal amount thereof plus accrued interest to the date of
redemption (a) in part, on any date, to the extent that excess Bond proceeds are
transferred to the Redemption Account from the Project Fund in accordance with
Section 5.2(F) of the Indenture, or (b) as a whole, on any date, if any one or
more of the events of casualty to or condemnation of the Project or change in
law or certain economic events affecting the Project specified in subsection
8.1(B) of the Agreement shall have occurred, as evidenced in each case by the
filing of a certificate of an Authorized Representative of the
Borrower.
Mandatory Taxability
Redemption
. In the event of a Determination of Taxability, the
Bonds shall be redeemed on any day selected by the Borrower that is not more
than 180 days after the occurrence of such Determination of Taxability as
provided in the Indenture, at the Redemption Price equal to 100% of the
principal amount thereof plus accrued interest to the date of
redemption. Redemption under this paragraph shall be in whole unless
not less than forty-five (45) days prior to the redemption date the Borrower
delivers to the Trustee an opinion of Bond Counsel reasonably satisfactory to
the Trustee to the effect that a redemption of less than all of the Bonds will
preserve the tax-exempt status of interest on the remaining Bonds outstanding
subsequent to such redemption.
Redemption (or Purchase) by
the Borrower in the Event of Death of a Beneficial
Owner
. Unless the Bonds have been declared due and payable
prior to their maturity by reason of an Event of Default, the Representative (as
hereinafter defined) of a deceased Beneficial Owner (as hereinafter defined) who
has owned (or whose estate has owned) the Bonds for a period of at least six
months prior to any request for redemption, has the right after December 1,
2011, to request redemption prior to stated maturity of all or part of such
deceased Beneficial Owner’s interest in the Bonds, and the Borrower will redeem
(or will cause the Authority to redeem) the same subject to the limitations that
the Borrower will not be obligated to redeem (or cause to be redeemed), during
the period from December 1, 2011, through and including December 1, 2012, (the
“Initial Period”), and during any twelve-month period which ends on and includes
each December 1 thereafter (each such twelve-month period being hereinafter
referred to as a “Subsequent Period”), (i) on behalf of a deceased Beneficial
Owner any interest in the Bonds which exceeds $25,000 principal amount (the
“Individual Limitation”) or (ii) interests in the Bonds exceeding $400,000 in
aggregate principal amount (the “Annual Limitation”). A request for
redemption may be initiated by the Representative of a deceased Beneficial Owner
at any time and in any principal amount.
The Borrower may, at its option, redeem
(or cause to be redeemed) interests of any deceased Beneficial Owner in the
Bonds during the Initial Period or any Subsequent Period in excess of the
Individual Limitation. Any such redemption, to the extent that it
exceeds the Individual Limitation for any deceased Beneficial Owner, shall not
be included in the computation of the Annual Limitation for such Initial Period
or such Subsequent Period, as the case may be, or for any succeeding Subsequent
Period. The Borrower may, at its option, redeem (or cause to be
redeemed) interests of deceased Beneficial Owners in the Bonds, during the
Initial Period or any Subsequent Period in an aggregate principal amount
exceeding the Annual Limitation. Any such redemption, to the extent
it exceeds the Annual Limitation shall not reduce the Annual Limitation for any
Subsequent Period. Upon any determination by the Borrower to redeem
(or cause to be redeemed) Bonds in excess of the Individual Limitation or the
Annual Limitation, Bonds so redeemed shall be redeemed in the order of the
receipt of Redemption Requests (as hereinafter defined) by the
Trustee.
A request for redemption of an interest
in the Bonds may be initiated by the personal representative or other person
authorized to represent the estate of the deceased Beneficial Owner or by a
surviving joint tenant(s) or tenant(s) by the entirety or the trustee of a trust
(each, a “Representative”). The Representative shall deliver a
request to the Participant (hereinafter defined) through whom the deceased
Beneficial Owner owned such interest, in form satisfactory to the Participant,
together with evidence of the death of the Beneficial Owner, evidence of the
authority of the Representative satisfactory to the Participant, such waivers,
notices or certificates as may be required under applicable state or federal law
and such other evidence of the right to such redemption as the Participant shall
require. The request shall specify the principal amount of the
interest in the Bonds to be redeemed. The Participant shall thereupon
deliver to the Depository a request for redemption substantially in the form
attached as Appendix B to the Indenture (a “Redemption Request”). The
Depository will, on receipt thereof, forward the same to the
Trustee. The Trustee shall maintain records with respect to
Redemption Requests received by it including date of receipt, the name of the
Participant filing the Redemption Request and the status of each such Redemption
Request with respect to the Individual Limitation or the Annual
Limitation. The Trustee will immediately forward a copy of each
Redemption Request it receives, together with the information regarding the
eligibility thereof with respect to the Individual Limitation or the Annual
Limitation with the Borrower. The Depository, the Authority, the
Borrower and the Trustee may conclusively assume, without independent
investigation, that the statements contained in each Redemption Request are true
and correct and shall have no responsibility for reviewing any documents
submitted to the Participant by the Representative or for determining whether
the applicable decedent is in fact the Beneficial Owner of the interest in the
Bonds to be redeemed or is in fact deceased and whether the Representative is
duly authorized to request redemption on behalf of the applicable Beneficial
Owner.
Subject to the Individual Limitation
and the Annual Limitation, the Borrower will, upon receipt of a Redemption
Request, redeem (or cause to be redeemed) the interest of such deceased
Beneficial Owner in the Bonds on the next interest payment date occurring not
less than 30 days following receipt by the Borrower of the Redemption Request
from the Trustee. If Redemption Requests exceed the aggregate
principal amount of interests in Bonds required to be redeemed during the
Initial Period or during any Subsequent Period, then such excess Redemption
Requests will be applied in the order received by the Trustee to successive
Subsequent Periods, regardless of the number of Subsequent Periods required to
redeem such interests. The Borrower may, at any time, notify the
Trustee that it will redeem (or cause to be redeemed), on the next interest
payment date occurring not less than 30 days thereafter, all or any such lesser
amount of Bonds for which Redemption Requests have been received but which are
not then eligible for redemption by reason of the Individual Limitation or the
Annual Limitation. Any Bonds so redeemed shall be redeemed in the
order of receipt of Redemption Requests by the Trustee.
The price to be paid by the Borrower
for the Bonds to be redeemed pursuant to a Redemption Request is 100% of the
principal amount thereof plus accrued but unpaid interest to the date of
payment. Subject to arrangements with the Depository, payment for
interests in the Bonds which are to be redeemed shall be made to the Depository
upon presentation of Bonds to the Trustee for redemption in the aggregate
principal amount specified in the Redemption Requests submitted to the Trustee
by the Depository which are to be fulfilled in connection with such
payment. The principal amount of any Bonds acquired or redeemed by or
at the direction of the Borrower other than by redemption at the option of any
Representative of a deceased Beneficial Owner pursuant to this section shall not
be included in the computation of either the Individual Limitation and the
Annual Limitation for the Initial Period or for any Subsequent
Period.
For purposes of this section, a
“Beneficial Owner” means the Person who has the right to sell, transfer or
otherwise dispose of an interest in a Bond and the right to receive the proceeds
therefrom, as well as the interest and principal payable to the holder
thereof. In general, a determination of beneficial ownership in the
Bonds will be subject to the rules, regulations and procedures governing the
Depository and institutions that have accounts with the Depository or a nominee
thereof (“Participants”).
For purposes of this section, an
interest in a Bond held in tenancy by the entirety, joint tenancy or by tenants
in common will be deemed to be held by a single Beneficial Owner and the death
of a tenant by the entirety, joint tenant or tenant in common will be deemed the
death of a Beneficial Owner. The death of a person who, during his
lifetime, was entitled to substantially all of the rights of a Beneficial Owner
of an interest in the Bonds will be deemed the death of the Beneficial Owner,
regardless of the recordation of such interest on the records of the
Participant, if such rights can be established to the satisfaction of the
Participant. Such interests shall be deemed to exist in typical cases
of nominee ownership, ownership under the Uniform Gifts to Minors Act or the
Uniform Transfers to Minors Act, community property or other similar joint
ownership arrangements, including individual retirement accounts or Keogh [H.R.
10] plans maintained solely by or for the decedent or by or for the decedent and
any spouse, and trust and certain other arrangements where the decedent has the
right to receive all or a portion of the income and such person has
substantially all of the rights of a Beneficial Owner during such person’s
lifetime.
In the case of a Redemption Request
which is presented on behalf of a deceased Beneficial Owner and which has not
been fulfilled at the time the Borrower gives notice of its election to redeem
the Bonds, the Bonds which are the subject of such pending Redemption Request
shall be redeemed prior to any other Bonds.
Any Redemption Request may be withdrawn
by the person(s) presenting the same upon delivery of a written request for such
withdrawal given by the Participant on behalf of such person to the Depository
and by the Depository to the Trustee not less than 60 days prior to the interest
payment date on which such Bonds are eligible for redemption.
The Borrower may, at its option,
purchase any Bonds for which Redemption Requests have been received in lieu of
redeeming (or causing the redemption of) such Bonds. Any Bonds so
purchased by the Borrower shall either be reoffered for sale and sold within 180
days after the date of purchase or presented to the Trustee for redemption and
cancellation. The Trustee shall have no duty to monitor or enforce
the Borrower’s obligations under this paragraph.
During such time or times as the Bonds
are not represented by a Global Security and are issued in definitive form, all
references in this Section to Participants and the Depository, including the
Depository’s governing rules, regulations and procedures shall be deemed
deleted, all determinations which under this section the Participants are
required to make shall be made by the Borrower (including, without limitation,
determining whether the applicable decedent is in fact the Beneficial Owner of
the interest in the Bonds to be redeemed or is in fact deceased and whether the
Representative is duly authorized to request redemption on behalf of the
applicable Beneficial Owner), all Redemption Requests, to be effective, shall be
delivered by the Representative to the Trustee, with a copy to the Borrower, and
shall be in the form of a Redemption Request (with appropriate changes to
reflect the fact that such Redemption Request is being executed by a
Representative) and, in addition to all documents that are otherwise required to
accompany a Redemption Request, shall be accompanied by the Bond that is the
subject of such request.
Optional Public Purpose
Redemption
. If the Borrower fails to perform its obligations
under Section 6.4 of the Agreement, the Bonds shall be subject to redemption
prior to maturity as a whole on any date at the option of the Authority in
accordance with Section 7.3 of the Agreement, at the redemption price equal to
100% of the principal amount thereof plus accrued interest to the date of
redemption.
Extraordinary Optional
Redemption Without Premium to Preserve Tax Exempt Status of the
Bonds
. The Bonds shall be subject to extraordinary optional
redemption by the Authority, at the direction of the Borrower, in whole or in
part on any date at a Redemption Price equal to 100% of the unpaid principal
amount thereof, together with accrued interest to the date of redemption, and
without premium, if the Borrower shall have delivered to the Trustee and the
Authority an opinion of Bond Counsel addressed to the Trustee and the Authority
substantially to the effect that (i) a failure so to redeem the Bonds (or the
relevant portion thereof) may adversely affect the exclusion of interest on the
Bonds from the gross income of the holders pursuant to Section 103 of the Code,
and (ii) redemption of Bonds in the amount set forth in such opinion (but in no
smaller amount than that set forth in such opinion) would permit the continuance
of any exclusion so afforded under Section 103 of the Code.
Selection of Bonds to be
Redeemed
. If less than all of the Outstanding Bonds are to be
called for redemption, the Bonds (or portions thereof) to be redeemed shall be
selected as provided in the Indenture.
Notice of
Redemption
. In the event this bond is selected for redemption,
notice (which notice may state that it is subject to the receipt of the
redemption moneys by the Trustee on or before the date fixed for redemption and
which notice shall be of no effect unless such moneys are so received on or
before such date) will be mailed no more than forty-five (45) days nor less than
thirty (30) days prior to the redemption date to the REGISTERED OWNER at its
address shown on the registration books maintained by the Paying
Agent. Failure to mail notice to the owner of any other Bond or any
defect in the notice to such an owner shall not affect the redemption of this
bond.
If this
bond is of a denomination in excess of five thousand dollars ($5,000), portions
of the principal amount in the amount of five thousand dollars ($5,000) or any
multiple thereof may be redeemed. If less than all of the principal
amount is to be redeemed, upon surrender of this bond to the Paying Agent, there
will be issued to the REGISTERED OWNER, without charge, a new Bond or Bonds, at
the option of the REGISTERED OWNER, for the unredeemed principal
amount.
Notice of
redemption having been duly mailed, and moneys for the redemption having been
deposited with the Paying Agent, this bond, or the portion called for
redemption, will become due and payable on the redemption date at the applicable
redemption price from and after the date fixed for redemption, interest on this
bond (or such portion) will no longer accrue.
Transfer of
Bonds
. This bond is transferable by the REGISTERED OWNER, in
person or by its attorney duly authorized in writing, at the office of the
Paying Agent, upon surrender of this bond to the Paying Agent for
cancellation. Upon the transfer, a new Bond or Bonds in authorized
denominations of the same aggregate principal amount will be issued to the
transferee at the same office. This bond may also be exchanged at the
office of the Paying Agent for a new Bond or Bonds in authorized denominations
of the same aggregate principal amount without transfer to a new registered
owner. Exchanges and transfers will be without expense to the owner
except for applicable taxes, fees or other governmental charges, if any, and a
sum sufficient to pay the cost of preparing and delivering each new Bond issued
upon such transfer. The Paying Agent will not be required to make an
exchange or transfer of this bond (a) during the fifteen (15) days preceding any
date fixed for selection for redemption if this bond (or any portion thereof) is
eligible to be selected for redemption or (b) if this bond is selected, called
or being called for redemption in whole or in part, except in the case of a bond
to be redeemed in part, the portion not to be redeemed.
Amendment of
Indenture
. The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Authority and the rights of the owners of the Bonds at any
time by the Authority with the consent of the owners of not less than 51% in
aggregate principal amount of the Bonds at the time outstanding
thereunder. Any such consent shall be conclusive and binding upon
each such owner and upon all future owners of each Bond and of any such Bond
issued upon the transfer thereof, whether or not notation of such consent is
made thereon. The Indenture also permits the amendment thereof by the
Authority but without the consent of the owners of the Bonds for certain
specified purposes.
Limitation on Bondholder
Enforcement Rights
. The owner of this bond shall have no right
to enforce the provisions of the Indenture, to institute action to enforce the
provisions and covenants thereof or to institute, appear in or defend any suit
or other proceedings with respect thereto, except as provided in the
Indenture.
Special Obligations of the
Authority
. This bond and the issue of which it forms a part
are special obligations of the Authority, payable solely out of the revenues or
other receipts, funds or moneys of the Authority pledged under the Indenture and
from any amounts otherwise available under the Indenture for the payment of the
Bonds. Neither the State nor any municipality thereof shall be
obligated to pay the principal or redemption price, if any, of or interest on
this bond and neither the faith and credit nor taxing power of the State or any
municipality thereof is pledged to such payment. The Bonds do not now
and shall never constitute a debt or liability of the State or any municipality
thereof or bonds issued or guaranteed by either of them within the meaning of
any constitutional or statutory limitation.
Estoppel
Clause
. This bond is issued pursuant to and in full compliance
with the Constitution and laws of the State. It is hereby certified,
recited and declared that all acts, conditions and things required to exist,
happen and be performed precedent to and in the issuance of this bond do exist,
have happened and have been performed in due time, form and manner as required
by law and that the issuance of this bond and of the issue of which it forms a
part, together with all other obligations of the Authority, do not exceed or
violate any constitutional or statutory limitation.
NEITHER
THE AUTHORITY, THE TRUSTEE NOR ANY PAYING AGENT WILL HAVE ANY RESPONSIBILITY OR
OBLIGATION TO PARTICIPANTS, TO INDIRECT PARTICIPANTS OR TO ANY BENEFICIAL OWNER
WITH RESPECT TO (I) THE ACCURACY OF ANY RECORDS MAINTAINED BY DTC OR ANY
SUCCESSOR SECURITIES DEPOSITORY, ANY PARTICIPANT, OR ANY INDIRECT PARTICIPANT;
(II) THE PAYMENT BY DTC OR ANY SUCCESSOR SECURITIES DEPOSITORY OR ANY
PARTICIPANT OR INDIRECT PARTICIPANT OF ANY AMOUNT WITH RESPECT TO THE PRINCIPAL
OF, OR PREMIUM, IF ANY, OR INTEREST ON THE BONDS; (III) THE SELECTION BY DTC OR
ANY SUCCESSOR SECURITIES DEPOSITORY OR ANY DIRECT OR INDIRECT PARTICIPANT OF ANY
PERSON TO RECEIVE PAYMENT IN THE EVENT OF A PARTIAL REDEMPTION OF THE BONDS;
(IV) ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC OR ANY SUCCESSOR SECURITIES
DEPOSITORY AS BONDHOLDER; OR (V) THE DELIVERY TO ANY PARTICIPANT, OR INDIRECT
PARTICIPANT, BENEFICIAL OWNER OR OTHER PERSON OTHER THAN DTC OR ANY SUCCESSOR
SECURITIES DEPOSITORY OF ANY NOTICE WITH RESPECT TO THE BONDS, INCLUDING BUT NOT
LIMITED TO, ANY NOTICE OF REDEMPTION.
No Personal
Liability
. Neither the officers, directors or employees of the
Authority or the Trustee nor any person executing this bond shall be liable
personally or be subject to any personal liability or accountability by reason
of the issuance hereof.
Authentication
. This
bond shall not be valid or become obligatory for any purpose or be entitled to
any security or benefit under the Indenture until the certificate of
authentication hereon shall have been signed by the Trustee or the Paying
Agent.
Authorized
Denomination
. The Bonds are issuable only in fully registered
form in denominations of $5,000 or any multiple thereof.
Persons Deemed
Owners
. The Authority, the Trustee, the Paying Agent and the
Borrower may treat the REGISTERED OWNER as the absolute owner of this bond for
all purposes, notwithstanding any notice to the contrary.
IN
WITNESS WHEREOF, the CONNECTICUT DEVELOPMENT AUTHORITY has caused this Bond to
be executed in its name by the manual or facsimile signature of its Authorized
Representative.
CONNECTICUT
DEVELOPMENT AUTHORITY
By
Authorized
Representative
[FORM OF
CERTIFICATE OF AUTHENTICATION]
CERTIFICATE
OF AUTHENTICATION
This bond
is one of the Bonds of the issue described in the within mentioned
Indenture.
Date of
Registration:
U.S. BANK
NATIONAL ASSOCIATION, Trustee
By
[,or
Authorized
Signature
U.S. BANK
NATIONAL ASSOCIATION,
Paying
Agent
By
Authorized
Signature]
[FORM OF
ASSIGNMENT]
ASSIGNMENT
For value
received the undersigned sells, assigns and transfers this bond to
______________________________________________________________________________
(Name and
Address of Assignee)
______________________________________________________________________________
Social
Security or Other Identifying Number of Assignee
and
irrevocably appoints __________________________________ attorney-in-fact to
transfer it on the books kept for registration of the bond, with full power of
substitution.
________________________________________________________________________________
NOTE: The
signature to this assignment must correspond with the name as written on the
face of the bond without alteration or enlargement or other change and must be
guaranteed by a Participant in a Recognized Signature Guaranty Medallion
Program.
Dated:
Signature
Guaranteed:
_____________________________________________________
Participant
in a Recognized
Signature
Guaranty Medallion Program
By:
_________________________________________________
Authorized
Signature
[END OF
FORM OF BOND]
WHEREAS
, all things necessary
to make the Bonds, when authenticated by the Trustee and issued as in this
Indenture provided, the valid, binding and legal obligations of the Authority
according to the import thereof, and to constitute this Indenture a valid pledge
of revenues to the payment of the principal or Redemption Price, if any, of and
interest on the Bonds and all other amounts due in connection therewith and a
valid assignment of the rights of the Authority (except as stated below) under
the Agreement and the Note have been done and performed, and the creation,
execution and delivery of this Indenture and the creation, execution and
issuance of the Bonds subject to the terms hereof, have in all respects been
duly authorized;
NOW,
THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS:
GRANTING
CLAUSES
That the
Authority in consideration of the premises and the acceptance by the Trustee of
the trusts hereby created and of the purchase and acceptance of the Bonds by the
holders and owners thereof, and of the sum of One Dollar, lawful money of the
United States of America, to it duly paid by the Trustee at or before the
execution and delivery of these presents, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, and in order to
secure the payment of the principal of, Redemption Price, if any, and interest
on the Bonds according to their tenor and effect and all other amounts due in
connection therewith and the performance and observance by the Authority of all
the covenants expressed or implied herein and in the Bonds, does hereby grant,
bargain, sell, convey, pledge and assign unto, and grant a security interest in
and to the Trustee, and unto its respective successors in trust, and to their
respective assigns, forever, for the securing of the performance of the
obligations of the Authority hereinafter set forth, the following:
I.
The
Agreement and the Note (except to the extent to which any such document provides
for the indemnification or the payment of expenses of the Authority, rights of
the Authority to inspect the Projects, receive notices and grant approvals),
including all extensions and renewals of the term thereof, if any, together with
all right, title and interest of the Authority therein, including, but without
limiting the generality of the foregoing, the present and continuing right to
claim, collect and receive any of the moneys, income, revenues, issues, profits
and other amounts payable or receivable thereunder, to bring actions and
proceedings thereunder or for the enforcement thereof, and to do any and all
things which the Authority is or may become entitled to do under the Agreement
and the Note, but reserving, however, to the Authority rights of the Authority
under Sections 6.2, 6.4, 7.2(A)(2) and 7.3 of the Agreement upon the conditions
therein set forth;
II.
All Funds
and Accounts (except the Rebate Fund) and moneys therein; and
III.
All
moneys and securities from time to time held by the Trustee or the Paying Agent
under the terms of this Indenture (except moneys and securities in the Rebate
Fund) and any and all other real or personal property of every name and nature
concurrently herewith or from time to time hereafter by delivery or by writing
of any nature conveyed, mortgaged, pledged, assigned or transferred as and for
additional security hereunder by the Authority or by anyone in its behalf, or
with its written consent, to the Trustee or the Paying Agent, which are hereby
authorized to receive any and all such property at any and all times and to hold
and apply the same subject to the terms hereof;
TO HAVE AND TO HOLD
all and
singular the trust estate, whether now owned or hereafter acquired, unto the
Trustee and its respective successors and assigns in trust forever to its and
their own proper use and behoof but:
IN TRUST NEVERTHELESS
, upon
the terms and trusts herein set forth for the equal and proportionate benefit,
security and protection of all present and future holders and owners of the
Bonds from time to time issued and to be issued under and secured by this
Indenture without privilege, priority or distinction as to the lien or otherwise
of any of the Bonds over any of the other Bonds;
PROVIDED, HOWEVER
, that if the
Authority, its successors or assigns, shall well and truly pay, or cause to be
paid, the principal of, Redemption Price, if any, and interest on, the Bonds due
or to become due thereon, and all other amounts due thereunder, at the times and
in the manner mentioned in the Bonds according to their tenor, and shall cause
the payments to be made on the Bonds as required under Article VII hereof, or
shall provide, as permitted hereby, for the payment thereof by depositing with
the Trustee the entire amount due or to become due thereon, and shall well and
truly keep, perform and observe all the covenants and conditions pursuant to the
terms of this Indenture to be kept, performed and observed by it, and shall pay
or cause to be paid to the Trustee all sums of money due or to become due to it
in accordance with the terms and provisions of the Agreement, the Note and this
Indenture, then upon the final payment thereof this Indenture and the rights
hereby granted shall cease, determine and be void; otherwise this Indenture to
be and remain in full force and effect.
THIS INDENTURE OF TRUST FURTHER
WITNESSETH
, and it is expressly declared, that all Bonds issued and
secured hereunder are to be issued, authenticated and delivered and all of the
property, rights and interests, including, without limitation the loan payments
and other amounts hereby assigned and pledged are to be dealt with and disposed
of under, upon and subject to the terms, conditions, stipulations, covenants,
agreements, trusts, uses and purposes as hereinafter expressed, and the
Authority has agreed and covenanted, and does hereby agree and covenant with the
Trustee and with the respective holders and owners of the Bonds as
follows:
ARTICLE
I
DEFINITIONS
AND INTERPRETATION
Section
1.1.
Definitions
.
As used in this
Indenture:
“Account”
or “Accounts” shall mean the Account or Accounts established pursuant to Article
V herein below.
“Act”
means the State Commerce Act, constituting Connecticut General Statutes,
Sections 32-la through 32-23zz, as amended.
“Agreement”
means the Loan Agreement of even date herewith between the Authority and the
Borrower, and any amendments and supplements thereto.
“Authority”
means the Connecticut Development Authority, a body corporate and politic
constituting a public instrumentality and political subdivision of the State of
Connecticut duly organized and existing under the laws of the State, and any
body, board, authority, agency or other political subdivision or instrumentality
of the State which shall hereafter succeed to the powers, duties and functions
thereof.
“Authorized
Investments” means any of the following:
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1)
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United
States government obligations, United States agency obligations, United
States postal service obligations, repurchase agreements or certificates
of deposit to which specifically identified United States government,
agency or postal service obligations are pledged as
collateral;
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2)
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certificates
of deposit of any of the fifteen largest domestically chartered banks or
trust companies in the United
States;
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3)
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commercial
paper having the highest rating by a nationally recognized securities
rating service;
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4)
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tax-exempt
securities not subject to the alternative minimum tax and which have the
highest rating by a nationally recognized securities rating
service;
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5)
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savings
accounts with banks or savings and loan associations the accounts of which
are federally insured;
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6)
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bank
acceptances which are eligible collateral for borrowing from Federal
Reserve Banks;
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7)
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certificates
of deposit of the Trustee (but only to the extent such certificates of
deposit do not exceed 10% of the amounts held in all Funds and Accounts
hereunder);
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8)
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guaranteed
investment contracts and/or
investment
agreements, acceptable to the Authority, authorized by applicable State
law for the investment of proceeds of obligations issued by the State and
participation certificates in the short term investment fund created and
existing under Section 3-27a, Connecticut General Statutes, as amended,
and any State administered pool investment fund in which the Authority is
statutorily permitted or required to invest
;
and
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9)
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Mutual
funds and money market funds of or available to the Trustee (including any
proprietary money market fund of the Trustee for which the Trustee or an
affiliate of the Trustee serves as investment advisor or provides other
services and receives reasonable compensation thereof) that are rated at
least AAA or AAAm, as applicable, by S&P or Aaa by Moody’s and invest
only in other Authorized
Investments.
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“Authorized
Representative” means, in the case of the Authority, the Chairman or Vice
Chairman, the President, the Executive Vice President, Deputy Director or any
Senior Vice President or any Vice President thereof and, in the case of the
Borrower, the Chairman, the President and Chief Executive Officer, the Vice
President-Finance, Chief Financial Officer and Treasurer, and any Vice
President, Assistant Treasurer or Secretary thereof and, when used with
reference to the performance of any act, the discharge of any duty or the
execution of any certificate or other document, any officer, employee or other
person authorized to perform such act, discharge such duty or execute such
certificate or other document.
“Beneficial
Owner” shall have the meaning specified in Section 2.3(F) hereof. If
any person claims to the Trustee to be a Beneficial Owner, for purposes of
Sections 2.4(C), such person shall prove such claim to the satisfaction of the
Trustee with such documentation and signature guaranties as the Trustee may
request and shall be responsible for and pay any costs associated with such
claim.
“Bonds”
means the $20,000,000 Water Facilities Revenue Bonds (The Connecticut Water
Company Project - 2009A Series) authorized and issued pursuant to Section 2.3
hereof.
“Bond
Counsel” means Winston & Strawn LLP or such other nationally recognized bond
counsel selected by the Authority and reasonably satisfactory to the Borrower
and Trustee.
“Bondholder”,
“holder” or “owner” or words of similar import when used with reference to
Bonds, shall unless otherwise specified, mean any person who shall be the
registered owner of any Outstanding Bond.
“Borrower”
means (i) The Connecticut Water Company, a corporation organized and existing
under the laws of the State of Connecticut, and its successors and assigns and
(ii) any surviving, resulting or transferee corporation as provided in Section
6.1 of the Agreement.
“Business
Day” means any day (i) that is not a Saturday or Sunday, (ii) that is a day on
which banks located in Hartford, Connecticut and New York, New York are not
required or authorized to remain closed, (iii) that is a day on which banking
institutions in the cities in which the principal offices of the Trustee and the
Paying Agent are located and are not required or authorized to remain closed and
(iv) that is a day on which the New York Stock Exchange, Inc. is not
closed.
“Cede
& Co.” means the nominee for The Depository Trust Company (DTC) who shall
act as securities depository for the Bonds.
“Code”
means the Internal Revenue Code of 1986, as amended and regulations promulgated
thereunder.
“Completion
Date” means the date of completion of the Project as specified and established
in accordance with Article IV of the Agreement.
“Computation
Period” means each period from the date of issuance through the date on which a
determination of the Rebatable Arbitrage is made or required to be made pursuant
to Section 8.3 of the Tax Regulatory Agreement.
“Debt
Service Fund” means the special trust fund so designated, established pursuant
to Section 5.1 hereof.
“Default”
means any event or condition which will, with the lapse of time, or the giving
of notice, or both, become an Event of Default.
“DTC” or
“The Depository Trust Company” shall mean the limited-purpose trust company
organized under the laws of the State of New York which shall act as securities
depository for the Bonds, and any successor thereto.
“Depository”
means DTC or any other depository holding the Bonds for purpose of a book-entry
system.
“Determination
of Taxability” means with respect to the Bonds, (1) a ruling by the Internal
Revenue Service, (2) the receipt by the owner of any of the Bonds from the
Internal Revenue Service of a notice of assessment and demand for payment
(provided the Borrower has been afforded the opportunity to participate at its
own expense in all appeals and proceedings to which such owner of any Bonds is a
party relating to such assessment and demand for payment) and the expiration of
the appeal period provided therein if no appeal is taken or, if an appeal is
taken by such owner of any Bonds as provided in Section 6.3 of the Agreement
within the applicable appeal period which has the effect of staying the demand
for payment, a final unappealable decision by a court of competent jurisdiction,
or (3) the admission in writing by the Borrower, in any case to the effect that
the interest on the Bonds is includable in the gross income for federal income
tax purposes (other than for purposes of alternative minimum tax or foreign
branch profits tax) of an owner or former owner thereof, other than for a period
during which such owner or former owner is or was a “substantial user” of the
Project financed by such Bonds or a “related person” as such terms are defined
in the Code. For purposes of this definition only, the term owner
means the Beneficial Owner of the Bonds so long as the Book-Entry Only System is
in effect.
“Disclosure
Agreement” means the agreement by and between the Borrower and U.S. Bank
National Association, as dissemination agent, dated the date of the initial
delivery of the Bonds and providing for the provision of certain information
subsequent to the issuance of the Bonds.
“Event of
Bankruptcy” means the filing of a petition in bankruptcy or the commencement of
a proceeding under the United States Bankruptcy Code or any other applicable law
concerning insolvency, reorganization or bankruptcy by or against the Authority,
the Borrower, or any guarantor of the Bonds, as debtor.
“Event of
Default” has the meaning given such term in Section 8.1 hereof.
“Federal
Securities” means any direct and general obligations of, or any obligations
whose full and timely payment is unconditionally guaranteed by, the United
States of America.
“Financing
Documents” means (1), when used with respect to the Borrower, means
the Agreement, the Tax Regulatory Agreement, the Note, the Disclosure Agreement
and the general certificate of the Borrower delivered in connection with the
issuance of the Bonds, and (2) when used with respect to the Authority, means
any of the foregoing documents and agreements to which the Authority is a direct
party. The Financing Documents do not include any documents or
agreements to which the Borrower is not a direct party, including the Bonds or
the Indenture.
“Fitch”
means Fitch Inc., a corporation organized and existing under the laws of the
State of Delaware, its successors and their assigns, and if such corporation
shall be dissolved or liquidated or shall no longer perform the functions of a
securities rating agency, “Fitch” shall be deemed to refer to any other
nationally recognized securities rating agency designated by the Authority, at
the direction of the Borrower, by notice to the Trustee and the
Borrower.
“Fund” or
“Funds” shall mean the Fund or Funds established pursuant to Article V herein
below.
“Indenture”
means this Indenture as from time to time amended or supplemented by
Supplemental Indentures in accordance with Article X hereof.
“Indirect
Participant” shall have the meaning set forth in Section 2.3(F)
hereof.
“Interest
Payment Date” shall mean each date on which interest is payable on the Bonds as
provided in the form of the Bonds.
“Loan
Payments” means the amounts required to be paid by the Borrower in repayment of
the loan made to the Borrower by the Authority pursuant to the provisions of the
Agreement and the Note, including all amounts realized by the Trustee thereunder
in accordance with Article VIII hereof.
“Moody’s”
means Moody’s Investors Service, Inc., a corporation organized and existing
under the laws of the State of Delaware, its successors and their assigns, and
if such corporation shall be dissolved or liquidated or shall no longer perform
the functions of a securities rating agency, “Moody’s” shall be deemed to refer
to any other nationally recognized securities rating agency designated by the
Authority, at the direction of the Borrower, by notice to the Trustee and the
Borrower.
“Note”
means the promissory note of the Borrower to the Authority, dated the date of
initial delivery of the Bonds in the form attached as Appendix A to the
Agreement, and any amendments or supplements made in conformity with the
Agreement and this Indenture.
“Outstanding”,
when used with reference to a Bond or Bonds, as of any particular date, means
all Bonds which have been authenticated and delivered hereunder,
except:
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(1)
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Any
Bonds cancelled by the Trustee because of payment or redemption prior to
maturity or surrendered to the Trustee for
cancellation;
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(2)
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any
Bond (or portion of a Bond) paid or redeemed or for the payment or
redemption of which there has been separately set aside and held in the
Debt Service Fund either:
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(a)
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moneys
in an amount sufficient to effect payment of the principal or applicable
Redemption Price thereof, together with accrued interest on such Bond to
the payment or redemption date, which payment or redemption date shall be,
specified in irrevocable instructions given to the Trustee to apply such
moneys to such payment on the date so specified;
or
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(b)
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obligations
of the kind described in subsection 12.1(B) hereof in such principal
amounts, of such maturities, bearing such interest and otherwise having
such terms and qualifications as shall be necessary to provide moneys in
an amount sufficient to effect payment of the principal or applicable
Redemption Price of such Bond, together with accrued interest on such Bond
to the payment or redemption date, which payment or redemption date shall
be specified in irrevocable instructions given to the Trustee to apply
such obligations to such payment on the date so specified;
or
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(c)
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any
combination of (a) and (b) above;
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(3)
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Bonds
in exchange for or in lieu of which other Bonds shall have been
authenticated and delivered under Article III hereof;
and
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(4)
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any
Bond deemed to have been paid as provided in Section 12.1
hereof.
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“Participant”
means one of the entities that deposits securities, directly or indirectly, in
the Book-Entry Only System.
“Paying
Agent” means any paying agent for the Bonds appointed pursuant to Section 9.10
hereof (and may include the Trustee), and its successor or successors and any
other corporation which may at any time be substituted in its place in
accordance herewith.
“Principal
and Interest Account” means the special trust account of the Debt Service Fund
so designated, established pursuant to Section 5.3 hereof.
“Project
Costs” mean all costs and expenses of the Project for which the Trustee is
permitted to make payment as provided in subsection 5.2(B) hereof.
“Project”
means realty and other interests in the real property, if any, and all personal
property, goods, leasehold improvements, machinery, equipment, furnishings,
furniture, fixtures, tools and attachments wherever located and whether now
owned or hereafter acquired, financed in whole or in part with the proceeds of
the Bonds, and any additions and accessions thereto, substitutions therefor and
replacements thereof, including without limitation the project components
described in the appendix to the Agreement, as amended from time to time in
accordance herewith.
“Project
Fund” means the special trust fund so designated, established pursuant to
Section 5.1 and Section 5.2 hereof.
“Redemption
Account” means the special trust account of the Debt Service Fund so designated,
established pursuant to Section 5.3 hereof.
“Redemption
Price” means, when used with respect to a Bond or a portion thereof, the
principal amount of such Bond or portion thereof plus the applicable premium, if
any, payable upon redemption thereof pursuant to this Indenture.
“Renewal
Fund” means the special trust fund so designated, established pursuant to
Section 5.1 hereof.
“Representation
Letter” has the meaning given such term in Section 2.3(F) hereof.
“Revenues”
means (a) the Loan Payments, (b) all amounts paid to the Trustee with respect to
the principal of, redemption premium, if any, or interest on, the Bonds (1) by
the Borrower as required under the Agreement, and (2) upon deposit in the Debt
Service Fund from the proceeds of the Bonds and (c) investment income with
respect to any moneys held by the Trustee in the Project Fund, the Debt Service
Fund and the Renewal Fund. The term “Revenues” does not include any
moneys or investments or investment income in the Rebate Fund.
“S&P”
means Standard & Poor’s Ratings Services, a division of McGraw Hill, Inc., a
corporation organized and existing under the laws of the State of New York, its
successors and their assigns, and, if such corporation or division shall be
dissolved, eliminated, reorganized, or liquidated or shall no longer
perform the functions of a securities rating agency, “S&P” shall be deemed
to refer to any other nationally recognized securities rating agency designated
by the Authority, at the direction of the Borrower, by notice to the Trustee and
the Borrower.
“State”
means the State of Connecticut.
“Supplemental
Indenture” means any indenture supplemental hereto or amendatory hereof, adopted
by the Authority in accordance with Article X hereof.
“Tax
Incidence Date” means the date as of which interest on the Bonds becomes or
became includable in the gross income of the recipient thereof (other than the
Borrower or another substantial user or related person) for federal income tax
purposes for any cause, as determined by a Determination of
Taxability.
“Tax
Regulatory Agreement” means the Tax Regulatory Agreement, dated as of the date
of initial issuance and delivery of the Bonds, among the Authority, the Borrower
and the Trustee, and any amendments and supplements thereto.
“Term”,
when used with reference to the Agreement, means the term of the Agreement
determined as provided in Article III thereof.
“Trustee”
means U.S. Bank National Association, and its successor or successors hereafter
appointed in the manner provided in this Indenture.
Section
1.2.
Interpretation
.
(A) In this
Indenture:
(1) Any
capitalized word or term used but not defined herein shall have the meaning
ascribed to such word or term in the Agreement or the Tax Regulatory Agreement,
as the case may be.
(2) The
terms “hereby”, “hereof”, “hereto”, “herein”, “hereunder” and any similar terms,
as used in this Indenture, refer to this Indenture, and the term “hereafter”
means after, and the term “heretofore” means before, the date of execution of
this Indenture.
(3) Words
of the masculine gender mean and include correlative words of the feminine and
neuter genders and words importing the singular number mean and include the
plural number and vice versa.
(4)
Words importing persons include firms, associations, partnerships (including
limited partnerships), limited liability companies, trusts, corporations and
other legal entities, including public bodies, as well as natural
persons.
(5) Any
headings preceding the texts of the several Articles and Sections of this
Indenture, and any table of contents appended to copies hereof, shall be solely
for convenience of reference and shall not constitute a part of this Indenture,
nor shall they affect its meaning, construction or effect.
(6) All
approvals, consents and acceptances required to be given or made by any person
or party hereunder shall be at the sole discretion of the party whose approval,
consent or acceptance is required.
(7) This
Indenture shall be governed by and construed in accordance with the applicable
laws of the State.
(B) Whenever
the Authority is named or referred to, it shall be deemed to include its
successors and assigns whether so expressed or not. All of the
covenants, stipulations, obligations, and agreements by or on behalf of, and
other provisions for the benefit of, the Authority contained in this Indenture
shall bind and inure to the benefit of such successors and assigns and shall
bind and inure to the benefit of any officer, board, commission, authority,
agency or instrumentality to whom or to which there shall be transferred by or
in accordance with law any right, power or duty of the Authority, or of its
successors or assigns, the possession of which is necessary or appropriate in
order to comply with any such covenants, stipulations, obligations, agreements
or other provisions hereof.
(C) If
any one or more of the covenants or agreements provided herein on the part of
the Authority, the Trustee or any Paying Agent to be performed should be
contrary to law, then such covenant or covenants or agreement or agreements,
shall be deemed separable from the remaining covenants and agreements hereof,
and shall in no way affect the validity of the other provisions of this
Indenture or of the Bonds.
(D) All
approvals, consents and actions of the Trustee under this Indenture, the Bonds
and the Financing Documents may be given or withheld or taken or not taken in
accordance with the direction of the owners of not less than 51% of the
principal amount of the Outstanding Bonds.
(E) If
the Paying Agent shall be removed and the duties and obligations of such Paying
Agent discharged pursuant to Section 9.10 hereof, then each and every such duty
and obligation to be performed by such Paying Agent set forth herein and in the
Financing Documents shall be performed to the same extent and in the same manner
by the Trustee, and each and every reference herein and in the Financing
Documents to the Paying Agent shall refer to and shall be deemed to refer to the
Trustee unless a successor Paying Agent shall have been appointed.
(F) For
purposes hereof the Trustee shall not be deemed to have knowledge or actual
knowledge of any fact or the occurrence of any event unless and until an officer
of the Trustee’s corporate trust administration department has written notice
thereof.
(G) In
the event of any solicitation of consents from and voting by owners of the
Bonds, the Trustee shall establish a record date for such purposes and give DTC
notice of such record date not less than fifteen calendar days in advance of
such record date to the extent possible.
ARTICLE
II
AUTHORIZATION,
TERMS AND ISSUANCE OF BONDS
Section
2.1.
Authorization
for Indenture
.
This Indenture is
made and entered into by virtue of and pursuant to the provisions of the
Act. The Authority has ascertained and hereby determines and declares
that the execution and delivery of this Indenture is necessary to carry out the
powers and duties expressly provided by the Act, that each and every act,
matter, thing or course of conduct as to which provision is made herein is
necessary or convenient in order to carry out and effectuate the purposes of the
Authority in accordance with the Act and to carry out powers expressly given
thereby, and that each and every covenant or agreement herein contained and made
is necessary, useful or convenient in order to better secure the Bonds and
necessary, useful or convenient to carry out and effectuate its corporate
purposes under the Act.
Section
2.2.
Authorization
and Obligation of Bonds
.
(A) Bonds of the
Authority issued hereunder, each to be entitled Water Facilities Revenue Bonds
(The Connecticut Water Company Project - 2009A Series), shall be subject to the
terms, conditions and limitations established herein. No Bonds may be
authenticated and delivered except in accordance with this Article.
(B) All
Bonds shall be entitled to the benefit of the continuing pledge and lien created
by this Indenture to secure the full and final payment of the principal or
Redemption Price, if any, thereof and the interest thereon and all other amounts
due under the Financing Documents. The Bonds shall be special
obligations of the Authority, payable solely out of the revenues or other
receipts, funds or moneys pledged therefor pursuant to this Indenture and from
any amounts otherwise available under this Indenture for the payment of the
Bonds. Neither the State nor any municipality thereof shall be
obligated to pay the principal or Redemption Price, if any, of or the interest
on the Bonds and neither the faith and credit nor the taxing power of the State
or any municipality thereof is pledged to pay such principal, Redemption Price
or interest. The Bonds shall never constitute a debt or liability of
the State or any municipality thereof or bonds issued or guaranteed by the State
or any municipality thereof within the meaning of any constitutional or
statutory limitation.
Section
2.3.
Issuance
and Terms of the Bonds
.
(A) There shall
be issued under and secured by this Indenture a series of Bonds to be designated
Water Facilities Revenue Bonds (The Connecticut Water Company Project - 2009A
Series) in the principal amount of $20,000,000. The Bonds shall be
issuable in fully registered form without coupons and shall be dated as provided
in Section 3.1 hereof.
(B) The
Bonds shall mature on December 1, 2039 and bear interest at the per annum rate
of 5.10% payable on June 1, 2010 and on each December 1 and June 1 thereafter
until maturity or prior redemption.
(C) Interest
on the Bonds shall be computed on the basis of a 360-day year consisting of
twelve (12) 30-day months.
(D) The
Bonds shall be numbered from one upward in consecutive numerical
order. Bonds issued in exchange shall be numbered in such manner as
the Trustee and the Paying Agent in their discretion shall
determine.
(E) The
principal or Redemption Price, if any, of the Bonds as they respectively become
due shall be payable upon presentation and surrender of the Bonds at the
corporate trust office of the Trustee in Hartford, Connecticut, or at the office
designated for such payment of any successor Paying Agent. Payment of
each installment of interest on the Bonds shall be made to the registered owners
thereof who shall appear on the registration books of the Authority maintained
by the Trustee at the close of business on the fifteenth day of the calendar
month next preceding such Interest Payment Date, by check or draft mailed to
each such registered owner at his address as it appears on such registration
books. Alternatively, payment shall be made as otherwise agreed in
writing by the Bondholder and the Trustee and, at the written request to the
Trustee of and at the expense of any holder of at least $1,000,000 in Bonds,
such payment may be made by wire transfer or other reasonable method to an
account or place designated by such registered owner.
(F) Book-Entry
Only System for the Bonds
(1) The
Depository Trust Company (“DTC”), New York, New York shall act as securities
depository for the Bonds. One fully registered bond in the aggregate
principal amount of the Bonds shall be registered in the name of Cede & Co.,
as nominee for DTC. Notwithstanding any provision herein to the
contrary, the provisions of this Section 2.3(F) and the Representation Letter
(as defined below) shall apply with respect to any Bond registered to Cede &
Co. or any other nominee of DTC, New York, New York, while the Book-Entry Only
System (meaning the system of registration described in paragraph (2) of this
Section 2.3(F)) is in effect. DTC is a limited-purpose trust company
organized under the New York Banking Law, a “banking organization” within the
meaning of the New York Banking Law, a member of the Federal Reserve System, a
“clearing corporation” within the meaning of the New York Uniform Commercial
Code, and a “clearing agency” registered pursuant to the provisions of Section
17A of the Securities Exchange Act of 1934. DTC holds securities that
its participants (“Participants”) deposit with DTC. DTC also
facilitates the settlement among Participants of securities transactions, such
as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants’ accounts, thereby eliminating
the need for physical movement of securities certificates. Direct
Participants (“Direct Participants”) include securities brokers and dealers,
banks, trust companies, clearing corporations, and certain other
organizations. DTC is owned by a number of its Direct Participants
and by the New York Stock Exchange, Inc., the American Stock Exchange, Inc., and
the National Association of Securities Dealers, Inc. Access to the
DTC system is also available to others such as securities brokers and dealers,
banks, and trust companies that clear through or maintain a custodial
relationship with a Direct Participant, either directly or indirectly (“Indirect
Participants”). The Rules applicable to DTC and its Participants are
on file with the Securities and Exchange Commission.
(2) The
Bonds in or to be in the Book-Entry Only System shall be issued in the form of a
separate single authenticated fully registered Bond in substantially the form
provided for in this Indenture (a “Global Security”). Any legend
required to be on the Bonds by DTC may be added by the Trustee or Paying
Agent. On the date of original delivery thereof, the Bonds shall be
registered in the registry books of the Paying Agent in the name of Cede &
Co., as nominee of The Depository Trust Company as agent for the Authority in
maintaining the Book-Entry Only System.
WITH
RESPECT TO BONDS REGISTERED IN THE REGISTRY BOOKS KEPT BY THE PAYING AGENT IN
THE NAME OF CEDE & CO., AS NOMINEE OF DTC, THE AUTHORITY, THE PAYING AGENT,
THE BORROWER AND THE TRUSTEE SHALL HAVE NO RESPONSIBILITY OR OBLIGATION TO ANY
PARTICIPANT (WHICH MEANS SECURITIES BROKERS AND DEALERS, BANKS, TRUST COMPANIES,
CLEARING CORPORATIONS AND VARIOUS OTHER ENTITIES, SOME OF WHOM OR THEIR
REPRESENTATIVES OWN DTC) OR TO ANY BENEFICIAL OWNER (WHICH MEANS, WHEN USED WITH
REFERENCE TO THE BOOK-ENTRY ONLY SYSTEM, THE PERSON WHO IS CONSIDERED THE
BENEFICIAL OWNER OF THE BONDS PURSUANT TO THE ARRANGEMENTS FOR BOOK ENTRY
DETERMINATION OF OWNERSHIP APPLICABLE TO DTC) WITH RESPECT TO THE
FOLLOWING: (A) THE ACCURACY OF THE RECORDS OF DTC, CEDE & CO. OR
ANY PARTICIPANT WITH RESPECT TO ANY OWNERSHIP INTEREST IN THE BONDS, (B) THE
DELIVERY TO OR FROM ANY PARTICIPANT, ANY BENEFICIAL OWNER OR ANY OTHER PERSON,
OTHER THAN DTC, OF ANY NOTICE WITH RESPECT TO THE OTHER PERSON, OTHER THAN DTC,
OF ANY NOTICE WITH RESPECT TO THE BONDS, INCLUDING ANY NOTICE OF REDEMPTION
(WHETHER MANDATORY OR OPTIONAL), OR (C) THE PAYMENT TO ANY PARTICIPANT, ANY
BENEFICIAL OWNER OR ANY OTHER PERSON, OTHER THAN DTC, OF ANY AMOUNT WITH RESPECT
TO THE PRINCIPAL OR PREMIUM, IF ANY, OR INTEREST ON THE BONDS.
The
Paying Agent shall pay all principal of and premium, if any, and interest on the
Bonds only to or upon the order of DTC, and all such payments shall be valid and
effective fully to satisfy and discharge the Authority’s obligations with
respect to the principal of and premium, if any, and interest on Bonds to the
extent of the sum or sums so paid. No person other than DTC shall be
entitled to receive an authenticated Bond evidencing the obligation of the
Authority to make payments of principal and premium, if any, and interest
pursuant to this Indenture. Upon delivery by DTC to the Paying Agent
of written notice to the effect that DTC has determined to substitute a new
nominee in place of Cede & Co., the words “Cede & Co.” in this Indenture
shall refer to such new nominee of DTC.
The
Authority, the Borrower, the Trustee and the Paying Agent shall be entitled to
treat the registered owner of a Bond (initially, DTC or its nominee) as the
absolute owner thereof for all purposes of this Indenture and any applicable
laws, notwithstanding any notice to the contrary received by any of
them. So long as all Bonds are registered in the name of DTC or its
nominee or any qualified successor, the Borrower and the Paying Agent shall
cooperate with DTC or its nominee or any qualified successor in effecting
payment of the principal of, redemption premium, if any, and interest on the
Bonds by arranging for payment in such manner that funds for such payments are
properly identified and are made to DTC when due.
(3) Upon
receipt by the Trustee or the Paying Agent of written notice from DTC to the
effect that DTC is unable or unwilling to discharge its responsibilities, the
Authority shall issue and the Paying Agent shall transfer and exchange Bonds as
requested by DTC in appropriate amounts and in authorized denominations, and
whenever DTC requests the Authority, the Paying Agent and the Trustee to do so,
the Trustee, the Paying Agent and the Authority will, at the expense of the
Borrower, cooperate with DTC in taking appropriate action after reasonable
notice (A) to arrange for a substitute bond depository willing and able upon
reasonable and customary terms to maintain custody of the Bonds or (B) to make
available for transfer and exchange Bonds registered in whatever name or names
and in whatever authorized denominations as DTC shall designate.
(4) In
such event, the Borrower shall so notify DTC, the Paying Agent and the Trustee,
whereupon DTC will notify the Participants of the availability through DTC of
Bond certificates. In such event, the Authority shall issue and the
Paying Agent shall transfer and exchange Bond certificates as requested by DTC
in appropriate amounts and in authorized denominations. Whenever DTC
requests the Paying Agent to do so, the Paying Agent will cooperate with DTC in
taking appropriate action after reasonable notice to make available for transfer
and exchange Bonds registered in whatever name or names and in whatever
authorized denominations as DTC shall designate.
(5) The
Authority may decide to discontinue use of the system of book-entry transfers
through DTC (or a successor securities depository). In that event,
Bond certificates will be printed and delivered.
(6) Notwithstanding
any other provisions of this Indenture to the contrary, so long as any Bond is
registered in the name of Cede & Co., as nominee of DTC, all payments with
respect to the principal of, premium, if any, and interest on such Bond and all
notices with respect to such Bond shall be made and given, respectively, to DTC
as provided in the Blanket Letter of Representation, dated March 29, 1995, from
the Authority to DTC (the “Representation Letter”).
(7) Notwithstanding
any other provisions of this Indenture to the contrary, so long as any of the
Bonds outstanding are held in the Book-Entry Only System, if less than all of
such Bonds are to be redeemed upon any redemption of Bonds hereunder, the
particular Bonds or portions of Bonds to be converted or redeemed shall be
selected by DTC in such manner as DTC may determine.
Notwithstanding
any provision herein to the contrary, the Trustee and the Paying Agent may
comply with the provisions of the Letter of Representation or similar document
required by DTC or any successor securities depository in order to maintain the
Book-Entry Only System for the Bonds.
Section
2.4.
Redemption
of Bonds
.
(A)
General Optional
Redemption
. At the option of the Authority, which option shall
be exercised upon the giving of written notice by the Borrower of its intention
to prepay amounts due under the Agreement pursuant to subsection 8.1(A) thereof
and the Note, the Bonds shall be subject to redemption prior to maturity from
time to time upon not less than 30 days’ notice in writing, as a whole or in
part on any date on or after December 1, 2014, at a Redemption Price equal to
100% of the principal amount thereof plus accrued interest to the date of
redemption.
(B)
Extraordinary Optional
Redemption
. In addition, at the option of the Authority, which
option shall be exercised upon the giving of written notice by the Borrower of
its election to redeem Bonds following completion of Project pursuant to Section
5.2(F) hereof or its intention to prepay amounts due under the Agreement
pursuant to Section 8.1(B) thereof, the Outstanding Bonds shall be subject to
redemption prior to maturity at the redemption price of 100% of the principal
amount thereof plus accrued interest to the date of redemption (a) in part, on
any date, to the extent excess Bond proceeds are transferred to the Redemption
Account from the Project Fund in accordance with Section 5.2(F) of the
Indenture, or (b) as a whole, on any date, if any one or more of the events of
casualty to or condemnation of the Project, change in law, or certain economic
events specified in Section 8.1(B) of the Agreement shall have occurred, as
evidenced in each case by the filing with the Trustee of a certificate of an
Authorized Representative of the Borrower.
(C)
Mandatory Taxability
Redemption
. In the event of a Determination of Taxability, the
Bonds shall be redeemed in the manner and as provided in this Indenture, at the
redemption price equal to 100% of the principal amount thereof plus accrued
interest to the date of redemption on any day selected by the Borrower, that is
not more than 180 days after such Determination of Taxability. In the
case of any redemption pursuant to this subsection, the Authority or the
Borrower or any Bondholder shall deliver to the Trustee a certificate of an
Authorized Representative specifying the event giving rise to such inclusion in
the gross income of the recipient thereof and the dates which are the Tax
Incidence Date and the date of the Determination of Taxability. Such
certificate shall be delivered at least ten days before notice of redemption is
required to be given. Redemption under this paragraph shall be in
whole unless not less than forty-five (45) days prior to the redemption date the
Borrower delivers to the Trustee an opinion of Bond Counsel reasonably
satisfactory to the Trustee to the effect that a redemption of less than all of
the Bonds will preserve the tax-exempt status of interest on the remaining Bonds
outstanding subsequent to such redemption.
For
purposes of this Subsection C only, the owner of a Bond means the Beneficial
Owner of said Bond so long as the Book-Entry Only System shall be in
effect.
(D)
Redemption (or Purchase) by
the Borrower in the Event of Death of a Beneficial
Owner
. Unless the Bonds have been declared due and payable
prior to their maturity by reason of an Event of Default, the Representative (as
hereinafter defined) of a deceased Beneficial Owner (as hereinafter defined) who
has owned (or whose estate has owned) the Bonds for a period of at least six
months prior to any request for redemption, has the right after December 1,
2011, to request redemption prior to stated maturity of all or part of interest
in the Bonds, and the Borrower will redeem (or will cause the Authority to
redeem) the same subject to the limitations that the Borrower will not be
obligated to redeem (or cause to be redeemed), during the period from December
1, 2011, through and including December 1, 2012, (the “Initial Period”), and
during any twelve-month period which ends on and includes each December 1
thereafter (each such twelve-month period being hereinafter referred to as a
“Subsequent Period”), (i) on behalf of a deceased Beneficial Owner any interest
in the Bonds which exceeds $25,000 principal amount (the “Individual
Limitation”) or (ii) interests in the Bonds exceeding $400,000 in aggregate
principal amount (the “Annual Limitation”). A request for redemption
may be initiated by the Representative of a deceased Beneficial Owner at any
time and in any principal amount.
The
Borrower may, at its option, redeem (or cause to be redeemed) interests of any
deceased Beneficial Owner in the Bonds during the Initial Period or any
Subsequent Period in excess of the Individual Limitation. Any such
redemption, to the extent that it exceeds the Individual Limitation for any
deceased Beneficial Owner, shall not be included in the computation of the
Annual Limitation for such Initial Period or such Subsequent Period, as the case
may be, or for any succeeding Subsequent Period. The Borrower may, at
its option, redeem (or cause to be redeemed) interests of deceased Beneficial
Owners in the Bonds, during the Initial Period or any Subsequent Period in an
aggregate principal amount exceeding the Annual Limitation. Any such
redemption, to the extent it exceeds the Annual Limitation shall not reduce the
Annual Limitation for any Subsequent Period. Upon any determination
by the Borrower to redeem (or cause to be redeemed) Bonds in excess of the
Individual Limitation or the Annual Limitation, Bonds so redeemed shall be
redeemed in the order of the receipt of Redemption Requests (as hereinafter
defined) by the Trustee.
A request
for redemption of an interest in the Bonds may be initiated by the personal
representative or other person authorized to represent the estate of the
deceased Beneficial Owner or by a surviving joint tenant(s) or tenant(s) by the
entirety or the trustee of a trust (each, a “Representative”). The
Representative shall deliver a request to the Participant (hereinafter defined)
through whom the deceased Beneficial Owner owned such interest, in form
satisfactory to the Participant, together with evidence of the death of the
Beneficial Owner, evidence of the authority of the Representative satisfactory
to the Participant, such waivers, notices or certificates as may be required
under applicable state or federal law and such other evidence of the right to
such redemption as the Participant shall require. The request shall
specify the principal amount of the interest in the Bonds to be
redeemed. The Participant shall thereupon deliver to the Depository a
request for redemption substantially in the form attached as Appendix B to this
Indenture (a “Redemption Request”). The Depository will, on receipt
thereof, forward the same to the Trustee. The Trustee shall maintain
records with respect to Redemption Requests received by it including date of
receipt, the name of the Participant filing the Redemption Request and the
status of each such Redemption Request with respect to the Individual Limitation
or the Annual Limitation. The Trustee will immediately forward each
Redemption Request it receives, together with the information regarding the
eligibility thereof with respect to the Individual Limitation or the Annual
Limitation with the Borrower. The Depository, the Authority, the
Borrower and the Trustee may conclusively assume, without independent
investigation, that the statements contained in each Redemption Request are true
and correct and shall have no responsibility for reviewing any documents
submitted to the Participant by the Representative or for determining whether
the applicable decedent is in fact the Beneficial Owner of the interest in the
Bonds to be redeemed or is in fact deceased and whether the Representative is
duly authorized to request redemption on behalf of the applicable Beneficial
Owner.
Subject
to the Individual Limitation and the Annual Limitation, the Borrower will, after
the death of any Beneficial Owner, redeem (or cause to be redeemed) the interest
of such Beneficial Owner in the Bonds on the next interest payment date
occurring not less than 30 days following receipt by the Borrower of the
Redemption Request from the Trustee. If Redemption Requests exceed
the aggregate principal amount of interests in Bonds required to be redeemed
during the Initial Period or during any Subsequent Period, then such excess
Redemption Requests will be applied in the order received by the Trustee to
successive Subsequent Periods, regardless of the number of Subsequent Periods
required to redeem such interests. The Borrower may, at any time,
notify the Trustee that it will redeem (or cause to be redeemed), on the next
interest payment date occurring not less than 30 days thereafter, all or any
such lesser amount of Bonds for which Redemption Requests have been received but
which are not then eligible for redemption by reason of the Individual
Limitation or the Annual Limitation. Any Bonds so redeemed shall be
redeemed in the order of receipt of Redemption Requests by the
Trustee.
The price
to be paid by the Borrower for the Bonds to be redeemed pursuant to a Redemption
Request is 100% of the principal amount thereof plus accrued but unpaid interest
to the date of payment. Subject to arrangements with the Depository,
payment for interests in the Bonds which are to be redeemed shall be made to the
Depository upon presentation of Bonds to the Trustee for redemption in the
aggregate principal amount specified in the Redemption Requests submitted to the
Trustee by the Depository which are to be fulfilled in connection with such
payment. The principal amount of any Bonds acquired or redeemed by or
at the direction of the Borrower other than by redemption at the option of any
Representative of a deceased Beneficial Owner pursuant to this section shall not
be included in the computation of either the Individual Limitation and the
Annual Limitation for the Initial Period or for any Subsequent
Period.
For
purposes of this section, a “Beneficial Owner” means the Person who has the
right to sell, transfer or otherwise dispose of an interest in a Bond and the
right to receive the proceeds therefrom, as well as the interest and principal
payable to the holder thereof. In general, a determination of
beneficial ownership in the Bonds will be subject to the rules, regulations and
procedures governing the Depository and institutions that have accounts with the
Depository or a nominee thereof (“Participants”).
For
purposes of this section, an interest in a Bond held in tenancy by the entirety,
joint tenancy or by tenants in common will be deemed to be held by a single
Beneficial Owner and the death of a tenant by the entirety, joint tenant or
tenant in common will be deemed the death of a Beneficial Owner. The
death of a person who, during his lifetime, was entitled to substantially all of
the rights of a Beneficial Owner of an interest in the Bonds will be deemed the
death of the Beneficial Owner, regardless of the recordation of such interest on
the records of the Participant, if such rights can be established to the
satisfaction of the Participant. Such interests shall be deemed to
exist in typical cases of nominee ownership, ownership under the Uniform Gifts
to Minors Act or the Uniform Transfers to Minors Act, community property or
other similar joint ownership arrangements, including individual retirement
accounts or Keogh [H.R. 10] plans maintained solely by or for the decedent or by
or for the decedent and any spouse, and trust and certain other arrangements
where the decedent has the right to receive all or a portion of the income and
such person has substantially all of the rights of a Beneficial Owner during
such person’s lifetime.
In the
case of a redemption request which is presented on behalf of a deceased
Beneficial Owner and which has not been fulfilled at the time the Borrower gives
notice of its election to redeem the Bonds, the Bonds which are the subject of
such pending redemption request shall be redeemed prior to any other
Bonds.
Any
Redemption Request may be withdrawn by the person(s) presenting the same upon
delivery of a written request for such withdrawal given by the Participant on
behalf of such person to the Depository and by the Depository to the Trustee not
less than 60 days prior to the interest payment date on which such Bonds are
eligible for redemption.
The
Borrower may, at its option, purchase any Bonds for which Redemption Requests
have been received in lieu of redeeming (or causing the redemption of) such
Bonds. Any Bonds so purchased by the Borrower shall either be
reoffered for sale and sold within 180 days after the date of purchase or
presented to the Trustee for redemption and cancellation. The Trustee
shall have no duty to monitor or enforce the Borrower’s obligations under this
paragraph.
During
such time or times as the Bonds are not represented by a Global Security (as
such term is defined in Section 2.3(F) hereof) and are issued in definitive
form, all references in this Section to Participants and the Depository,
including the Depository’s governing rules, regulations and procedures shall be
deemed deleted, all determinations which under this section the Participants are
required to make shall be made by the Borrower (including, without limitation,
determining whether the applicable decedent is in fact the Beneficial Owner of
the interest in the Bonds to be redeemed or is in fact deceased and whether the
Representative is duly authorized to request redemption on behalf of the
applicable Beneficial Owner), all Redemption Requests, to be effective, shall be
delivered by the Representative to the Trustee, with a copy to the Borrower, and
shall be in the form of a Redemption Request (with appropriate changes to
reflect the fact that such Redemption Request is being executed by a
Representative) and, in addition to all documents that are otherwise required to
accompany a Redemption Request, shall be accompanied by the Bond that is the
subject of such request.
(E) [
Reserved
].
(F)
Optional Public Purpose
Redemption
. If the Borrower fails to perform its obligations
under Section 6.4 of the Agreement, the Bonds shall be subject to redemption
prior to maturity as a whole on any date at the option of the Authority in
accordance with Section 7.3 of the Agreement, at the redemption price equal to
100% of the principal amount thereof plus accrued interest to the date of
redemption.
(G)
Extraordinary Optional
Redemption Without Premium to Preserve Tax Exempt Status of the
Bonds
. The Bonds shall be subject to extraordinary optional
redemption by the Authority, at the direction of the Borrower, in whole or in
part on any date at a Redemption Price equal to 100% of the unpaid principal
amount thereof, together with accrued interest to the date of redemption, and
without premium, if the Borrower shall have delivered to the Trustee and the
Authority an opinion of Bond Counsel addressed to the Trustee and the Authority
substantially to the effect that (i) a failure so to redeem the Bonds (or the
relevant portion thereof) may adversely affect the exclusion of interest on the
Bonds from the gross income of the holders pursuant to Section 103 of the Code,
and (ii) redemption of Bonds in the amount set forth in such opinion (but in no
smaller amount than that set forth in such opinion) would permit the continuance
of any exclusion so afforded under Section 103 of the Code.
(H) Upon
any redemption of Bonds there shall also be due and payable, concurrently with
the payment of the Redemption Price, interest accrued on the Bonds and all other
amounts then due under the Financing Documents.
(I) Redemption
of Bonds permitted or required by this Article II shall be made as follows, and
the Trustee shall give the notice of redemption referred to in Section 6.3
hereof in respect of each such redemption:
(1) Redemption
shall be made pursuant to the general optional redemption provisions of Section
2.4(A) in such principal amounts as the Borrower shall request in a written
notice to the Trustee in accordance with Section 8.2 of the
Agreement.
(2)
Redemption shall be made pursuant to the extraordinary optional redemption
provisions of Section 2.4(B) at such date as the Borrower shall request in a
written notice to the Authority and Trustee in accordance with Section 5.2(F)
hereof or Section 8.2 of the Agreement, as the case may be, to which shall be
attached the certificates referred to in Section 5.2(F) hereof and Section
8.1(B) thereof.
(3) Redemption
shall be made pursuant to the mandatory taxability redemption provisions of
Section 2.4(C) at the earliest possible date following receipt of the
certificate prescribed in Section 2.4(C) hereof and of the payments made by the
Borrower prescribed in Section 6.3 of the Agreement, without the necessity of
any instructions or further act of the Authority or the Borrower.
(4) Redemption
shall be made pursuant to the provisions of Section 2.4(D) in accordance with
said Section and with Article VI of this Indenture.
(5) [Reserved].
(6) Redemption
shall be made pursuant to the provisions of Section 2.4(F) in accordance with
Section 7.3 of the Agreement.
(7) Redemption
shall be made pursuant to the provisions of Section 2.4(G) at the earliest
possible date following the delivery to the Trustee and the Authority of the
opinion of Bond Counsel described in Section 2.4(G) hereof, without the
necessity of any instructions or further act of the Authority or the
Borrower.
Section
2.5.
Execution
and Authentication of Bonds
.
(A) After their
authorization as provided in this Article, Bonds may be executed by or on behalf
of the Authority and delivered to the Trustee or the Paying Agent for
authentication. Each Bond shall be executed in the name of the
Authority by the manual or facsimile signature of any one or more Authorized
Representatives of the Authority.
(B) In
case any officer who shall have signed any of the Bonds shall cease to be such
officer before the Bonds so signed shall have been authenticated and delivered
by the Trustee or the Paying Agent, such Bonds may nevertheless be authenticated
and delivered as herein provided as if the person who so signed such Bonds had
not ceased to be such officer. Any Bond may be signed on behalf of
the Authority by any person who, on the date of such act, shall hold the proper
office, notwithstanding that at the date of such Bond such person may not have
held such office.
(C) The
Bonds shall each bear thereon a certificate of authentication, in the form set
forth in the recitals to this Indenture, executed manually by the Trustee or the
Paying Agent. Only such Bonds as shall bear thereon such certificate
of authentication shall be entitled to any right or benefit under this Indenture
and no Bond shall be valid or obligatory for any purpose until such certificate
of authentication shall have been duly executed by the Trustee or the Paying
Agent. Such certificate of the Trustee or the Paying Agent upon any
Bond executed on behalf of the Authority shall be conclusive evidence that the
Bond so authenticated has been duly authenticated and delivered under this
Indenture and that the holder thereof is entitled to the benefits
hereof.
Section
2.6.
Delivery
of Bonds
.
The Bonds shall
be executed in the form and manner set forth herein and shall be deposited with
the Trustee and thereupon shall be authenticated by the Trustee or the Paying
Agent. Upon payment to the Trustee of the proceeds of sale thereof,
such Bonds shall be delivered by the Trustee or the Paying Agent to or upon the
order of the purchasers thereof, but only upon receipt by the Trustee
of:
(1) A
certified copy of the Authority’s resolution authorizing the issuance of the
Bonds and, the execution and delivery of this Indenture and the Financing
Documents;
(2) Original
executed counterparts of the Financing Documents other than the Note, and the
originally executed Note;
(3) A
request and authorization to the Trustee or the Paying Agent on behalf of the
Authority to authenticate and deliver the Bonds to the purchasers therein
identified upon payment to the Trustee, for the account of the Authority, of a
sum specified in such request and authorization, plus any accrued interest on
the Bonds to the date of such delivery. The proceeds of such payment
shall be paid over to the Trustee and deposited in the Project Fund and Debt
Service Fund pursuant to Article IV hereof; and
(4) A
written opinion by Bond Counsel to the effect that the issuance of such Bonds
has been duly authorized and that all conditions precedent to the delivery
thereof set forth in this Indenture have been fulfilled.
Section
2.7.
No
Additional Bonds
.
No Additional
Bonds on a parity with the Bonds may be issued under this
Indenture.
ARTICLE
III
GENERAL
TERMS AND PROVISIONS OF BONDS
Section
3.1.
Date of
Bonds
.
The Bonds shall
be dated and bear interest from their date of delivery, except in the case of
Bonds delivered in any exchange or transfer hereunder on or subsequent to the
first Interest Payment Date of the Bond for which it is exchanged or
transferred, which shall bear interest from the Interest Payment Date next
preceding the date of such delivery, unless, as shown by the records of the
Trustee, interest on the Bond surrendered in exchange for such Bond shall be in
default, in which case such Bond shall bear interest from the date to which
interest has been paid in full on the Bond so surrendered.
Section
3.2.
Form and
Denominations
.
Bonds shall be
issued in fully registered form, without coupons, in denominations of $5,000 or
any multiple thereof. Subject to the provisions of Section 3.3
hereof, the Bonds shall be in substantially the form set forth in the recitals
to this Indenture, with such variations, omissions and insertions as are
permitted or required by this Indenture.
Section
3.3.
Legends
.
Each Bond shall
contain on the face thereof a statement to the effect that neither the State nor
any municipality thereof shall be obligated to pay the principal of the Bond or
interest thereon and neither the faith and credit nor taxing power of the State
or any municipality thereof is pledged to such payment. The Bonds
may, in addition, contain or have endorsed thereon such provisions,
specifications and descriptive words not inconsistent with the provisions of
this Indenture as may be necessary or desirable to comply with custom or
otherwise as may be determined by the Authority prior to the delivery
thereof.
Section
3.4.
Medium of
Payment
.
The principal or
Redemption Price, if any, of and interest on the Bonds shall be payable in any
coin or currency of the United States of America which, on the respective dates
of payment thereof, is legal tender for the payment of public and private
debts. Such payment may be made as provided in Section 2.3
hereof.
Section
3.5.
Bond
Details
.
Subject to the
provisions hereof, the Bonds shall be dated, shall mature in such years and such
amounts, shall bear interest at such rate or rates per annum, shall be subject
to redemption on such terms and conditions and shall be payable as to principal
or Redemption Price, if any, and interest at such place or places as shall be
specified in this Indenture.
Section
3.6.
Interchangeability,
Transfer and Registry
.
(A) Each Bond
shall be transferable only upon compliance with the restrictions on transfer set
forth on such Bond and only upon the books of the Authority, which shall be kept
for the purpose at the principal office of the Paying Agent, by the registered
owner thereof in person or by his attorney duly authorized in writing, upon
presentation thereof together with a written instrument of transfer satisfactory
to the Paying Agent duly executed by the registered owner or his duly authorized
attorney. Upon the transfer of any Bond, the Paying Agent shall
prepare and issue in the name of the transferee one or more new Bonds in
authorized denominations of the same aggregate principal amount as the
surrendered Bond.
(B) Any
Bond, upon surrender thereof at the office of the Paying Agent with a written
instrument of transfer satisfactory to the Paying Agent, duly executed by the
registered owner or his attorney duly authorized in writing, may be exchanged at
the office of the Paying Agent for a new Bond or Bonds in authorized
denominations of the same aggregate principal amount without transfer to a new
registered owner. No transfer will be effective unless represented by
such surrender and reissue.
(C) Except
as otherwise specifically provided herein, the Authority, the Borrower, the
Trustee, and any Paying Agent may deem and treat the person in whose name any
Bond shall be registered as the absolute owner of such Bond, whether such Bond
shall be overdue or not, for the purpose of receiving payment of, or on account
of, the principal and Redemption Price, if any, of and interest on such Bond and
for all other purposes, and all payments made to any such registered owner or
upon his order shall be valid and effectual to satisfy and discharge the
liability upon such Bond to the extent of the sum or sums so paid, and neither
the Authority, the Borrower, the Trustee nor any Paying Agent, nor any agent of
the foregoing, shall be affected by any notice to the contrary.
(D) The
Paying Agent shall not be required to exchange or transfer (a) any Bond during
the fifteen (15) day period preceding any Interest Payment Date or the date
fixed for selection of Bonds for redemption, or (b) any Bonds selected, called
or being called for redemption in whole or in part except, in the case of any
Bond to be redeemed in part, the portion thereof not so to be
redeemed.
Section
3.7.
Bonds
Mutilated, Destroyed, Stolen or Lost
.
In case any Bond
shall become mutilated or be destroyed, stolen or lost, the Authority shall
execute and thereupon the Trustee or the Paying Agent shall authenticate and
deliver, a new Bond of the same principal amount as the Bond so mutilated,
destroyed, stolen or lost, in exchange and substitution for such mutilated Bond,
upon surrender and cancellation of such mutilated Bond or in lieu of and
substitution for the Bond destroyed, stolen or lost, upon filing with the
Trustee of evidence satisfactory to the Authority, the Trustee and the Paying
Agent that such Bond has been destroyed, stolen or lost and proof of ownership
thereof, and upon furnishing the Authority, the Trustee and the Paying Agent
with indemnity satisfactory to them and complying with such other reasonable
requirements as the Authority and the Trustee and the Paying Agent may prescribe
and paying such expenses as the Authority, the Trustee and the Paying Agent may
incur. All Bonds so surrendered to the Trustee shall be cancelled by
it. Any such new Bonds issued pursuant to this Section in
substitution for Bonds alleged to be destroyed, stolen or lost shall constitute
original additional contractual obligations on the part of the Authority,
whether or not the Bonds so alleged to be destroyed, stolen or lost be at any
time enforceable by anyone, and shall be equally secured by and entitled to
equal and proportionate benefits with all other Bonds issued hereunder in any
moneys or securities held by the Authority, the Trustee or the Paying Agent for
the benefit of the owners of the Bonds.
Section
3.8.
Cancellation
and Destruction of Bonds
.
All Bonds paid or
redeemed in full, either at or before maturity, shall be delivered to the Paying
Agent when such payment or redemption is made, and such Bonds together with all
Bonds purchased by the Paying Agent, together with all Bonds surrendered in any
exchange or transfers, shall thereupon be promptly cancelled. All
Bonds acquired and owned by the Borrower and delivered to the Paying Agent for
cancellation shall be deemed paid and shall be promptly
cancelled. Bonds so cancelled shall be cremated or otherwise
destroyed by the Paying Agent, who shall execute a certificate of cremation or
destruction in duplicate under signature of one of its authorized officers
describing the Bonds so cremated or otherwise destroyed, and one executed
certificate shall be filed with the Authority and the other executed certificate
shall be retained by the Paying Agent. The Paying Agent shall provide
written notice to Moody’s, if the Bonds are then rated by Moody’s and to
S&P, if the Bonds are then rated by S&P, of the final payment or
redemption of any of the Bonds, either at or before maturity, upon cancellation
of any such Bonds.
Section
3.9.
Requirements
With Respect To Transfers
.
In all cases in
which the privilege of transferring Bonds is exercised, the Authority shall
execute and the Trustee or the Paying Agent shall authenticate and deliver Bonds
in accordance with the provisions of this Indenture. All Bonds
surrendered in any such transfer shall forthwith be cancelled by the Trustee or
the Paying Agent. For every such transfer of Bonds, the Authority,
the Trustee or the Paying Agent may, as a condition precedent to the privilege
of making such transfer, make a charge sufficient to reimburse it for any tax,
fee or other governmental charge required to be paid with respect to such
transfer and may charge a sum sufficient to pay the cost of preparing and
delivering each new Bond issued upon such transfer, which sum or sums shall be
paid by the person requesting such transfer.
Section
3.10.
Registrar
.
The Trustee shall
also be Registrar for the Bonds, and shall maintain a register showing the names
of all registered owners of Bonds, Bond numbers and amounts, and other
information appropriate to the discharge of its duties hereunder. The
Trustee shall make available to the Borrower for its inspection during normal
business hours the registration books for the Bonds, as may be requested by the
Borrower in connection with any purchase or tender offer by it with respect to
the Bonds.
ARTICLE
IV
APPLICATION
OF BOND PROCEEDS AND OTHER AMOUNTS
Section
4.1.
Accrued
Interest
.
Simultaneously
with the delivery of any Bonds by the Trustee, the amount received as accrued
interest thereon, if any, shall be deposited in the Principal and Interest
Account of the Debt Service Fund.
Section
4.2.
Bond
Proceeds
.
The proceeds of
sale and delivery of any Bonds, together with any premium received on account of
the sale thereof (but excluding any accrued interest on the Bonds), shall,
simultaneously with the delivery thereof by the Trustee, be deposited as
follows:
|
(A)
|
$19,600,000.00
will be deposited in the Project Account of the Project Fund;
and
|
|
(B)
|
$400,000.00
will be deposited in the Costs of Issuance Account of the Project
Fund.
|
Section
4.3.
Borrower
Contribution
.
A contribution of
the Borrower in the amount of $358,354.05 (which shall be applied to the payment
of certain costs and expenses incurred in connection with the issuance,
execution and sale of the Bonds for which the Borrower is responsible, including
compensation and expenses of the Trustee, bond insurance premium, legal,
accounting and consulting expenses and fees, costs of printing and engraving,
underwriting expenses and recording and filing fees) shall simultaneously with
the delivery of the Bonds be deposited by the Trustee in the Costs of Issuance
Account of the Project Fund. Notwithstanding anything to the contrary
contained in this Indenture, such contribution shall not be subject to the lien
of this Indenture and any portion of such contribution not disbursed for the
payment of costs and expenses incurred in connection with the issuance,
execution and sale of the Bonds within sixty (60) days of the date of issuance
of the Bonds (including investment earnings, if any attributable thereto) shall
be returned to the Borrower.
ARTICLE
V
CUSTODY
AND INVESTMENT OF FUNDS
Section
5.1.
Creation
of Funds
. (A) The Authority hereby establishes and creates the
following special trust Funds and Accounts within such Funds:
(1) Project
Fund
(a) Project
Account
(b) Costs
of Issuance Account
(2) Debt
Service Fund
(a) Principal
and Interest Account
(b) Redemption
Account
(3) Rebate
Fund
(4) Renewal
Fund
(B) The
Rebate Fund shall be held by the Trustee free and clear of any lien, charge or
pledge created by this Indenture. All of the Funds and Accounts
created hereunder shall be held by the Trustee, including one or more
depositories in trust for the Trustee. All moneys and investments
deposited with the Trustee or any Paying Agent shall be held in trust and
applied only in accordance with this Indenture and shall be trust funds for the
purposes of this Indenture.
(C) The
Trustee, in its sole discretion, may establish accounts and subaccounts within
the Funds established pursuant to Section 5.1(A) for its internal administrative
or accounting purposes in order to facilitate the performance of its duties and
obligations hereunder.
Section
5.2.
Project
Fund
. (A) The Trustee shall establish two separate accounts
within the Project Fund to be respectively designated “Project Account” and
“Costs of Issuance Account”. There shall be deposited in the various
Accounts of the Project Fund any and all amounts required to be deposited
therein pursuant to Sections 4.2 and 4.3 hereof or otherwise required to be
deposited therein pursuant to the Agreement or this Indenture.
(B) The
Trustee shall apply the amounts in the various Accounts of the Project Fund, at
the direction of the Borrower, to pay the costs of the Project and the costs of
issuance of the Bonds including, but not limited to:
(1) The
costs of title insurance, surveys, legal fees and recording and other closing
expenses;
(2) Obligations
incurred for labor and materials;
(3) All
costs of contract bonds and of insurance of all kinds that may be required or
necessary during the course of construction of the Project;
(4) All
costs of engineering services, including the costs of test borings, surveys,
estimates, plans and specifications and preliminary investigation therefor and
for supervising construction, as well as for the performance of all other duties
required by or consequent upon the proper construction of, and alterations,
additions and improvements to, the Project;
(5) All
expenses incurred in connection with the issuance, execution and sale of the
Bonds, including compensation and expenses of the Trustee, the Authority’s
issuance fee, Bond Counsel fees, and expenses, underwriting discount, legal,
accounting and consulting expenses and fees, costs of printing and engraving,
and recording and filing fees;
(6) All
costs which the Borrower shall be required to pay, under the terms of any
contract or contracts, for the acquisition, construction, installation or
equipping of the Project, including any amounts required to reimburse the
Borrower for advances or payments made for any of the above items or for any
other costs incurred and for work done which are properly chargeable to the
Project;
(7) Interest
due and payable on the Bonds from the date of issuance to the Completion Date of
the Project;
(8) Any
other costs and expenses relating to the Project.
(C) The
Trustee is hereby authorized and directed to issue its checks or to effect wire
transfers for each disbursement from the various Accounts of the Project Fund
(excepting any fees payable to the Trustee as to which no further authority is
required) upon a requisition submitted to the Trustee and signed by an
Authorized Representative of the Borrower in substantially the form attached
hereto as Appendix A. Such requisition shall state with respect to
each payment to be made: (1) the Account within the Project Fund from
which such disbursement is to be made, (2) the requisition number, (3) the name
and address of the person, firm or corporation to whom payment is due, or to
whom a reimbursable advance, if any, has been made, (4) the amount to be paid,
(5) that each obligation mentioned therein has been properly incurred within the
provisions of the Agreement, is a proper charge against the Project Fund, is
unpaid or unreimbursed, and has not been the basis of any previous withdrawal,
(6) that the requisition and the use of proceeds set forth therein are
consistent in all material respects with the Tax Regulatory Agreement with
respect to the Bonds, and (7) unless the Trustee has received the certificate
described in subsection 5.2(F) hereof, 95% or more of the amount requisitioned
is to be applied to costs (a) paid or incurred after the date which is sixty
(60) days prior to the adoption of the Authority’s inducement resolution for the
Project, (b) for the acquisition, construction or reconstruction of land or
property of a character subject to the allowance for depreciation provided in
Section 167 of the Internal Revenue Code of 1986, as amended, and (c) which are
chargeable to the capital account of the Project or would be so chargeable
either with an election by the Borrower or but for the election of the Borrower
to deduct the amount of the item.
Notwithstanding
anything to the contrary contained herein, any portion of the contribution of
the Borrower made pursuant to Section 4.3 hereof remaining on deposit in the
Costs of Issuance Account of the Project Fund sixty (60) days following the date
of issuance of the Bonds (including investment earnings, if any, attributable
thereto) shall be returned to the Borrower.
(D) In
making any such payment from the various Accounts of the Project Fund, the
Trustee may rely on such requisitions and proof delivered to it and the Trustee
shall be relieved of all liability with respect to making such payments in
accordance with the foregoing.
(E) The
Trustee shall hold in the Project Fund an amount equal to 5% of the net proceeds
of the Bonds ($1,000,000) until the Trustee has received, with respect to the
Bonds, a certified statement of Project Costs together with the Borrower’s
certificate to the effect that Project Costs in an amount equal to 95% or more
of the proceeds of the Bonds (as defined in the Agreement) have been paid or
incurred for the acquisition, construction or reconstruction of land or
depreciable property under the Internal Revenue Code of 1986, as amended, and
have been or could be capitalized by the Borrower for Federal income tax
purposes. Such documents may be delivered upon issuance of the Bonds
and may anticipate the use of the final amounts to be requisitioned permitted by
subsections 5.2(E) and (F) hereof. Upon the receipt of such
documents, the Trustee shall apply the balance in the Project Fund to or at the
direction of the Borrower in accordance with such documents. The
Borrower shall notify the Trustee of any inability to deliver such documents,
and in that event the Trustee shall upon the receipt of such notification
transfer the balance in the Project Fund to the Redemption Account of the Debt
Service Fund.
(F) The
completion of the Project shall be evidenced by the filing with the Authority
and the Trustee of a certificate of an Authorized Representative of the Borrower
in accordance with Article IV of the Agreement, stating the date of such
completion and the amount, if any, required in its opinion for the payment of
any remaining part of the costs of the Project. Upon the filing of
such certificate, the balance in the Project Fund in excess of the amount, if
any, stated in such certificate, shall be applied by the Trustee in accordance
with the written order of any Authorized Representative of the Borrower in one
or more of the following ways:
(1) Deposited
in the Redemption Account of the Debt Service Fund; or
(2) Used
in any other manner which preserves the exemption of interest on the Bonds from
federal income taxation, provided there is delivered to the Trustee an opinion
of Bond Counsel to the effect that the use of such moneys is permitted by law
and will not adversely affect the exemption from federal income taxation of
interest on the Bonds. The Trustee may rely on such opinion in any
disbursement of funds pursuant to this subsection 5.2(F)(2).
Thereafter,
upon payment of all the costs and expenses incident to the Project, any balance
in the Project Fund shall be deposited in the Redemption Account of the Debt
Service Fund.
(G) Promptly
following June 30 in each year, until there is no balance remaining in the
Project Fund, the Trustee shall deliver a report to the Authority setting forth
the amounts remaining in the Project Fund as of such date and a schedule of the
securities in which such amounts are invested.
(H) In
the event the Borrower shall be required to or shall elect to cause the Bonds to
be redeemed in full pursuant to Article VIII of the Agreement, the balance in
the Project Fund which is not required to pay incurred Project Costs shall be
deposited in the Redemption Account of the Debt Service Fund.
Section
5.3.
Debt
Service Fund
. (A) The Trustee shall establish two separate
accounts within the Debt Service Fund to be respectively designated “Principal
and Interest Account” and “Redemption Account”.
(B) The
Trustee shall promptly deposit the following receipts in the Debt Service
Fund:
(1) Any
amount required pursuant to Section 4.1 hereof to be deposited from the proceeds
of the Bonds, which shall be credited to the Principal and Interest
Account.
(2) All
amounts received by the Trustee pursuant to Section 3.1 of the Agreement, which
shall be credited to the Principal and Interest Account, in the manner set forth
in this Indenture and the Agreement, and applied together with amounts available
in the Principal and Interest Account, to pay (i) the interest due on the
Outstanding Bonds on the Interest Payment Date next succeeding such payment and
(ii) the principal, if any, of the Outstanding Bonds due (otherwise than by call
for redemption) on such Interest Payment Date.
(3) Excess
or remaining amounts in the Project Fund required to be deposited in the
Redemption Account of the Debt Service Fund pursuant to subsections 5.2(E) and
5.2(F) hereof, which shall be credited to the Redemption Account.
(4) Any
other amounts required to be paid to the Debt Service Fund for payment of
principal and interest due on the Bonds, which shall be credited to the
Principal and Interest Account.
(5) Prepayments
under the Agreement received by the Trustee pursuant to Article VIII thereof,
which shall be credited to the Redemption Account.
(6) All
other receipts when and if required by the Financing Documents or any subsequent
agreement or by this Indenture to be paid into the Debt Service Fund, which
shall be credited to the Principal and Interest Account or the Redemption
Account, as appropriate.
(7) Any
amounts constituting income or interest earned and gains realized in excess of
losses suffered by any Fund and Account hereunder, excluding the Project Fund,
which shall be credited to the Principal and Interest Account in accordance with
Section 5.6(B) hereof. Income or interest earned and gains realized
in excess of losses suffered by the Project Fund shall be retained in the
Project Fund prior to the Completion Date of the Project, and transferred to the
Principal and Interest Account of the Debt Service Fund subsequent to the
Completion Date.
(C) There
shall be paid from the Principal and Interest Account to the respective Paying
Agents on each Interest Payment Date for the Bonds the amounts required for the
payment of the principal and interest due on the Bonds on such
date. Such amounts shall be applied by the Paying Agents to the
payment of principal and interest on the Bonds when due. All other
amounts payable on the Bonds from the Principal and Interest Account shall be
paid to the respective Paying Agents upon receipt, and shall immediately be paid
by such Paying Agents to the Bondholders.
(D) Amounts
in the Redemption Account shall be applied, as promptly as practicable, by the
Trustee at the direction of the Borrower to the purchase of Bonds at prices not
exceeding the optional Redemption Price thereof applicable on the next
redemption date plus accrued interest and all other amounts then due under the
Financing Documents in connection with such redemption. Such
redemption date shall be the earliest date upon which Bonds are subject to
redemption from such amounts. Any amount in the Redemption Account
not so applied to the purchase of Bonds by forty-five days prior to the next
date on which the Bonds are so redeemable shall be applied to the redemption of
Bonds on such redemption date; provided that if such amount aggregates less than
$10,000, it need not be then applied to such redemption. Amounts in
the Redemption Account to be applied to the redemption of Bonds shall be paid to
the respective Paying Agents on or before the redemption date and applied by
them on such redemption date to the payment of the Redemption Price of the Bonds
being redeemed plus interest on such Bonds accrued to the redemption date and
all other amounts then due under the Financing Documents in connection with such
redemption.
(E) Any
amounts remaining in the Debt Service Fund after payment in full of the Bonds,
the fees, charges and expenses of the Trustee and the Paying Agents and all
other amounts required to be paid hereunder or under the Financing Documents
shall be paid to the Borrower upon the expiration or sooner termination of the
Term of the Agreement.
Section
5.4.
Rebate
Fund
. (A) There shall be credited to the Rebate Fund all
amounts required to be credited thereto from interest earnings or net gain on
disposition of investments pursuant to this Article V.
(B) On
the first Business Day following each Computation Period (as defined in the Tax
Regulatory Agreement), upon direction in writing from the Borrower, pursuant to
the Tax Regulatory Agreement, the Trustee shall withdraw from the Funds and
Accounts and deposit to the Rebate Fund an amount such that the amount held in
the Rebate Fund after such deposit is equal to the Rebatable Arbitrage (as
defined in the Tax Regulatory Agreement) calculated as of the last day of the
Computation Period; provided, however, that the Trustee may transfer monies from
any Fund or Account only to the extent such transfer does not result in an Event
of Default hereunder. In the event of any deficiency, the balance
required shall be provided by the Borrower pursuant to Section 8.3 of the Tax
Regulatory Agreement. Computations of the amounts on deposit in each
Fund and Account and of the Rebatable Arbitrage shall be furnished to the
Trustee by the Borrower in accordance with Section 8.3 of the Tax Regulatory
Agreement. Any amounts on deposit in the Rebate Fund in excess of the
Rebatable Arbitrage shall be deposited to the Debt Service Fund.
(C) The
Trustee, upon receipt of written instructions from an Authorized Representative
of the Borrower in accordance with Section 8.3 of the Tax Regulatory Agreement,
shall pay to the United States out of amounts in the Rebate Fund (1) not later
than 30 days after the end of each five-year period following the date of
issuance of the Bonds, an amount such that, together with amounts previously
paid, the total amount paid to the United States is equal to 90% of the
Rebatable Arbitrage calculated as of the end of the most recent Computation
Period, and (2) not later than 30 days after the date on which all of the Bonds
have been paid or redeemed, 100% of the Rebatable Arbitrage as of the end of the
final Computation Period.
(D) In
transferring any funds to the Rebate Fund and making any payments to the United
States from the Rebate Fund, the Trustee may rely on the written directions and
computations provided it by the Borrower and the Trustee shall be relieved of
all liability with respect to the making of such transfers and payments in
accordance with the foregoing.
Section
5.5.
Renewal
Fund
. (A) There shall be paid into the Renewal Fund
all amounts to be deposited therein pursuant to Section 5.3 of the Agreement,
and such amounts shall be applied as provided therein.
(B) Any
surplus remaining in the Renewal Fund after the completion of any payments for
the replacement, repair, reconstruction, alteration, relocation or restoration,
of the Project with respect to any event of damage, destruction or condemnation
shall be transferred to the Redemption Account of the Debt Service Fund, but the
excess, if any, of such amount as will be sufficient to discharge and satisfy
this Indenture and pay all Bonds as provided in Section 12.1 hereof shall be
paid over to the Borrower free and clear of any pledge or lien
hereunder.
Section
5.6.
Investment
of Funds and Accounts
. (A) Except as otherwise provided in
this Indenture, amounts in the Funds and Accounts held hereunder shall, if and
to the extent then permitted by law, be invested in Authorized
Investments. Investments authorized under this Section shall be made
by the Trustee at the written request of an Authorized Representative of the
Borrower, and may be made by the Trustee through its own bond
department. Any investment hereunder shall be made in accordance with
the Tax Regulatory Agreement, including particularly the terms and conditions of
Article VII thereof relating to arbitrage. Such investments shall
mature in such amounts and at such times as may be necessary to provide funds
when needed to make payments from such Funds and Accounts, and any such
investments shall, subject to the provisions hereof, at all times be deemed to
be a part of the Fund and Account, from which the investment was
made.
(B) Except
as provided in the following sentence, the income or interest earned and gains
realized in excess of losses suffered by any Fund and Account held hereunder
from the date of delivery of the Bonds shall be credited to the Principal and
Interest Account of the Debt Service Fund (except income or interest earned and
gains realized in excess of losses suffered by the Rebate Fund, which shall be
credited to the Rebate Fund). Income or interest earned and gains
realized in excess of losses suffered by the Project Fund shall be retained
therein prior to the Completion Date of the Project and transferred to the
Principal and Interest Account of the Debt Service Fund subsequent to the
Completion Date.
(C) Prior
to each Interest Payment Date on the Bonds, the Trustee shall notify the
Borrower of the amount of any net investment income or gain received and
collected subsequent to the preceding interest payment date and the amount then
available in the Debt Service Fund.
Section
5.7.
Non-presentment
of Bonds
. In the event any Bond shall not be presented for
payment when the remaining principal thereof becomes due, either at final
maturity, or at the date fixed for redemption thereof, or otherwise, and funds
sufficient to pay any such Bond shall have been made available to the Trustee
for the benefit of the holder or holders thereof, all liability of the Authority
to the holder thereof for the payment of such Bond shall forthwith cease,
determine and be completely discharged, and thereupon it shall be the duty of
the Trustee to hold such funds, without liability for interest thereon, for the
benefit of the holder of such Bond, who shall thereafter be restricted
exclusively to such funds, for any claim of whatever nature on his part under
this Indenture or on, or with respect to, such Bond. Funds remaining
with the Trustee as above unclaimed for six years shall be paid to the
Borrower.
ARTICLE
VI
REDEMPTION
OF BONDS
Section
6.1.
Privilege
of Redemption and Redemption Price
.
Bonds or portions
thereof subject to redemption prior to maturity shall be redeemable, upon mailed
notice as provided in this Article, at the times, at the Redemption Prices and
upon such terms, in addition to and consistent with the terms contained in this
Article, as shall be specified in Section 2.4 hereof and in such
Bonds.
Section
6.2.
Selection
of Bonds to be Redeemed
.
So long as the
Bonds are in book-entry form, when Bonds are called, allocation shall be made by
DTC or any successor securities depository and not by the Authority or the
Trustee. In the event of redemption of less than all the Outstanding
Bonds of like maturity, the Trustee shall select by lot, using such method of
selection as it shall deem proper in its discretion, the principal amount of
such Bonds to be redeemed. For purposes of this Section, Bonds or
portions of Bonds which have theretofore been selected by lot for redemption
shall not be deemed Outstanding. In the event that the book-entry
system is discontinued, if less than all of the Bonds are to be redeemed at the
option of the Borrower, the Bonds or portion thereof to be redeemed shall be
selected by the Borrower.
Section
6.3.
Notice of
Redemption
.
Except with
respect to deceased Bondholder redemptions as described in Section 2.4(D) hereof
(the notice provisions relating to which are set forth in the Form of Bond
contained in the recitals to this Indenture), when redemption is required or
permitted by this Indenture, upon written notification of the Trustee by the
Borrower of such redemption not less than seven (7) days prior to the date on
which the Trustee must give notice to Holders as provided in this Section or the
Letter of Representation among the Authority, the Trustee and DTC (if the book
entry system is still in effect), the Trustee shall give notice of such
redemption in the name of the Authority, specifying the subsection of Section
2.4 hereof under which the redemption is to be made, the numbers and amounts of
the Bonds or portions thereof to be redeemed, the redemption date and the place
or places where amounts due upon such redemption will be
payable. Such notice shall further state that on such date there
shall become due and payable upon each Bond or portion thereof to be redeemed
the Redemption Price thereof together with interest accrued to the redemption
date and all other amounts then due under the Financing Documents, and that from
and after such date interest thereon shall cease to accrue and be
payable. Alternatively, at the option of the Authority, such notice
may state that it is subject to the receipt of the redemption moneys by the
Trustee on or before the date fixed for redemption and which notice shall be of
no effect unless such moneys are so received on or before such
date. Notice of redemption shall be given by the Trustee in the name
and on behalf of the Authority by mailing a copy of each such notice to the
registered owner of each Bond by first-class mail postage prepaid, addressed to
him at his last known address as it appears upon the bond register, no more than
forty-five (45) nor less than thirty (30) days prior to the date fixed for
redemption. Such notice shall be effective when mailed and any
failure to receive such notice shall not affect the validity of the proceedings
for redemption. In the event of a postal strike, the Trustee shall
give notice by other appropriate means selected by the Trustee in its
discretion.
Section
6.4.
Payment
of Redeemed Bonds
.
(A) Notice having
been given in the manner provided in Section 6.3 hereof, the Bonds or portions
thereof so called for redemption shall become due and payable on the redemption
dates so designated at the Redemption Price, plus interest accrued to the
redemption date and all other amounts then due under the Financing
Documents. If, on the redemption date, monies for the redemption of
all the Bonds or portions thereof to be redeemed, together with interest to the
redemption date, and all other amounts then due under the Financing Documents,
shall be held by the Paying Agent so as to be available therefor on such date
and if notice of redemption shall have been given as aforesaid, then, from and
after the redemption date, interest on the Bonds or portions thereof so called
for redemption shall cease to accrue and become payable. If such
monies shall not be so available on the redemption date, such Bonds or portions
thereof shall continue to bear interest until paid at the same rate as they
would have borne had they not been called for redemption.
(B) Payment
of the Redemption Price together with interest and all other amounts then due to
the Bondholders under the Financing Documents shall be made to or upon the order
of the registered owner, only upon presentation of the Bond for cancellation or
notation as provided in Section 6.6 hereof.
Section
6.5.
Notice to
Authority and Borrower of Deceased Bondholder Redemption
.
Not later than
ten Business Days after receipt of a request for redemption pursuant to Section
2.4(D) hereof by the Trustee, the Trustee shall give notice to the Authority and
the Borrower specifying the amount of Bonds requested to be redeemed, the amount
of Bonds eligible for redemption, the date on which such Bonds eligible for
redemption shall be redeemed and the amount of funds required to be deposited in
the Redemption Account.
Section
6.6.
Cancellation
of Redeemed Bonds
.
(A) All Bonds
redeemed in full under the provisions of this Article shall forthwith be
cancelled and destroyed by the Trustee and a certificate of destruction
furnished to the Authority, and no Bonds shall be executed, authenticated,
issued or delivered in exchange or substitution therefor or for or in respect of
any paid portion of a fully registered Bond. In the event that a
portion only of a Bond shall be so called for redemption, then, at the option of
the registered owner thereof if such owner is a securities depository, such Bond
may be either submitted to the Trustee for notation thereon of the payment of
the portion of the principal thereof called for redemption or surrendered for
redemption. If so surrendered, one or more new Bonds shall be issued
for the unredeemed portion hereof.
(B) If
there shall be called for redemption less than all of a Bond, the Authority
shall execute and the Trustee shall authenticate and deliver, upon the surrender
of such Bond, without charge to the owner thereof, for the unredeemed balance of
the principal amount of the Bond so surrendered, Bonds in any of the authorized
denominations.
ARTICLE
VII
PARTICULAR
COVENANTS
Section
7.1.
No
Pecuniary Liability on Authority or Officers
.
(A) No covenant
or agreement contained in this Indenture or in the Bonds or any obligations
herein or therein imposed upon the Authority or the breach thereof, shall
constitute or give rise to a charge upon its general credit, or impose upon the
Authority a pecuniary liability except as set forth herein. In making
the agreements, provisions and covenants set forth in this Indenture, the
Authority has not obligated itself except with respect to the application of the
Revenues as hereinabove provided.
(B) All
covenants, stipulations, promises, agreements and obligations of the Authority
contained herein shall be deemed to be covenants, stipulations, promises,
agreements and obligations of the Authority and not of any member, officer,
agent or employee thereof in his individual capacity. No recourse
shall be had for the payment of the principal or Redemption Price, if any, of or
interest on the Bonds, for the performance of any obligation hereunder, or for
any claim based thereon or hereunder against any such member, officer, agent or
employee or against any natural person executing the Bonds. No such
member, officer, agent, employee or natural person is or shall become personally
liable for any such payment, performance or other claim, and in no event shall
any monetary or deficiency judgment be sought or secured against any such
member, officer, agent, employee or other natural person.
Section
7.2.
Payment
of Principal, Redemption Price, if any, and Interest
.
The Authority
covenants that it will promptly pay, solely from the Revenues or other monies
derived in connection with the Project or otherwise available hereunder, the
principal or Redemption Price, if any, of and interest on every Bond issued
under this Indenture, together with all other amounts due under the Financing
Documents, at the place, on the dates and in the manner provided herein and in
the Bonds according to the true intent and meaning thereof.
Section
7.3.
Performance
of Covenants
.
The Authority
covenants that it will faithfully perform at all times any and all covenants,
undertakings, stipulations and provisions contained in this Indenture, in any
and every Bond executed, authenticated and delivered hereunder and in all of its
proceedings pertaining thereto. The Authority covenants that it is
duly authorized under the Constitution and laws of the State, including
particularly and without limitation the Act, to issue the Bonds authorized
hereby and to execute this Indenture, to create, accept and assign the liens in
the property described herein and created hereby, to grant the security interest
herein provided, to assign the Financing Documents and to pledge the revenues
and other amounts hereby pledged in the manner and to the extent herein set
forth; that all action on its part for the issuance of the Bonds and the
execution and delivery of this Indenture has been duly and effectively taken,
and that the Bonds in the hands of the holders and owners thereof are and will
be valid and enforceable obligations according to their terms and the terms of
this Indenture, except to the extent that such enforceability may be limited by
bankruptcy or insolvency or other laws affecting creditors’ rights generally or
by general principles of equity.
Section
7.4.
Further
Assurances
.
The Authority and
the Trustee each covenants that it will do, execute, acknowledge and deliver or
cause to be done, executed, acknowledged and delivered, such indentures
supplemental hereto and such further acts, instruments and transfers as the
other may reasonably require for the better assuring, transferring, conveying
pledging, assigning and confirming unto the Trustee all and singular the
property and rights assigned hereby and the amounts pledged hereby to the
payment of the principal or Redemption Price, if any, of and interest on the
Bonds and all other amounts due under the Financing Documents.
Section
7.5.
Inspection
of Project Books
.
The Authority
covenants and agrees that all books and documents in its possession relating to
the Project and the revenues derived from the Project shall at all times be open
to inspection by such accountants or other agencies as the Trustee may from time
to time designate.
Section
7.6.
Rights
under Financing Documents
.
The Financing
Documents, originals or duly executed counterparts of which have been filed with
the Trustee, set forth the covenants and obligations of the Authority and the
Borrower, including provisions that subsequent to the issuance of Bonds and
prior to their payment in full or provision for payment thereof in accordance
with the provisions hereof, the Financing Documents may not be effectively
amended, changed, modified, altered or terminated without the written consents
provided for therein, and reference is hereby made to the same for a detailed
statement of the covenants and obligations of the Borrower
thereunder. Subject to the provisions of Article IX hereof and to the
extent explicitly set forth herein and in the Loan Agreement, the Trustee agrees
to enforce all covenants and obligations of the Borrower under the Financing
Documents and it is agreed that the Trustee may and is hereby granted the right
to enforce all rights of the Authority and all obligations of the Borrower under
and pursuant to the Financing Documents. Nothing in this Section
shall permit any reduction in the payments required to be made by the Borrower
under or pursuant to the Financing Documents or any alteration in the terms of
payment thereof. All covenants and agreements on the part of the
Authority shall, except as otherwise specifically provided herein, be for the
benefit of the holders from time to time of the Bonds and may be enforced in the
manner provided by Article VIII hereof on behalf of such holders by the
Trustee.
Section
7.7.
Creation
of Liens, Indebtedness
.
The Authority
shall not create or suffer to be created any lien or charge upon or pledge of
the Revenues, except the lien, charge and pledge created by this Indenture and
the Bonds. The Authority shall not incur any indebtedness or issue
any evidence of indebtedness, other than the Bonds herein authorized, secured by
a lien on or pledge of such Revenues.
Section
7.8.
Recording
and Filing
.
The Authority
covenants that it will cause the Financing Documents, this Indenture and all
supplements thereto and hereto, as well as such other security agreements,
financing statements, and other instruments as may be required from time to time
to be kept, to be recorded and filed in such manner and in such places as may be
required by law in order to fully preserve and protect the security of the
holders and owners of the Bonds and the rights of the Trustee
hereunder.
ARTICLE
VIII
REMEDIES
OF BONDHOLDERS
Section
8.1.
Events of
Default; Acceleration of Due Dates
.
(A) Each of the
following events is hereby defined as and shall constitute an “Event of
Default”:
(1) Failure
to duly and punctually pay (a) the interest or (b) any installment of the
principal or Redemption Price of any Bond, whether at the stated maturity
thereof or upon proceedings for redemption thereof (excluding redemptions for
which a conditional notice has been given in accordance with Section 6.3 of this
Indenture in which case the failure to pay the Redemption Price of any Bonds
shall not constitute an Event of Default under this Section 8.1(1) unless monies
are on deposit with the Trustee and available to pay the Redemption Price on the
redemption date).
(2) Failure
to duly and punctually pay any amount, other than the amounts specified in (1)
above, due under the Financing Documents and the continuance of such failure for
more than thirty (30) days.
(3) Failure
to perform or observe any other of the covenants, agreements or conditions on
the part of the Authority in this Indenture or in the Bonds contained and not
otherwise a default hereunder and the continuance thereof for a period of sixty
(60) days after written notice given by the Trustee or by the owners of not less
than 51% of the principal amount of Bonds then Outstanding.
(4) The
occurrence of an “Event of Default” under any of the Financing Documents (other
than the Disclosure Agreement).
(B) Subject
to Section 6.4(B) of the Loan Agreement, upon the happening and continuance of
any Event of Default specified in subsection 8.1(A) hereof (unless the principal
of all the Bonds shall have already become due and payable), the Trustee
may
, and upon request
in writing from the owners of not less than 51% in principal amount of the Bonds
then Outstanding,
shall
, declare the
principal of all the Bonds then Outstanding, and the interest accrued thereon,
to be due and payable immediately, and upon such declaration the same shall
become and be immediately due and payable, anything in this Indenture or in any
of the Bonds contained to the contrary notwithstanding.
(C) The
right of the Trustee or of the owners of not less than 51% in principal amount
of the Outstanding Bonds to make any declaration authorized under subsection
8.1(B) hereof with respect to any failure under subsection 8.1(A)(1) hereof,
however, is subject to the condition that if, at any time before such
declaration, all overdue installments of interest upon the Bonds and the
principal of all Bonds which shall have matured by their terms, together with
the reasonable and proper charges, expenses and liabilities of the Trustee,
shall either be paid by or for account of the Authority or provision
satisfactory to the Trustee shall be made for such payment, and all other events
of default cured and waived as provided in Section 8.11 then in every such case
any such default and its consequences shall
ipso
facto
be deemed to be
annulled, but no such annulment shall extend to or affect any subsequent default
or impair or exhaust any right or power consequent thereon.
Section
8.2.
Enforcement
of Remedies
.
(A) Upon the
happening and continuance of any Event of Default, then and in every case, but
subject to the provisions of Section 9.2 hereof and Section 6.4(B) of the Loan
Agreement, the Trustee may proceed, and upon the written request of the owners
of not less than 51% in the principal amount of the Bonds Outstanding shall
proceed, to protect and enforce its rights and the rights of the Bondholders
under the Act, the Bonds, the Financing Documents and this Indenture, and under
any agreement executed in connection with the foregoing, forthwith by such
suits, actions or special proceedings in equity or at law, or by proceedings in
the office of any board or officer having jurisdiction, whether for the specific
performance of any covenant or agreement contained in this Indenture or the
Financing Documents or in aid of the execution of any power granted therein or
in the Act or for the enforcement of any legal or equitable rights or remedies
as the Trustee, being advised by counsel, shall deem most effectual to protect
and enforce such rights or to perform any of its duties under this
Indenture.
(B) [Reserved]
(C) In
the enforcement of any right or remedy under this Indenture or under the Act,
the Trustee shall be entitled to sue for, enforce payment on and receive any or
all amounts then or during any default becoming, and any time remaining, due
from the Authority for principal, Redemption Price, interest or otherwise under
any of the provisions of the Financing Documents, this Indenture or of the
Bonds, and unpaid, and, to the extent permitted by law, with interest on overdue
payments at the applicable rate or rates of interest specified in the Bonds,
together with any and all costs and expenses of collection and of all
proceedings under the Financing Documents, this Indenture and under the Bonds,
without prejudice to any other right or remedy of the Trustee or of the
Bondholders, and to recover and enforce judgment or decree against the
Authority, but solely as provided in the Financing Documents, this Indenture and
in the Bonds, for any portion of such amounts remaining unpaid, with interest,
to the extent permitted by law, costs and expenses, and to collect in any manner
provided by law, the moneys adjudged or decreed to be payable.
(D) Regardless
of the happening of an Event of Default, the Trustee, if requested in writing by
the owners of not less than 51% in principal amount of the Bonds then
Outstanding, and furnished with security and indemnity to its satisfaction,
shall institute and maintain such suits and proceedings as it may be advised
shall be necessary or expedient to prevent any impairment of the security under
this Indenture by any acts which may be unlawful or in violation of this
Indenture or of any resolution authorizing Bonds, and such suits and proceedings
as the Trustee may be advised shall be necessary or expedient to preserve or
protect its interests and the interests of the Bondholders; but no such request
shall be otherwise than in accordance with the provisions of law and of the
Indenture or be unduly prejudicial to the interests of the holders of Bonds not
making such request.
Section
8.3.
Application
of Revenue and Other Moneys After Default
.
(A) All
moneys received by the Trustee pursuant to any right given or action taken under
the provisions of this Article, after payment of the cost and expenses of the
proceedings resulting in the collection of such moneys and of the fees,
expenses, liabilities and advances incurred or made by the Trustee and any
Paying Agent, shall be deposited in the applicable account of the Debt Service
Fund and all moneys so deposited in such Fund and available for payment of the
Bonds shall be applied as follows:
(1) Unless
the principal of all of the Bonds shall have become or have been declared due
and payable:
FIRST
To the payment
of all amounts due under the Financing Documents, exclusive of unpaid principal
and interest on the Note;
SECOND
To the payment
to the persons entitled thereto of all installments of interest then due on the
Bonds, in the order of the maturity of the installments of such interest and, if
the amount available shall not be sufficient to pay in full any particular
installment, then to the payment ratably, according to the amounts due on such
installment, to the persons entitled thereto, without any discrimination or
preference; and
THIRD
To the payment
to the persons entitled thereto of the unpaid principal or Redemption Price, if
any, of any of the Bonds which shall have become due (other than Bonds called
for redemption for the payment of which moneys are held pursuant to the
provisions of this Indenture), in order of maturity, from the respective dates
upon which they become due and, if the amount available shall not be sufficient
to pay in full Bonds due on any particular date, then to the payment ratably,
according to the amount of principal or Redemption Price due on such date, to
the persons entitled thereto without any discrimination or
preference.
(2) If
the principal of all the Bonds shall have become or have been declared due and
payable, to the payment of all amounts due under the Financing Documents, then
to the payment of the principal and interest (at the rate or rates expressed
thereon) then due and unpaid upon the Bonds without preference or priority of
principal over interest or of interest over principal, or of any installment of
interest over any other installment of interest, or any Bond over any other
Bond, ratably, according to the amounts due respectively for principal and
interest, to the persons entitled thereto without any discrimination or
preference.
(B) Whenever
moneys are to be applied pursuant to the provisions of this Section, such moneys
shall be applied at such times, and from time to time, as the Trustee shall
determine, having due regard to the amount of such moneys available for
application and the likelihood of additional moneys becoming available for such
application in the future. Whenever the Trustee shall apply such
funds, it shall fix the date upon which such application shall be
made. The Trustee shall give such notice as it may deem appropriate
of the deposit with it of any such moneys and of the fixing of any such date,
and shall not be required to make payment to the owner of any Bonds until such
Bonds shall be presented to the Trustee for appropriate endorsement or for
cancellation if fully paid.
(C) Whenever
all Bonds and interest thereon and all other amounts due under the Financing
Documents have been paid under the provisions of this Section and all fees,
expenses and charges of the Trustee and Paying Agents have been paid, any
balance remaining in the Debt Service Fund shall be paid to or upon the order of
the Borrower.
Section
8.4.
Actions
by Trustee
.
All rights of
action under this Indenture or under any of the Bonds may be enforced by the
Trustee without the possession of any of the Bonds or the production thereof in
any trial or other proceedings relating thereto and any such suit or
proceedings instituted by the Trustee shall be brought in its name as Trustee
without the necessity of joining as plaintiffs or defendants any owners of the
Bonds, and any recovery of judgment, subject to the provisions of Section 8.3
hereof, shall be for the benefit of the holders of the Outstanding
Bonds.
Section
8.5.
Majority
Bondholders Control Proceedings
.
The holders of at
least 51% in aggregate principal amount of Bonds then Outstanding shall have the
right, at any time, by an instrument or instruments in writing executed and
delivered to the Trustee, to direct the method and place of conducting all
proceedings to be taken in connection with the enforcement of the terms and
conditions of the Indenture, or for any other proceedings hereunder; but such
direction shall not be otherwise than in accordance with the provisions of law
and of this Indenture.
Section
8.6.
Individual
Bondholder Action Restricted
.
(A) No owner of
the Bonds shall have any right to institute any suit, action or proceeding at
law or in equity for the enforcement of any provision of this Indenture or the
execution of any trust under this Indenture or for any remedy under this
Indenture, unless such owners shall have previously given to the Trustee written
notice of the happening of an “Event of Default”, as provided in this Article,
and the owners of at least 51% in principal amount of the Bonds then Outstanding
shall have filed a written request with the Trustee, and shall have offered it
reasonable opportunity, either to exercise the powers granted in this Indenture
or by the Act or by the laws of the State or to institute such action, suit or
proceeding in its own name, and unless such owners shall have offered to the
Trustee adequate security and indemnity against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee shall have
refused to comply with such request for a period of sixty days after receipt by
it of such notice, request and offer of indemnity, it being understood and
intended that no owner of any Bond shall have any right in any manner whatever
by his or their action to affect, disturb or prejudice the pledge created by
this Indenture, or to enforce any right under this Indenture, except in the
manner herein provided; and that all proceedings at law or in equity to enforce
any provision of this Indenture shall be instituted, had and maintained in the
manner provided in this Indenture and for the equal benefit of all owners of the
Outstanding Bonds.
(B) Nothing
herein or in the Bonds contained shall affect or impair the right of any owner
of the Bonds to payment of the principal or Redemption Price, if any, of and
interest on any Bond or other amounts due under the Financing Documents at and
after the maturity thereof, or the obligation of the Authority to pay the
principal or Redemption Price, if applicable, of and interest on each of the
Bonds or other amounts due under the Financing Documents to the respective
owners thereof at the time, place, from the source and in the manner herein and
in such Bonds expressed.
Section
8.7.
Effect of
Discontinuance of Proceedings
.
In case any
proceeding taken by the Trustee on account of any Event of Default shall have
been dismissed, discontinued or abandoned for any reason, or shall have been
determined adversely, then and in every such case the Authority, the Trustee,
and the owners of the Bonds shall be restored, respectively, to their former
positions and rights hereunder, and all rights, remedies, powers and duties of
the Trustee shall continue as though no such proceedings had been
taken.
Section
8.8.
Remedies
Not Exclusive
.
No remedy by the
terms of this Indenture conferred upon or reserved to the Trustee or to the
owners of the Bonds is intended to be exclusive of any other remedy, and each
and every such remedy shall be cumulative and shall be in addition to any other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute.
Section
8.9.
Delay or
Omission Upon Default
.
No delay or
omission of the Trustee or of the owners of any Bond to exercise any right or
power arising upon any Event of Default shall impair any right or power or shall
be construed to be a waiver of any such default or any acquiescence therein; and
every power and remedy given by this Article to the Trustee and the owner of any
Bond, respectively, may be exercised from time to time and as often as may be
deemed expedient by the Trustee or by the owner of the Bonds.
Section
8.10.
Notice of
Default
.
The Trustee shall
immediately mail (upon the Trustee’s actual knowledge thereof), to each owner of
the Bonds, written notice of an Event of Default under Section 8.1(A)(1) hereof
of which it has actual knowledge. The Trustee shall promptly mail
(within thirty (30) days of the Trustee’s actual knowledge thereof), to each
owner of the Bonds, written notice of the occurrence of any Event of Default
under Sections 8.1(A)(2), 8.1(A)(3) and 8.1(A)(4) hereof of which it has actual
knowledge. Actual knowledge means the actual knowledge of an officer
in the Trustee’s corporate trust administration department. The
Trustee shall not, however, be subject to any liability to any owner of the
Bonds by reason of its failure to mail any notice required by this
Section. The Trustee shall not be required to monitor the compliance
by the Authority with the terms of this Indenture, or the Borrower with the
terms of the Agreement, except as aforesaid.
Section
8.11.
Waivers
of Default
.
The Trustee shall waive
any Event of Default hereunder and its consequences upon the written request of
the owners of 51% in aggregate principal amount of the Bonds then Outstanding;
except that there shall not be waived without the consent of the owners of all
the Bonds Outstanding (a) any default in the payment of the principal of and
Redemption Price on any Outstanding Bonds at the date of maturity specified
therein or (b) any default in the payment when due of the interest on any such
Bonds unless, prior to such waiver, all arrears of interest, at the rate borne
by the Bonds on overdue installments of interest, to the extent permitted by
law, in respect of which such default shall have occurred or all arrears of
payments of principal due on the Bonds when due, as the case may be, and all
expenses of the Trustee and any Paying Agent in connection with such default
shall have been paid or provided for, and in case of any such waiver, or in case
any proceeding taken by the Trustee on account of any such default shall have
been dismissed, discontinued or abandoned or determined adversely, then and in
every such case the Authority, the Trustee and the owners of the Bonds shall be
restored to their former positions and rights hereunder respectively, but no
such waiver, dismissal, discontinuance, abandonment or determination shall
extend to any subsequent or other default, or impair any right consequent
thereon.
ARTICLE
IX
TRUSTEE
AND PAYING AGENTS
Section
9.1.
Appointment
and Acceptance of Duties
.
(A) U.S. Bank
National Association is hereby appointed as Trustee. The Trustee
shall signify its acceptance of the duties and obligations of the Trustee by
executing this Indenture. All provisions of this Article shall be
construed as extending to and including all the rights, duties and obligations
imposed upon the Trustee under the Agreement and the other Financing Documents
as fully for all intents and purposes as if this Article were contained in the
Agreement and the other Financing Documents.
(B) The
Trustee is hereby appointed as Paying Agent for the Bonds. The
Authority may also from time to time appoint one or more other Paying Agents in
the manner and subject to the conditions set forth in Section 9.10 hereof for
the appointment of a successor Paying Agent. Each Paying Agent shall
signify its acceptance of the duties and obligations imposed upon it by this
Indenture by executing and delivering to the Authority and to the Trustee a
written acceptance thereof. The principal offices of the Paying
Agents are designated as the respective offices or agencies of the Authority for
the payment of the interest on and principal or Redemption Price of the Bonds,
except that interest on all registered Bonds and the principal and Redemption
Price of all registered Bonds shall be payable at the corporate trust office of
the Trustee located in Hartford, Connecticut.
Section
9.2.
Indemnity
.
The Trustee shall
be under no obligation to institute any suit, or to take any remedial proceeding
under this Indenture, or to enter any appearance in or in any way defend any
suit in which it may be made defendant, or to take any steps in the execution of
the trusts hereby created or in the enforcement of any rights and powers
hereunder, until it shall be indemnified and provided with adequate security to
its satisfaction against any and all reasonable costs and expenses, outlays, and
counsel fees and other disbursements, and against all liability not due to its
willful misconduct, gross negligence or bad faith.
The
Trustee shall be indemnified for and held harmless against any loss, liability
or expense incurred without gross negligence or bad faith on its part arising
out of or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that payment of such funds or adequate indemnity against such risk or
liability is not assured to it.
Section
9.3.
Responsibilities
of Trustee
.
(A) The Trustee
shall have no responsibility in respect of the validity or sufficiency of this
Indenture or the security provided hereunder or the due execution hereof by the
Authority, or in respect of the title or the value of the Project, or in respect
of the validity of any Bonds authenticated and delivered by the Trustee in
accordance with this Indenture or to see to the recording or filing of the
Indenture or any financing statement (except the filing of continuation
statements as provided in Section 9.13 hereof) or any other document or
instrument whatsoever. The recitals, statements and representations
contained herein and in the Bonds shall be taken and construed as made by and on
the part of the Authority and not by the Trustee, and the Trustee does not
assume any responsibility for the correctness of the same; except that the
Trustee shall be responsible for its representation contained in its certificate
on the Bonds. The obligation hereunder to pay or reimburse the
Trustee for expenses, advances, reimbursements and to indemnify and hold
harmless the Trustee pursuant to Section 9.2 hereof shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of all
obligations under this Indenture.
(B) The
Trustee shall not be liable or responsible because of the failure of the
Authority to perform any act required of it by this Indenture or the Financing
Documents or because of the loss of any monies arising through the insolvency or
the act or default or omission of any depositary other than itself in which such
monies shall have been deposited. The Trustee shall not be
responsible for the application of any of the proceeds of the Bonds or any other
monies deposited with it and paid out, invested, withdrawn or transferred in
accordance herewith or for any loss resulting from any such
investment. The Trustee shall not be liable in connection with the
performance of its duties hereunder except for its own willful misconduct, gross
negligence or bad faith. The immunities and exemptions from liability
of the Trustee shall extend to its directors, officers, employees and
agents.
(C) The
Trustee, prior to the occurrence of an Event of Default and subsequent to an
Event of Default that has been cured, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture. In case
an Event of Default has occurred of which the Trustee has actual knowledge (as
defined in Section 8.10 hereinabove) and which has not been cured the Trustee,
subject to Section 9.2 hereof, shall exercise such of the rights and powers
vested in it hereby and use the same degree of care and skill in their exercise,
as a prudent person would exercise under the circumstances in the conduct of his
own affairs; provided, that if in the opinion of the Trustee such action might
involve expense or liability, it shall not be obligated to take such action
(other than the payment of any Bonds when due from funds held under this
Indenture for the payment thereof or the acceleration of any Bonds pursuant to
Section 8.1(B) hereof), unless it is furnished with indemnity and security to
its satisfaction therefor.
(D) The
Trustee shall in all instances act in good faith in incurring costs, expenses
and legal fees in connection with the transactions contemplated by this
Indenture and the Agreement.
(E) The
Trustee shall not be liable or responsible for the failure of the Borrower to
effect or maintain insurance on the Project as provided in the Financing
Documents nor shall it be responsible for any loss by reason of want or
insufficiency in insurance or by reason of the failure of any insurer in which
the insurance is carried to pay the full amount of any loss against which it may
have insured the Authority, the Borrower, the Trustee or any other
person.
Section
9.4.
Compensation
.
The Trustee and
Paying Agents shall be entitled to receive and collect from the Borrower as
provided in the Financing Documents payment for reasonable fees for services
rendered hereunder and all advances, counsel fees and expenses and other
expenses reasonably and necessarily made or incurred by the Trustee or Paying
Agents in connection therewith.
Section
9.5.
Evidence
on Which Trustee May Act
.
(A) In case at
any time it shall be necessary or desirable for the Trustee to make any
investigation concerning any fact preparatory to taking or not taking any
action, or doing or not doing anything, as such Trustee, and in any case in
which this Indenture or the Financing Documents provide for permitting or taking
any action, it may rely upon any certificate required or permitted to be filed
with it under the provisions hereof or of the Financing Documents, and any such
certificate shall be evidence of such fact or protect it in any action that it
may or may not take, or in respect of anything it may or may not do, in good
faith, by reason of the supposed existence of such fact.
(B) The
Trustee shall be protected and shall incur no liability in acting or proceeding,
or in not acting or not proceeding, in good faith, reasonably and in accordance
with the terms of this Indenture or the Financing Documents, upon any
resolution, order, notice, request, consent, waiver, certificate, statement,
affidavit, requisition, bond or other paper or document which it shall in good
faith reasonably believe to be genuine and to have been adopted or signed by the
proper board or person, or to have been prepared and furnished pursuant to any
of the provisions of this Indenture or the Financing Documents, or upon the
written opinion of any attorney (who may be an attorney for the Authority or the
Borrower), engineer, appraiser, or accountant reasonably believed by the Trustee
to be qualified in relation to the subject matter. The Trustee is not
required to investigate the qualifications of any such expert.
Section
9.6.
Evidence
of Signatures of Owners of the Bonds and Ownership of Bonds
.
(A) Any request,
consent, revocation of consent or other instrument which this Indenture may
require or permit to be signed and executed by the owners of the Bonds may be in
one or more instruments of similar tenor, and shall be signed or executed by
such owners of the Bonds in person or by their attorneys appointed in
writing. Proof of (i) the execution of any such instrument, or of any
instrument appointing any such attorney, or (ii) the holding by any person of
the Bonds shall be sufficient for any purpose of this Indenture (except as
otherwise herein expressly provided) if made in the following manner, or in any
other manner satisfactory to the Trustee, which may nevertheless in its
discretion require further or other proof in cases where it deems the same
desirable:
(1) The
fact and date of the execution by any owner of the Bonds or his attorney of such
instruments may be proved by a guarantee of the signature thereon by an officer
of a bank or trust company or by the certificate of any notary public or other
officer authorized to take acknowledgments of deeds, that the person signing
such request or other instrument acknowledged to him the execution thereof, or
by an affidavit of a witness of such execution, duly sworn to before such notary
public or other officer. Where such execution is by an officer of a
corporation or a member of an association, a limited liability company or a
partnership, on behalf of such corporation, association, limited liability
company or partnership, such signature guarantee, certificate or
affidavit shall be accompanied by sufficient proof of his
authority.
(2) The
ownership of registered Bonds and the amount, numbers and other identification,
and date of owning the same shall be proved by the registry books.
(B) Except
as otherwise provided in Section 10.3 hereof with respect to revocation of a
consent, any request or consent by the owner of any Bond shall bind all future
owners of such Bond in respect of anything done or suffered to be done by the
Authority or the Trustee or any Paying Agent in accordance
therewith.
Section
9.7.
Trustee
and any Paying Agent, May Deal in Bonds and With Borrower
.
Any national
banking association, bank or trust company acting as a Trustee, or Paying Agent,
and its directors, officers, employees or agents, may in good faith buy, sell,
own, hold and deal in any of the Bonds and may join in any action which any
owner of the Bonds may be entitled to take and may otherwise deal with the
Borrower with like effect as if such association, bank or trust company were not
such Trustee or Paying Agent.
Section
9.8.
Resignation
or Removal of Trustee
.
(A) The Trustee
may resign and thereby become discharged from the trusts created under this
Indenture by notice in writing to be given to the Authority and the Borrower and
by notice mailed, postage prepaid to the owners of the Bonds not less than sixty
(60) days before such resignation is to take effect, but such resignation shall
not take effect until the appointment of a successor Trustee pursuant to Section
9.9 hereof and such successor Trustee shall accept such trust.
(B) The
Trustee may be removed at any time thirty (30) days after an instrument or
concurrent instruments in writing, is filed with the Trustee and signed by the
owners of not less than a majority in principal amount of the Bonds then
Outstanding or their attorneys-in-fact duly authorized, but such removal shall
not take effect until the appointment of a successor Trustee pursuant to Section
9.9 hereof and such successor Trustee shall accept such trust. The
Trustee shall promptly give notice of such filing to the Authority.
Section
9.9.
Successor
Trustee
.
(A) If at any
time the Trustee shall resign, or shall be removed, be dissolved or otherwise
become incapable of acting or shall be adjudged a bankrupt or insolvent, or if a
receiver, liquidator or conservator thereof, or of its property, shall be
appointed, or if any public officer shall take charge or control of the Trustee
or of its property or affairs, the position of Trustee shall thereupon become
vacant. If the position of Trustee shall become vacant for any of the
foregoing reasons or for any other reason, the Authority shall appoint a
successor Trustee to fill such vacancy. If the Authority fails to act
prior to the date of resignation of any Trustee or within fifteen days after the
position of Trustee becomes vacant, the Trustee may appoint a temporary
successor Trustee. The Authority may thereafter appoint a successor
Trustee to succeed such temporary Trustee. Within forty-five (45)
days after such appointment, the successor Trustee shall cause notice of such
appointment to be mailed, postage prepaid, to the Borrower and all owners of the
Bonds.
(B) At
any time within one year after such vacancy shall have occurred, the owners of a
majority in principal amount of the Bonds then Outstanding, by an instrument or
concurrent instruments in writing, signed by such owners of the Bonds or their
attorneys-in-fact thereunto duly authorized and filed with the Authority, may
appoint a successor Trustee, which shall, immediately and without further act,
supersede any Trustee theretofore appointed. If no appointment of a
successor Trustee shall be made pursuant to the foregoing provisions of this
Section, the owner of any Bond then Outstanding or any retiring Trustee may
apply to any court of competent jurisdiction to appoint a successor
Trustee. Such court may thereupon, after such notice, if any, as such
court may deem proper and prescribe, appoint a successor Trustee. In
either event, within thirty (30) days after such appointment, the successor
Trustee shall cause notice of such appointment to be marked, postage prepaid, to
the Borrower.
(C) Any
Trustee appointed under this Section shall be a national banking association or
a bank or trust company duly organized under the laws of the State or under the
laws of any state of the United States authorized to exercise corporate trust
powers. At the time of its appointment, any successor Trustee shall
have a capital stock and surplus aggregating not less than
$100,000,000.
(D) Every
successor Trustee shall execute, acknowledge and deliver to its predecessor, and
also to the Authority, an instrument in writing accepting such appointment, and
thereupon such successor Trustee, without any further act, deed, or conveyance,
shall become fully vested with all monies, estates, properties, rights,
immunities, powers and trusts, and subject to all the duties and obligations of
its predecessor, with like effect as if originally named as such Trustee; but
such predecessor shall, nevertheless, on the written request of its successor or
of the Authority, and upon payment of the compensation, expenses, charges and
other disbursements of such predecessor which are due and payable pursuant to
Section 9.4 hereof, execute and deliver an instrument transferring to such
successor Trustee all the estate, properties, rights, immunities, powers and
trusts of such predecessor, except any indemnification rights. Every
predecessor Trustee shall also deliver all property and monies held by it under
the Indenture to its successor. Should any instrument in writing from
the Authority be required by any successor Trustee for more fully and certainly
vesting in such Trustee, the estate, properties, rights, immunities, powers and
trusts vested or intended to be vested in the predecessor Trustee any such
instrument in writing shall, on request, be executed, acknowledged and delivered
by the Authority. Any successor Trustee shall promptly notify the
Paying Agents of its appointment as Trustee.
(E) Any
company into which the Trustee may be merged or converted or with which it may
be consolidated or any company resulting from any merger, conversion or
consolidation to which it shall be a party or any company to which the Trustee
may sell or transfer all or substantially all of its corporate trust business,
provided such company shall be a national banking association or a bank or trust
company duly organized under the laws of any state of the United States, shall
have a capital stock and surplus aggregating not less than $100,000,000, and
shall be authorized by law to perform all the duties imposed upon it by the
Indenture, shall be the successor to such Trustee, both in its capacity as
Trustee and in its capacity as Paying Agent if the Trustee is serving as Paying
Agent, without the execution or filing of any paper or the performance of any
further act.
(F) Any
Trustee which becomes incapable of acting as Trustee shall pay over, assign and
deliver to its successor any monies, funds or investments held by it in the
manner provided in Section 9.9(D) and shall render an accounting to the
Authority.
Section
9.10.
Appointment
and Responsibilities of Paying Agent
.
The initial
Paying Agent shall be U.S. Bank National Association. The Paying
Agent shall be entitled to the advice of counsel (who may be counsel for any
party) and shall not be liable for any action taken in good faith in reliance on
such advice. The Paying Agent may rely conclusively on any telephone
or written notice, certificate or other document furnished to it under this
Indenture and reasonably believed by it to be genuine. The Paying
Agent shall not be liable for any action taken or omitted to be taken by it in
good faith and reasonably believed by it to be within the discretion or power
conferred upon it, or taken by it pursuant to any direction or instruction by
which it is governed under this Indenture or omitted to be taken by it by reason
of the lack of direction or instruction required for such action, or be
responsible for the consequences of any error of judgment reasonably made by
it. When any payment or other action by the Paying Agent is called
for by this Indenture, it may defer such action pending receipt of such
evidence, if any, as it may reasonably require in support thereof. A
permissive right or power to act shall not be construed as a requirement to
act. The Paying Agent shall not in any event be liable for the
application or misapplication of funds, or for other acts or defaults, by any
person, firm or corporation except by the Paying Agent’s respective directors,
officers, agents and employees. For the purposes of this Indenture
matters shall not be considered to be known to the Paying Agent unless they are
known to an officer in its corporate trust administration
division. The Paying Agent shall not require indemnification prior to
making any payment when due of principal, premium or interest on any Bond to be
made by the Paying Agent to any Bondholder, except and unless such drawing or
payment is prohibited by or violates applicable law or any outstanding or
pending court or governmental order or decree.
Section
9.11.
Resignation
or Removal of Paying Agent; Successors
.
(A) Any Paying
Agent may at any time resign and be discharged of the duties and obligations
created by the Indenture by giving at least sixty days’ written notice to the
Authority, the Trustee and the Borrower. Any successor Paying Agent
shall be appointed by the Authority, at the direction of the Borrower, with the
approval of the Trustee, and shall be a bank or trust company duly organized
under the laws of any state of the United States or a national banking
association, having a capital stock and surplus aggregating at least
$100,000,000, and willing and able to accept the office on reasonable and
customary terms and authorized by law to perform all the duties imposed upon it
by this Indenture. The Paying Agent may be removed at any time by the
Authority at the direction of the Borrower by a written instrument filed with
the Trustee and the Paying Agent. The Paying Agent may, but need not
be, the same person as the Trustee.
(B)
If the position of Paying Agent shall become vacant for any reason, or if any
bankruptcy, insolvency or similar proceeding shall be commenced by or against
the Paying Agent, the Authority shall appoint a successor Paying Agent
designated by the Borrower to fill the vacancy. A written acceptance
of office shall be filed by the successor Paying Agent. The Trustee
shall give notice of the appointment of a successor Paying Agent in writing to
each Bondholder. The Trustee will promptly certify to the Borrower
that it has mailed such notice to all Bondholders, and such certificate will be
conclusive evidence that such notice was given in the manner required
hereby.
(C) Any
corporation, association, limited liability company partnership or firm which
succeeds to the business of the Paying Agent as a whole or substantially as a
whole, whether by sale, merger, consolidation or otherwise, shall thereby become
vested with all the property, rights and powers of the Paying Agent under this
Indenture and shall be subject to all the duties and obligations of the Paying
Agent under this Indenture.
The
Paying Agent shall send or cause to be sent notice to Bondholders of a change of
address for the delivery of Bonds or notice or the payment of principal of
Bonds.
Section
9.12.
Monies
Held for Particular Bonds
.
The amounts held
by the Trustee or Paying Agents for the payment of the interest, principal or
Redemption Price due on any date with respect to particular Bonds, on and after
such date and pending such payment, shall be set aside on its books and held in
trust by it for the owners of the Bonds entitled thereto. Such funds
shall be invested in Federal Securities at the direction of the Borrower for the
account of the Borrower or shall otherwise remain uninvested.
Section
9.13.
Continuation
Statements
.
The Trustee shall
cause all continuation statements necessary to preserve and protect the security
interest of the Trustee in the collateral pledged by the Authority in the
granting clauses hereof to be filed in the applicable State offices so as to
continue the perfected status thereof pursuant to the Uniform Commercial Code of
the State.
Section
9.14.
Obligation
to Report Defaults
.
In accordance
with the provisions of Section 8.10 hereof, upon an officer in the Trustee’s
corporate trust administration department becoming aware of any condition or
event which constitutes, or with the giving of notice or the passage of time
would constitute, an Event of Default under the Financing Documents or this
Indenture, the Trustee shall deliver to the Authority a written notice stating
the existence thereof and the action it proposes to take with respect
thereto. Becoming aware means the actual knowledge of an officer in
the Trustee’s corporate trust department.
Section
9.15.
Payments
Due on non-Business Day
.
In any case where
the date of maturity of interest on or principal of the Bonds or the date fixed
for redemption of any Bonds shall, in the city of payment, be a day other than a
Business Day, then payment of such amount shall be made as provided in the forms
of the Bonds.
Section
9.16.
Appointment
of Co-Trustee
.
(A) It is the
purpose of this Indenture that there shall be no violation of any law of any
jurisdiction denying or restricting the right of banking corporations or
associations to transact business as trustee in such jurisdiction. It
is recognized that in case of litigation under this Indenture or the Agreement,
and in particular in case of the enforcement of either on default, or in case
the Trustee deems that by reason of any present or future law of any
jurisdiction it may not exercise any of the powers, rights or remedies herein
granted to the Trustee or hold title to the properties, in trust, as herein
granted, or take any other action which may be desirable or necessary in
connection therewith, it may be necessary that the Trustee appoint an additional
individual or institution as a separate trustee or co-Trustee. The
following provisions of this Section are adapted to these ends.
(B) In
the event that the Trustee appoints an additional individual or institution as a
separate trustee or co-Trustee, each and every remedy, power, right, claim,
demand, cause of action, immunity, estate, title, interest and lien expressed or
intended by this Indenture to be exercised by or vested in or conveyed to the
Trustee with respect thereto shall be exercisable by and vest in such separate
trustee or co-Trustee but only to the extent necessary to enable such separate
trustee or co-Trustee to exercise such powers, rights and remedies, and every
covenant and obligation necessary to the exercise thereof by such separate
trustee or co-Trustee shall run to and be enforceable by either of
them.
(C) Should
any instrument in writing from the Authority be required by the separate trustee
or co-Trustee so appointed by the Trustee for more fully and certainly vesting
in and confirming to him or it such properties, rights, powers, trusts, duties
and obligations, any and all such instruments in writing shall, on request, be
executed, acknowledged and delivered by the Authority. In case any
separate trustee or co-Trustee, or a successor to either, shall die, become
incapable of acting, resign or be removed, all the estates, properties, rights,
powers, trusts, duties and obligations of such separate trustee or co-Trustee,
so far as permitted by law, shall vest in and be exercised by the Trustee until
the appointment of a new trustee or successor to such separate trustee or
co-Trustee.
Section
9.17.
Project
Description
.
The Trustee shall
maintain in current form as an Appendix to the Agreement a list of the property
constituting the Project and, on the basis of the descriptions furnished by the
Borrower pursuant to the Agreement, shall amend the list in writing to reflect
changes in the Project.
ARTICLE
X
AMENDMENTS
OF INDENTURE
Section
10.1.
Limitation
on Modifications
.
This Indenture
shall not be modified or amended in any respect except as provided in and in
accordance with and subject to the provisions of this Article.
Section
10.2.
Supplemental
Indentures Without Consent of Owners of the Bonds
.
(A) Subject to
paragraph (C) of this Section 10.2, the Authority may, from time to time and at
any time, adopt Supplemental Indentures without notice to or consent of the
owners of the Bonds for any of the following purposes:
(1) To
cure any formal defect, omission or ambiguity in this Indenture or in any
description of property subject to the lien hereof, if such action is not
adverse to the interests of the owners of the Bonds.
(2) To
grant to or confer upon the Trustee for the benefit of the owners of the Bonds
any additional rights, remedies, powers, authority or security which may
lawfully be granted or conferred and which are not contrary to or inconsistent
with this Indenture as theretofore in effect.
(3) To
add to the covenants and agreements of the Authority in this Indenture other
covenants and agreements to be observed by the Authority which are not contrary
to or inconsistent with this Indenture as theretofore in effect.
(4) To
add to the limitations and restrictions in this Indenture other limitations and
restrictions to be observed by the Authority which are not contrary to or
inconsistent with this Indenture as theretofore in effect.
(5) To
confirm, as further assurance, any pledge under, and the subjection to any lien
or pledge created or to be created by, this Indenture, of Revenues or other
income from or in connection with the Project or of any other monies, securities
or funds, or to subject to the lien or pledge of this Indenture additional
revenues, properties or collateral.
(6) To
make any other changes which do not materially adversely affect the interest of
owners of the Bonds, as evidenced to the Trustee by an opinion of Bond
Counsel.
(7) To
enable the Authority and the Borrower to receive or maintain a rating on the
Bonds from S&P and/or Moody’s; provided, however, that nothing in this
Section 10.2(7) shall limit or restrict the rights of Bondholders to consent to
modifications, alterations or amendments to this Indenture as provided in
Section 10.3 hereof.
(B) Before
the Authority shall adopt any Supplemental Indenture pursuant to this Section,
there shall have been filed with the Trustee an opinion of Bond Counsel
satisfactory to the Trustee stating that such Supplemental Indenture is
authorized or permitted by this Indenture and the Act, complies with the terms
of this Indenture, and that upon enactment it will be valid and binding upon the
Authority in accordance with its terms.
Section
10.3.
Supplemental
Indentures With Consent of Owners of the Bonds
.
(A) Subject to
the terms and provisions contained in this Article, the owners of not less than
51% in aggregate principal amount of the Bonds then Outstanding (or in the event
that the proposed change does not affect all owners of Bonds, the owners of not
less than 51% of the Bonds so affected), shall have the right from time to time,
to consent to and approve the adoption by the Authority of any Supplemental
Indenture as shall be deemed necessary or desirable by the Authority for the
purpose of modifying, altering, amending, adding to or rescinding, in any
particular, any of the terms or provisions contained herein. Nothing
herein contained shall permit, or be construed as permitting, without the
consent of all of the owners of the Bonds affected thereby (i) a change in the
terms of redemption or maturity of the principal of or the interest on any
Outstanding Bond, or a reduction in the principal amount or redemption price of
any Outstanding Bond or the rate of interest thereon, without the consent of the
owner of such Bond, (ii) the creation of a lien upon or pledge of Revenues other
than the lien or pledge created by this Indenture, (iii) a preference or
priority of any Bond or Bonds over any other Bond or Bonds, or (iv) a reduction
in the aggregate principal amount of the Bonds required for consent to such
Supplemental Indenture.
(B) If
at any time the Authority shall determine to adopt any Supplemental Indenture
for any of the purposes of this Section, it shall cause notice of the proposed
Supplemental Indenture to be mailed, postage prepaid, to all owners of the
Bonds. Such notice shall briefly set forth the nature of the proposed
Supplemental Indenture, and shall state that a copy thereof is on file at the
offices of the Trustee for inspection by all owners of the Bonds.
(C) Within
one year after the date of such notice, the Authority may adopt such
Supplemental Indenture in substantially the form described in such notice only
if there shall have first been filed with the Authority (i) the written consent
of the owners of not less than 51% in aggregate principal amount of the Bonds
then Outstanding so affected, and (ii) an opinion of counsel satisfactory to the
Trustee stating that such Supplemental Indenture is authorized or permitted by
this Indenture and complies with its terms, and that upon adoption it will be
valid and binding upon the Authority in accordance with its
terms. Each valid consent of a Bondholder shall be effective only if
accompanied by proof of the owning, at the date of such consent, of the Bonds
with respect to which such consent is given. A certificate or
certificates by the Trustee that it has examined such proof and that such proof
is sufficient in accordance with this Indenture shall be conclusive that the
consents have been given by the owners of the Bonds described in such
certificate or certificates. Any such consent shall be binding upon
the owner of the Bonds giving such consent and upon any subsequent owner of such
Bonds and of any Bonds issued in exchange therefor (whether or not such
subsequent owner thereof has notice thereof), unless such consent is revoked in
writing by the owner of such Bonds giving such consent or a subsequent owner
thereof by filing such revocation with the Trustee prior to the adoption of such
Supplemental Indenture.
(D) If
the owners of not less than the percentage of Bonds required by this Section
shall have consented to and approved the execution thereof as herein provided,
no owner of any Bond shall have any right to object to the enactment of such
Supplemental Indenture, or to object to any of the terms and provisions
contained therein or the operation thereof, or in any manner to question the
propriety of the adoption thereof, or to enjoin or restrain the Authority from
adopting the same or from taking any action pursuant to the provisions
thereof.
(E) Upon
the adoption of any Supplemental Indenture pursuant to the provisions of this
Section, this Indenture shall be deemed to be modified and amended in accordance
therewith, and the respective rights, duties and obligations under this
Indenture of the Authority, the Trustee, the Paying Agent and all owners of
Bonds then Outstanding shall thereafter be determined, exercised and enforced
under this Indenture, subject in all respects to such modifications and
amendments.
Section
10.4.
Supplemental
Indenture Part of the Indenture
.
Any Supplemental
Indenture adopted in accordance with the provisions of this Article shall
thereafter form a part of this Indenture and all the terms and conditions
contained in any such Supplemental Indenture as to any provisions authorized to
be contained therein shall be deemed to be part of the terms and conditions of
this Indenture for any and all purposes. The Trustee shall execute
any Supplemental Indenture adopted in accordance with the provisions of Sections
10.2 or 10.3 hereof; provided, however, that the Trustee may, but shall not be
obligated to, enter into any such instrument which adversely affects the
Trustee’s own rights, duties or immunities under this Indenture or
otherwise.
ARTICLE
XI
AMENDMENTS
OF FINANCING DOCUMENTS
Section
11.1.
Rights of
Borrower
.
Anything herein
to the contrary notwithstanding, any Supplemental Indenture under Article X
hereof which affects in any manner any rights, powers, authority, duties or
obligations of the Borrower under the Financing Documents or of any subsequent
user of the Project or requires a revision of the Financing Documents or
subsequent agreement with respect to the Project shall not become effective
unless and until the Borrower or such subsequent user, as the case may be, shall
have given its written consent signed by its duly Authorized Representative to
such Supplemental Indenture.
Section
11.2.
Amendments
of Financing Documents Not Requiring Consent of Owners of the Bonds
.
The Authority and
the Trustee may, without the consent of or notice to the owners of the Bonds,
consent to any amendment, change or modification of the Financing Documents for
the purpose of (i) curing any ambiguity or formal defect therein or which, in
the judgment of the Trustee will not materially prejudice the Trustee or the
owners of the Bonds or (ii) to make any other changes which do not materially
adversely affect the interests of the owners of the Bonds, as evidenced to the
Trustee by an opinion of counsel. The Trustee shall have no liability
to any owner of the Bonds or any other person for any action taken by it in good
faith pursuant to this Section.
Section
11.3.
Amendments
of Financing Documents Requiring Consent of Owners of the Bonds
.
Except as
provided in Section 11.2 hereof, the Authority and the Trustee shall not consent
to any amendment, change or modification of the Financing Documents, including
the substitution of an assignee for the Borrower and the release of the Borrower
from the obligations of the Financing Documents, without mailing of notice and
the written approval or consent of the owners of not less than 51% in aggregate
principal amount of the Bonds at the time Outstanding and so affected given and
procured as in Section 10.3 hereof provided. If at any time the
Borrower or a subsequent user of the Project shall request the consent of the
Trustee to any such proposed amendment, change or modification, the Trustee
shall cause notice of such proposed amendment, change or modification to be
mailed in the same manner as is provided in Article X hereof with respect to
Supplemental Indentures. Such notice shall briefly set forth the
nature of such proposed amendment, change or modification and shall state that
copies of the instrument embodying the same are on file at the principal office
of the Trustee for inspection by the owners of the Bonds.
ARTICLE
XII
DISCHARGE
OF INDENTURE
Section
12.1.
Defeasance
.
(A) If the
Authority shall pay or cause to be paid, or there shall otherwise be paid, to
the owners of all Bonds the principal or Redemption Price, if applicable,
interest and all other amounts due or to become due thereon or in respect
thereof, and all other amounts due or to become due under the Financing
Documents, at the times and in the manner stipulated therein and in this
Indenture, and if all the fees, expenses and advances of the Trustee and all
Paying Agents have been paid, then the pledge of any revenues or receipts from
or in connection with the Financing Documents or the Project under this
Indenture and the estate and rights hereby granted, and all covenants,
agreements and other obligations of the Authority to the owners of the Bonds
hereunder shall thereupon cease, terminate and become void and be discharged and
satisfied and such Bonds shall thereupon cease to be entitled to any lien,
benefit or security hereunder, except as to moneys or securities held by the
Trustee or the Paying Agents as provided below in this subsection. At
the time of such cessation, termination discharge and satisfaction, (1) the
Trustee shall cancel and discharge the lien of this Indenture and execute and
deliver to the Borrower all such instruments as may be appropriate to satisfy
such lien and to evidence such discharge and satisfaction, and (2) the Trustee,
the Authority and the Paying Agents shall pay over or deliver to the Borrower or
on its order all moneys or securities held by them pursuant to the Indenture
which are not required (a) for the payment of principal or Redemption Price, if
applicable, or interest on Bonds not theretofore surrendered for such payment or
redemption, or (b) for the payment of all such other amounts due or to become
due under the Financing Documents.
(B) Bonds
or interest installments for the payment or redemption of which moneys (or
Federal Securities, the principal of and interest on which when due, together
with the moneys, if any, set aside at the same time, will provide funds
sufficient for such payment or redemption) shall then be set aside and held in
trust by the Trustee or Paying Agents, whether at or prior to the maturity or
the redemption date of such Bonds, shall be deemed to have been paid within the
meaning and with the effect expressed in subsection (A) of this Section, if (a)
in case any such Bonds are to be redeemed prior to maturity, all action
necessary to redeem such Bonds shall have been taken and notice of such
redemption shall have been duly given or provision satisfactory to the Trustee
shall have been made for the giving of such notice, and (b) if the maturity or
redemption date of any such Bond shall not then have arrived, (i) provision
shall have been made by deposit with the Trustee or other methods satisfactory
to the Trustee for the payment to the owners of any such Bonds upon surrender
thereof, whether or not prior to the maturity or redemption date thereof, of the
full amount to which they would be entitled by way of principal or Redemption
Price and interest and all other amounts then due under the Financing Documents
to the date of such maturity or redemption, and (ii) provision satisfactory to
the Trustee shall have been made for the mailing of a notice to the owners of
such Bonds that such moneys are so available for such payment.
ARTICLE
XIII
GENERAL
PROVISIONS
Section
13.1.
Notices
.
(A)
Any notice, request,
demand, communication, direction or other paper shall be sufficiently given and
shall be deemed given when delivered or mailed by registered or certified mail,
return receipt requested, postage prepaid, or sent by telegram, addressed as
follows: if to the Authority, at 999 West Street, Rocky Hill, Connecticut 06067,
Attention: Program Manager - Loan Administration; if to the Borrower, 93 Main
Street, Clinton, Connecticut 06413, Attention: Vice
President-Finance, and if to the Trustee, Goodwin Square, 225 Asylum Street,
Hartford, Connecticut 06103, Attention: Corporate Trust
Administration. A duplicate copy of each notice required to be given
hereunder by the Trustee to either the Authority or the Borrower, shall also be
given to the other. Any notice party may designate any further or
different addresses to which subsequent notices, certificates or other
communications shall be sent.
(B) Notice
hereunder may be waived prospectively or retrospectively by the person entitled
to such notice, but no waiver shall affect any notice requirement as to other
persons.
(C) Notwithstanding
anything to the contrary contained herein, all notices, requests, demands,
communications or directions to the Trustee shall be given in
writing.
Section
13.2.
Covenant
Against Discrimination
.
The Trustee
agrees and warrants that in the performance of this Indenture it will not
discriminate against any person or group of persons on the grounds of race,
color, religion, national origin, age, sex, sexual orientation, marital status,
physical or learning disability, political beliefs, mental retardation, or
history of mental disorder in any manner prohibited by the laws of the United
States or of the State.
Section
13.3.
Parties
Interested Herein
.
Except as
otherwise specifically provided herein, nothing in this Indenture expressed or
implied is intended or shall be construed to confer upon, or to give to, any
person or entity, other than the Authority, the Trustee, the Borrower, the
Paying Agent and the registered owners of the Bonds, any right, remedy or claim
under or by reason of this Indenture or any covenant, condition or stipulation
hereof, and all covenants, stipulations, promises and agreements in this
Indenture contained by and on behalf of the Authority shall be for the sole and
exclusive benefit of the Authority, the Trustee, the Borrower, the Paying Agent
and the registered owners of the Bonds.
Section
13.4.
Effective
Date; Counterparts
.
This Indenture
shall become effective on delivery. It may be simultaneously executed
in several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
Section
13.5.
Continuing
Disclosure
.
The Borrower has
undertaken all responsibility for compliance with applicable continuing
disclosure requirements, if any, and the Authority and the Trustee shall have no
liability to the Bondholders or any other person with respect to S.E.C. Rule
15c2-12.
Section
13.6.
Compliance
with C.G.S. Sections 4a-60 and 4a-60a
.
(A) CGS
Section 4a-60. In accordance with Connecticut General Statutes Section
4a-60(a)(1), as amended by Connecticut Public Act 07-142, and to the extent
required by Connecticut law, the Trustee agrees and warrants as follows: (1) in
the performance of this Indenture it will not discriminate or permit
discrimination against any person or group of persons on the grounds of race,
color, religious creed, age, marital or civil union status, national origin,
ancestry, sex, mental retardation or physical disability, including, but not
limited to, blindness, unless it is shown by the Trustee that such disability
prevents performance of the work involved, in any manner prohibited by the laws
of the United States or of the State of Connecticut and further to take
affirmative action to insure that applicants with job-related qualifications are
employed and that employees are treated when employed without regard to their
race, color, religious creed, age, marital or civil union status, national
origin, ancestry, sex, mental retardation, or physical disability, including,
but not limited to, blindness, unless it is shown by the Trustee that such
disability prevents performance of the work involved; (2) in all solicitations
or advertisements for employees placed by or on behalf of the Trustee, to state
that it is an “affirmative action-equal opportunity employer” in accordance with
regulations adopted by the Commission on Human Rights and Opportunities (the
“CHRO”); (3) to provide each labor union or representative of workers with which
the Trustee has a collective bargaining agreement or other contract or
understanding and each vendor with which the Trustee has a contract or
understanding, a notice to be provided by the CHRO advising the labor union or
workers’ representative of the Trustee’s commitments under Connecticut General
Statutes Section 4a-60, and to post copies of the notice in conspicuous places
available to employees and applicants for employment; (4) to comply with each
provision of Connecticut General Statutes Sections 4a-60, 46a-68e and 46a-68f
and with each regulation or relevant order issued by the CHRO pursuant to
Connecticut General Statutes Sections 46a-56, 46a-68e and 46a-68f; (5) to
provide the CHRO with such information requested by the CHRO, and permit access
to pertinent books, records and accounts, concerning the employment practices
and procedures of the Trustee as relate to the provisions of Connecticut General
Statutes Sections 4a-60a and 46a-56.
(B) CGS
Section 4a-60a. In accordance with Connecticut General Statutes Section
4a-60a(a)(1), as amended by Connecticut Public Act 07-142, and to the extent
required by Connecticut law, the Trustee agrees and warrants as follows: (1)
that in the performance of this Indenture, the Trustee will not discriminate or
permit discrimination against any person or group of persons on the grounds of
sexual orientation, in any manner prohibited by the laws of the United States or
of the State of Connecticut, and that employees are treated when employed
without regard to their sexual orientation; (2) to provide each labor union or
representative of workers with which the Trustee has a collective bargaining
agreement or other contract or understanding and each vendor with which the
Trustee has a contract or understanding, a notice to be provided by the CHRO
advising the labor union or workers’ representative of the Trustee’s commitments
under Connecticut General Statutes Section 4a-60a, and to post copies of the
notice in conspicuous places available to employees and applicants for
employment; (3) to comply with each provision of Connecticut General Statutes
Section 4a-60a and with each regulation or relevant order issued by the CHRO
pursuant to Connecticut General Statutes Section 46a-56; (4) to provide the CHRO
with such information requested by the CHRO, and permit access to pertinent
books, records and accounts, concerning the employment practices and procedures
of the Trustee which relate to the provisions of Connecticut General Statutes
Sections 4a-60a and 46a-56; and (5) to include provisions (1) through (4) this
section in every subcontract or purchase order entered into by the Trustee
in order to fulfill any obligation of this Indenture, and such provisions shall
be binding on a subcontractor, vendor or manufacturer unless exempted by
regulations or orders of the CHRO and take such action with respect to any such
subcontract or purchase order as the CHRO may direct as a means of enforcing
such provisions in accordance with Connecticut General Statutes Section
4a-60a.
Section
13.7.
Date for
Identification Purposes Only
.
The date of this
Indenture shall be for identification purposes only and shall not be construed
to imply that this Indenture was executed on such date.
Section
13.8.
Separability
of Invalid Provisions
.
In case any one
or more of the provisions contained in this Indenture or in the Bonds shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Indenture, but this Indenture shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein.
IN WITNESS WHEREOF,
the
Connecticut Development Authority has caused these presents to be signed in its
name and behalf by an Authorized Representative, and to evidence its acceptance
of the trusts hereby created, U.S. Bank National Association, has caused these
presents to be signed in its name and behalf by its duly authorized officer, as
of the date first above written.
CONNECTICUT
DEVELOPMENT AUTHORITY
By
Name: Karin
A. Lawrence
Authorized
Representative
U.S.
BANK NATIONAL ASSOCIATION
By
Name: Cauna
M. Silva
Title: Vice
President
APPENDIX A TO
INDENTURE
REQUISITION
The
Connecticut Water Company (the “Borrower”) hereby requests U.S. Bank National
Association, as trustee (the “Trustee”) under the Indenture of Trust, dated
December 1, 2009, between U.S. Bank National Association and the Connecticut
Development Authority (the “Indenture”), to withdraw $___________ from the
___________ Account of the Project Fund established under the Indenture for
purposes permitted by Section 5.2 thereof. In connection with this
withdrawal, the Borrower states as follows:
1. The
number of this requisition is ____________________.
2. Payments
aggregating _____________ are due to the following persons in the following
amounts for expenditures incurred in connection with the Project:
Person
|
Address
|
Amount
|
Item
|
|
|
|
|
3. Payment
is due to the Borrower in the total amount of $____________ in reimbursement for
amounts paid by the Borrower in connection with the Project:
Attached
hereto are receipts or other evidences of payment showing payment of each such
amount and the person to whom payment was made.
4. Each
amount set forth in paragraphs 2 and 3 hereof has been properly paid or incurred
within the provisions of the Agreement and the Indenture, is a proper charge
against the Project Fund, is unpaid or unreimbursed, and has not been the basis
for any previous withdrawal.
5. This
requisition and the use of proceeds set forth herein are consistent in all
material respects with the Tax Regulatory Agreement.
6. Ninety-five
percent or more of the amount requisitioned is to be applied to costs (a) paid
or incurred not more than sixty (60) days prior to the adoption of the
Authority’s inducement resolution for the Project on May 20, 2009, (b) for the
acquisition, construction or reconstruction of land or property of a character
subject to the allowance for depreciation provided in Section 167 of the
Internal Revenue Code of 1986, as amended, and (c) which are chargeable to the
capital account of the Project or would be so chargeable either with an election
by the Borrower or but for the election of the Borrower to deduct the amount of
the item.
Capitalized
terms used in this requisition are used as defined in the
Indenture.
I am an
Authorized Representative of the Borrower under the Agreement.
|
THE
CONNECTICUT WATER COMPANY
|
By: ________________________________
Name:
Title:
APPENDIX B TO
INDENTURE
FORM
OF REDEMPTION REQUEST
$_________________
CONNECTICUT
DEVELOPMENT AUTHORITY
WATER
FACILITIES REFUNDING REVENUE BONDS
(THE
CONNECTICUT WATER COMPANY PROJECT – 2009A SERIES)
due
December 1, 2039
(the
“Bonds”)
CUSIP
NO. __________
The
undersigned, ________________________ (the “Participant”), does hereby certify,
pursuant to the provisions of that certain Indenture of Trust, dated as of
December 1, 2009 (the “Indenture”), made by the Connecticut Development
Authority (the “Authority”) and U.S. Bank National Association, as Trustee (the
“Trustee”), to The Depository Trust Company (the “Depository”), The Connecticut
Water Company (the “Borrower”), the Authority and the Trustee that:
1. [Name
of deceased Beneficial Owner] is deceased.
2. [Name
of deceased Beneficial Owner] had a $__________ interest in the above referenced
Bonds.
3. [Name
of Representative] is [Beneficial Owner’s personal representative/other person
authorized to represent the estate of the Beneficial Owner/surviving joint
tenant/surviving tenant by the entirety/trustee of a trust] of [Name of deceased
Beneficial Owner] and has delivered to the undersigned a request for redemption
in form satisfactory to the undersigned, requesting that $__________ principal
amount of said Bonds be redeemed pursuant to said Indenture. The
documents accompanying such request, all of which are in proper form, are in all
respects satisfactory to the undersigned and the [Name of Representative] is a
Representative and is entitled to have the Bonds to which this Request relates
redeemed.
4. The
Participant holds the interest in the Bonds with respect to which this Request
for Redemption is being made on behalf of [Name of deceased Beneficial
Owner].
5. The
Participant hereby certifies that it will indemnify and hold harmless the
Depository, the Trustee, the Authority and the Borrower (including their
respective officers, directors, agents, attorneys and employees), against all
damages, loss, cost, expense (including reasonable attorneys’ and accountants’
fees and expenses), obligations, claims or liability (collectively, the
“Damages”) incurred by the indemnified party or parties as a result of or in
connection with the redemption of Bonds to which this Request
relates. The Participant will, at the request of the Borrower,
forward to the Borrower, a copy of the documents submitted by [Name of
Representative] in support of the request for redemption.
IN WITNESS WHEREOF
, the
undersigned has executed this redemption request as of ____________,
_____.
[PARTICIPANT
NAME]
By:
Name:
Title:
BOND
PURCHASE AGREEMENT
among
CONNECTICUT
DEVELOPMENT AUTHORITY,
THE
CONNECTICUT WATER COMPANY
and
EDWARD D.
JONES & CO., L.P.
Dated
December 2, 2009
$20,000,000
Connecticut
Development Authority
5.10 %
Water Facilities Revenue Bonds
(The
Connecticut Water Company Project – 2009A Series) (non AMT)
BOND PURCHASE
AGREEMENT
AGREEMENT,
dated December 3, 2009, among the Connecticut Development Authority (the
“Authority”), The Connecticut Water Company (the "Company") and Edwards D. Jones
& Co., L.P. (the "Underwriter"), with respect to the sale and purchase of
the Authority’s $20,000,000 5.10 % Water Facilities Revenue Bonds (The
Connecticut Water Company Project – 2009A Series) (non-AMT) (the "Bonds") on the
terms and subject to the conditions herein set forth:
1. The
Company has previously filed with the Authority its application for the issuance
of the Bonds by the Authority, and the Authority has authorized the Bonds by a
resolution duly adopted October 21, 2009 (the “Resolution”). The
Bonds will be special obligations of the Authority payable solely out of the
revenues or other receipts, funds or moneys pledged therefore, and from any
amounts otherwise available to the Trustee for the payment thereof under the
indenture referred to below. The proceeds of the sale of the Bonds
will be loaned to the Company for use in the acquisition, construction and
installation of certain additions to the water system of the Company (the
“Project”) located in certain municipalities within the State of Connecticut
(the “State”). All such projects are to be used for water facilities
purposes, all as more particularly described in the Loan Agreement (the
“Agreement”), dated as of December 1, 2009 by and between the Authority and the
Company. Pursuant to the Agreement, the Company will execute and
deliver to the Authority the Company’s note (the “Note”) to evidence its
indebtedness thereunder. Payments on the Note shall be applied to the
amounts due on the Bonds.
The Bonds
shall be in all respects as described in, and shall be issued under and pursuant
to, an Indenture of Trust (the “Indenture”), dated as of December 1, 2009,
between the Authority and U.S. Bank National Association, as trustee (the
"Trustee"). In connection with the execution and delivery of the
Indenture, the Authority and the Trustee will execute and deliver a Letter of
Representation (the "Letter of Representation") to The Depository Trust Company
("DTC"). In order to assure the exclusion of interest on the Bonds
from gross income for purposes of federal income taxation, the Company, the
Authority and the Trustee will enter into a Tax Regulatory Agreement relating to
the Bonds, dated as of the date of issuance of the Bonds (the “Tax Regulatory
Agreement”).
In this
Bond Purchase Agreement, the term "Financing Documents" (1) when used with
respect to the Company, means the Agreement, the Note, the Tax Regulatory
Agreement, the Continuing Disclosure Agreement dated as of December 1, 2009
between the Company and the Trustee, as dissemination agent (the “Disclosure
Agreement”), and the general certificate of the Company delivered in connection
with the issuance of the Bonds and (2) when used with respect to the Authority,
means any of the foregoing documents and agreements referred to in (1) above to
which the Authority is a direct party. The Financing Documents when
such term is used with respect to the Company, do not include any documents or
agreements to which the Company is not a direct party, including the Bonds, the
Indenture or the Letter of Representation.
2. Subject
to the terms and conditions and upon the basis of the representations
hereinafter set forth, the Authority hereby agrees to sell the Bonds to the
Underwriter and the Underwriter hereby agrees to purchase the Bonds from the
Authority at the purchase price of $20,000,000.00. The Bonds shall be
dated their date of delivery, shall mature on December 1, 2039 and shall bear
interest at a rate of 5.10 % per annum, payable on June 1 and December 1 in each
year, commencing June 1, 2010. It will be a condition to the
Authority’s obligation to sell the Bonds to the Underwriter and the obligation
of the Underwriter to purchase the Bonds that all Bonds be sold and delivered by
the Authority and paid for by the Underwriter on the Closing Date, as
hereinafter defined.
3. The
date of delivery and payment for the Bonds (the "Closing Date") will be December
17, 2009 unless not later than the fifth day preceding such date the Authority,
the Company and the Underwriter agree that the Closing Date will be a specified
date not later than the thirtieth day subsequent to such date, in which event
the Closing Date will be the date so specified. The Bonds shall be
available for inspection and packaging at least twenty-four hours before the
Closing Date.
The
Authority will authorize the Trustee to authenticate and deliver the Bonds to
the Underwriter through the facilities of DTC, 55 Water Street, New York, New
York, utilizing the FAST System pursuant to which the Trustee will take custody
of the Bonds as agent for DTC, at approximately 11:00 A.M., New York City time
on the Closing Date, in typewritten form, bearing CUSIP numbers, duly executed
and authenticated, registered in the name of Cede & Co., as nominee for DTC,
against payment therefor by wire transfer or other manner payable in immediately
available funds to the Trustee for the account of the Authority. The
payment for the Bonds to the Authority and the delivery thereof to the
Underwriter shall be made at the offices of Murtha Cullina LLP, City Place I,
185 Asylum Street, Hartford, Connecticut. The Bonds will be delivered
in the form and denominations and shall be otherwise as described in the
Indenture.
4. The
Authority represents and warrants that:
(a) It
is a body corporate and politic constituting a public instrumentality and
political subdivision of the State of Connecticut duly organized and existing
under the laws of the State of Connecticut, particularly the State Commerce Act,
constituting Connecticut General Statutes, Sections 32-la through 32-23zz, as
amended (the “Act”). The Authority is authorized to issue the Bonds
in accordance with the Act and to lend the proceeds thereof to the Company to
finance the improvements described in the Indenture.
(b) The
Authority has complied with the provisions of the Act and has full power and
authority pursuant to the Act to consummate all transactions contemplated by
this Bond Purchase Agreement, the Bonds, the Resolution, the Indenture and the
Financing Documents, and to issue, sell and deliver the Bonds to the Underwriter
as provided herein.
(c) The
Resolution has been duly adopted by the Authority and is still in full force and
effect. The Resolution has authorized the execution, delivery and due
performance of this Bond Purchase Agreement, the Bonds, the Indenture and the
Financing Documents, and the taking of any and all action as may be required on
the part of the Authority to carry out, give effect to and consummate the
transactions contemplated by this Bond Purchase Agreement, and all approvals
necessary in connection with the foregoing have been received, except the State
Treasurer’s approval.
(d) When
delivered to and paid for by the Underwriter in accordance with the terms of
this Bond Purchase Agreement, the Bonds will have been duly authorized,
executed, authenticated, issued and delivered and will constitute valid and
binding special obligations of the Authority payable solely from revenues or
other receipts, funds or moneys pledged therefor under the Indenture and from
any amounts otherwise available therefor under the Indenture, and will be
entitled to the benefit of the Indenture. Neither the State nor any
municipality thereof will be obligated to pay the Bonds or the interest
thereon. Neither the faith and credit nor the taxing power of the
State nor any municipality thereof is pledged for the payment of the principal,
and premium, if any, of and interest on the Bonds.
(e) The
execution and delivery of this Bond Purchase Agreement, the Bonds, the Indenture
and the Financing Documents, and compliance with the provisions thereof, will
not conflict with or constitute on the part of the Authority a violation of,
breach of or default under its by-laws or any statute, indenture, mortgage, deed
of trust, note agreement or other agreement or instrument to which the Authority
is a party or by which the Authority is bound, or, to the knowledge of the
Authority, any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Authority or any of its activities or
properties, and all consents, approvals, authorizations and orders of
governmental or regulatory authorities which are required for the consummation
by the Authority of the transactions contemplated thereby have been obtained,
except the State Treasurer’s approval.
(f) Subject
to the provisions of the Agreement and the Indenture, the Authority will apply
the proceeds from the sale of the Bonds to the purposes specified in the
Indenture and the Financing Documents.
(g) To
the best knowledge of the Authority, there is no action, suit, proceeding or
investigation at law or in equity before or by any court, public board or body
pending or threatened against or affecting the Authority, or to the best
knowledge of the Authority, any basis therefor, wherein an unfavorable decision,
ruling or finding would adversely affect the transactions contemplated hereby
and by the Indenture, or which, in any way, would adversely affect the validity
of the Bonds, the Resolution, the Indenture, the Financing Documents,
this Bond Purchase Agreement, or any agreement or instrument to which the
Authority is a party and which is used or contemplated for use in consummation
of the transactions contemplated hereby and by the Indenture or the exemption
from taxation as set forth therein.
(h) The
representations and warranties of the Authority contained in Section 2.1 of the
Loan Agreement are true and correct as of the date hereof.
(i) Any
certificate signed by any Authorized Representative of the Authority under the
Resolution or this Bond Purchase Agreement and delivered to the Underwriter or
to the Trustee shall be deemed a representation and warranty by the Authority to
the Underwriter and the Company as to the statements made therein.
(j) The
information with respect to the Authority in the Official Statement of the
Authority, dated the date hereof, is correct and complete, except that none of
the representations and warranties herein apply to statements in or omissions
from the Official Statement made in reliance on or in conformity with
information furnished, to the Authority by the Company, or to information under
the headings “THE PROJECT”, “THE BONDS--Book-Entry Only System”, “TAX MATTERS”,
“LEGAL MATTERS” and “INDEPENDENT ACCOUNTANTS”, or to anything contained or
incorporated by reference in the appendices to the Official Statement or
otherwise with respect to the Company. The Authority has authorized
the use of the Official Statement in both its preliminary and final forms and
delivered duly executed copies thereof in final form to the
Underwriter.
It is
specifically understood and agreed that the Authority makes no representation as
to the financial position or business condition of the Company or any other
person and does not, with respect to the Official Statement or otherwise, except
to the extent the Authority deems the Preliminary Official Statement to be final
as provided in Section 9 hereof, represent or warrant as to any of the
statements, materials (financial or otherwise), representations or
certifications furnished or to be made and furnished by the Company or any other
person in connection with the sale of the Bonds, or as to the correctness,
completeness or accuracy of any of such statements, materials, representations
or certificates.
5. The
Company represents and warrants that:
(a) The
Company has been duly organized and validly exists as a corporation under the
laws of the State of Connecticut, having all requisite corporate power to carry
on its business as now constituted.
(b) The
execution and delivery by the Company of the Financing Documents and this Bond
Purchase Agreement, and all other agreements herein contemplated to be performed
by the Company, and the performance of the conditions herein contained and those
in each of such instruments to be performed are not in contravention of law and
will not conflict with or result in any breach of any of the terms, conditions
or provisions of, or constitute a default under any indenture, mortgage deed of
trust or other agreement or instrument to which the Company is a party, or the
Certificate of Incorporation and any special acts incorporated by reference
therein or Bylaws of the Company, or any order, rule or regulation applicable to
the Company of any court or of any federal or State regulatory body or
administrative agency or other governmental body having jurisdiction over the
Company or over any of its properties, or any statute, rule or regulation of any
jurisdiction applicable to the Company, or result in the creation or imposition
of any lien, charge or encumbrance upon any of the properties or assets of the
Company pursuant to the terms of any indenture, agreement or undertaking binding
upon it; and, to the extent required by law, the Connecticut Department of
Public Utility Control (the "DPUC") has approved or waived approval of all
matters relating to the Company’s participation in the transactions contemplated
in the Financing Documents which require such approval or waiver of approval;
such approval or waiver of approval remains in full force and effect in the form
issued; and, assuming that the Bonds are securities described in Section 3(a)(2)
of the Securities Act of 1933, as amended (the "Securities Act") and Section
3(a)(12) and (29) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), no other consent, approval, authorization or other order of any
regulatory body or administrative agency or other governmental body is legally
required for the Company’s participation in connection therewith, except as have
been obtained.
(c) Except
as disclosed or incorporated by reference in the Official Statement, there is no
action, suit, proceeding, inquiry or investigation, at law or in equity, or
before or by any court, public board or body, pending, or to the knowledge of
the Company threatened, wherein an unfavorable decision, ruling or finding would
(i) in the opinion of the Company, involve the possibility of any judgment or
liability to the extent not covered by insurance which would result in any
material adverse change in the business, properties or operations of the
Company, (ii) materially adversely affect the transactions contemplated by this
Bond Purchase Agreement or (iii) materially adversely affect the validity or
enforceability of the Financing Documents or this Bond Purchase
Agreement.
(d) The
Company will not take or omit to take any action which action or omission will
in any way cause the proceeds from the sale of the Bonds to be applied in a
manner contrary to that provided in the Financing Documents.
(e) Except
as disclosed or incorporated by reference in the Official Statement, the Company
is not a party to or bound by any contract, agreement or other instrument, or
subject to any judgment, order, writ, injunction, decree, rule or regulation
which, in the Company’s opinion, materially adversely affects, or in the future
may, so far as the Company can now reasonably foresee, materially adversely
affect the business, operations, properties, assets or condition, financial or
otherwise, of the Company.
(f) Neither
this Bond Purchase Agreement, other than Section 4 hereof as to which no
representation is made, nor any other document, certificate or written statement
furnished to the Underwriter or the Authority by or on behalf of the Company,
when read together with the information disclosed or incorporated by reference
in the Official Statement, contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained herein and therein, in light of the circumstances under which they
were made, not misleading or incomplete.
(g) The
Company has not taken and will not take any action and knows of no action that
any person, firm or corporation has taken or intends to take, which would cause
interest on the Bonds to be includable in the gross income of the recipients
thereof for federal income tax purposes.
(h) The
Company will deliver or cause to be delivered all opinions, certificates,
letters and other instruments and documents required to be delivered by the
Company pursuant to this Bond Purchase Agreement.
(i) The
Financing Documents and this Bond Purchase Agreement, when executed and
delivered, will be legal, valid, binding and enforceable obligations of the
Company, except to the extent that such enforceability may be limited by
bankruptcy or insolvency or other laws affecting creditors’ rights generally or
by general principles of equity.
(j) The
Company has authorized and consents to the use of the Official Statement by the
Underwriter. The information with respect to the Company included or
incorporated by reference in Appendix A to the Preliminary Official Statement
and the descriptions contained therein of the Indenture and the Financing
Documents and the Company’s participation in the transactions contemplated
thereby, with such additions or amendments as heretofore have been agreed upon
between the Authority, the Company and the Underwriter and which are reflected
in the Official Statement, are correct and do not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein in light of circumstances
under which they were made not misleading except that the Company makes no
representation as to (A) the information contained in Appendix D of each of the
Preliminary Official Statement and the Official Statement or the information
contained in each of the Preliminary Official Statement and the Official
Statement under the captions “INTRODUCTION - The Authority”, “THE AUTHORITY”,
“THE BONDS - Book Entry Only System”, “TAX MATTERS” and “UNDERWRITING” or (B)
the information with respect to DTC and its book-entry system. The
financial statements included in Appendix B to each of the Preliminary Official
Statement and the Official Statement have been prepared in accordance with
generally accepted accounting principles as applied in the case of
rate-regulated public utilities, comply with the Uniform System of Accounts and
ratemaking practices prescribed by the DPUC (except as otherwise disclosed in
the notes to such financial statements) and fairly present the financial
position, results of operations, retained earnings and statements of cash flows
of the Company at the respective dates and for the respective periods
indicated.
(k) There
has been no material adverse change in the business, properties, operations or
financial condition of the Company, taking into account season revenue
fluctuations, from that shown or incorporated by reference in the Official
Statement.
(l) The
representations and warranties of the Company contained in Section 2.2 of the
Loan Agreement are true and correct as of the date hereof.
(m) The
Company has obtained all approvals required in connection with the execution and
delivery of, and performance by the Company of its obligations under, this Bond
Purchase Agreement and the Financing Documents.
(n) Any
certificate signed by an officer of the Company and delivered to the Underwriter
at the time of the purchase and sale of the Bonds shall be deemed a
representation and warranty by the Company to the Underwriter as to the
statements made therein.
(o) The
Company deems the Preliminary Official Statement to be final as of its date for
purposes of Rule 15c2-12 of the SEC.
(p) No
material event of default or event which, with notice or lapse of time or both,
would constitute a material event of default or default under any material
agreement or material instrument to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the Company is
subject has occurred and is continuing.
(q) The
Company will undertake, pursuant to the Disclosure Agreement, to provide certain
annual financial information and notices of the occurrence of certain events, if
material.
6. The
Company agrees to indemnify and hold harmless the Authority, the Underwriter,
any member, officer, official, employee or agent of the Authority or the State
or the Underwriter, and each person, if any, who controls the Underwriter within
the meaning of Section 15 of the Securities Act, as amended (for purposes of
this paragraph, collectively the "Indemnified Parties"), to the extent permitted
under the applicable law, against any and all losses, claims, damages,
liabilities or expenses whatsoever, joint or several, caused by (1) any breach
of any representation or warranty made by the Company in this Bond Purchase
Agreement or the Financing Documents or (2) any untrue statement or misleading
statement or allegedly misleading statement of a material fact contained in the
Official Statement or caused by any omission or alleged omission from the
Official Statement of any material fact necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims, damages,
liabilities or expenses are caused by any such untrue or misleading statement or
omission or allegedly untrue or misleading statement or omission in the
information contained under the captions “INTRODUCTION - The Authority”, “THE
AUTHORITY”, “THE BONDS - Book Entry Only System”, “TAX MATTERS” and
“UNDERWRITING” or in Appendix D thereto (except to the extent that the
information set forth in such section is premised on facts and representations
made in writing by the Company); provided, however, that in the case of clause
(2) above such indemnity shall not inure to the benefit of the Underwriter (or
any person controlling the Underwriter or any officer or employee of the
Underwriter) if (i) the Company has caused to be delivered to the Underwriter on
a timely basis sufficient quantities of the Official Statement, as amended or
supplemented, and (ii) a copy of the Official Statement, as then so amended or
supplemented, was not sent or given by or on behalf of the Underwriter to the
person asserting such loss, claim, damage, liability or expense prior to or with
written confirmation of the sale of such Bonds to such person by the
Underwriter, and (iii) the receipt of the Official Statement, as then so
supplemented or amended, would have been a valid defense to the loss, claim,
damage, liability or expense asserted. This indemnity agreement shall
not be construed as a limitation on any other liability which the Company may
otherwise have to any Indemnified Party.
The Underwriter agrees to indemnify and
hold harmless the Authority and the Company, and each director, officer or
employee of the Authority and the Company, and each person who controls either
of them within the meaning of Section 15 of the Securities Act (for purposes of
this paragraph, an “Indemnified Party”) to the same extent as the foregoing
indemnity from the Company to the Underwriter, but only with reference to
written information furnished to the Authority or the Company by or on behalf of
the Underwriter specifically for inclusion in the Official Statement under the
caption “UNDERWRITING”. This indemnity agreement shall not be
construed as a limitation on any other liability which the Underwriter may
otherwise have to any Indemnified Party.
An
Indemnified Party will, promptly after receiving notice of the commencement of
any action against such Indemnified Party in respect of which indemnification
may be sought against the Company or the Underwriter, as the case may be (in any
case the "Indemnifying Party"), notify the Indemnifying Party in writing of the
commencement of the action, enclosing a copy of all papers served, but the
omission so to notify the Indemnifying Party of any such action shall not
relieve the Indemnifying Party of any liability which it may have to any
Indemnified Party otherwise than under this Section. If such action
is brought against an Indemnified Party and such Indemnified Party notices the
Indemnifying Party of its commencement, the Indemnifying Party may, or if so
requested by the Indemnified Party shall, participate in it or assume its
defense, with counsel reasonably satisfactory to the Indemnified Party, and
after notice from the Indemnifying Party to the Indemnified Party of an election
to assume the defense, the Indemnifying Party will not be liable to the
Indemnified Party under this Section for any legal or other expenses
subsequently incurred by such Indemnified Party in connection with the defense
other than reasonable costs of investigation subsequently incurred by the
Indemnified Party in connection with the defense thereof. Until the
Indemnifying Party assumes the defense of any such action at the request of the
Indemnified Party, the Indemnifying Party may participate at its own expense in
the defense of the action. If the Indemnifying Party does not employ counsel to
have charge of the defense or if any Indemnified Party reasonably concludes that
there may be defenses available to it or them which are different from or in
addition to those available to the Indemnifying Party or the Indemnified Party
and the Indemnifying Parties may have conflicting interests which would make it
inappropriate for the same counsel to represent both of them, reasonable legal
and other expenses incurred by such Indemnified Party will be paid by the
Indemnifying Party and the Indemnifying Party shall not have the right to direct
the defense of such action on behalf of such Indemnified Party (it being
understood, however, that the Indemnifying Party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel)
approved by the Underwriter in the case of paragraph (a) representing all
Indemnified Parties who are parties to such action). Any obligation
under this Section 5 of an Indemnifying Party to reimburse an Indemnified Party
for expenses includes the obligation to reimburse the Indemnified Party to cover
such expenses in reasonable amounts and at reasonable periodic intervals upon
receipt by the Indemnifying Party of an invoice for such expenses not more often
than monthly as requested by the Indemnifying Party. Notwithstanding
the foregoing, the Indemnifying Party shall not be liable for any settlement of
any action or claim effected without its consent, which consent shall not be
unreasonably withheld.
In order
to provide for just and equitable contribution in circumstances in which the
indemnification provided for above is due in accordance with its terms but is
for any reason held by a court to be unavailable from the Company or Underwriter
on grounds of policy or otherwise, the Company and the Underwriter shall
contribute to the total losses, claims, damages and liabilities (including
reasonable legal or other expenses of investigation or defense) to which they
may be subject (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Underwriter from the offering of the
Bonds or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Underwriter in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The respective relative
benefits received by the Company and the Underwriter shall be deemed to be in
the same proportion as the proceeds from the sale (i.e., the principal amount of
the Bonds) bears to the discount or fee in connection with such sale received by
the Underwriter as an underwriting fee, as set forth in Section 12
hereof. The relative fault of the Company and the Underwriter shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriter and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. However, no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f)
of the
Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section, each person who controls the Underwriter within the meaning of Section
15 of the Securities Act will have the same rights to contribution as the
Underwriter, and each person who controls the Company within the meaning of
Section 15 of the Securities Act and each officer and each director of the
Company will have the same rights to contribution as the Company, subject to the
foregoing sentence. Any party entitled to contribution will, promptly
after receiving notice of commencement of any action, suit or proceeding against
such party in respect of which a claim for contribution may be made under this
paragraph, notify each party from whom contribution may be sought, but the
omission to notify such party shall not relieve any party from whom contribution
may be sought from any other obligation it may have otherwise than pursuant to
this paragraph.
7. The
Company’s obligations hereunder, except those contained in Sections 6 and 12,
will be conditioned upon the approval by the DPUC of the issuance of the Note,
the loan under the Agreement and the transactions of the Company contemplated by
the Financing Documents; the purchase of and payment for the Bonds in accordance
herewith on the Closing Date; the performance of the obligations of the
Authority and the Underwriter not dependant on the performance of the Company;
and the delivery to the Authority of the approving opinion of Winston &
Strawn LLP, Bond Counsel, in form and substance substantially in the form set
forth as Appendix D to the Official Statement.
8. The
Authority’s obligation to deliver the Bonds and to accept payment therefor are
subject to the performance of the obligations of the Company and the Underwriter
not dependent on the performance of the Authority, and will be conditioned upon
the approval by the DPUC of the issuance of the Note, the loan under the
Agreement and the transactions of the Company contemplated by the Financing
Documents; the purchase of and payment for the Bonds in accordance herewith on
the Closing Date; the delivery by the Underwriter to the Authority of a
certificate substantially in the form of Schedule I to the Tax Regulatory
Agreement; and the delivery to the Authority of the approving opinion of Winston
& Strawn LLP, Bond Counsel, in form and substance substantially in the form
set forth as Appendix D to the Official Statement, and will be subject to the
further condition that all documents, certificates, opinions and other items to
be delivered at the closing pursuant hereto and as otherwise may reasonably be
requested by Bond Counsel not be unsatisfactory in form and substance to Bond
Counsel.
9. The
Underwriter’s obligations hereunder to purchase and pay for the Bonds will be
subject to (i) the approval by the DPUC of the issuance of the Note, the loan
under the Agreement and the transactions of the Company contemplated by the
Financing Documents, (ii) the performance by the Authority of its
obligations to be performed hereunder at or prior to the Closing Date,
(iii) the performance by the Company of its obligations to be performed
hereunder at or prior to the Closing Date, (iv) the continued accuracy in all
material respects of the representations and warranties of the Authority and the
Company contained herein and in the Agreement as of the date hereof and as of
the Closing Date, and (v) in the reasonable judgment of the Underwriter, the
following conditions:
(a) After
the date hereof, no litigation may be threatened or pending in any court (i)
seeking to restrain or enjoin the issuance or delivery of the Bonds or the
payment, collection or application of the proceeds thereof or moneys and
securities pledged or to be pledged under the Indenture, or (ii) in any way
questioning or affecting the validity of the Bonds or any provisions of the
Indenture, the Financing Documents or this Bond Purchase Agreement or any
proceedings taken by the Authority with respect to the foregoing, or (iii)
questioning the Authority’s creation, organization or existence or the titles to
office of any of its officers authorized under the Resolution, or its power to
lend or provide money in connection with the Project as referred to in the
Indenture and the Agreement, or (iv) questioning the Company’s power to enter
into and perform the Financing Documents or this Bond Purchase
Agreement;
(b) The
market value of the Bonds has not been adversely affected by reason of the fact
that between the date hereof and the Closing Date:
(1)
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legislation
has been enacted by the Congress or recommended to the Congress for
passage by the President of the United States, or favorably reported for
passage to either House of the Congress by any Committee of such House to
which such legislation has been referred for consideration,
or
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(2)
|
a
decision has been rendered by a Court of the United States, or the United
States Tax Court, or
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(3)
|
an
order, ruling, regulation or official statement has been made by the
Treasury Department of the United States or the Internal Revenue
Service,
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with the
purpose or effect, directly or indirectly, of imposing federal income taxation
upon such revenues or other income as would be derived by the Authority under
the Agreement or such interest on the Bonds as would be received by the true
owners and holders thereof, other than a person who, within the meaning of
Section 147(a) of the Internal Revenue Code of 1986, as amended (the “Code”), is
a “substantial user” or “related person”;
(c) The
market value of the Bonds has not in the opinion of the Underwriter been
materially adversely affected by reason of the fact that between the date hereof
and the Closing Date any legislation, ordinance, rule or regulation has been
introduced in or enacted by any governmental body, department or agency in the
State, or a decision has been rendered by any court of competent jurisdiction
within the State with the purpose or effect, directly or indirectly, of imposing
state income taxation upon such revenues or other income as would be derived by
the Authority under the Agreement or such interest on the Bonds as would be
received by the true owners and holders thereof;
(d) No
stop order, ruling, regulation or official statement by, or on behalf of, the
Securities and Exchange Commission may have been issued or made after the date
hereof to the effect that the issuance, offering or sale of obligations of the
general character of the Bonds, or the Bonds, as contemplated hereby or by the
Official Statement, is in violation or would be in violation unless registered
or otherwise qualified under any provisions of the Securities Act of 1933, as
amended and as then in effect, or the Trust Indenture Act of 1939, as amended
and as then in effect;
(e) After
the date hereof, no legislation may have been introduced in or enacted by the
House of Representatives or the Senate or the Congress of the United States of
America, nor shall a decision by a court of the United States of America have
been rendered, or a ruling, regulation or official statement by or on behalf of
the Securities and Exchange Commission or other governmental agency having
jurisdiction of the subject matter have been made or proposed to the effect that
obligations of the general character of the Bonds, or the Bonds, are not exempt
from registration, qualification or other requirements of the Securities Act of
1933, as amended and as then in effect, or of the Securities Act of 1934, as
amended and then in effect, or of the Trust Indenture Act of 1939, as amended
and as then in effect;
(f) (i)
No event shall have occurred after the date hereof, which, in the opinion of the
Underwriter, makes untrue, incorrect or inaccurate, in any material respect, any
statement or information contained or incorporated by reference in the Official
Statement (including the Appendices thereto), or which is not reflected in the
Official Statement but should be reflected therein for the purpose for which the
Official Statement is to be used in order to make the statements and information
contained therein in light of the circumstances under which they were made not
misleading in any material respect, and (ii) there shall be no material adverse
change (not in the ordinary course of business) in the condition of the Company
from that set forth in or incorporated by reference in the Official Statement
and the Appendix A thereto;
(g) In
the judgment of the Underwriter, the market price of the Bonds, or the market
price generally of obligations of the general character of the Bonds, shall not
have been adversely affected because: (a) additional material restrictions not
in force as of the date hereof shall have been imposed upon trading in
securities generally by any governmental authority or by any national securities
exchange; (b) the New York Stock Exchange, Inc. or other national securities
exchange, or any governmental authority, shall impose, as to the Bonds or
similar obligations, any material restrictions not now in force, or increase
materially those now in force, with respect to the extension of credit by, or
the charge to the net capital requirements of, underwriters; (c) a general
banking moratorium shall have been established by federal, New York or
Connecticut authorities; or (d) a war involving the United States of America
shall have been declared, or any other national calamity shall have occurred, or
any conflict involving the armed forces of the United States of America has
escalated to such a magnitude as to materially adversely affect the
Underwriter’s ability to market the Bonds;
(h) All
matters relating to this Bond Purchase Agreement, the Bonds and the sale
thereof, the Indenture, the Financing Documents and the consummation of the
transactions contemplated by this Bond Purchase Agreement must be approved by
the Underwriter but such approval may not be unreasonably withheld;
and
(i) At
or prior to the Closing Date the Underwriter must have received the following
documents:
(1) Certified
copies of the executed Financing Documents and the Indenture.
(2) The
legal opinions of the following, dated the Closing Date, in the form and
substance satisfactory to Bond Counsel and the Underwriter:
(A) Murtha
Cullina LLP, counsel to the Company.
(B) Day
Pitney LLP, counsel to the Trustee.
(C) Winston
& Strawn LLP, Bond Counsel, substantially in the form set forth as Appendix
D to the Official Statement.
(D) Winston
& Strawn LLP, Bond Counsel, concerning supplementary matters.
The
respective forms of such opinions above are subject, in each case, only to such
changes therein as counsel to the Underwriter approve;
(3) The
legal opinion of Shipman, Sosensky & Marks, LLC, counsel to the Underwriter,
addressed to the Underwriter in the form and substance satisfactory to the
Underwriter;
(4) A
certificate of an Authorized Representative of the Authority, dated the Closing
Date, to the effect that (i) on and as of the Closing Date, each of the
representations and warranties of the Authority set forth in Section 4 hereof is
true, accurate and complete and all agreements of the Authority herein provided
and contemplated to be performed on or prior to the Closing Date have been so
performed; (ii) the executed copies of the Financing Documents and the certified
copies of the Resolution authorizing the Bonds are true, correct and complete
copies of such documents and have not been modified, amended, superseded or
rescinded but remain in full force and effect as of the Closing Date; (iii) the
Bonds have been duly authorized, executed and delivered by the Authority; (iv)
this Bond Purchase Agreement, the Indenture and the Financing Documents and any
and all other agreements and documents required to be executed and delivered by
the Authority in order to carry out, give effect to and consummate the
transactions contemplated hereby and by the Indenture have each been duly
authorized, executed and delivered by the Authority, and as of the Closing Date
each is in full force and effect and substantially all right, title and interest
inuring to the Authority under the Agreement has been duly pledged, and the loan
payments thereunder assigned, to the Trustee under the Indenture for the benefit
of the holders of the Bonds; (v) no litigation is pending or threatened to
restrain or enjoin the issuance or sale of the Bonds or in any way contesting
the validity or affecting the authority for the issuance of the Bonds, the
authorization, execution or performance of the Indenture and the Financing
Documents, or the existence or powers of the Authority or the right of the
Authority to finance the Project; and (vi) the Treasurer of the State has
approved all matters and resolutions of the Authority required by the Act to be
approved by the Treasurer with respect to the issuance, sale and delivery of the
Bonds;
(5) A
certificate of the Chairman, President and Chief Executive Officer, Vice
President-Finance, Chief Financial Officer and Treasurer, any Vice President,
Assistant Treasurer or Secretary of the Company, dated the Closing Date, as to
the due incorporation, valid existence of the Company under the laws of the
State, and the due authorization, execution and delivery by the Company of this
Bond Purchase Agreement and the Financing Documents and annexing resolutions of
the Board of Directors or Executive Committee or both with respect to such
authorizations;
(6) A
certificate of the Chairman, President and Chief Executive Officer, Vice
President-Finance, Chief Financial Officer and Treasurer, any Vice President,
Assistant Treasurer or Secretary of the Company, dated the Closing Date,
certifying severally that (i) the Company does not have any material contingent
obligations or any material contractual agreements which are not disclosed or
incorporated by reference in the Official Statement, including Appendix B
thereto (ii) so far as is known to the Company, there are no material pending or
threatened legal proceedings to which the Company is or may be made a party or
to which any of its property is or may become subjugated, which has not been
fully disclosed or incorporated by reference in the Official Statement, (iii)
there is no action or proceeding pending, or to its best knowledge threatened,
looking toward the dissolution or liquidation of the Company and there is no
action or proceeding pending, or to its best knowledge threatened, by or against
the Company affecting the validity and enforceability of the terms of the
Financing Documents or this Bond Purchase Agreement, (iv) since December 31,
2008 there has been no material adverse change in the financial condition of the
Company, taking into account seasonal revenue fluctuations, not disclosed or
incorporated by reference in the Official Statement, and (v) the representations
and warranties of the Company contained herein are true, complete and correct as
of the Closing Date, with the same effect as if those representations and
warranties had been made on and as of such date;
(7) A
certificate, satisfactory in form and substance to the Underwriter, of one or
more duly authorized officers of the Trustee, dated the Closing Date, as to the
due execution and delivery of the Indenture and the Disclosure Agreement by the
Trustee and the due authentication and delivery of the Bonds by the Trustee
thereunder;
(8) Letters
from Standard & Poor’s Ratings Service, the rating agency, indicating that
the rating for the Bonds is no less than "A";
(9) A
letter from PricewaterhouseCoopers LLP, independent auditors for the Company,
dated the Closing Date and addressed to the Underwriter;
(10) A
copy of the order of the DPUC approving the issuance of the Bonds and the
transactions of the Company contemplated by the Financing
Documents;
(11) Certificates
evidencing that the insurance required to be obtained pursuant to the Agreement
is in place;
(12) A
letter or other written evidence satisfactory to Bond Counsel that the State
Treasurer has approved the issuance of the Bonds in accordance with the
Act;
(13) A
letter or other written evidence satisfactory to Bond Counsel that an elected
official has approved the issuance of the Bonds in accordance with the
applicable provisions of the Code; and
(14) Such
additional certificates, instruments or other documents as the Underwriter may
reasonably require to evidence the accuracy, as of the Closing Date, of the
representations and warranties herein contained, and the due performance and
satisfaction by the Company at or prior to such time of all agreements then to
be performed and all conditions then to be satisfied by any one or all of them
in connection with this Bond Purchase Agreement, the Financing Documents or the
Indenture.
In
addition:
The
Authority hereby represents that the Preliminary Official Statement, with such
additions and amendments as have been heretofore agreed upon between the
Authority and the Underwriter, is deemed final as of the date thereof, except
for the omission of offering prices, interest rates, selling compensation,
aggregate principal amount, principal amount per maturity, delivery dates,
ratings and other terms of the Bonds depending on such matters. Such
representation is made in reliance upon the Company’s representation herein that
material relating to the Company included in the Preliminary Official Statement
is true and correct. The Company has contracted with a printer
acceptable to the Underwriter for the delivery to the Underwriter at Company’s
expense of the number of copies requested by the Underwriter of the Official
Statement and will cooperate with the Underwriter to secure the delivery thereof
with reasonable promptness and within seven business days. The
Underwriter agrees to file a copy of such Official Statement with a nationally
recognized municipal securities information repository within five (5) days
after such final Official Statements are made available to the Underwriter and
to advise the Authority as to the location and time of such
filing. Should the Underwriter require additional copies of the
Official Statement, the Authority agrees to cooperate with the Underwriter in
obtaining such copies at Company’s expense if such request is made within 90
days from the date hereof and at the Underwriter’s expense if such request is
made thereafter. The Underwriter has taken and will continue to take
action to comply with the Securities Exchange Commission Municipal Securities
Disclosure Rule, 17 C.F.R. §240.15c2-12 and the provisions of this paragraph
shall survive the expiration hereof to the extent necessary for such
purpose.
Except as
provided in Sections 6 and 12 hereof, if the Authority or the Company shall fail
or be unable to satisfy the conditions of their obligations contained in this
Bond Purchase Agreement, or if the Underwriter’s obligations hereunder shall be
terminated for any reason permitted by this Bond Purchase Agreement, this Bond
Purchase Agreement shall terminate and neither the Authority nor the Underwriter
nor the Company shall be under any further obligation hereunder.
SIMULTANEOUSLY
WITH OR BEFORE DELIVERY OF THE BONDS, THE UNDERWRITER SHALL FURNISH TO THE
AUTHORITY A CERTIFICATE SUBSTANTIALLY IN FORM ATTACHED TO THE TAX REGULATORY
AGREEMENT ACCEPTABLE TO BOND COUNSEL TO THE EFFECT THAT (I) THE UNDERWRITER HAS
MADE A
BONA
FIDE
PUBLIC
OFFERING OF THE BONDS TO THE PUBLIC AT INITIAL OFFERING PRICES NOT GREATER THAN
THE RESPECTIVE PRICES SHOWN ON THE COVER OF THE OFFICIAL STATEMENT, OR IN THE
CASE OF DISCOUNT OBLIGATIONS SOLD ON A YIELD BASIS, AT YIELDS NO LOWER THAN
THOSE SHOWN ON THE COVER, INCLUDING INTEREST ACCRUED ON THE BONDS FROM THE DATE
THEREOF, AND (II) A SUBSTANTIAL AMOUNT OF THE FINAL AMOUNT OF EACH MATURITY OF
THE BONDS WAS SOLD TO THE FINAL PURCHASER THEREOF (NOT INCLUDING BOND HOUSES AND
BROKERS OR SIMILAR PERSONS OR ORGANIZATIONS ACTING IN THE CAPACITY OF
UNDERWRITER OR WHOLESALERS) AT PRICES NOT GREATER THAN SUCH OFFERING PRICES OR
YIELDS. Bond Counsel advises that (i) such certificate must be made
on the best knowledge, information and belief of the Underwriter, (ii) the sale
to the public of 10% or more of each maturity of the Bonds at prices or yields
not greater than the Initial Offering Prices or Yields would be sufficient for
the purpose of certifying as to the sale of a substantial amount of the Bonds,
and (iii) reliance on other facts as a basis for such certification would
require evaluation by Bond Counsel to assure compliance with the statutory
requirement.
10. The
Authority and the Company agree that all representations, warranties and
covenants made by them herein, and in certificates or other instruments
delivered pursuant hereto or in connection herewith, shall be deemed to have
been relied upon by the Underwriter notwithstanding any investigation heretofore
or hereafter made by the Underwriter on its behalf, and that all
representations, warranties and covenants made by the Authority and the Company
herein and therein and all of the Underwriter’s rights hereunder and thereunder
shall survive the delivery of the Bonds.
11. The
Authority shall pay, but only from proceeds of the Bonds or moneys to be
provided by the Company, any expenses incident to the performance of its
obligations hereunder including but not limited to (a) the cost of the
preparation and printing (for distribution on or prior to the date hereof) of
the Financing Documents, the Indenture, the Preliminary Official Statement and
the final Official Statement (in such numbers as the Authority, the Company and
the Underwriter shall mutually agree upon), and this Bond Purchase Agreement;
(b) the cost of the preparation and printing of the Bonds; (c) the fees and
disbursements of Winston & Strawn LLP, Bond Counsel; (d) the fees of any
other attorneys, experts or consultants retained by the Authority; and (e) any
fee to the rating agencies.
The
Underwriter shall pay (a) the cost of the preparation and printing of the Blue
Sky Survey, if any; (b) all advertising expenses in connection with the public
offering of the Bonds; (c) the fees and disbursements of Shipman, Sosensky &
Marks, LLC, counsel to the Underwriter, subject to reimbursement by the Company;
and (d) all other expenses incurred by the Underwriter in connection with their
public offering and distribution of the Bonds, including the fees and
disbursements of all attorneys, experts and consultants retained by
them.
On or
prior to the Closing Date, the Company shall pay the Underwriter’s fee of
$600,000 and shall reimburse the Underwriter for the fees and disbursements of
Shipman, Sosensky & Marks, LLC, counsel to the Underwriter of
$15,300.
12. All
communications hereunder shall be in writing and, unless otherwise directed in
writing, shall be addressed as follows: if to the Authority at 999 West Street,
Rocky Hill, Connecticut 06067, Attention: Executive Director; if to the Company
at 93 West Main Street, Clinton, Connecticut 06413, Attention: Vice
President-Finance, Chief Financial Officer and Treasurer; if to the Underwriter
at 12555 Manchester Road, St. Louis, Missouri 63131, Attention: Tom
Lally, Director.
13. This
Bond Purchase Agreement shall be construed and enforceable in accordance with
the laws of the State of Connecticut.
14. All
terms used but not defined herein shall have the meanings set forth in the
Official Statement.
15. This
Bond Purchase Agreement may be executed in any number of counterparts, each of
which, when so executed and delivered shall be an original; but such
counterparts shall together constitute but one and the same Bond Purchase
Agreement.
16. In
case any one or more of the provisions contained in this Bond Purchase Agreement
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Bond Purchase Agreement, but this Bond Purchase
Agreement shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein.
17. This
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Underwriter, the Authority and the Company. This Agreement may be
signed in several counterparts each of which shall be an original and all of
which shall constitute but one and the same instrument.
18. As
provided in Connecticut General Statutes (“CGS”) Section 4a-60, as amended, and
to the extent required by Connecticut law, the Company and the Underwriter each
(1) agrees and warrants that in the performance of this agreement it will not
discriminate or permit discrimination against any person or group of persons on
the grounds of race, color, religious creed, age, marital status, national
origin, ancestry, sex, mental retardation, mental disability or physical
disability, including, but not limited to, blindness, unless it is shown that
such disability prevents performance of the work involved, in any manner
prohibited by the laws of the United States or of the State of
Connecticut, (2) agrees to take affirmative action to insure that
applicants with job-related qualifications are employed and that employees are
treated when employed without regard to their race, color, religious creed, age,
marital status, national origin, ancestry, sex, mental retardation, mental
disability or physical disability, including, but not limited to, blindness,
unless it is shown by it that such disability prevents performance of the work
involved; (3) agrees in all solicitations or advertisements for employees placed
by or on behalf of it, to state that it is an "affirmative action-equal
opportunity employer" in accordance with regulations adopted by the Commission
on Human Rights and Opportunities (“CHRO”), (4) agrees to provide each labor
union or representative of workers with which it has a collective bargaining
agreement or other agreement or understanding and each vendor with which it has
an agreement or understanding, a notice to be provided by CHRO advising the
labor union or workers' representative of its commitments under CGS Section
4a-60, and to post copies of the notice in conspicuous places available to
employees and applicants for employment, (5) agrees to comply with each
provision of CGS Sections 4a-60, 46a-68e and 46a-68f and with each regulation or
relevant order issued by CHRO pursuant to CGS Sections 46a-56, 46a-68e and
46a-68f, (6) agrees to provide the CHRO with such information requested by the
commission, and permit access to pertinent books, records and accounts,
concerning the employment practices and procedures of it as relate to the
provisions of CGS Sections 4a-60 and 46a-56. This provision is
qualified in its entirety by the following
proviso
: provided the State
of Connecticut laws are not in conflict with the Defense of Marriage Act
(“DOMA”) and provided further that this provision does not apply to any such
policies, practices or plans governed by the Employee Retirement Income Security
Act of 1974 (“ERISA”).
As
provided in CGS Section 4a-60a, as amended, and to the extent required by
Connecticut law, the Company and the Underwriter each (1) agrees and warrants
that in the performance of this agreement it will not discriminate or permit
discrimination against any person or group of persons on the grounds of sexual
orientation, in any manner prohibited by the laws of the United States or of the
State of Connecticut, and that employees are treated when employed without
regard to their sexual orientation; (2) agrees to provide each labor union or
representative of workers with which it has a collective bargaining agreement or
other agreement or understanding and each vendor with which it has an agreement
or understanding, a notice to be provided by the CHRO advising the labor union
or workers' representative of its commitments under CGS Section 4a-60a, and to
post copies of the notice in conspicuous places available to employees and
applicants for employment; (3) agrees to comply with each provision of CGS
Section 4a-60a and with each regulation or relevant order issued by CHRO
pursuant to CGS Sections 4a-60a and 46a-56; (4) agrees to provide the CHRO with
such information requested by CHRO, and permit access to pertinent books,
records and accounts, concerning the employment practices and procedures of it
which relate to the provisions of CGS Sections 4a-60a and
46a-56. This provision is qualified in its entirety by the following
proviso
: provided the
State of Connecticut laws are not in conflict with the Defense of Marriage Act
(“DOMA”) and provided further that this provision does not apply to any such
policies, practices or plans governed by the Employee Retirement Income Security
Act of 1974 (“ERISA”).
CONNECTICUT DEVELOPMENT
AUTHORITY
By:
Authorized Representative
THE CONNECTICUT WATER
COMPANY
By:
/s/ David
C. Benoit
David C.
Benoit, Vice President-Finance, CFO and Treasurer
EDWARD D. JONES & CO,
L.P.
By:
/s/ Tom
Lally
Tom
Lally, Director
CONNECTICUT
DEVELOPMENT AUTHORITY
and
THE
CONNECTICUT WATER COMPANY
__________________
LOAN
AGREEMENT
__________________
Dated
as of December 1, 2009
Connecticut
Development Authority
$20,000,000
Water Facilities Revenue Bonds
(The
Connecticut Water Company Project - 2009A Series)
TABLE
OF CONTENTS
Page
PREAMBLE 1
ARTICLE
I DEFINITIONS
AND INTERPRETATION
|
Section
1.2.
|
Interpretation
|
|
ARTICLE
II REPRESENTATIONS
AND WARRANTIES
|
Section
2.1.
|
Representations
by the Authority
|
|
|
Section
2.2.
|
Representations
by the Borrower
|
|
ARTICLE
III THE
LOAN
|
Section
3.1.
|
Loan
Clauses
|
|
|
Section
3.2.
|
Other
Amounts Payable
|
|
|
Section
3.3.
|
Manner
of Payment
|
|
|
Section
3.4.
|
Obligation
Unconditional
|
|
|
Section
3.5.
|
Securities
Clauses
|
|
|
Section
3.6.
|
Issuance
of Bonds
|
|
|
Section
3.7.
|
Effective
Date and Term
|
|
|
Section
3.8.
|
No
Additional Bonds
|
|
ARTICLE
IV THE
PROJECT
|
Section
4.1.
|
Completion
of the Project
|
|
|
Section
4.2.
|
Payment
of Additional Project Costs by Borrower
|
|
|
Section
4.3.
|
Completion
Certificate
|
|
|
Section
4.4.
|
No
Warranty Regarding Condition, Suitability or Cost of
Project
|
|
|
Section
4.7.
|
Compliance
with Law
|
|
|
Section
4.8.
|
Maintenance
and Repair
|
|
|
Section
4.10.
|
Leasing
of the Project
|
|
|
Section
4.11.
|
Disposition
of the Project
|
|
|
Section
4.12.
|
Borrower
Contribution
|
|
ARTICLE
V CONDEMNATION
DAMAGE AND DESTRUCTION
|
Section
5.1.
|
No
Abatement of Payments Hereunder
|
|
|
Section
5.2.
|
Project
Disposition Upon Condemnation, Damage or Destruction
|
|
|
Section
5.3.
|
Application
of Net Proceeds of Insurance or Condemnation
|
|
ARTICLE
VI COVENANTS
|
Section
6.1.
|
The
Borrower to Maintain its Corporate Existence; Conditions under which
Exceptions Permitted
|
|
|
Section
6.2.
|
Indemnification,
Payment of Expenses, and Advances
|
|
|
Section
6.3.
|
Incorporation
of Tax Regulatory Agreement; Payments Upon
Taxability
|
|
Section
6.4.
|
Public
Purpose Covenants
|
|
|
Section
6.5.
|
Further
Assurances and Corrective Instruments
|
|
|
Section
6.6.
|
Covenant
by Borrower as to Compliance with Indenture
|
|
|
Section
6.7.
|
Assignment
of Agreement or Note
|
|
|
Section
6.9.
|
Default
Notification
|
|
|
Section
6.10.
|
Covenant
Against Discrimination
|
|
|
Section
6.11.
|
Covenant
to Provide Disclosure
|
|
|
Section
6.12.
|
Negative
Pledge
|
|
ARTICLE
VII EVENTS
OF DEFAULT AND REMEDIES
|
Section
7.1.
|
Events
of Default
|
|
|
Section
7.2.
|
Remedies
on Default
|
|
|
Section
7.3.
|
Remedies
on Public Purpose Default
|
|
|
Section
7.4.
|
No
Duty to Mitigate Damages
|
|
|
Section
7.5.
|
Remedies
Cumulative
|
|
ARTICLE
VIII PREPAYMENT
PROVISIONS
|
Section
8.1.
|
Optional
Prepayment
|
|
|
Section
8.2.
|
Notices
of Prepayment
|
|
|
Section
8.3.
|
Mandatory
Prepayment on Taxability and Receipt of Request for Redemption of a
Deceased Holder’s Bonds
|
|
ARTICLE
IX GENERAL
|
Section
9.2.
|
Benefit
of and Enforcement by Bondholders
|
|
|
Section
9.3.
|
Force
Majeure
|
|
|
Section
9.6.
|
Compliance
with C
|
|
|
Section
9.7.
|
Prior
Agreements Superseded
|
|
|
Section
9.8.
|
Execution
of Counterparts
|
|
|
Section
9.10.
|
Separability
of Invalid Provisions
|
|
|
Section
9.11.
|
Third
Party Beneficiaries
|
|
|
Section
9.12.
|
Governing
Law
|
|
APPENDICES
Appendix
A - Form of Promissory Note
Appendix
B – Project Description
Connecticut
Development Authority
The
Connecticut Water Company
LOAN
AGREEMENT
THIS LOAN AGREEMENT
, made and
dated as of December 1, 2009, by and between the
CONNECTICUT DEVELOPMENT
AUTHORITY
, a body corporate and politic constituting a public
instrumentality and political subdivision of the State of Connecticut, and
THE CONNECTICUT WATER COMPANY
,
a corporation organized and existing under the laws of the State of
Connecticut,
WITNESSETH
THAT:
WHEREAS
, the State Commerce
Act, constituting Connecticut General Statutes, Sections 32-1a through 32-23zz,
as amended (the “Act”), declares that there is a continuing need in the State
(1) for industrial development and activity to provide and maintain employment
and tax revenues and to control, abate and prevent pollution to protect the
public health and safety, (2) for the development of recreation facilities to
promote tourism, provide and maintain employment and tax revenues, and promote
the public welfare, (3) for the development of commercial and retail sales and
service facilities in urban areas to provide and maintain construction and
permanent employment and tax revenues, to improve conditions of deteriorated
physical development, slow economic growth and eroded financial health of the
public and private sectors in urban areas and to revitalize the economy of urban
areas, and (4) for assistance to public service businesses providing
transportation and utility services in the State, and that the availability of
financial assistance and suitable facilities are important inducements to
industrial and commercial enterprises to remain or locate in the State and to
provide industrial, recreation, urban and public service projects;
and
WHEREAS
, the Act provides that
(1) the term “project” as used therein means any facility, plant, works, system,
building, structure, utility, fixture or other real property improvement located
in the State, and the land on which it is located or which is reasonably
necessary in connection therewith, which is of a nature or which is to be used
or occupied by any person for purposes which would constitute it as an economic
development project, recreation project, urban project, public service project
or health care project, and any real property improvement reasonably related
thereto, and (2) a project may also include or consist exclusively of machinery,
equipment or fixtures; and
WHEREAS
, the Act provides that
the Authority shall have power to determine the location and character of, and
extend credit or make loans to any person for the planning, designing,
acquiring, improving and equipping of, a project which may be secured by loan,
lease or sale agreements, contracts and other instruments, upon such terms and
conditions as the Authority shall determine to be reasonable, to require the
inclusion in any contract, loan agreement or other instrument of such provisions
for the construction, use, operation, maintenance and financing of the project
as the Authority may deem necessary or desirable, to issue its bonds for such
purposes, subject to the approval of the Treasurer of the State, and, as
security for the payment of the principal or redemption price, if any, of and
interest on any such bonds, to pledge or assign such a loan, lease or sale
agreement and the revenues and receipts derived by the Authority from such a
project; and
WHEREAS
, by resolution adopted
on May 20, 2009, in furtherance of the purposes of the Act, the Authority has
accepted the application of The Connecticut Water Company (the “Borrower”) for
assistance in the financing of various capital projects located in the State of
Connecticut; and
WHEREAS
, the Borrower
currently owns certain existing facilities within certain municipalities in the
State and at this time requests assistance in the design, acquisition,
installation, improvement and construction of certain facilities consisting of
water treatment and storage facilities, transmission and distribution mains,
service lines, meters, hydrants and pumping equipment for the purpose of
supplying safe potable water to the general public within its service area;
and
WHEREAS
, the Authority has by
a further resolution adopted on October 21, 2009 authorized the issuance of not
to exceed $20,000,000 principal amount of its Water Facilities Revenue Bonds
(The Connecticut Water Company Project - 2009A Series) for the purpose of
providing funds for the Projects; and
WHEREAS
, pursuant to such
resolution the Bonds (as hereinafter defined) are to be secured by an Indenture
of Trust of even date herewith, by and between the Authority and U.S. Bank
National Association, as Trustee; and
WHEREAS
, the Bonds shall be
special obligations of the Authority, payable solely from the revenues or other
receipts, funds or monies to be derived by the Authority under this Agreement or
the Indenture and from any amounts otherwise available under the Indenture for
the payment of the Bonds; and
WHEREAS
, the Authority
proposes with the proceeds of the Bonds to make a loan to the Borrower and the
Borrower proposes to borrow such proceeds from the Authority for the purpose of
financing the acquisition, construction and installation of the Project;
and
WHEREAS
, the Borrower
acknowledges that the Authority is providing financing for the Project in
furtherance of the Authority’s corporate purposes under the Act, that the
accomplishment of these purposes is dependent upon the compliance of the
Borrower with its covenants contained in this Agreement, that the Authority has
a resulting beneficial interest in the Project, and that the Borrower’s use of
and interest in the Project as provided hereby are in furtherance of the
discharge of a public purpose; and
WHEREAS
, the Connecticut
Department of Public Utility Control (the “DPUC”) has approved the issuance of
the Note;
NOW, THEREFORE
, in
consideration of the premises and of the mutual representations, covenants and
agreements herein set forth, the Authority and the Borrower, each binding
itself, its successors and assigns, do mutually promise, covenant and agree as
follows (provided that in the performance of the agreements of the Authority
herein contained, any obligation it may incur for the payment of money shall not
be an obligation, debt or liability of the State or any municipality thereof and
neither the State nor any municipality thereof shall be liable on any obligation
so incurred, but any such obligation shall be payable solely out of the revenues
or other receipts, funds or monies to be derived by the Authority under this
Agreement or the Indenture and from any amounts otherwise available under the
Indenture for the payment of the Bonds):
ARTICLE
I
DEFINITIONS
AND INTERPRETATION
Section
1.1.
Definitions
. For
the purposes of this Agreement, the following words and terms shall have the
respective meanings set forth as follows, and any capitalized word or term used
but not defined herein is used as defined in the Indenture:
“Act”
means the State Commerce Act, constituting Connecticut General Statutes,
Sections 32-la through 32-23zz, as amended.
“Agreement”
means this Loan Agreement and any amendments and supplements
hereto.
“Authority”
means the Connecticut Development Authority, a body corporate and politic
constituting a public instrumentality and political subdivision of the State of
Connecticut, duly organized and existing under the laws of the State, and any
body, board, authority, agency or other political subdivision or instrumentality
of the State which shall hereafter succeed to the powers, duties and functions
thereof.
“Authorized
Representative” means, in the case of the Authority, the Chairman or Vice
Chairman, the President, any Executive Vice President, Deputy Director or any
Senior Vice President or any Vice President thereof and, in the case of the
Borrower, the Chairman, the President and Chief Executive Officer, the Vice
President-Finance, Chief Financial Officer and Treasurer, and any Vice
President, Assistant Treasurer or Secretary thereof and, when used with
reference to the performance of any act, the discharge of any duty or the
execution of any certificate or other document, any officer, employee or other
person authorized to perform such act, discharge such duty or execute such
certificate or other document.
“Beneficial
Owner” shall have the meaning specified in Section 2.3(F) of the
Indenture. If any person claims to the Trustee to be a Beneficial
Owner, for purposes of Section 2.4(C) of the Indenture, such person shall prove
such claim to the satisfaction of the Trustee with such documentation and
signature guaranties as the Trustee may request.
“Bonds”
means the $20,000,000 Water Facilities Revenue Bonds (The Connecticut Water
Company Project - 2009A Series) authorized and issued pursuant to Section 2.3 of
the Indenture.
“Bond
Counsel” means Winston & Strawn LLP or such other nationally recognized bond
counsel selected by the Authority and reasonably satisfactory to the Borrower
and the Trustee.
“Borrower”
means (i) The Connecticut Water Company, a corporation organized and existing
under the laws of the State of Connecticut, and its successors and assigns and
(ii) any surviving, resulting or transferee corporation as provided in
Section 6.1 hereof.
“Business
Day” means any day (i) that is not a Saturday or Sunday, (ii) that is a day on
which banks located in Hartford, Connecticut and New York, New York are not
required or authorized to remain closed, (iii) that is a day on which banking
institutions in the cities in which the principal offices of the Trustee and the
Paying Agent are located and are not required or authorized to remain closed and
(iv) that is a day on which the New York Stock Exchange, Inc. is not
closed.
“Code”
means the Internal Revenue Code of 1986, as amended and regulations promulgated
thereunder.
“Completion
Date” means the date of completion of the Project as specified and established
in accordance with Section 4.3 hereof.
“Debt
Service Fund” means the special trust fund so designated, established pursuant
to Section 5.1 of the Indenture.
“DTC” or
“The Depository Trust Company” shall mean the limited-purpose trust company
organized under the laws of the State of New York which shall act as securities
depository for the Bonds, and any successor thereto.
“Determination
of Taxability” means with respect to the Bonds (1) a ruling by the Internal
Revenue Service, (2) the receipt by the owner of any of the Bonds from the
Internal Revenue Service of a notice of assessment and demand for payment and
(provided the Borrower has been afforded the opportunity to participate at its
own expense in all appeals and proceedings to which such owner of the Bonds is a
party relating to such assessment and demand for payment) the expiration of the
appeal period provided therein if no appeal is taken or, if an appeal is taken
by such owner as provided in Section 6.3 of this Agreement within the applicable
appeal period which has the effect of staying the demand for payment, a final
unappealable decision by a court of competent jurisdiction, or (3) the admission
in writing by the Borrower, in any case to the effect that the interest on any
Bonds is includable in the gross income for federal income tax purposes (other
than for purposes of any alternative minimum tax or foreign branch profits tax)
of an owner or former owner thereof, other than for a period during which such
owner or former owner is or was a “Substantial User” of the Project financed by
such Bonds or a “Related Person” as such terms are defined in the
Code. For purposes of this definition, the term owner means the
Beneficial Owner of the Bonds so long as the Book-Entry System is in
effect.
“DPUC”
means the State Department of Public Utilities Control.
“Disclosure
Agreement” means the agreement by and between the Borrower and U.S. Bank
National Association, as dissemination agent, dated the date of the initial
delivery of the Bonds, providing for the provision of certain information
subsequent to the issuance of the Bonds.
“Event of
Default” means an Event of Default as defined in subsection 7.1
hereof.
“Financing
Documents” (1) when used with respect to the Borrower, means this Agreement, the
Tax Regulatory Agreement, the Note, the Disclosure Agreement and the general
certificate of the Borrower delivered in connection with the issuance of the
Bonds, and (2) when used with respect to the Authority, means any of the
foregoing documents and agreements to which the Authority is a direct
party. The Financing Documents do not include any documents or
agreements to which the Borrower is not a direct party, including the Bonds or
the Indenture.
“Fitch”
means Fitch Inc., a corporation organized and existing under the laws of the
State of Delaware, its successors and their assigns, and if such corporation
shall be dissolved or liquidated or shall no longer perform the functions of a
securities rating agency, “Fitch” shall be deemed to refer to any other
nationally recognized securities rating agency designated by the Authority, at
the direction of the Borrower, by notice to the Trustee and the
Borrower.
“Indenture”
means the Indenture of Trust relating to the Bonds, of even date herewith, by
and between the Authority and the Trustee, together with all indentures
supplemental thereto made and entered into in accordance therewith.
“Interest
Payment Date” shall mean June 1, 2010 and each December 1 and June 1 thereafter
on which interest is payable on the Bonds as provided in the forms of the
Bonds.
“Moody’s”
means Moody’s Investors Services, Inc., a corporation organized and existing
under the laws of the State of Delaware, its successors and their assigns, and
if such corporation shall be dissolved or liquidated or shall no longer perform
the functions of a securities rating agency, “Moody’s” shall be deemed to refer
to any other nationally recognized securities rating agency designated by the
Authority, at the direction of the Borrower, by notice to the Trustee and the
Borrower.
“Net
Proceeds” when used with respect to any insurance or condemnation award, means
the gross proceeds from such award less all expenses (including attorney’s fees
and expenses and any extraordinary expenses) incurred by the Trustee in the
collection thereof.
“Note”
means the promissory note of the Borrower to the Authority, dated the date of
initial delivery of the Bonds in the form attached as
Appendix A
to this
Agreement, and any amendments or supplements made in conformity with this
Agreement and the Indenture.
“Outstanding”,
when used with reference to a Bond or Bonds, as of any particular date, means
all Bonds which have been authenticated and delivered under the Indenture,
except:
(1) any
Bonds canceled by the Trustee because of payment or redemption prior to maturity
or surrendered to the Trustee for cancellation;
(2) any
Bond (or portion of a Bond) paid or redeemed or for the payment or redemption of
which there has been separately set aside and held in the Debt Service Fund
either:
(a) monies
in an amount sufficient to effect payment of the principal or applicable
Redemption Price thereof, together with accrued interest on such Bond to the
payment or redemption date, which payment or redemption date shall be specified
in irrevocable instructions given to the Trustee to apply such monies to such
payment on the date so specified; or
(b) obligations
of the kind described in subsection 12.1(B) of the Indenture in such principal
amounts, of such maturities, bearing such interest and otherwise having such
terms and qualifications as shall be necessary to provide monies in an amount
sufficient to effect payment of the principal or applicable Redemption Price of
such Bond, together with accrued interest on such Bond to the payment or
redemption date, which payment or redemption date shall be specified in
irrevocable instructions given to the Trustee to apply such obligations to such
payment on the date so specified; or
(c) any
combination of (a) and (b) above;
(3) Bonds
in exchange for or in lieu of which other Bonds shall have been authenticated
and delivered under Article III of the Indenture; and
(4) any
Bond deemed to have been paid as provided in subsection 12.1 of the
Indenture.
“Paying
Agent” means any paying agent for the Bonds appointed pursuant to Section 9.10
of the Indenture (and may include the Trustee), and its successor or successors
and any other corporation which may at any time be substituted in its place in
accordance with the Indenture.
“Permitted
Encumbrances” mean, as of any particular date, (i) liens for taxes not yet due
and payable, (ii) any lien created by this Agreement and the Indenture, (iii)
utility, access and other easements and rights-of-way, that will not interfere
with or impair the value or use of the Project as herein provided, (iv) any
mechanic’s, laborer’s, materialman’s, supplier’s or vendor’s lien or right in
respect thereof if payment is not yet due and payable and for which statutory
lien rights exist, (v) such minor defects, irregularities, easements, and
rights-of- way (including agreements with any railroad the purpose of which is
to service the railroad siding) as normally exist with respect to property
similar in character to the Project and which do not materially impair the value
or use of the property affected thereby for the purpose for which it was
acquired hereunder, and (vi) any mortgage, lien, security interest or other
encumbrance to which the Authority may consent as provided in Section 4.9
hereof.
“Principal
User” means any principal user of the Project within the meaning of Section
144(a)(2)(B) of the Code, including without limitation any person who is a
greater-than-10-percent-owner (or if none, the person(s) who holds the largest
ownership interest in the Project), lessee or user of more than 10% of the
Project measured either by occupiable space or fair rental value under any
formal or informal agreement or, under the particular facts and circumstances,
anyone who is a principal customer of the Project. The term
“principal customer” means any person, who purchases output of the Project under
a contract if the percentage of output taken or to be taken by such person,
multiplied by a fraction the numerator of which is the term of such contract and
the denominator of which is the economic life of the Project, exceeds
10%. In the case of a person who purchases output of an electric or
thermal energy, gas, water or other similar facility, such person is a principal
customer if the total output purchased by such person during any one year period
beginning with the date the facility is placed in service is more than 10
percent of the facility’s output during each such period. Co-owners
or co-lessees who are shareholders in a corporation or who are collectively
treated as a partnership subject to subchapter K under section 761(a) of the
Code are not treated as Principal Users merely by reason of their ownership of
corporate or partnership interests.
“Project”
means the realty and other interests in the real property, if any ,and all
personal property, goods, leasehold improvements, machinery, equipment,
furnishings, furniture, fixtures, tools and attachments wherever located and
whether now owned or hereafter acquired, financed in whole or in part with the
proceeds of the Bonds, and any additions and accessions thereto, substitutions
therefor and replacements thereof, including, without limitation the project
components described in Appendix B hereto, as amended from time to time in
accordance herewith.
“Rating
Agency” shall mean S&P, Moody's and Fitch, or, in each case, if such
corporation shall be dissolved or liquidated or shall no longer perform the
functions of a securities rating agency, any other nationally recognized
securities rating agency designated by the Authority, at the direction of the
Borrower, by notice to the Trustee and the Borrower.
“Redemption
Price” means, when used with respect to a Bond or a portion thereof, the
principal amount of such Bond or portion thereof plus the applicable premium, if
any, payable upon redemption thereof pursuant to the Indenture.
“Related
Person” means, with respect to any Principal User, a person which is a related
person (as defined in Section 144(a)(3) of the Code, and by reference to
Sections 267, 707(b) and 1563(a) of the Code, except that 50% is to be
substituted for 80% in Section 1563(a)).
“S&P”
means Standard & Poor’s Ratings Services, a division of McGraw Hill, Inc., a
corporation organized and existing under the laws of the State of New York, its
successors and their assigns, and, if such corporation or division shall be
dissolved, eliminated, reorganized, or liquidated or shall no longer perform the
functions of a securities rating agency, “S&P” shall be deemed to refer to
any other nationally recognized securities rating agency designated by the
Authority at the direction of the Borrower, by notice to the Trustee and the
Borrower.
“State”
means the State of Connecticut.
“Substantial
User” means any substantial user of the Project within the meaning of Section
147(a) of the Code.
“Supplemental
Indenture” means any indenture supplemental to the Indenture or amendatory of
the Indenture, adopted by the Authority in accordance with Article X of the
Indenture.
“Tax
Incidence Date” means the date as of which interest on the Bonds becomes or
became includable in the gross income of the recipient thereof (other than the
Borrower or another Substantial User or Related Person) for federal income tax
purposes for any cause, as determined by a Determination of
Taxability.
“Tax
Regulatory Agreement” means the Tax Regulatory Agreement, dated as of the date
of initial issuance and delivery of the Bonds, among the Authority, the Borrower
and the Trustee, and any amendments and supplements thereto.
“Term”,
when used with reference to this Agreement, means the term of this Agreement
determined as provided in Article III hereof.
“Trustee”
means U.S. Bank National Association, and its successor or successors hereafter
appointed in the manner provided in the Indenture.
Section
1.2.
Interpretation. In
this Agreement:
(1) The
terms “hereby”, “hereof”, “hereto”, “herein”, “hereunder” and any similar terms,
as used in this Agreement, refer to this Agreement, and the term “hereafter”
means after, and the term “heretofore” means before, the date of this
Agreement.
(2) Words
of the masculine gender mean and include correlative words of the feminine and
neuter genders and words importing the singular number mean and include the
plural number and vice versa.
(3) Words
importing persons include firms, associations, partnerships (including limited
partnerships), trusts, corporations and other legal entities, including public
bodies, as well as natural persons.
(4) Any
headings preceding the texts of the several Articles and Sections of this
Agreement, and any table of contents appended to copies hereof, shall be solely
for convenience of reference and shall not constitute a part of this Agreement,
nor shall they affect its meaning, construction or effect.
(5) Nothing
contained in this Agreement shall be construed to cause the Borrower to become
the agent for the Authority or the Trustee for any purpose whatsoever, nor shall
the Authority or the Trustee be responsible for any shortage, discrepancy,
damage, loss or destruction of any part of the Project wherever located or for
whatever cause.
(6) All
approvals, consents and acceptances required to be given or made by any person
or party hereunder shall be at the sole discretion of the party whose approval,
consent or acceptance is required.
(7) All
notices to be given hereunder shall be given in writing within a reasonable time
unless otherwise specifically provided.
(8) If
any provision of this Agreement shall be ruled invalid by any court of competent
jurisdiction, the invalidity of such provision shall not affect any of the
remaining provisions hereof.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
Section
2.1.
Representations by the
Authority
.
The
Authority
represents and
warrants that:
(1) It
is a body corporate and politic constituting a public instrumentality and
political subdivision of the State, duly organized and existing under the laws
of the State including the Act. The Authority is authorized to issue
the Bonds in accordance with the Act and to use the proceeds thereof to finance
the Project.
(2) The
Authority has complied with the provisions of the Act and has full power and
authority pursuant to the Act to consummate all transactions contemplated by the
Bonds, the Indenture and the Financing Documents.
(3) By
resolution duly adopted by the Authority and still in full force and effect, the
Authority has authorized the execution, delivery and due performance of the
Bonds, the Indenture and the Financing Documents, and the taking of any and all
action as may be required on the part of the Authority to carry out, give effect
to and consummate the transactions contemplated by this Agreement and the
Indenture, and all approvals necessary in connection with the foregoing have
been received.
(4) The
Bonds have been duly authorized, executed, authenticated, issued and delivered,
constitute valid and binding special obligations of the Authority payable solely
from revenues or other receipts, funds or monies pledged therefor under the
Indenture and from any amounts otherwise available under the Indenture, and are
entitled to the benefit of the Indenture. Neither the State nor any
municipality thereof is obligated to pay the Bonds or the interest
thereon. Neither the faith and credit nor the taxing power of the
State nor any municipality thereof is pledged for the payment of the principal,
and premium, if any, of and interest on the Bonds.
(5) The
execution and delivery of the Bonds, the Indenture and the Financing Documents
and compliance with the provisions thereof, will not conflict with or constitute
on the part of the Authority a violation of, breach of or default under its
by-laws or any statute, indenture, mortgage, deed of trust, note agreement or
other agreement or instrument to which the Authority is a party or by which the
Authority is bound, or, to the knowledge of the Authority, any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Authority or any of its activities or properties, and all consents,
approvals, authorizations and orders of governmental or regulatory authorities
which are required for the consummation by the Authority of the transactions
contemplated thereby have been obtained.
(6) Subject
to the provisions of this Agreement and the Indenture, the Authority will apply
the proceeds of the Bonds to the purposes specified in the Indenture and the
Financing Documents.
(7) There
is no action, suit, proceeding or investigation at law or in equity before or by
any court, public board or body pending or threatened against or affecting the
Authority, or to the best knowledge of the Authority, any basis therefor,
wherein an unfavorable decision, ruling or finding would adversely affect the
transactions contemplated hereby or by the Indenture, or which, in any way,
would adversely affect the validity of the Bonds, or the validity of or
enforceability of the Indenture or the Financing Documents, or any agreement or
instrument to which the Authority is a party and which is used or contemplated
for use in consummation of the transactions contemplated hereby and by the
Indenture.
(8) It
has not made any commitment or taken any action which will result in a valid
claim for any finders or similar fees or commitments in respect of the
transactions contemplated by this Agreement.
(9) The
representations of the Authority set forth in the Tax Regulatory Agreement are
by this reference incorporated in this Agreement as though fully set forth
herein.
Section
2.2.
Representations
by the Borrower
.
The
Borrower represents and warrants that:
(1) The
Borrower has been duly incorporated and validly exists as a corporation under
the laws of the State of Connecticut, is not in violation of any provision of
its certificate of incorporation or its by-laws, has corporate power to enter
into and perform the Financing Documents, and by proper corporate action has
duly authorized the execution and delivery of the Financing
Documents.
(2) The
Financing Documents constitute valid and legally binding obligations of the
Borrower, enforceable in accordance with their respective terms, except to the
extent that such enforceability may be limited by bankruptcy or insolvency or
other laws affecting creditors’ rights generally or by general principles of
equity.
(3) Neither
the execution and delivery of the Financing Documents, the consummation of the
transactions contemplated thereby, nor the fulfillment by the Borrower of or
compliance by the Borrower with the terms and conditions thereof is prevented or
limited by or conflicts with or results in a breach of, or default under the
terms, conditions or provisions of any contractual or other restriction of the
Borrower, evidence of its indebtedness or agreement or instrument of whatever
nature to which the Borrower is now a party or by which it is bound, or
constitutes a material default under any of the foregoing. No event
has occurred and no condition exists which, upon the execution and delivery of
any Financing Documents, constitutes an Event of Default hereunder or an Event
of Default thereunder or, but for the lapse of time or the giving of notice,
would constitute an Event of Default hereunder or an Event of Default
thereunder.
(4) There
is no action or proceeding pending or, to the knowledge of the Borrower,
threatened against the Borrower before any court, administrative agency or
arbitration board that may materially and adversely affect the ability of the
Borrower to perform its obligations under the Financing Documents and all
authorizations, consents and approvals of governmental bodies or agencies
required in connection with the execution and delivery of the Financing
Documents and in connection with the performance of the Borrower’s obligations
hereunder or thereunder have been obtained.
(5) The
execution, delivery and performance of the Financing Documents and any other
instrument delivered by the Borrower pursuant to the terms hereof or thereof are
within the corporate powers of the Borrower and have been duly authorized and
approved by the board of directors of the Borrower and are not in contravention
of law or of the Borrower’s certificate of incorporation or by-laws, as amended
to date, or of any undertaking or agreement to which the Borrower is a party or
by which it is bound.
(6) The
Borrower represents that it has not made any commitment or taken any action
which will result in a valid claim for any finders’ or similar fees or
commitments in respect of the transactions described in this Agreement other
than the fees to various parties to the transactions contemplated hereby which
have been heretofore paid or provided.
(7) The
Project is included within the definition of a “project” in the
Act. The Borrower intends the Project to continue to be an authorized
project under the Act during the Term of this Agreement.
(8) All
amounts shown in Schedule D of the Tax Regulatory Agreement are eligible costs
of a project financed by bonds issued by the Authority under the Act, and may be
financed by amounts in the various Accounts of the Project Fund under the
Indenture. None of the proceeds of the Bonds will be used directly or
indirectly as working capital or to finance inventory.
(9) The
Project is in material compliance with all applicable federal, State and local
laws and ordinances (including rules and regulations) relating to zoning,
building, safety and environmental quality.
(10) The
Borrower intends to proceed with due diligence to complete the Project pursuant
to Section 4.1 hereof. The Borrower has obtained, or will obtain, or
will cause to be obtained, all necessary material approvals from any and all
governmental agencies requisite to the Project, and has also obtained or will
cause to be obtained, all material occupancy permits and authorizations from
appropriate authorities authorizing the occupancy and use of the Project for the
purposes contemplated hereby. The Borrower further represents and
warrants that it will complete the Project, or cause the Project to be
completed, in accordance with all material federal, State and local laws,
ordinances and regulations applicable thereto.
(11) The
availability of financial assistance from the Authority, among other factors,
has induced the Borrower to locate the Project in the State. The
Borrower does not presently intend to lease the Project.
(12) The
Borrower will not take or omit to take any action which action or omission will
in any way cause the proceeds of the Bonds to be applied in a manner contrary to
that provided in the Indenture and the Financing Documents as in force from time
to time.
(13) The
Borrower has not taken and will not take any action and knows of no action that
any other person, firm or corporation, has taken or intends to take, which would
cause interest on the Bonds to be includable in the gross income of the
recipients thereof for federal income tax purposes. The
representations, certifications and statements of reasonable expectation made by
the Borrower in the Tax Regulatory Agreement and relating to Project
description, composite issues, bond maturity and average asset economic life,
use of Bond proceeds, arbitrage and related matters are hereby incorporated by
this reference as though fully set forth herein.
(14) The
Borrower has good and merchantable title to the Project owned by the Borrower as
of the date hereof, free and clear of liens and encumbrances, other than
Permitted Encumbrances.
(15) As
of the date of hereof, neither the Borrower, nor to its knowledge anyone acting
on behalf of the Borrower, has entered into negotiations with any person for the
purpose of undertaking any borrowing concurrently with or subsequent to the
issuance of the Bonds and to be secured wholly or partially by a lien or
encumbrance on the Project or any part thereof, and the Borrower has no present
intention of undertaking any such borrowing.
(16) The
Borrower will use all of the proceeds of the Bonds to finance the Project
Costs.
ARTICLE
III
THE
LOAN
Section
3.1.
Loan
Clauses
.
(A) Subject
to the conditions and in accordance with the terms of this Agreement, the
Authority agrees to make a loan to the Borrower from the proceeds of the Bonds
in the amount of $20,000,000 and the Borrower agrees to borrow such amount from
the Authority.
(B) The
loan shall be made at the time of delivery of the Bonds and receipt of payment
therefor by the Authority against receipt by the Authority of the Note duly
executed and delivered to evidence the pecuniary indebtedness of the Borrower
hereunder. As and for the loan the Authority shall apply the proceeds
of the Bonds as provided in the Indenture on the terms and conditions therein
prescribed.
(C) On
or before the Business Day immediately preceding each due date for the payment
of the principal of or interest on the Bonds, until the principal or Redemption
Price, if any, of and interest on the Bonds shall have been fully paid or
provision for the payment thereof shall have been made in accordance with the
Indenture, the Borrower shall make loan payments to the Trustee for the account
of the Authority in an amount which, when added to any moneys then on deposit in
the Debt Service Fund and available therefor, shall be equal to the amount
payable on such due date with respect to the Bonds as provided in Section 5.3 of
the Indenture, including amounts due for the payment of the principal of and
interest on the Bonds. In addition, the Borrower shall pay to the
Trustee, as and when the same shall become due, all other amounts due under the
Financing Documents, together with interest thereon at the then applicable rate
as set forth herein in Section 6.2(G). The Borrower shall have the
option to prepay its loan obligation in whole or in part at the times and in the
manner provided in Article VIII hereof.
(D) Anything
herein to the contrary notwithstanding, any amount at any time held in the
Principal and Interest Account of the Debt Service Fund by the Trustee pursuant
to this Section shall be credited against the next succeeding loan payment
obligation of the Borrower as provided in subsection 3.1(C)
hereof. If, on any due date for payments with respect to the Bonds,
the balance in the Debt Service Fund is insufficient to make such payments, the
Borrower agrees forthwith to pay to the Trustee by no later than 11:00 a.m. on
such due date the amount of the deficiency. If at any time the amount
held by the Trustee in the Debt Service Fund shall be sufficient to pay or
provide for the payment of the Bonds in accordance with Section 12.1 of the
Indenture, the Borrower shall not be obligated to make any further payments
under the foregoing provisions.
Section
3.2.
Other
Amounts Payable
. (A) The Borrower hereby further
expressly agrees to pay to the Trustee as and when the same shall become due,
(i) an amount equal to the initial and annual fees of the Trustee for the
ordinary services of the Trustee rendered and its ordinary expenses incurred
under the Indenture, including fees and expenses as Paying Agent and the
reasonable fees and expenses of Trustee’s counsel, including fees and expenses
as registrar and in connection with preparation and delivery of new Bonds upon
exchanges or transfers, (ii) the reasonable fees and expenses of the Trustee and
any Paying Agents on the Bonds for acting as paying agents as provided in the
Indenture, including reasonable fees and expenses of its counsel, (iii) the
reasonable fees and charges of the Trustee for extraordinary services rendered
by it and extraordinary expenses incurred by it under the Indenture, including
reasonable counsel fees and expenses, and (iv) reasonable fees and expenses of
Bond Counsel and the Authority for any future action requested of
either.
(B) The
Borrower also agrees to pay all amounts payable by it under the Financing
Documents at the time and in the manner therein provided.
(C) The
Borrower agrees to pay all Rebatable Arbitrage (as such term is defined in the
Tax Regulatory Agreement) (and penalties, if any) due to the United States of
America pursuant to Section 148 (f) of the Code.
(D) The
Borrower also agrees to pay directly to the Authority on the date of issuance
and delivery of the Bonds and on the second anniversary date of the date of
issuance and delivery of the Bonds and each anniversary date thereafter, a fee
equal to 1/8th of 1% of the principal amount of the Bonds Outstanding, such fee
to be payable without notice, demand or invoice of any kind at the Authority’s
address as set forth herein or at such other address and to the attention of
such other person, or to such account as the Authority may stipulate by written
notice to the Borrower.
Section
3.3.
Manner of
Payment
. The payments provided for in Section 3.1 hereof shall
be made by any reasonable method providing immediately available funds at the
time and place of payment directly to the Trustee for the account of the
Authority and shall be deposited in the Debt Service Fund. The
additional payments provided for in Section 3.2 shall be made in the same
manner directly to the entitled party or to the Trustee for its own use or
disbursement to the Paying Agents, as the case may be.
Section
3.4.
Obligation
Unconditional.
The obligations of the Borrower under the
Financing Documents shall be absolute and unconditional, irrespective of any
defense or any rights of setoff, recoupment or counterclaim it might otherwise
have against the Authority or the Trustee. The Borrower will not
suspend or discontinue any such payment or terminate this Agreement (other than
in the manner provided for hereunder) for any cause, including, without limiting
the generality of the foregoing, any acts or circumstances that may constitute
failure of consideration, failure of title, or commercial frustration of
purpose, or any damage to or destruction of the Project, or the taking by
eminent domain of title to or the right of temporary use of all or any part of
the Project, or any change in the tax or other laws of the United States, the
State or any political subdivision of either thereof, or any failure of the
Authority or the Trustee to perform and observe any agreement or covenant,
whether expressed or implied, or any duty, liability or obligation arising out
of or connected with the Financing Documents.
Section
3.5.
Securities
Clauses
. The Authority hereby notifies the Borrower and the
Borrower acknowledges that, among other things, the Borrower’s loan payments and
all of the Authority’s right, title and interest under the Financing Documents
to which it is a party (except its rights under Sections 6.2, 6.4, 7.2(A)(2) and
7.3 hereof) are being concurrently with the execution and delivery hereof
endorsed, pledged and assigned without recourse by the Authority to the Trustee
as security for the Bonds as provided in the Indenture.
Section
3.6.
Issuance
of Bonds
.
The
Authority has concurrently with the execution and delivery hereof sold and
delivered the Bonds under and pursuant to a resolution adopted by the Authority
on October 21, 2009, authorizing their issuance under and pursuant to the
Indenture. The proceeds of sale of the Bonds shall be applied as
provided in Articles IV and V of the Indenture.
Section
3.7.
Effective
Date and Term
. (A) This Agreement shall become
effective upon its execution and delivery by the parties hereto, shall remain in
full force from such date and, subject to the provisions hereof (including
particularly Articles VII and VIII), shall expire on such date as the Indenture
shall be discharged and satisfied in accordance with the provisions of
subsection 12.1(A) thereof. The Borrower’s obligations under Sections
6.2 and 6.3 hereof, however, shall survive the expiration of this Agreement in
accordance with the provisions of such Sections.
(B) Within
60 days of such expiration the Authority shall deliver to the Borrower any
documents and take or cause the Trustee, at the Borrower’s expense, to take any
such reasonable actions as may be necessary to effect the cancellation, release
and satisfaction of the Indenture and the Financing Documents.
Section
3.8.
No
Additional Bonds
. No Additional Bonds on a parity with the
Bonds may be issued under the Indenture.
ARTICLE
IV
THE
PROJECT
Section
4.1.
Completion
of the Project
. (A) The Borrower agrees that it
will undertake and complete the Project for the purposes and in the manner
intended hereby and by the Borrower’s application for assistance to the
Authority and that it will cause such improvements to be made to the Project as
are necessary for the operation thereof in the manner herein
provided.
(B) The
Borrower may modify, alter and amend the plans for the Project from time to time
and at any time, provided that such modifications, alterations and amendments do
not materially impair the operation of the Project as water facilities under the
Act and provided that no material modifications, alterations or amendments shall
be made unless the Borrower shall have theretofore delivered to the Trustee an
opinion of Bond Counsel to the effect that such amendment, modification or
alteration and the expenditure of amounts from the Project Fund in connection
therewith will not cause interest on the Bonds to be subject to federal income
taxation, together with any written representations or certifications of fact
made by or on behalf of the Borrower upon which such counsel has relied in
rendering such opinion.
(C) The
Borrower affirms that it shall bear all of the costs and expenses in connection
with the preparation of the Financing Documents and the Indenture, the
preparation and delivery of any legal instruments and documents necessary in
connection therewith and their filing and recording, if required, and all taxes
and charges payable in connection with any of the foregoing. Such
costs and all other costs of the Project shall be paid by the Borrower in the
manner and to the extent provided in the Indenture.
(D) The
Borrower hereby agrees that in order to effectuate the purposes of the Financing
Documents, it will make, execute, acknowledge and deliver any contracts, orders,
receipts, writings and instructions with any other persons, firms, or
corporations and in general do all things which may be requisite or proper, all
for the purpose of carrying out and completing the Project. The
Borrower will use its best efforts to complete the Project, or cause the Project
to be completed, with all reasonable dispatch. If for any reason the
completion of such work is delayed, there shall be no liability on the part of
the Authority and no diminution in or postponement of the payments required in
Section 3.1 hereof to be paid by the Borrower.
(E) The
Borrower has obtained or shall obtain all necessary material approvals from any
and all governmental agencies requisite to the undertaking and completion of the
Project and in compliance with all federal, State and local laws, ordinances and
regulations applicable thereto. Upon completion of the Project, the
Borrower shall obtain all material required permits and authorizations from
appropriate authorities, if any be required, authorizing the operation and uses
of the Project for the purposes contemplated hereby, where failure to obtain
such approvals, permits and authorizations would have a material adverse effect
on the transactions contemplated hereby.
(F) The
Borrower covenants that it will take, or cause to be taken, such action and
institute such proceedings within its power and authority as shall be necessary
to cause and require all contractors and material suppliers to complete their
contracts diligently in accordance with the terms of the contracts, including,
without limitation, the correcting of any defective work.
(G) Upon
the occurrence of a default by any contractor or subcontractor or supplier under
any contract made by it in connection with the Project, the Borrower will
promptly proceed, to the extent it deems appropriate in the circumstances,
either separately or in conjunction with others, to exhaust the remedies of the
Borrower against any such contractor or subcontractor or supplier for the
performance of such contract.
Section
4.2.
Payment
of Additional Project Costs by Borrower
. In the event that
moneys in the Project Fund are not sufficient to pay Project Costs in full, the
Borrower shall nonetheless complete the Project, or cause the Project to be
completed, and shall pay that portion of the Project Costs as may be in excess
of the moneys available therefor in the Project Fund and shall not be entitled
to any reimbursement therefor from the Authority or from the Trustee or from the
holders of any of the Bonds, nor shall it be entitled to any diminution of the
amounts payable under the Financing Documents.
Section
4.3.
Completion
Certificate
. The date of completion of the Project shall be
evidenced to the Trustee by the certificate of an Authorized Representative of
the Borrower stating that the Project has been completed in accordance with the
Agreement and in accordance with the plans and specifications
therefor. Notwithstanding the foregoing, such certificate shall state
(1) that it is given without prejudice to any rights of the Borrower against
third parties which exist at the date of such certificate or which may
subsequently come into being, (2) that it is given only for the purpose of this
Section and (3) that no person other than the Trustee or the Authority may
benefit therefrom.
Section
4.4.
No
Warranty Regarding Condition, Suitability or Cost of
Project
. Neither the Authority, nor the Trustee, nor any
Bondholder makes any warranty, either expressed or implied, as to the Project or
its condition or that it will be suitable for the Borrower’s purposes or needs,
or that the insurance required hereunder will be adequate to protect the
Borrower’s business or interest, or that the proceeds of the Bonds will be
sufficient to complete the Project.
Section
4.5.
Taxes
. (A) The
Borrower will pay when due all material (1) taxes, assessments, water rates
and sewer use or rental charges, (2) payments in lieu thereof which may be
required by law, and (3) governmental charges and impositions of any kind
whatsoever which may now or hereafter be lawfully assessed or levied upon the
Project or any part thereof, or upon the rents, issues, or profits thereof,
whether directly or indirectly. With respect to special assessments
or other governmental charges that may lawfully be paid in installments over a
period of years, the Borrower shall be obligated to pay, or cause to be paid,
only such installments as are required to be paid during the Term.
(B) The
Borrower may, at its expense and in its own name, in good faith contest any such
taxes, assessments and other charges and payments in lieu of taxes including
assessments and, in the event of such contest, may permit the taxes, assessments
or other charges or payments in lieu of taxes, including assessments so
contested to remain unpaid, provided either (1) prior written notice thereof has
been given to the Authority and the Trustee and reserves satisfactory to the
Authority are maintained during the period of such contest and any appeal
therefrom, or (2) such contest is conducted in full compliance with
Connecticut General Statutes Chapter 203 unless, in either case, by nonpayment
of such taxes, assessments or other charges or payments, the Project or any part
thereof will be subject to loss or forfeiture, and as a result thereof a lien or
charge will be placed upon any payment pursuant to this Agreement or the value
or operation of the Project will be materially impaired, in which event such
taxes, assessments or other charges or payments shall be paid
forthwith. Nothing herein shall preclude the Borrower, at its expense
and in its own name and behalf, from applying for any tax exemption allowed by
the federal government, the State or any political or taxing subdivision thereof
under any existing or future provision of law which grants or may grant such tax
exemption.
Section
4.6.
Insurance
. (A) The
Borrower shall insure the Project against loss or damage by fire, flood,
lightning, windstorm, vandalism and malicious mischief and other hazards,
casualties, contingencies and extended coverage risks in such amounts and in
such manner as is customary with companies in the same or similar business, and
shall pay when due the premiums thereon. In the event of loss or
damage to the Project, the Net Proceeds of any insurance provided under this
subsection shall be applied to the manner set forth in Article V
hereof. Any excess proceeds of insurance remaining after application
as required by this Section shall be paid to the Borrower, but only if the
Borrower is not in default under this Agreement. If the Borrower is
in default under this Agreement, such amounts shall be applied as provided in
Article VIII of the Indenture. At least ten days prior to the
expiration of any policy required under this Section the Borrower shall furnish
evidence satisfactory to the Authority and the Trustee that such policy has been
renewed or replaced.
(B) The
Borrower further agrees that it will at all times carry public liability
insurance with respect to the Project in a minimum amount of $5,000,000 with
provisions for a deductible amount not in excess of five percent of the amount
of coverage thereunder. In the event of a public liability
occurrence, the Net Proceeds of the insurance provided under this subsection
shall be applied to satisfy or extinguish the liability.
(C) As
an alternative to the hazard insurance and public liability insurance
requirements of subsections (A) or (B) above the Borrower may self-insure
against hazard or public liability risks if (1) self-insurance is the Borrower’s
customary method of insurance against such risks in similar circumstances, and
(2) the Borrower maintains self-insurance reserves adequate and available to
meet such risks. Amounts available under any such self-insurance arrangement
upon the occurrence of an insured event shall be applied in the same manner as
the Net Proceeds of any insurance maintained pursuant to such subsections would
have been applied.
(D) The
insurance coverage required by this Section may be effected under overall
blanket or excess coverage policies of the Borrower or any affiliate and may be
carried with any insurer other than an unauthorized insurer under the
Connecticut Unauthorized Insurers Act. The Borrower shall furnish
evidence satisfactory to the Authority or the Trustee, promptly upon the request
of either, that the required insurance coverage is valid and in
force. The Borrower shall also give the Trustee not less than ten
(10) days prior written notice of the expiration of any insurance coverage
required by this Section then in effect.
Section
4.7.
Compliance
with Law
. The Borrower will observe and comply with all
material laws, regulations, ordinances, rules, and orders (including without
limitation those relating to zoning, land use, environmental protection, air,
water and land pollution, wetlands, health, equal opportunity, minimum wages,
worker’s compensation and employment practices) of any federal, state, municipal
or other governmental authority relating to the Project except during any period
during which the Borrower at its expense and in its name shall be in good faith
contesting its obligation to comply therewith.
Section
4.8.
Maintenance
and Repair
. At its own expense, the Borrower will keep and
maintain the Project in accordance with sound utility operating practice and in
good condition, working order and repair, will not commit or suffer any waste
thereon, and will make all material repairs and replacements thereto which may
be required in connection therewith. Nothing in this Section 4.8
shall (1) apply to any portion of the Project beyond its useful or economic life
or (2) apply to the use and disposition by the Borrower of any part of the
Project in the ordinary course of its business.
Section
4.9.
Reserved
.
Section
4.10.
Leasing
of the Project
. The Borrower may not lease the Project or any
portion thereof to any person during the Term of this Agreement without the
prior written consent of the Authority. No lease shall relieve the
Borrower from primary liability for any of its obligations hereunder, and in the
event of any such lease the Borrower shall continue to remain primarily liable
for payment of the applicable amounts specified in Article III hereof and for
performance and observance of the other agreements on its part herein provided
to be performed and observed by it to the same extent as though no lease had
been made.
Section
4.11.
Disposition
of the Project
. (A) The Borrower shall have the
right to install, operate, use, remove and dispose of any components of the
Project in the normal and ordinary course of its business operations, and shall
not be required to replace any item of the Project which is discarded or sold
for scrap. The Borrower shall not, however, either in one transaction
or a series of transactions sell, convey, transfer, remove or otherwise dispose
of more than 20% by value of the Project without prior notice to and the consent
of the Authority, unless such components of the Project are replaced by property
of similar value and utility.
(B) The
Borrower may, however, without the consent of the Authority, grant such rights
of way or easements over, across, or under, the Project as shall be necessary or
convenient for the operation or use of the Project, including but not limited to
easements or rights-of-way for utility, roadway, railroad or similar purposes in
connection with the Project, or for the use of the real property adjacent to or
near the Project, and owned by or leased to the Borrower, but only if such
rights-of-way or easements shall not materially or adversely affect the value
and operation of the Project. In addition, the Borrower may sell or
assign, or cause to be sold or assigned, a portion of the Project or development
rights in the Project to the State, a municipality within the State or a
conservation organization, but only if such sale or assignment shall not
materially or adversely affect the value or operation of the
Project.
(C) In
the event any disposition of the Borrower’s interest in the Project, the
proceeds of the disposition shall be deposited in the Redemption Account of the
Debt Service Fund for the redemption of the Bonds under the Indenture unless the
Borrower shall deliver to the Authority and the Trustee an opinion of Bond
Counsel to the effect that the failure to deposit the proceeds of such
disposition will not adversely affect the exclusion from gross income of the
interest on the Bonds for federal income tax purposes. No conveyance
or release effected under the provisions of this Section shall entitle the
Borrower to any abatement or diminution of the amounts payable hereunder or
under the Note, or relieve the Borrower of the obligation to perform all of its
covenants and agreements under the Financing Documents.
(D) The
Borrower shall maintain with the Trustee separate and reasonably detailed
descriptions of each item of property constituting the
Project. Without limiting the foregoing, the Project list appended
hereto at the date of execution and delivery of this Agreement shall be modified
to the extent required by this Section in connection with any disbursement for
Project from the Project Fund and any replacement of material items of Project
under this Section or under Section 5.2 hereof.
Section
4.12.
Borrower
Contribution
. The Borrower agrees to deposit with the Trustee
on the date of issuance of the Bonds a contribution in the amount of $358,354.05
(which will be applied to the payment of certain costs and expenses incurred in
connection with the issuance, execution and sale of the Bonds for which the
Borrower is responsible, including compensation and expenses of the Trustee,
bond insurance premium, legal, accounting and consulting expenses and fees,
costs of printing and engraving, underwriting expenses and recording and filing
fees), which amount shall be deposited by the Trustee in the Costs of Issuance
Account of the Project Fund established pursuant to Section 5.1 of the
Indenture.
ARTICLE
V
CONDEMNATION
DAMAGE AND DESTRUCTION
Section
5.1.
No
Abatement of Payments Hereunder
. If any portion of the Project
shall be damaged or either partially or totally destroyed, or if title to or the
temporary use of the whole or any part thereof shall be taken or condemned by a
competent authority for any public use or purpose, there shall be no abatement
or reduction in the amounts payable by the Borrower hereunder and the Borrower
shall continue to be obligated to make such payments. In any such
case the Borrower shall promptly give written notice thereof to the Authority
and the Trustee.
Section
5.2.
Project
Disposition Upon Condemnation, Damage or Destruction
. In the
event of any such condemnation, damage or destruction the Borrower
shall:
(1) At
its own cost, repair, restore or reconstruct, or cause to be repaired, restored
or reconstructured, the Project, or any portion thereof, to
substantially its condition immediately prior to such event or to a condition of
at least equivalent value, regardless of whether or not the proceeds of any and
all policies of insurance covering such damage or destruction, or the amount of
the award or compensation or damages recovered on account of such taking or
condemnation, shall be available or sufficient to pay the cost
thereof;
(2) At
its own cost, replace or relocate, or cause to be replaced or relocated, the
Project, or any portion thereof, at its site in such fashion as to render the
replacement or relocated structures, improvements and items, machinery,
equipment or other property of equivalent value to the Project immediately prior
to such event; or
(3) If
and as permitted by Section 8.1 hereof, exercise its option to prepay its loan
obligation in full.
Section
5.3.
Application
of Net Proceeds of Insurance or
Condemnation
. (A) The Net Proceeds from any
insurance or condemnation award with respect to the Project, or any component
thereof, shall be deposited either (1) in the Renewal Fund and applied to pay
for the cost of making such repairs, restorations, reconstructions, replacements
or relocations, or to reimburse the Borrower, the Authority or the Trustee for
payment therefor from time to time as provided in the Indenture or (2) if
prepayment of the loan is then permitted and the Borrower exercises its option
to prepay the loan, in the Redemption Account of the Debt Service Fund and
applied to the payment of the Note and redemption of the Bonds.
(B) Notwithstanding
the provisions of subsection (A) of this Section, any insurance or condemnation
proceeds attributable to improvements, machinery, equipment and other property
installed in or about the Project, but which do not constitute a portion of the
Project, shall be paid as the Borrower may direct. The Trustee and
the Authority agree to execute such documents as may be reasonably necessary to
accomplish the purposes of this subsection.
(C) The
Borrower, the Authority and the Trustee shall cooperate and consult with each
other in all matters pertaining to the settlement or adjustment of any and all
claims and demands for damages on account of any taking or condemnation of the
Project, or any portion thereof, or pertaining to the settlement, compromising
or arbitration of any claim on account of any damage or destruction
thereof.
ARTICLE
VI
COVENANTS
Section
6.1.
The
Borrower to Maintain its Corporate Existence; Conditions under which Exceptions
Permitted
. (A)
The Borrower covenants and agrees that, during the Term of
this Agreement it will maintain its corporate existence, will continue to be a
corporation either organized under the laws of or duly qualified to do business
as a foreign corporation in the State and in all jurisdictions necessary in the
operation of its business, will not dissolve or otherwise dispose of all or
substantially all of its assets and will not consolidate with or merge into
another corporation or permit one or more other corporations to consolidate with
or merge into it.
(B) The
Borrower may, however, without violating the agreements contained in this
Section, consolidate with or merge into another corporation or permit one or
more other corporations to consolidate with or merge into it, or sell or
otherwise transfer to another corporation all or substantially all of its assets
as an entity and thereafter liquidate or dissolve, if (a) the Borrower is the
surviving, resulting or transferee corporation, as the case may be, or (b) in
the event the Borrower is not the surviving, resulting or transferee
corporation, as the case may be, such corporation (i) is a solvent corporation
either organized under the laws of or duly qualified to do business as a foreign
corporation subject to service of process in the State and (ii) assumes in
writing all of the obligations of the Borrower herein, and under the
Note.
Section
6.2.
Indemnification,
Payment of Expenses, and Advances
. (A) The Borrower agrees to
protect, defend and hold harmless the Authority, the State, agencies of the
State, members, servants, agents, directors, officers and employees, now or
forever, of the Authority or the State (each an “Authority Indemnified Party”),
the Trustee and the Paying Agent, agents, directors, officers and employees, now
or forever, of the Trustee and the Paying Agent (each an “Indemnified Party”),
from any claim, demand, suit, action or other proceeding and any liabilities,
costs, and expenses whatsoever by any person or entity whatsoever, arising or
purportedly arising from or in connection with the Financing Documents, the
Indenture, the Bonds, or the transactions contemplated thereby or actions taken
thereunder by any person (including without limitation the filing of any
information, form or statement with the Internal Revenue Service, if
applicable), except for any willful and material misrepresentation, willful
misconduct or gross negligence on the part of the Indemnified Party or the
Authority Indemnified Party or any bad faith on the part of any indemnitee other
than an Authority Indemnified Party.
The
Borrower agrees to indemnify and hold harmless any Indemnified Party against any
and all claims, demands, suits, actions or other proceedings and all
liabilities, costs and expenses whatsoever caused by any untrue statement or
misleading statement or alleged untrue statement or alleged misleading statement
of a material fact contained in the written information provided by the Borrower
in connection with the issuance of the Bonds or incorporated by reference
therein or caused by any omission or alleged omission from such information of
any material fact relating to the Borrower or the Project required to be stated
therein or necessary in order to make the statements made therein in the light
of the circumstances under which they were made, not misleading.
(B) The
Authority and the Trustee shall not be liable for any damage or injury to the
persons or property of the Borrower or its members, directors, officers, agents,
servants or employees, or any other person who may be about the Project due to
any act or omission of any person other than the Authority or the Trustee,
respectively, or their respective members, directors, officers, agents, servants
and employees.
(C) The
Borrower releases each Indemnified Party from, agrees that no Indemnified Party
shall be liable for, and agrees to hold each Indemnified Party harmless against,
any reasonable attorney fees and expenses, expenses or damages incurred because
of any investigation, review or lawsuit commenced by the Trustee or the
Authority in good faith with respect to the Financing Documents, the Indenture,
the Bonds and the Project and the Authority or the Trustee, as the case may be,
shall promptly give written notice to the Borrower with respect
thereto.
(D) All
covenants, stipulations, promises, agreements and obligations of the Authority
and the Trustee contained herein shall be deemed to be the covenants,
stipulations, promises, agreements and obligations of the Authority and the
Trustee and not of any member, director, officer or employee of the Authority or
the Trustee in its individual capacity, and no recourse shall be had for the
payment of the Bonds or for any claim based thereon or hereunder against any
member, director, officer or employee of the Authority or the Trustee or any
natural person executing the Bonds.
(E) In
case any action shall be brought against one or more of the Indemnified Parties
based upon any of the above and in respect of which indemnity may be sought
against the Borrower, such Indemnified Party shall promptly notify the Borrower
in writing, enclosing a copy of all papers served, but the omission so to notify
the Borrower of any such action shall not relieve it of any liability which it
may have to any Indemnified Party otherwise than under this Section
6.2. In case any such action shall be brought against any Indemnified
Party and it shall notify the Borrower of the commencement thereof, the Borrower
shall be entitled to participate in and, to the extent that it shall wish, to
assume the defense thereof with counsel satisfactory to such Indemnified Party,
and after notice from the Borrower to such Indemnified Party of the Borrower’s
election so to assume the defense thereof, the Borrower shall not be liable to
such Indemnified Party for any subsequent legal or other expenses attributable
to such defense, except as set forth below, other than reasonable costs of
investigation subsequently incurred by such Indemnified Party in connection with
the defense thereof. The Indemnified Party shall have the right to
employ its own counsel in any such action, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless (i) the
employment of counsel by such Indemnified Party has been authorized by the
Borrower, (ii) the Indemnified Party shall have reasonably concluded that there
may be a conflict of interest between the Borrower and the Indemnified Party in
the conduct of the defense of such action (in which case the Borrower shall not
have the right to direct the defense of such action on behalf of the Indemnified
Party); or (iii) the Borrower shall not in fact have employed counsel
satisfactory to the Indemnified Party to assume defense of such
action.
(F) The
Borrower also agrees to pay all reasonable or necessary out-of-pocket expenses
of the Authority and the Trustee in connection with the issuance of the Bonds,
the administration of the Financing Documents and the enforcement of its rights
thereunder, including without limitation the costs of preparation and
distribution of closing transcripts relating thereto.
(G) In
the event the Borrower fails to pay any amount or perform any act under the
Financing Documents, the Trustee or the Authority may pay the amount or perform
the act, in which event the costs, disbursements, expenses and reasonable
counsel fees and expenses thereof, together with interest thereon from the date
the expense is paid or incurred at the prime interest rate publicly announced
from time to time by the Trustee as a commercial bank plus 1% shall be an
additional obligation hereunder payable upon demand by the Authority or the
Trustee.
(H) The
Borrower shall defend, indemnify, and hold the Authority, its agents, members,
officers and employees, and the Trustee and its agents, directors, officers and
employees, harmless from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs, or expenses of whatever kind or
nature, known or unknown, contingent or otherwise, related to or in connection
with the Project, arising out of, or in any way related to, (i) the presence,
disposal, release, or threatened release of any hazardous materials, asbestos,
petroleum or petroleum by-products which are on, from, or affecting the soil,
water, vegetation, buildings, personal property, persons, animals, or otherwise,
except in compliance with all applicable federal, State and local laws or
regulations; (ii) any personal injury (including wrongful death) or property
damage (real or personal) arising out of or related to hazardous materials,
asbestos, petroleum or petroleum by-products; (iii) any lawsuit brought or
threatened, settlement reached, or government order relating to such hazardous
materials, asbestos, petroleum or petroleum by-products and/or (iv) any
violation of laws, orders, regulations, requirements or demand of government
authorities or any policies or requirements of the Authority which are based
upon or in any way related to such hazardous materials, asbestos, petroleum or
petroleum by-products including, without limitation, reasonable attorney and
consultant fees, investigation and laboratory fees, court costs, and litigation
expenses. Notwithstanding the foregoing, the Borrower shall have no
obligation to defend, indemnify and hold harmless the Authority or the Trustee
or their respective agents, members, officers or employees under this Section
6.2(H) in the event and to the extent that any such claims, demands, penalties,
fines, liabilities, settlements, damages, costs or other expenses arise out of
or result from the willful misconduct or gross negligence of the Authority or
the Trustee or their respective agents, members, officers or
employees. The provisions of this paragraph shall be in addition to
any and all other obligations and liabilities the Borrower may have to the
Authority or the Trustee at common law, and shall survive the termination of
this Agreement.
(I) Any
obligation of the Borrower to the Authority under this Section shall be separate
from and independent of the other obligations of the Borrower hereunder, and may
be enforced directly by the Authority against the Borrower, irrespective of any
action taken by or on behalf of the owners of the Bonds.
(J) The
obligations of the Borrower under this section, notwithstanding any other
provisions contained in the Financing Documents, shall survive the termination
of this Agreement and shall be recourse to the Borrower, and for the enforcement
thereof any Indemnified Party shall have recourse to the general credit of the
Borrower.
Section
6.3.
Incorporation
of Tax Regulatory Agreement; Payments Upon
Taxability
. (A) For purpose of this Section, the
term owner means the Beneficial Owner of the Bonds so long as the Book-Entry
System is in effect.
(B) The
representations, warranties, covenants and statements of expectation of the
Borrower set forth in the Tax Regulatory Agreement are by this reference
incorporated in this Agreement as though fully set forth herein.
(C) If
any owner of the Bonds receives from the Internal Revenue Service a notice of
assessment and demand for payment with respect to interest on any Bond (except a
notice and demand based upon the assertion that the owner of the Bonds is a
Substantial User or Related Person), an appeal may be taken by the owner of the
Bonds at the option of either the owner of the Bonds or the
Borrower. In either case all expenses of the appeal including
reasonable counsel fees and expenses shall be paid by the party taking such
appeal, and the owner of the Bonds and the Borrower shall cooperate and consult
with each other in all matters pertaining to any such appeal, except that no
owner of the Bonds shall be required to disclose or furnish any non-publicly
disclosed information, including, without limitation, financial information and
tax returns.
(D) Not
later than 180 days following a Determination of Taxability, the Borrower shall
pay to the Trustee an amount sufficient, when added to the amount then in the
Debt Service Fund and available for such purpose, to retire and redeem all Bonds
then Outstanding, in accordance with Section 2.4 of the Indenture.
(E) The
obligation of the Borrower to make the payments provided for in this Section
shall be absolute and unconditional, and the failure of the Authority or the
Trustee to execute or deliver or cause to be executed or delivered any documents
or to take any action required under this Agreement or otherwise shall not
relieve the Borrower of its obligation under this
Section. Notwithstanding any other provision of this Agreement or the
Indenture, the Borrower’s obligations under this Section shall survive the
termination of this Agreement and the Indenture.
(F) The
occurrence of a Determination of Taxability shall not be an Event of Default
hereunder but shall require only the performance of the obligations of the
Borrower stated in this Section, the breach of which shall constitute an Event
of Default as provided in Section 7.1 hereof.
Section
6.4.
Public
Purpose Covenants
. (A) The Borrower covenants that
it will operate the Project for the purposes and in a manner consistent with its
application for assistance to the Authority. The Borrower further
covenants and agrees that it will, throughout the term of this Agreement, (1)
comply with all applicable laws, regulations, ordinances, rules, and orders
relating to the Project as provided in the Financing Documents, (2) maintain the
Project in accordance with the Financing Documents, (3) not cause or permit the
Project to become or remain a public nuisance, (4) not allow any change in the
nature of the occupancy, use or operation of the Project which is substantially
inconsistent with the Borrower’s application for assistance to the Authority,
except that the Borrower may, after notice to the Authority, permit any such
change which does not disqualify the Project as authorized projects under the
Act as in effect on the date hereof, and (5) except as permitted hereunder, not
sell, assign, convey, further lease, sublease or otherwise dispose of title to
the Project without the prior written consent of the
Authority. Nothing in this Section is intended to require the
Borrower to operate the Project in such manner as, in the good faith judgment of
the Borrower, shall materially and adversely impair the use and operation of the
Project.
(B) A
breach of any covenant contained in this Section shall constitute an Event of
Default but, in order to relieve the Authority of the consequences of
unanticipated failure of consideration, shall permit only the exercise by the
Authority of the remedies provided in Section 7.3 hereof.
Section
6.5.
Further
Assurances and Corrective Instruments
. The Authority and the
Borrower agree that they will, from time to time, execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered, such supplements
hereto and such further instruments as may reasonably be required for correcting
any inadequate or incorrect description of the Project or for carrying out the
intention of or facilitating the performance of this Agreement.
Section
6.6.
Covenant
by Borrower as to Compliance with Indenture
. The Borrower
covenants and agrees that it will comply with the provisions of the Indenture
with respect to the Borrower and that the Trustee and the Bondholders shall have
the power and authority provided in the Indenture. The Borrower
further agrees to aid in the furnishing to the Authority or the Trustee of
opinions that may be required under the Indenture. The Borrower
covenants and agrees that the Trustee shall be entitled to and shall have all
the rights, including the right to enforce against the Borrower the provisions
of the Financing Documents, pertaining to the Trustee notwithstanding the fact
that the Trustee is not a party to the Financing Documents.
Section
6.7.
Assignment
of Agreement or Note
. (A) The Borrower may not
assign its rights, interests or obligations hereunder or under the Note except
as may be permitted pursuant to Section 6.1(B) hereof.
(B) The
Authority agrees that it will not assign or transfer any of the Financing
Documents or the revenues and other receipts, funds and monies to be received
thereunder during the Term except to the Trustee as provided in this Agreement
and the Indenture.
Section
6.8.
Inspection
. The
Authority and its duly authorized agents shall have (1) the right at all
reasonable times, and upon notice sufficient to permit the Borrower to take
actions necessary to comply with any security regulations then in effect at the
Project, to enter upon and to examine and inspect the Project, or any portion
thereof, and (2) such rights of access thereto as may be reasonably necessary
for the proper maintenance and repair thereof in the event of failure by the
Borrower to perform its obligations under this Agreement. The
Authority agrees to comply with all of the Borrower’s safety and security
policies then in effect in connection with any such inspections. The
Authority and the Trustee shall also be permitted, at all reasonable times, to
examine the books and records of the Borrower with respect to the Project, or
any portion thereof.
Section
6.9.
Default
Notification
. Upon becoming aware of any condition or event
which constitutes, or with the giving of notice or the passage of time would
constitute, an Event of Default, the Borrower shall deliver to the Authority and
the Trustee a notice stating the existence and nature thereof and specifying the
corrective steps, if any, the Borrower is taking with respect
thereto.
Section
6.10.
Covenant
Against Discrimination
. (A) The Borrower in the
performance of this Agreement will not discriminate or permit discrimination
against any person or group of persons on the grounds of race, color, religion,
national origin, age, sex, sexual orientation, marital status, physical or
learning disability, political beliefs, mental retardation or history of mental
disorder in any manner prohibited by the laws of the United States or of the
State.
(B) The
Borrower will comply with the provisions of the resolution adopted by the
Authority on June 14, 1977, as amended, and the policy of the Authority
implemented pursuant thereto concerning the promotion of equal employment
opportunity through affirmative action plans. The resolution requires
that all borrowers receiving financial assistance from the Authority adopt and
implement an affirmative action plan prior to the closing of the
loan. The plan shall be updated annually as long as the Bonds remain
Outstanding.
Section
6.11.
Covenant
to Provide Disclosure
. The Borrower hereby covenants and
agrees that it will execute, comply with and carry out all of the provisions of
the Disclosure Agreement. Notwithstanding any other provision of this
Agreement, failure of the Borrower to comply with the provisions of the
Disclosure Agreement shall not be considered an Event of Default hereunder;
however, the Trustee may, subject to the provisions of Article IX of the
Indenture (and, at the request of the underwriter for the Bonds or the Holders
of at least 25% aggregate principal amount in Outstanding Bonds, shall), or any
Bondholder or Beneficial Owner may take such actions as may be necessary and
appropriate, including seeking mandamus or specific performance by court order,
to cause the Borrower to comply with its obligations under this Section
6.11. For purposes of this Section, “Beneficial Owner” means any
person which (a) has the power, directly or indirectly, to vote or consent with
respect to, or to dispose of ownership of, any Bonds (including persons holding
Bonds through nominees, depositories or other intermediaries), or (b) is treated
as the owner of any Bonds for federal income tax purposes.
Section
6.12.
Negative
Pledge
.
During the term
of this Agreement, except for Permitted Encumbrances, the Borrower will not
permit, create, assume or suffer to be created or to exist any mortgage, lien,
security interest, or encumbrance of any kind upon, or pledge of, any of the
Borrower’s properties of any character, including real, personal, tangible and
intangible properties and revenues, now owned or hereafter acquired, to secure
any indebtedness without providing that the Bonds have the same
security.
ARTICLE
VII
EVENTS
OF DEFAULT AND REMEDIES
Section
7.1.
Events of
Default
. Any one or more of the following shall constitute an
“Event of Default” hereunder:
(1) Any
material representation or warranty made by the Borrower in the Financing
Documents or any certificate, statement, data or information furnished in
writing to the Authority or the Trustee by the Borrower in connection with the
closing of the Bonds or included by the Borrower in its application to the
Authority for assistance proves at any time to have been incorrect in any
material respect when made.
(2) Failure
by the Borrower to pay any interest, principal or premium, if any, that has
become due and payable with respect to the Bonds.
(3) Failure
by the Borrower to pay any amount, other than principal, interest or premium
with respect to the Bonds, that has become due and payable with respect to the
Bonds or any other amount due and payable pursuant to the Financing Documents
and the continuance of such failure for more than thirty (30) days.
(4) Failure
by the Borrower to comply with the default notification provisions of Section
6.9 hereof.
(5) The
occurrence of an “Event of Default” under Section 8.1(A) of the
Indenture.
(6) Failure
by the Borrower to observe or perform any covenant, condition or agreement
hereunder or under the Financing Documents (other than the Disclosure Agreement)
(except those referred to above and except as provided in Section 6.3(F) hereof
with respect to the occurrence of a Determination of Taxability which, in and of
itself, shall not constitute an Event of Default hereunder but shall require
only the performance of the obligations of the Borrower stated in Section 6.3(F)
hereof, the breach of which shall constitute an Event of Default hereunder) and
(a) continuance of such failure for a period of sixty (60) days after receipt by
the Borrower of written notice specifying the nature of such failure or (b) if
by reason of the nature of such failure the same cannot be remedied within the
sixty-day period, the Borrower fails to proceed with reasonable diligence after
receipt of the notice to cure the failure.
(7) The
Borrower shall (a) apply for or consent to the appointment of a receiver,
trustee, liquidator or custodian or the like of itself or of its property,
(b) admit in writing its inability to pay its debts generally as they
become due, (c) make a general assignment for the benefit of creditors, (d) be
adjudicated a bankrupt or insolvent, or (e) commence a voluntary case under the
federal bankruptcy laws of the United States of America or file a voluntary
petition or answer seeking reorganization, an arrangement with creditors or an
order for relief or seeking to take advantage of any insolvency law or file an
answer admitting the material allegations of a petition filed against it in any
bankruptcy, reorganization or insolvency proceeding; or corporate action shall
be taken by it for the purpose of effecting any of the foregoing; or if without
the application, approval or consent of the Borrower, a proceeding shall be
instituted in any court of competent jurisdiction, seeking in respect of the
Borrower an adjudication in bankruptcy, reorganization, dissolution, winding up,
liquidation, a composition or arrangement with creditors, a readjustment of
debts, the appointment of a trustee, receiver, liquidator or custodian or the
like of the Borrower or of all or any substantial part of its assets, or other
like relief in respect thereof under any bankruptcy or insolvency law, and, if
such proceeding is being contested by the Borrower in good faith, the same shall
continue undismissed, or pending and unstayed, for any period of 75 consecutive
days.
(8) Failure
by the Borrower to make when due any payment of principal or interest required
under the provisions of any loan agreement (after the expiration of any
applicable grace periods) to which the Authority and the Borrower are
parties.
Section
7.2.
Remedies
on Default
. (A) Except as provided in Section
6.4(B) hereof, whenever any Event of Default shall have occurred, the Trustee,
or the Authority where so provided herein, may take any one or more of the
following actions:
(1) The
Trustee, as and to the extent provided in Article VIII of the Indenture, may
cause all amounts payable under the Financing Documents to be immediately due
and payable without notice or demand of any kind, whereupon the same shall
become immediately due and payable.
(2) The
Authority, without the consent of the Trustee or any Bondholder, may proceed to
enforce the obligations of the Borrower to the Authority under this
Agreement.
(3) The
Trustee may take whatever action at law or in equity it may have to collect the
amounts then due and thereafter to become due, or to enforce the performance or
observance of the obligations, agreements, and covenants of the Borrower under
the Financing Documents.
(4) The
Trustee may exercise any and all rights it may have under the Financing
Documents.
(B) In
the event that any Event of Default or any proceeding taken by the Authority (or
by the Trustee on behalf of the Authority) thereon shall be waived or determined
adversely to the Authority, then the Event of Default shall be annulled and the
Authority and the Borrower shall be restored to their former rights hereunder,
but no such waiver or determination shall extend to any subsequent or other
default or impair any right consequent thereon.
Section
7.3.
Remedies
on Public Purpose Default
. (A) If the Borrower shall default
in the performance of any of the covenants contained in Section 6.4 hereof, and
in the event that such default shall also constitute an Event of Default under
Section 7.1 hereof, such Event of Default shall continue for thirty (30) days
without the Trustee or Bondholders instituting the remedial steps provided for
in subsection 7.2(A)(1) hereof or subsection 8.1(B) of the Indenture, then, in
either case, the Authority may send a notice to the Trustee calling for the
acceleration of all of the Borrower’s obligations under the Financing Documents
and for the redemption of all of the Bonds then Outstanding. Any such
notice shall set forth in reasonable detail the default by the Borrower giving
rise thereto and shall specify the date upon which (1) notice of Bond redemption
is to be given by the Trustee (which shall be not less than one hundred twenty
days from the date of the Authority’s determination notice) and (2) the
redemption of the Bonds is to occur (which shall be at least thirty (30) days
after notice of redemption is given by the Trustee). Within thirty
(30) days following receipt of the notice, the Trustee shall forward a copy
thereof to the Borrower and each registered Bondholder, together with a copy of
Sections 6.4 and 7.3 of this Agreement.
(B) If,
within sixty (60) days after the mailing of notice by the Trustee to the
Borrower and the Bondholders, the Trustee receives no objection (as hereinbelow
provided) to such redemption, the Trustee shall give such notice and effect the
acceleration of the Borrower’s obligations and the redemption of all Outstanding
Bonds in accordance with the Authority’s notice and pursuant to Section 2.4(F)
of the Indenture. If, however, the Borrower or any Bondholder
disputes the existence of such Event of Default, the Borrower or such Bondholder
shall mail a notice to the Authority and the Trustee containing a statement of
such person’s belief with respect to the claimed default. The receipt
of such notice by the Trustee shall serve to suspend the proceedings for
redemption of Bonds initiated by the Authority’s notice of default.
(C) If
upon receipt of such notice from the Borrower or any Bondholder, the Authority
determines to affirm its earlier determination, either the Borrower or any
Bondholder shall have the right to bring an action in any court of competent
jurisdiction to enjoin the proceedings for the redemption of such Bonds, and
during the pendency of any such action the redemption proceedings shall be
suspended. Neither the Authority, the Borrower nor any Bondholder
shall be responsible for any costs, fees, expenses, or reasonable counsel fees
incurred by any other party in connection with any such action, other than the
Trustee (whose costs, fees and expenses shall be paid by the
Borrower). In the event the Authority is successful in such a
proceeding, and a final judgment is rendered which is not appealable or appealed
within sixty (60) days thereafter finding the Borrower in default under Section
6.4 hereof, the Trustee shall, promptly upon receipt of notice from the
Authority of the entry of the decision, give notice of the redemption of all
Outstanding Bonds under Section 6.3 of the Indenture, and redeem all such Bonds
upon the date fixed for redemption in the notice (which shall be no more than
thirty-five (35) days after the notice is given). In the event the
Borrower or such Bondholders are successful in such a proceeding, and a final
judgment is rendered which is not appealable or appealed within sixty (60) days
thereafter finding the Borrower not to be in default under Section 6.4 hereof,
all proceedings for the redemption of Bonds commenced under this Section shall
be terminated. No such judgment, however, shall prejudice the
exercise of the Authority’s rights under this Section upon the occurrence of
such subsequent failure of performance under Section 6.4 hereof.
(D) Within
fifteen (15) days of the date the Trustee gives notice of any redemption of
Bonds pursuant to Section 7.3(B) above and subject to the last sentence of
Section 7.3(B) above, the Borrower shall pay as a final loan payment a sum
sufficient, together with other funds on deposit with the Trustee and available
for such purpose, to redeem all Bonds then Outstanding under the Indenture at
100% of the principal amount thereof plus accrued interest to the redemption
date. The Borrower shall also pay or provide for all reasonable and
necessary fees and expenses of the Trustee and any Paying Agent accrued and to
accrue through the date of redemption of all such Bonds.
(E) Nothing
contained in this Section shall be deemed to prevent the Authority or the
Borrower from seeking equitable relief if it asserts or disputes, as the case
may be, the existence of an event of a public purpose default.
Section
7.4.
No Duty
to Mitigate Damages
. Unless otherwise required by law, neither
the Authority, the Trustee nor any Bondholder shall be obligated to do any act
whatsoever or exercise any diligence whatsoever to mitigate the damages to the
Borrower if an Event of Default shall occur.
Section
7.5.
Remedies
Cumulative
. No remedy herein conferred upon or reserved to the
Authority or the Trustee is intended to be exclusive of any other available
remedy or remedies but each and every such remedy shall be cumulative and shall
be in addition to every remedy given under this Agreement or now or hereafter
existing at law or in equity or by statute. Delay or omission to
exercise any right or power accruing upon any default or failure by the
Authority or the Trustee to insist upon the strict performance of any of the
covenants and agreements herein set forth or to exercise any rights or remedies
upon default by the Borrower hereunder shall not impair any such right or power
or be considered or taken as a waiver or relinquishment for the future of the
right to insist upon and to enforce, by injunction or other appropriate legal or
equitable remedy, strict compliance by the Borrower with all of the covenants
and conditions hereof, or of the right to exercise any such rights or remedies,
if such default by the Borrower be continued or repeated.
ARTICLE
VIII
PREPAYMENT
PROVISIONS
Section
8.1.
Optional
Prepayment
. (A) The Borrower shall have, and is
hereby granted, the option to prepay its loan obligation at any time, and from
time to time, on or after [December 1, 2014] and to cause the corresponding
optional redemption of the Bonds pursuant to Section 2.4(A) of the Indenture at
such times, in such amounts, and with such premium, if any, for such optional
redemption as set forth in the form of the Bond, by delivering a written notice
to the Trustee in accordance with Section 8.2 hereof, with a copy to the
Authority, setting forth the amount to be prepaid, the amount of Bonds requested
to be redeemed with the proceeds of such prepayment, and the date on which such
Bonds are to be redeemed. Such prepayment must be sufficient to
provide monies for the payment of interest and Redemption Price in accordance
with the terms of the Bonds requested to be redeemed with such prepayment and
all other amounts then due under the Financing Documents. In the
event of any complete prepayment of its loan obligation, the Borrower shall, at
the time of such prepayment, also pay or provide for the payment of all
reasonable or necessary fees and expenses of the Authority, the Trustee and the
Paying Agent accrued and to accrue through the final payment of all the
Bonds. Any such prepayments shall be applied to the redemption of
Bonds in the manner provided in Section 6.2 of the Indenture, and credited
against payments due hereunder in the same manner.
(B) The
Borrower shall have, and is hereby granted, the option to prepay its loan
obligation in full at any time without premium if any of the following events
shall have occurred, as evidenced in each case by the filing with the Trustee of
a certificate of an Authorized Representative of the Borrower to the effect that
one of such events has occurred and is continuing, and describing the
same:
(1) The
Project shall have been damaged or destroyed to such extent that (a) the Project
cannot be reasonably restored within a period of six (6) months from the date of
such damage or destruction to the condition thereof immediately preceding such
damage or destruction, or (b) the Borrower is thereby prevented or likely to be
prevented from carrying on its normal operation of the Project for a period of
six (6) months from the date of such damage or destruction.
(2) Title
to or the temporary use of all or substantially all of the Project shall have
been taken or condemned by a competent authority, which taking or condemnation
results or is likely to result in the Borrower being thereby prevented or likely
to be prevented from carrying on its normal operation of the Project for a
period of six (6) months.
(3) A
change in the Constitution of the State or of the United States of America or
legislative or executive action (whether local, state, or federal) or a final
decree, judgment or order of any court or administrative body (whether local,
state, or federal) that causes this Agreement to become void or unenforceable or
impossible of performance in accordance with the intent and purpose of the
parties as expressed herein or, imposes unreasonable burdens or excessive
liabilities upon the Borrower with respect to the Project or the operation
thereof.
(4) The
operation of any of the Project shall have been enjoined or shall otherwise have
been prohibited by any order, decree, rule or regulation of any court or of any
local, state, or federal regulatory body, administrative agency or other
governmental body for a period of not less than six months.
(5) Changes
in the economic availability of raw materials, operating supplies or facilities
necessary for the operation of the Project or technological or other changes
shall have occurred which the Borrower cannot reasonably overcome or control and
which in the Borrower’s reasonable judgment renders the Project unsuitable or
uneconomic for the purposes herein specified or any tax shall be levied upon
payments due under the Note in an amount which the Borrower in its reasonable
judgment believes imposes an unreasonable burden upon the Borrower.
In any
such case the final loan payment shall be a sum sufficient, together with other
funds deposited with Trustee and available for such purpose, to redeem all Bonds
then Outstanding under the Indenture at the redemption price of 100% of the
principal amount thereof plus accrued interest to the redemption date and all
other amounts then due under the Financing Documents, and the Borrower shall
also pay or provide for all reasonable or necessary fees and expenses of the
Authority, the Trustee and Paying Agent accrued and to accrue through final
payment for the Bonds. The Borrower shall deliver a written notice to
the Trustee, with a copy to the Authority, requesting the redemption of the
Bonds under the Indenture, which notice shall have attached thereto the
applicable certificate of the Authorized Representative of the
Borrower.
In
addition, the Borrower may prepay all or a portion of its loan obligation in
order to preserve the tax-exempt status of interest on the Bonds in accordance
with the provisions of Section 2.4(G) of the Indenture.
Section
8.2.
Notices
of Prepayment
. To exercise any options granted in this
Article, or to consummate the acceleration of the loan payments as set forth in
this Article, the written notice to the Trustee shall be signed by an Authorized
Representative of the Borrower and shall specify therein the date of prepayment,
which date shall be not less than thirty-five days nor more than ninety days
from the date the notice is mailed. A duplicate copy of any written
notice hereunder shall also be filed with the Authority by the
Borrower.
Section
8.3.
Mandatory
Prepayment on Taxability and Receipt of Request for Redemption of a Deceased
Holder’s Bonds
. The Borrower shall pay or cause the
prepayment of all or a portion of its loan obligation, as circumstances and the
provisions of Section 2.4 of the Indenture shall warrant, following (i) a
Determination of Taxability in the manner provided in Section 6.3 of this
Agreement, and (ii) receipt by the Trustee of a request for redemption of a
deceased owners’ Bonds in accordance with Section 2.4(D) of the
Indenture.
ARTICLE
IX
GENERAL
Section
9.1.
Indenture
. (A) Monies
received from the sale of the Bonds and all loan payments made by the Borrower
and all other monies received by the Authority or the Trustee under the
Financing Documents shall be applied solely and exclusively in the manner and
for the purposes expressed and specified in the Indenture and in the Bonds and
as provided in this Agreement.
(B) The
Borrower shall have and may exercise all the rights, powers and authority given
the Borrower in the Indenture and in the Bonds, and the Indenture and the Bonds
shall not be modified, altered or amended in any manner which adversely affects
such rights, powers and authority or otherwise adversely affects the Borrower
without the prior written consent of the Borrower.
Section
9.2.
Benefit
of and Enforcement by Bondholders
. The Authority and the
Borrower agree that this Agreement is executed in part to induce the purchase by
others of the Bonds and for the further securing of the Bonds, and accordingly
that all covenants and agreements on the part of the Authority and the Borrower
as to the amounts payable with respect to the Bonds hereunder are hereby
declared to be for the benefit of the holders from time to time of the Bonds and
may be enforced as provided in the Indenture on behalf of the Bondholders by the
Trustee.
Section
9.3.
Force
Majeure
. In case by reason of force majeure either party
hereto shall be rendered unable wholly or in part to carry out its obligations
under this Agreement, then except as otherwise expressly provided in this
Agreement, if such party shall give notice and full particulars of such force
majeure in writing to the other party within a reasonable time after occurrence
of the event or cause relied on, the obligations of the party giving such
notice, other than the obligation of the Borrower to make the payments required
under the terms hereof or of the Note, so far as they are affected by such force
majeure, shall be suspended during the continuance of the inability then claimed
which shall include a reasonable time for the removal of the effect thereof, but
for no longer period, and such parties shall endeavor to remove or overcome such
inability with all reasonable dispatch. The term "force majeure", as
employed herein, means acts of God, strikes, lockouts or other industrial
disturbances, acts of the public enemy, orders of any kind of the Government of
the United States, of the State or any civil or military authority,
insurrections, riots, epidemics, landslides, lightning, earthquakes, volcanoes,
fires, hurricanes, tornadoes, storms, floods, washouts, droughts, arrests,
restraining of government and people, civil disturbances, explosions, partial or
entire failure of utilities, shortages of labor, material, supplies or
transportation, or any other similar or different cause not reasonably within
the control of the party claiming such inability. It is understood
and agreed that the settlement of existing or impending strikes, lockouts or
other industrial disturbances shall be entirely within the discretion of the
party having the difficulty and that the above requirements that any force
majeure shall be reasonably beyond the control of the party and shall be
remedied with all reasonable dispatch shall be deemed to be fulfilled even
though such existing or impending strikes, lockouts and other industrial
disturbances may not be settled and could have been settled by acceding to the
demands of the opposing person or persons.
Section
9.4.
Amendments
. This
Agreement may be amended only with the concurring written consent of the Trustee
and, if required by the Indenture, of the owners of the Bonds given in
accordance with the provisions of the Indenture.
Section
9.5.
Notices
. All
notices, certificates or other communications hereunder shall be sufficiently
given and shall be deemed given when delivered or when mailed by registered or
certified mail, postage prepaid, addressed as follows: if to the Authority, at
999 West Street, Rocky Hill, Connecticut 06067, Attention: Program Manager -
Loan Administration; if to the Borrower, 93 West Main Street, Clinton,
Connecticut 06413 Attention: Vice President-Finance; if to the Paying Agent,
Goodwin Square, 225 Asylum Street, Hartford, Connecticut 06103, Attention:
Corporate Trust Department; and if to the Trustee, Goodwin Square, 225 Asylum
Street, Hartford, Connecticut 06103, Attention: Corporate Trust
Administration. A duplicate copy of each notice, certificate or other
communication given hereunder by either the Authority or the Borrower to the
other shall also be given to the Trustee. The Authority, the
Borrower, the Paying Agent and the Trustee may, by notice given hereunder,
designate any further or different addresses to which subsequent notices,
certificates or other communications shall be sent.
Section
9.6.
Compliance
with C.G.S. Sections 4a-60 and 4a-60a.
(A) CGS
Section 4a-60. In accordance with Connecticut General Statutes Section
4a-60(a)(1), as amended by Connecticut Public Act 07-142, and to the extent
required by Connecticut law, the Borrower agrees and warrants as follows: (1) in
the performance of this Agreement it will not discriminate or permit
discrimination against any person or group of persons on the grounds of race,
color, religious creed, age, marital or civil union status, national origin,
ancestry, sex, mental retardation or physical disability, including, but not
limited to, blindness, unless it is shown by the Borrower that such disability
prevents performance of the work involved, in any manner prohibited by the laws
of the United States or of the State of Connecticut and further to take
affirmative action to insure that applicants with job-related qualifications are
employed and that employees are treated when employed without regard to their
race, color, religious creed, age, marital or civil union status, national
origin, ancestry, sex, mental retardation, or physical disability, including,
but not limited to, blindness, unless it is shown by the Borrower that such
disability prevents performance of the work involved; (2) in all solicitations
or advertisements for employees placed by or on behalf of the Borrower, to state
that it is an “affirmative action-equal opportunity employer” in accordance with
regulations adopted by the Commission on Human Rights and Opportunities (the
“CHRO”); (3) to provide each labor union or representative of workers with which
the Borrower has a collective bargaining agreement or other contract or
understanding and each vendor with which the Borrower has a contract or
understanding, a notice to be provided by the CHRO advising the labor union or
workers’ representative of the Borrower’s commitments under Connecticut General
Statutes Section 4a-60, and to post copies of the notice in conspicuous places
available to employees and applicants for employment; (4) to comply with each
provision of Connecticut General Statutes Sections 4a-60, 46a-68e and 46a-68f
and with each regulation or relevant order issued by the CHRO pursuant to
Connecticut General Statutes Sections 46a-56, 46a-68e and 46a-68f; (5) to
provide the CHRO with such information requested by the CHRO, and permit access
to pertinent books, records and accounts, concerning the employment practices
and procedures of the Borrower as relate to the provisions of Connecticut
General Statutes Sections 4a-60a and 46a-56.
(B) CGS
Section 4a-60a. In accordance with Connecticut General Statutes Section
4a-60a(a)(1), as amended by Connecticut Public Act 07-142, and to the extent
required by Connecticut law, the Borrower agrees and warrants as follows: (1)
that in the performance of this Agreement, the Borrower will not
discriminate or permit discrimination against any person or group of persons on
the grounds of sexual orientation, in any manner prohibited by the laws of the
United States or of the State of Connecticut, and that employees are treated
when employed without regard to their sexual orientation; (2) to provide each
labor union or representative of workers with which the Borrower has a
collective bargaining agreement or other contract or understanding and each
vendor with which the Borrower has a contract or understanding, a notice to be
provided by the CHRO advising the labor union or workers’ representative of the
Borrower’s commitments under Connecticut General Statutes Section 4a-60a, and to
post copies of the notice in conspicuous places available to employees and
applicants for employment; (3) to comply with each provision of Connecticut
General Statutes Section 4a-60a and with each regulation or relevant order
issued by the CHRO pursuant to Connecticut General Statutes Section 46a-56; (4)
to provide the CHRO with such information requested by the CHRO, and permit
access to pertinent books, records and accounts, concerning the employment
practices and procedures of the Borrower which relate to the provisions of
Connecticut General Statutes Sections 4a-60a and 46a-56; and (5) to include
provisions (1) through (4) this section in every subcontract or purchase order
entered into by the Borrower in order to fulfill any obligation of this
Agreement, and such provisions shall be binding on a subcontractor, vendor or
manufacturer unless exempted by regulations or orders of the CHRO and take such
action with respect to any such subcontract or purchase order as the CHRO may
direct as a means of enforcing such provisions in accordance with Connecticut
General Statutes Section 4a-60a.
Section
9.7.
Prior
Agreements Superseded
. This Agreement, together with all
agreements executed by the parties concurrently herewith or in conjunction with
the sale of the Bonds, shall completely and fully supersede all other prior
understandings or agreements, both written and oral, between the Authority and
the Borrower relating to the lending of money and the Project, including those
contained in any commitment letter executed in anticipation of the issuance of
the Bonds but excluding agreements entered into in connection with the financing
of the Project with other bonds previously issued by the Authority.
Section
9.8.
Execution
of Counterparts
. This Agreement may be executed simultaneously
in several counterparts each of which shall be an original and all of which
shall constitute but one and the same instrument.
Section
9.9.
Time
. All
references to times of day in this Agreement are references to New York City
time.
Section
9.10.
Separability
of Invalid Provisions
. In case any one or more of the
provisions contained in this Agreement or in the Note shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such invalid or illegal
or unenforceable provision had never been contained herein.
Section
9.11.
Third
Party Beneficiaries
. The Authority and the Borrower agree that
the Trustee and the Paying Agent shall be third party beneficiaries of this
Agreement to the extent that any of the provisions hereof relate to or provide
rights to the Trustee or the Paying Agent.
Section
9.12.
Governing
Law
. This Agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut, without reference to its
choice of law principles.
IN WITNESS WHEREOF
, the
Authority has caused this Agreement to be executed in its corporate name by a
duly Authorized Representative, and the Borrower has caused this Agreement to be
executed in its corporate name by its duly authorized officer all as of the date
first above written.
CONNECTICUT
DEVELOPMENT AUTHORITY
By
/s/ Karin
A. Lawrence
Name:
Karin A. Lawrence
Authorized
Representative
THE
CONNECTICUT WATER COMPANY
By
/s/ David
C. Benoit
Name: David
C. Benoit
Title: Vice
President - Finance and
Chief Financial Officer
APPENDIX
A
THE
CONNECTICUT WATER COMPANY
FORM
OF
PROMISSORY
NOTE
2009A
SERIES
No.
1 $20,000,000
The
Connecticut Water Company, a corporation organized and existing under the laws
of the State of Connecticut (the “Borrower”), for value received, hereby
promises to pay to the order of the Connecticut Development Authority (the
“Authority”), the principal sum of $20,000,000.00 together with interest on the
unpaid principal balance thereof from the date hereof until fully and finally
paid, on the applicable Interest Payment Dates together with all taxes levied or
assessed on this Note or the debt evidenced hereby against the holder
hereof. This Note shall bear interest at the rate of interest borne
by the Bonds referred to below.
This Note
has been executed under and pursuant to a Loan Agreement, dated as of December
1, 2009, between the Authority and the Borrower (the
“Agreement”). This Note is issued to evidence the obligation of the
Borrower under the Agreement to repay the loan made by the Authority from the
proceeds of its $20,000,000 Water Facilities Revenue Bonds (The Connecticut
Water Company Project - 2009A Series) (the “Bonds”), together with interest
thereon and all other amounts, fees, penalties, premiums, adjustments, expenses,
reasonable counsel fees and other payments of any kind required to be paid by
the Borrower under the Agreement. The Agreement includes provision
for mandatory and optional prepayment of this Note as a whole or in
part. Advances made pursuant to Section 6.2 of the Agreement shall
bear interest at the rate specified in accordance therewith.
The
Agreement and this Note (hereinafter, together with the Tax Regulatory
Agreement, collectively referred to as the “Financing Documents”) have been
assigned to U.S. Bank National Association (the “Trustee”) acting pursuant to an
Indenture of Trust, dated as of December 1, 2009 (the “Indenture”), between the
Authority and the Trustee. Such assignment is made as security for
the payment of the Bonds issued by the Authority pursuant to the
Indenture.
As
provided in the Agreement and subject to the provisions thereof, payments hereon
are to be made at the corporate trust office of U.S. Bank National Association
in Hartford, Connecticut, or at the office designated for such payment by any
successor trustee in an amount which, together with other moneys available
therefor pursuant to the Indenture, will equal the amount payable as principal
or Redemption Price, if any, of and interest on the Bonds outstanding under the
Indenture on each such due date.
The
Borrower shall make payments on this Note on the dates and in the amounts
specified herein and in the Agreement and in addition shall make such other
payments as are required pursuant to the Financing Documents, the Indenture and
the Bonds. Upon the occurrence of an Event of Default, as defined in
any of the Financing Documents, the principal of and interest on this Note may
be declared immediately due and payable as provided in the
Agreement. Upon any such declaration the Borrower shall pay all cost,
disbursements, expenses and reasonable counsel fees of the Authority and the
Trustee in seeking to enforce their rights under any of the Financing
Documents.
THE
BORROWER ACKNOWLEDGES THAT THE LOAN EVIDENCED BY THIS NOTE IS A COMMERCIAL
TRANSACTION AND WAIVES ITS RIGHTS TO NOTICE AND HEARING UNDER CHAPTER 903a OF
THE CONNECTICUT GENERAL STATUTES, OR AS OTHERWISE ALLOWED BY ANY STATE OR
FEDERAL LAW WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH THE HOLDER HEREOF MAY
DESIRE TO USE. The Borrower further (1) waives diligence, demand,
presentment for payment, notice of nonpayment, protest and notice of protest,
notice of any renewals or extension of this Note, and all rights under any
statute of limitations, (2) agrees that the time for payment of this Note may be
changed and extended in accordance with the provisions of the Indenture, and (3)
consents to the release of all or any part of the security for the payment
thereof at the discretion of the Trustee or the release of any party liable for
this obligation without affecting the liability of the other parties
hereto. Any delay on the part of the Authority or the Trustee in
exercising any right hereunder shall not operate as a waiver of any such right,
and any waiver granted with respect to one default shall not operate as a waiver
in the event of any subsequent default.
IN
WITNESS WHEREOF, The Connecticut Water Company has caused this Note to be
executed in its corporate name by its duly authorized officer, dated December
__, 2009.
|
THE
CONNECTICUT WATER COMPANY
|
By:
/s/ David
C. Benoit
Name: David
C. Benoit
Authorized
Representative
AUTHORITY
ENDORSEMENT
Pay to
the order of U.S. Bank National Association, as Trustee, without
recourse.
CONNECTICUT
DEVELOPMENT AUTHORITY
By:
/s/ Karin
A. Lawrence
Name: Karin
A. Lawrence
Authorized
Representative
APPENDIX
B
PROJECT
DESCRIPTION
The
Project shall consist of various improvements to certain of the Borrower’s water
systems each of which collects, treats, stores, transmits and distributes water
for residential, commercial, industrial and fire protection services in certain
cities, towns and communities within Connecticut. The Borrower’s
systems are operationally separate and are organized into
regions. Those systems affected by the improvements and the regions
to which they are allocated are as follows: (1) Shoreline Region, consisting of
the Guilford System, the Chester System, the Point O' Woods System and the Sound
View System; (2) the Naugatuck Region, consisting of the Central System, the
Collinsville System, the Unionville System and the Terryville System; (3) the
Northern Region, consisting of the Western System and the Stafford
System; and (4) the Eastern Region, consisting of the Crystal System, the
Gallup System and the Plainfield System.
Description
|
Location
|
Shoreline
Region
|
|
Improvements to Elementary
School, Chester
- Replace approximately 3300 feet of 6” cast iron
main on Rte. 148 and Ridge Road with 12” DIP to improve flow to Chester
Elementary School. Project scope includes the replacement of services and
hydrant(s), as appropriate.
|
Main
Street from Water Street to Ridge Road and Ridge Road from Main to
Elementary School driveway, Chester, CT.
|
Comstock Ave, Essex
-
Replacement of 2900’ of 6” cast iron with 8” DIP. Project scope includes
the replacement of services and hydrant(s).
|
Comstock
Avenue, Essex, CT
|
Dudley Ave, Madison
-
Replacement of 4500’ of 2” galvanized and 6” transite with 8” DIP. Project
scope includes the replacement of services and hydrant(s).
|
Dudley
Ave., North Lane, South Lane, East Lane, 1st Street, 2nd Street, Madison,
CT.
|
Glenwood Rd to Rte 81 to North
High St, Clinton
- This project involves the cleaning and lining of
approximately 10,000 feet of 14-inch cast iron main.
|
Glenwood
Road, Clinton, from Rte 81 to North High Street, Clinton,
CT
|
Westbrook Tank
(Lee
Company) Construction of one million gallon water storage tank
to improve system supply storage capacity.
|
In
Easement located 4,000 feet off of the end of the
existing road, Pequot Park Road Extension, on Lee
Company property. Pequot Park Road Extension is located off of
Route 145, Westbrook, CT.
|
Westbrook Tank (Lee Company)
Connecting Main
- to connect new storage facility to
distribution main.
|
In
Easement located 4,000 feet off of the end of the
existing road, Pequot Park Road Extension, on Lee
Company property. Pequot Park Road Extension is located off of
Route 145, Westbrook, CT.
|
Clinton Well Greensand
Filter
– add third greensand filter vessel to treatment
facility.
|
Clinton
Well Field, 93 Glenwood Road, Clinton, CT.
|
|
|
Naugatuck
Region
|
|
Roosevelt/Beach,
Terryville
- Replacement of 1700’ -4” cast iron with 8”
DIP main. Project scope includes the replacement of services
and hydrant(s), as appropriate.
|
Roosevelt
and Beach Roads, Terryville, CT
|
Webster Street,
Unionville
- Replacement of 2000’ of 6-inch cast iron with 8” DIP
main in conjunction with town roadway project. Project scope
includes the replacement of services and hydrant(s), as
appropriate.
|
Webster
Street, from River Road to Plainville Avenue (Route 177), Unionville,
CT
|
High Street, Naugatuck
-
Replace 3000’ -8” cast iron main with 12” DIP to eliminate hydraulic
bottle neck. Project scope includes the replacement of services and
hydrant(s), as appropriate.
|
North
Main Street to Calvin Street. – Calvin to High Street. – High to May
Street. – May to Johnson Street, Naugatuck, CT.
|
Mountain Spring Road,
Farmington
- Replacement of 3000’-6” cast iron main due to
conflicts and relocation of state roadway project. Project scope includes
the replacement of services and hydrant(s), as appropriate.
|
From
Route 4 (Farmington Avenue), Farmington, CT North to end of existing main,
3000’ .
|
Spring St, Naugatuck
-
Replacement of 2300’ of 6” cast iron with 8” DIP. Project scope includes
the replacement of services and hydrant(s).
|
Spring
Street from Bridge Street to Porter Avenue, Naugatuck,
CT.
|
Scott Swamp Rd./Cook St./Rte
10, Farmington
- Replacement of 3800’ of 6” cast iron of 12” DIP.
Project scope includes the replacement of services and
hydrant(s).
|
Route
10 (Main Street) from Scott Swamp Road to Hawthorne Lane, and Cooke Street
from Hawthorne to existing main, Farmington, CT.
|
Mohawk/Keene/Pickett,
Unionville
- Replacement of 5000’ of 6” cast iron with 8” DIP.
Project scope includes the replacement of services and
hydrant(s).
|
Keene
Place from Plainville Ave (Rte 177) to Brittany Lane, Mohawk Drive from
Keene Place to West District Rd, Pickett Lane to cul-de-sac, Batt Court
Loop, Unionville, CT.
|
Farmington Ave-Garden to High
St, Unionville
- Replacement of 1500’ of 6” cast iron with 12” DIP.
Project scope includes the replacement of services and
hydrant(s).
|
Farmington
Avenue (Rte. 4) from Garden Street to High Street, Farmington,
CT.
|
Prospect Street, Vernon
- Replace 2800’ of 10” cast iron with 12” DIP main in conjunction with
town roadway project. Project scope includes the replacement of services
and hydrant(s), as appropriate.
|
Prospect
Street from Gaynor Place to Union Street, Vernon, CT.
|
Ellsworth Estates, East Windsor
- Replace 6800’ of plastic distribution system and
services, remove existing pressure reducing valve required due to
condition of existing pipe and causing flow restriction.
|
Includes
all or part of Rye Street, Petticoat Lane, Omelia Road, Ellsworth Road,
Allen Street, East Windsor, CT.
|
High St., Enfield
-
Involves the replacement of 2200' of existing cast iron water main.
Project scope includes the replacement of services and hydrant(s), as
appropriate.
|
High
Street, entire length from Route 5 to Prospect Street, Enfield,
CT.
|
Chestnut Street, Windsor
Locks
- Involves replacement of existing 10" transite water mains
on Chestnut Street in conjunction with Town restoration project. Project
scope includes the replacement of services and hydrant(s), as
appropriate.
|
Chestnut
Street, entire length from Spring Street to Route 159 (Main Street),
Windsor Locks, CT.
|
Prospect Hill Phase I&II,
East Windsor
- Replacement of 7500’ of 6” transite main with 8-inch
DIP in conjunction with town reconstruction work. Project scope
includes the replacement of services and hydrant(s). Original main
installed 1950s.
|
Streets
include Prospect Hill, Cricket, Broadview and Button, East Windsor,
CT
|
Road Restoration, South
Windsor
- Involves replacement of existing cast iron and transite
water mains in conjunction with Town restoration project(s). Project scope
includes the replacement of services and hydrant(s), as
appropriate.
|
Brewster,
Gray and Arnold Streets, South Windsor, CT
|
Rte. 31 / 275, Coventry
- Replacement of 4500’ of existing 6 & 4 inch cast iron distribution
pipe in conjunction with DOT road reconstruction of Rte. 275 and Rte.
31.
|
Rte.
31 from Rte. 275 (Stonehouse Road) to Armstrong Road, Coventry,
CT.
|
Mountain Road, Suffield
- Replacement of 7500’ of 10 and 4” cast iron main with 12” DIP. Project
scope includes the replacement of services and hydrant(s).
|
Mountain
Road (Rte. 168) from Rte. 75 to Plantation Drive, Suffield,
CT.
|
Gardener and Pleasant St, East
Windsor
- Replacement of 2400’ of 6&4” cast iron main with 8”
DIP. Project scope includes the replacement of services and
hydrant(s)..
|
Gardener
Street and Pleasant Street from Gardener to North Main Street., East
Windsor, CT.
|
Whiton, West & Wicklow,
Windsor Locks
- Replacement of 4500 of 4” cast iron with 8” DIP in
conjunction with town roadway project. Project scope includes the
replacement of services and hydrant(s), as appropriate.
|
Whiton
and Wicklow Streets, West Street from North to Spring Street, Windsor
Locks, CT.
|
Talcottville/Old Main,
Vernon
- Replacement of 11,000 feet of 6&4” transite main with
8” DIP. Project scope includes the replacement of services and
hydrant(s).
|
Streets
include Hartl
[Sp?]
, Taylor,
Lorraine, Welles, Acorn and Allison, Vernon, CT.
|
Road Restoration,
Enfield
- Involves replacement of existing cast iron and/or
transite water mains, in conjunction with Town restoration project(s).
Project scope includes the replacement of services and hydrant(s), as
appropriate.
|
Alden,
Lafayette, and Jim Streets, Enfield, CT.
|
Road Restoration, South Windsor
– Involves replacement of existing cast iron and/or transite water
mains the Avery Heights area in conjunction with Town restoration
project(s). Project scope includes the replacement of services and
hydrant(s), as appropriate.
|
Spruce
Lane and Benedict Drive, South Windsor, CT.
|
Rockville Water Treatment Plant
Sludge Lagoon, Pump Station, and Sedimentation Basins
-
Construction of booster pump station, clarifier sludge
lagoons, and installation of piping from booster to
lagoons.
|
Plant
is located on Snipsic Street, Rockville, sludge lagoons will be located on
Company property along Collins Stage Road, Rockville,
CT.
|
Lakewood Well Treatment
Addition –
Expansion of treatment building to serve area
at an increased capacity.
|
Edgewater
Drive, Coventry, CT.
|
Interconnection with Manchester
Water –
Interconnect with adjoining system to serve new development
in South Windsor, expansion of Evergreen Walk.
|
Buckland
Drive near Lowe’s, Manchester, CT.
|
Ellington Acres Interconnection
–
Field/Egypt Road, Somers. Install approximately 8100
lf 12" DIP water main to interconnect Northern Western system from Somers
to Ellington Acres system
|
Field
Road from New England Tractor Trailer Training School
to Billings Road, Egypt Road from Billings to existing main at
Town Garage, Somers, CT
|
Eastern
Region
|
|
Wauregan Village Imp. - Phase
III
- Completion of system upgrade requires installation
of 1800’ – 8” DIP to replace the balance of the 6’ & <=2” pipe
located on private property. Project scope includes the replacement of
services and hydrant(s), as appropriate.
|
North
Chestnut Street., North Walnut Street., Grove Street., North Cross Street.
and Fountain Street, Wauregan, CT.
|
Ballouville Rd., Ballouville -
Involves replacement of 6000' of existing 6" cast iron main.
Project scope includes replacement of services and fire hydrant(s), as
appropriate.
|
Ballouville
Road from Attawagan Crossing Road to Chestnut Hill Road, Killingly,
CT.
|
Onion Hill neighborhood,
Plainfield
- Replace 2650’ – 4” cast iron with 8”
DIP main. Project scope includes the replacement of services
and hydrant(s), as appropriate.
|
Laurel
Street, North . Pleasant Street, Ashley, Dougherty and Rte. 14A,
Plainfield, CT.
|
Maple St Area,
Brooklyn/Danielson
- Replacement of 2000’of cast iron and
galvanized main, <=4”.. Project scope includes the replacement of
services and hydrant(s).
|
Williams,
Cave, Adelaide, Fredrick, Griffin, Leander, Middle Streets, Danielson,
CT.
|
Westchester Village Well
Station –
Develop new well to supply residential complex,
construction of pump station building and treatment.
|
Shailor
Hill Road, Colchester, CT.
|