EXHIBIT 4.11
REVOLVING AND TERM
LOAN AND SECURITY AGREEMENT
THIS AGREEMENT, dated as of April 11, 1991, by and between FARMINGTON
SAVINGS BANK, a banking corporation organized under the laws of the State of
Connecticut (hereinafter called the "Bank"), and THE UNIONVILLE WATER COMPANY, a
Connecticut public service company having its main office and principal place of
business at 00 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000 (hereinafter called
the "Borrower"), sets forth the terms and conditions whereby the Bank will lend
funds to the Borrower to be secured, applied and repaid as follows:
WITNESSETH:
WHEREAS, the Borrower has made certain representations to the Bank and
has requested the Bank to lend funds to the Borrower; and
WHEREAS, the Bank, in reliance on said representations of the Borrower,
is willing to lend such funds to the Borrower on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, the parties hereto agree as follows:
SECTION 1. THE LOAN
The Loan, as that term is used herein, shall refer collectively to (i)
a term loan (the "Term Loan") in the amount of One Million Nine Hundred Thousand
Dollars ($1,900,000), on the terms set forth in Xxxxxxx 0, xxxxx, (xx) a
Revolving Line of Credit (the "Revolving Line of Credit") in an amount not to
exceed Five Hundred Thousand Dollars ($500,000), on the terms set forth in
Section 3, below.
SECTION 2. THE TERM LOAN
2.01 (a) The principal amount of the Term Loan will be One Million
Nine Hundred Thousand Dollars ($1,900,000). The Term Loan will be a twenty (20)
year term loan, and the entire principal amount of the Term Loan will be
advanced to the Borrower in full at the Closing.
(b) The Term Loan will be evidenced by a promissory note
made payable to the order of the Bank and substantially in the form of Exhibit A
attached hereto (the "Term Note"; such term shall also apply to any extensions,
renewals, modifications, or replacements thereof), which shall be duly executed
by Borrower with all appropriate blanks completed.
EXHIBIT 4.11
(c) The Term Note shall bear interest as follows:
(i) from the date of the Term Note through the date which
is five (5) years from the date on which the first payment is due
thereunder, the interest rate shall be determined by adding two and
one-half percentage points (2.5%) (the "Margin") to the most recent
available Federal Home Loan Bank of Boston Long-Term, Regular, 5 Year,
Fixed Rate Mortgage Rate (the "Index"), one week prior to the execution
of the Term Note, rounded to the next highest one-eighth of one
percentage point (0.125%); and
(ii) effective on the sixtieth (60th) monthly anniversary
of the due date of the first payment, and on each sixtieth (60th)
monthly anniversary date thereafter (each anniversary referred to
herein as an "Interest Change Date"), the interest rate on the Term
Note shall be increased or decreased to a rate determined in accordance
with the Index. If the Index is no longer available, the Bank will use
a similar index chosen by the Bank in the exercise of its reasonable
discretion. The most recent Index available forty-five (45) days prior
to the Interest Change Date will be the "Current Index". The applicable
new interest rate will be computed by adding the Margin to the Current
Index and rounding the result to the next highest one-eighth of one
percentage point (0.125%). Each new interest rate will be effective
beginning on each Interest Change Date.
2.02 In the event that any payment due under the Term Note or the
Revolving Line of Credit Note, whether of principal, interest, or otherwise, is
not received by the Bank within fifteen (15) days from the date on which it is
payable, (a) the unpaid and outstanding balance of the Term Note shall bear
interest, from the date on which the overdue payment was originally payable, at
a rate which is 3 percentage points (3.0%) in excess of the applicable rate as
set forth in Section 2.01 (c) hereof (the "default rate"), and (b) the Bank
shall charge and collect (in addition to interest at the default rate) a late
charge of five percent (5%) of the overdue payment.
2.03 The Borrower shall make payments on the Term Note, as follows:
Beginning on the first day of the second month after the execution of
the Term Note, and on the first day of each succeeding month, the
Borrower shall pay to the Bank monthly payments of principal and
interest in an amount adequate to amortize the Term Note, based upon
the interest rate determined in accordance with Section 2.01(c) (i)
above, in twenty (20) years, including a final 240th payment of all
principal and interest due to repay the Term Note in full not later
than twenty years and 59 days from the date of the Term Note (the
"Final Maturity"), provided however, effective with the due date of the
sixty-first (61st) monthly payment, and on each sixtieth (60th) monthly
anniversary of that date thereafter (each such date referred to
hereinafter as a "Payment Change Date"), the monthly payments of
principal and interest shall be adjusted to amortize the remaining
balance of the Term Note, based upon the appropriate interest rate
determined in accordance with Section 2.01(c) (ii) hereof for the
Interest Change Date immediately preceding the
EXHIBIT 4.11
Payment Change Date, within the period measured from the applicable
Interest Change Date until the Final Maturity.
2.04 The Borrower shall have the right to prepay the Term Note
without penalty for the 30 days preceding each Interest Change Date upon 30
days' prior notice to the Bank. Prepayment made at any other time shall be
allowed only upon payment by the Borrower of a "Prepayment Charge", as
hereinafter defined. The Prepayment Charge shall be 110% of the present value of
the difference between:
(a) the interest on the amount prepaid for the remaining term to the
next Interest Change Date, as determined by the Current Index, and
(b) the interest on the same amount for the remaining term to the next
Interest Change Date, as determined by the Index in effect for that
maturity on the day prepayment is made.
SECTION 3. THE REVOLVING LINE OF CREDIT
3.01 (a) Upon the terms and subject to the conditions of this
Agreement, Bank agrees to lend and relend to the Borrower from time to time
during the period from and including the date hereof through April 30, 1992, as
requested by the Borrower in accordance with the terms of subsection 3.01(b)
below, amounts which in the aggregate at any one time outstanding do not exceed
Five Hundred Thousand Dollars ($500,000) (the "Revolving Line of Credit").
(b) The Borrower may notify the Bank at any time of its
intention to borrow under the provisions of subsection 3.01(a) above.
(c) The Bank will disburse the amount of such borrowing
at its main office in lawful money of the United States of America by credit to
an account of the Borrower maintained at such office.
3.02 The Revolving Line of Credit will be evidenced by a promissory
note made by the Borrower payable to the order of the Bank in the form of
Exhibit B attached hereto (the "Revolving Line of Credit Note"; such term shall
also apply to any extensions, renewals, modifications, or replacements thereof;
the Revolving Line of Credit Note and the Term Note are sometimes hereinafter
collectively referred to as the "Notes"), which shall be duly executed by the
Borrower.
3.03 (a) The Revolving Line of Credit Note shall bear interest on
the unpaid principal balance thereof from time to time outstanding at a rate
which shall be a floating rate equal to one percentage point (1.0%) above the
Bank's "Base Rate", which rate shall change and be adjusted simultaneously with
any changes in the Base Rate during the period the Revolving Line of Credit is
outstanding. The Bank's Base Rate is the rate published by the Bank from time to
time as such and is not necessarily the best or lowest rate charged by the Bank.
EXHIBIT 4.11
(b) Interest shall be payable at the aforesaid rate(s) on
the outstanding principal balance of the Revolving Line of Credit, both before
and after maturity, by acceleration or otherwise, whether or not judgment is
rendered hereon, until paid in full. Interest shall be computed on the basis of
a year of 360 days, and shall be payable monthly in arrears, on the first day of
each month, for the actual number of days in each month commencing on the first
such date after the Bank first advances funds hereunder.
3.04 The Borrower may prepay the principal balance outstanding
under the Revolving Line of Credit Note from time to time, in full or in part,
without penalty.
3.05 In the event that any payment due under the Revolving Line of
Credit Note or the Term Note, whether of principal, interest, or otherwise, is
not received by the Bank within fifteen (15) days from the date on which it is
payable, (a) the unpaid and outstanding balance of the Revolving Line of Credit
Note shall bear interest, from the date on which the overdue payment was
originally payable, at a rate which is three (3) percentage points in excess of
the applicable rate as set forth in Section 3.03(a), above (the "line of credit
default rate"), and (b) the Bank shall charge and collect (in addition to
interest at the line of credit default rate) a late charge equal to 5% of the
overdue payment.
3.06 Unless the term of the Revolving Line of Credit is extended by
the Bank in the Bank's sole discretion, the Borrower shall, on April 30, 1992,
make one final payment to the Bank in the amount of the then outstanding
principal balance of the Revolving Line of Credit Note, with all accrued and
unpaid interest and any other sums then due and owing thereunder.
SECTION 4. USE OF LOAN PROCEEDS
4.01 The proceeds of the Term Loan shall be used by the Borrower
exclusively for the refunding of the Borrower's existing $1,600,000 indebtedness
to the Bank and to proceed with ongoing capital improvements to the Borrower's
utility plant.
4.02 The proceeds of the Revolving Line of Credit shall be used by
the Borrower exclusively to fund the Borrower's working capital needs.
SECTION 5. MORTGAGE AND SECURITY INTEREST
5.01 To secure the prompt payment and performance of the Loan, and
each portion thereof, the Borrower by these
EXHIBIT 4.11
presents does hereby pledges, assigns, transfers, and grants to the Bank
security interests in all of the real property, tangible and intangible personal
property, and all the corporate rights and franchises, income, licenses,
permits, privileges and easements of the Borrower, including, but without
limiting the generality of the foregoing, all of the real estate, lands,
premises and other property hereinafter described, with all of the buildings and
improvements thereon and all of the hereditaments appurtenant thereto; and all
machinery, engines, implements, equipment, pipe lines, conduits, aqueducts,
dams, reservoirs, xxxxx, fences, structures, fixtures and appurtenants; and all
mill privileges, rights in or to the diversion of water, riparian and shore
rights, releases of damages, flowage rights and easements, whether now owned,
used or enjoyed, or hereafter acquired, owned or enjoyed by the Borrower (all of
the foregoing, with all other property and rights and interests in property
intended to be hereby conveyed, mortgaged, transferred and assigned, or at any
time conveyed, mortgaged, transferred, assigned or delivered, and all money paid
to and from time to time held by the Bank and all proceeds of any of the
foregoing at any time conveyed, mortgaged, transferred, assigned, paid and/or
delivered to and from time to time held by the Bank all of which being herein
generally called, collectively, the "Property"), the Property including, but
without limiting the generality of the foregoing, the following property:
(a) All real estate, land and premises and all rights and
interests therein, situated in several towns named and described in the
instruments set forth in Exhibit C-1 attached hereto, the Borrower
hereby agreeing to execute and file in the office of the Secretary of
the State in accordance with Section 49-5 of the Connecticut General
Statutes an Open End Mortgage Deed and Security Agreement in the form
of Exhibit D attached hereto with respect to all of the Borrower's
Property, including but not limited to such real property; and
(b) all water supply, transmission and distributing mains,
conduits and pipes of the Company, and all meters, service pipes,
hydrants, hydrant connections and other appliances and apparatus
physically connected with said mains, conduits and pipes as including,
but not limiting the generality of the foregoing the property set forth
on Exhibit C-2 attached hereto; and
(c) all machinery, pumps, dams, generators, engines, implements,
boilers, equipment and systems and other similar tangible personal
property of the Company, including but not limiting the generality of
the foregoing the property set forth on Exhibit C-3 attached hereto;
and
(d) all intangible property of the Borrower, including without
limiting the generality of the foregoing, all accounts and accounts
receivable of the Borrower; and
(e) all after--acquired real and personal property and rights and
interests therein, of whatever nature.
5.02 All of the foregoing security interests, rights of assignment,
rights as a contracting party, and other rights, powers and privileges granted,
given, conveyed and/or assigned to the Bank as described above will be senior
and prior interests and rights, not subject to or junior in order of priority or
preference to any competing or derogating interests or rights in or to the
property or subject matter to which they pertain except as set forth on Exhibit
G, attached hereto and made a part hereof.
EXHIBIT 4.11
5.03 The Borrower expressly agrees to provide the Bank, upon
request, and in form and substance acceptable to it, with such mortgages,
security agreements, financing statements, specific contract assignments or
other instruments of assignment, conveyance or memoranda of transfer, including
consents of other contracting parties, as may be deemed by it to be reasonably
necessary to acquire or perfect the Bank's interests in the security described
above.
5.04 Until the occurrence of an Event of Default as defined
hereunder, the Borrower shall have full right and authority to possess,
maintain, utilize and enjoy all property and interests in property, both real
and personal, and tangible and intangible, including funds, which are in any way
subject to a security interest or rights as a secured party or otherwise
pursuant to the terms of this Agreement or pursuant to any other instrument of
security contemplated herein.
SECTION 6. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Bank that, as of the date
hereof:
6.01 The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Connecticut. The Borrower
has the requisite corporate power and authority and all necessary franchises,
licenses and permits to own and operate its properties and to carry on its
business as now conducted, and to enter into and bind itself to the terms of
this Agreement, the Notes, and all other agreements and instruments contemplated
herein, in the manner described herein, without any further or additional action
of any of its directors or shareholders or other bodies or authorities.
6.02 The execution and delivery of this Agreement, the Notes, and
the evidence of security contemplated herein, will not contravene any term,
condition or provision of the Borrower's Certificate of Incorporation or Bylaws,
or any other contract, agreement, indenture, undertaking or obligation to which
the Borrower is a party or by which the Borrower or any of its assets are bound.
6.03 All governmental consents, permissions and approvals necessary
to the actions required of the Borrower under the terms of this Agreement or to
the conduct of the Borrower's business have been received, and are in full force
and effect, and there exist no facts which would, or with notice or the passage
of time or both would, cause a suspension or revocation of any such consent,
permission or approval except as indicated in writing to the Bank prior to the
date hereof.
6.04 The Borrower is not a party to nor is it in any way obligated
under any material contract, operating arrangement, lease or other undertaking
of any nature whatsoever except for this Agreement and such leases,
arrangements, contracts and other
EXHIBIT 4.11
obligations listed in Exhibit E attached hereto.
6.05 The Borrower has no obligation to any person or party for any
broker, finder or commission fee with respect to this Agreement.
6.06 There are no claims, actions or administrative proceedings
pending or threatened against the Borrower except as listed in Exhibit F
attached hereto and made a part hereof.
6.07 The Borrower has good title to all of its properties and
assets free and clear of all liens, claims, security interests, or other
encumbrances, except as set forth and described in Exhibit G attached hereto and
made a part hereof.
6.08 This Agreement, the Notes, and the other documents and
instruments contemplated herein constitute, legal, valid and binding obligations
of the Borrower enforceable against the Borrower in accordance with their terms.
6.09 The Borrower is in compliance with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to which
it may be subject, including without limitation, all orders set forth in that
certain decision of the Connecticut Department of Public Utility Control in its
Docket No. 89-11-14, dated May 23, 1990 entitled "Application of the Unionville
Water Company for an Increase in Rates and Approval of Changes to its Rules and
Regulations.
6.10 Exhibit J is a copy of the summary plan description of
Borrower's sole employee benefit plan for its employees within the meaning of
Sections 3 (1) and 3 (2) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA") (hereinafter referred to as the "Plan"). The Plan has been
administered and operated in accordance with its terms and applicable law, and
is "qualified" within the meaning of Section 401(a) of the Internal Revenue Code
of 1986, as amended (the "Code"), and the Plan has not, at any time:
(i) engaged in any "prohibited transaction," as such term
is defined Section 4975 of the Internal Revenue Code
of 1986, as amended, or described in Section 406 of
ERISA;
(ii) incurred any "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA, whether
or not waived.
6.11 The Borrower is not and will not be engaged as one of its
activities in the business of extending credit for the purpose of purchasing or
carrying margin stocks or margin securities (within the meaning of Regulation U
of the Board of Governors of the Federal Reserve System), and no part of the
proceeds of the Loan will be applied for the purpose of purchasing
EXHIBIT 4.11
or carrying or trading in any such stocks or securities or refinancing any
credit previously extended, or of extending credit to others, for any such
purpose.
6.12 (a) The balance sheets of the Borrower as at December 31,
1989, and the related statements of income and expense for the period ending
December 31, 1989, copies of which have been heretofore furnished to the Bank,
are all complete and correct in all material respects and fairly present the
financial condition and results of operations of the Borrower as at the date and
for the period referred to and were prepared in accordance with generally
accepted accounting principles, applied on a consistent basis throughout the
period and from period to period. There are no material liabilities of the
Borrower, fixed or contingent, which are not reflected in such financial
statements or in the notes thereto, other than liabilities arising in the
ordinary course since December 31, 1989. Since December 31, 1989, there has not
occurred any material adverse change in the financial condition or operations of
the Borrower.
6.13 The representations and statements made by or on behalf of the
Borrower in connection with this Agreement, the Loan and the negotiation
thereof, including but not limited to those set forth in this Agreement, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the representations and statements made not misleading. No
information, exhibit, report, brochure or financial statement furnished by
either Borrower to the Bank in connection with the Loan and its negotiation
contains any material misstatement of fact or omits to state a material fact or
any fact necessary to make the statements contained therein not misleading.
6.14 All of the Borrower's tax returns and reports, if any,
required by law to be filed have been duly filed, all taxes shown as due thereon
have been paid, and the Borrower has no knowledge of any proposed liability for
any tax relating to its transactions, operations or income earned or accrued
prior to the date hereof which might be imposed upon it.
6.15 As of the date hereof, no event has occurred and no condition
exists which, with the passage of time or the giving of notice or both, would
constitute an Event of Default (as defined herein). The Borrower is not in
violation of any material term of any agreement, charter instrument, bylaw, or
other instrument to which it is a party or by which it or any of its property
may be bound.
6.16 The Borrower is, and will be upon consummation of the
transactions contemplated by this Agreement, solvent, meaning that the Borrower
has and will have assets in excess of its liabilities, and the Borrower is and
will be able to pay its debts as they mature.
6.17 The Property of the Borrower set forth in Exhibits C-1, C-2
and C-3 represent all of the real property owned by
EXHIBIT 4.11
the Borrower and substantially all of the Borrower's utility plant and equipment
used and useful in its water supply and distribution business.
SECTION 7. AFFIRMATIVE COVENANTS
From and after the date hereof, and continuing so long as any portion
of the Loan remains unpaid or the Borrower is entitled to borrow hereunder:
7.01 The Borrower (a) will preserve and keep in full force and
effect its legal existence as a corporation, (b) will preserve and keep in full
force and effect all franchises, licenses and permits necessary to the proper
conduct of its business, and, with respect thereto, shall make in a timely
manner and diligently pursue all applications for renewals or extensions of such
licenses and permits as are necessary under applicable law and regulation and
shall keep the Bank fully informed of the expiration date or review date of all
permits and licenses and the steps being taken by the Borrower in connection
therewith, (c) will remain in the business in which it is now engaged, (d) will
maintain and preserve and keep its properties and equipment, whether owned in
fee or otherwise, in good repair and working order, normal wear and tear
excepted, and (e) from time to time will make all necessary repairs,
replacements, renewals and additions thereto so that at all times its properties
and equipment will be efficiently maintained and operated.
7.02 The Borrower will promptly pay and discharge or cause to be
paid and discharged all lawful taxes, assessments and governmental charges or
levies imposed upon the Borrower or in respect of all or any part of the
properties and business of the Borrower; will promptly pay and discharge all
claims for work, labor or material which if unpaid might become a lien or charge
upon any property of the Borrower, provided that the Borrower shall not be
required to pay any such tax, assessment, charge, levy or claim if the validity
or amount thereof shall currently be contested in good faith by appropriate
proceedings, and if such contest shall not result, during its pendency, in the
levy or foreclosure of any lien against the property in question or expose the
Bank or the Borrower to criminal prosecution, and provided, further, that the
Borrower shall in such event set aside on their books reserves deemed by it to
be adequate with respect thereto.
7.03 The Borrower shall keep all of its properties, real and
personal, adequately insured at all times with such responsible insurance
carriers and to such limits and with such deductibles as may be ordinarily
maintained by others engaged in
EXHIBIT 4.11
the same or similar business as the Borrower against loss or damage by fire and
other hazards. The Borrower shall, at its expense, at all times maintain
adequate insurance with responsible insurance carriers ordinarily maintained by
others engaged in the same or similar business as the Borrower against liability
on account of damage to persons and property and under all applicable Workers'
Compensation Laws, and shall maintain adequate insurance covering such other
risks as the Bank may reasonably from time to time require. The Borrower shall,
at its expense, keep and maintain comprehensive liability insurance against
hazards and risks ordinarily insured against and ordinarily maintained by other
users of similar properties and by others engaged in the same or similar
business as the Borrower, provided that in no event shall any such insurance
provide for limits of liability of less than $1,750.000 per claim or $2,500,000
in the aggregate. All insurance covering the Collateral shall provide that, in
the case of each separate loss, the full amount of insurance proceeds with
respect thereto shall be payable to the Bank as its interests may appear; the
Bank shall either apply such proceeds toward repayment of the Loan, or, at its
option, make such proceeds available to the Borrower, in stages as the work
progresses, for restoration of the loss or for such other purposes as the Bank
may agree. If the Bank chooses to apply such proceeds toward repayment of the
Loan, all such proceeds shall be applied in reduction of the Loan against
payments coming due in the inverse order of their maturity. All such insurance
policies shall provide for at least thirty (30) days' notice to the Bank prior
to any cancellation or material modification thereof. Such policies of insurance
shall provide that the rights of the Bank shall not be invalidated or affected
by any act, omission, or neglect of the Borrower or any of their agents or
employees. Prior to the making of the Loan hereunder the Borrower will deliver
to the Bank copies of all such policies or certificates showing that the
proceeds of all such insurance (other than the Workers' Compensation insurance)
are payable to the Bank in accordance with this Section.
7.04 The Borrower shall provide the Bank, within 30 days after any
such request, with any and all financial information or data pertaining to the
operation of the business of the Borrower, the status of its accounts, and its
financial condition. In addition, and without limiting the generality of the
foregoing, the Borrower shall furnish to the Bank:
(a) as soon as available and in any event within 30 days
after the end of each fiscal quarter of the Borrower, copies of the balance
sheet of the Borrower as at the end of such quarter and of the related
statements of income and expense of the Borrower for such quarter and for the
elapsed portion of the current fiscal year of the Borrower ended with the last
day of such quarter, all in reasonable detail and with appropriate notes, if
any, and all prepared and certified as complete and correct in all material
respects by the President of the Borrower subject to year-end review
adjustments;
(b) as soon as available and in any event within 120 days
after the end of each fiscal year of the Borrower, copies of the balance sheet
of the Borrower as at the end of such fiscal year and of the related statements
of income and expense of the Borrower for such fiscal year, all in reasonable
detail and with appropriate notes, if any, stating in comparative form the
figures as at the end of and for the preceding fiscal year. The financial
statements of the Borrower furnished hereunder shall be accompanied by an
unqualified opinion of a firm of a certified public accountant of recognized
standing, selected by Borrower
EXHIBIT 4.11
and reasonably acceptable to the Bank stating that such financial statements
present fairly the financial condition of the Borrower and have been prepared in
accordance with generally accepted accounting principles consistently applied;
(c) concurrently with the financial statements furnished
pursuant to subsections (a) and (b), a certificate of the President of the
Borrower to the effect that in his opinion, based upon a review made under his
supervision, the Borrower has performed and observed all of, and is not in
default in the performance or observance of any of, the terms, covenants and
conditions of this Agreement, the Notes, and the other agreements and
instruments contemplated in this Agreement, or, if such is not the case,
specifying all such defaults or failures and the nature thereof of which the
signer of such certificate may have knowledge and stating the action proposed to
be taken in respect thereof;
(d) concurrently with each of the financial statements
furnished pursuant to subsection (b) a certificate of the aforesaid independent
public accountants certifying to the Bank that they have reviewed and are
familiar with the terms of this Agreement and all other agreements delivered in
connection herewith and that based upon their examination of the affairs of the
Borrower performed in accordance with such audit they are not aware of the
occurrence or existence of any Event of Default or any event or condition which
with the passage of time or the giving of notice or both would constitute an
Event of Default, or, if they are aware of any such Event of Default, condition,
or event, the nature thereof;
(e) copies of all financial statements and reports which
the Borrower shall send or make available generally to any of its shareholders,
copies of all statements, reports and materials furnished under any note or
credit agreement or other instrument (other than this Agreement) creating or
providing for the creation of any indebtedness of the Borrower for borrowed
money, and copies of all regular and periodic or other reports which the
Borrower may be required to file with any borough or municipality or any federal
or state regulatory agency and such other information relating to the business,
affairs and financial condition of the Borrower as the Bank from time to time
may reasonably request.
All financial statements furnished under the foregoing requirements
shall be prepared in accordance with generally accepted accounting principles,
except as otherwise permitted herein. Throughout this Agreement, references to
"indebtedness" of any person shall, unless otherwise specified, mean and refer
to all obligations of such person (i) for money borrowed or (ii) incurred in
connection with the acquisition of property or assets, including without
limitation trade obligations incurred to suppliers in the ordinary course of
business, in either case whether incurred directly or by guarantee and which in
accordance with generally accepted accounting principles should be classified on
a balance sheet of such person as a liability of such person whether secured or
unsecured and, if secured, whether or not the person has assumed or become
liable for its payment and whether or not the lender's, seller's, or lessor's
remedies on default are limited to the sale or repossession of the property or
asset subject to the mortgage, lien, pledge, charge, security interest created
by any conditional sale agreement, capital lease or other title retention
agreement securing the indebtedness.
EXHIBIT 4.11
7.05 The Borrower shall retain independent accountants who shall be
certified public accountants of recognized standing in the financial community
so long as any portion of the Loan remains unpaid or the Borrower is entitled to
borrow hereunder, who shall be acceptable to the Bank, which acceptance will not
be unreasonably withheld. The Bank shall have the right upon reasonable notice
to the Borrower to confer in the Bank's discretion with Borrower's independent
accountants at any time upon any matters involving the Borrower's financial
condition, and such accountants as a condition of their retention by Borrower
are hereby authorized to discuss fully and disclose all such matters with and to
the Bank.
7.06 The Borrower shall allow, and the Bank shall have the right,
in the Bank's discretion, to inspect during normal business hours the books,
records and accounts of the Borrower and any of the properties of the Borrower,
real, personal, tangible or intangible; to verify or obtain any desired
information regarding insurance coverage thereon from insurance carriers; to
discuss the affairs, finances, and accounts of the Borrower, with the officers
thereof and with contracting parties thereof at such reasonable times as the
Bank may desire.
7.07 The Borrower at all times will maintain and conduct its
operations in accordance in all material respects with the requirements of all
local ordinances including zoning, health and environmental laws. The Borrower
will at all times maintain and conduct its operations in accordance in all
material respects with all appropriate laws, rules and regulations of any
federal, state or local regulatory agency or any other body having jurisdiction
over the premises including without limitation the Connecticut Department of
Public Utility Control, the Connecticut Department of Health Services and the
Connecticut Department of Environmental Protection.
7.08 The Borrower will reimburse the Bank at the closing of the
transactions contemplated herein for the Bank's out-of-pocket disbursements and
for costs, including attorneys' fees, associated with the preparation for and
consummation of this Agreement, other documents required hereunder, and the
closing contemplated hereunder.
7.09 The Borrower shall, at its cost and expense and upon the
request of the Bank, within ten (10) days after the Bank so requests, duly
execute and deliver such further instruments or documents and shall do or cause
to be done such further acts as may be necessary or proper in the opinion of the
Bank to implement, perfect, or maintain the perfection of the provisions and
purposes of this Agreement.
7.10 The Borrower shall maintain all bank accounts with the Bank.
7.11 With respect to the Plan, and any "employee pension benefit
plan" within the meaning of, and subject to, the Employee Retirement Income
Security Act of 1974 ("ERISA"), adopted by the Borrower, such plan or plans
shall be maintained
EXHIBIT 4.11
in accordance with all material applicable provisions of ERISA, and the Borrower
will not permit, at any time, such plan or plans to:
(i) engage in any "prohibited transaction", as such term is
defined in Section 4975 of the Internal Revenue Code of 1986,
as amended, or described in Section 406 of ERISA;
(ii) incur any "accumulated funding deficiency", as such term is
defined in Section 302 of ERISA, whether or not waived; or
(iii) terminate under circumstances which the Borrower would have
reason to expect would result in the imposition of a lien on
the property of the Borrower pursuant to Section 4068 of
ERISA.
7.12 The Borrower shall reimburse the Bank within thirty (30) days
after demand by the Bank, together with interest at the default rate, for any
sums which the Bank has advanced or expended for the payment of taxes or
assessments levied on or against the property of the Borrower or to obtain the
discharge of any liens or encumbrances against such property or to pay for
premiums on insurance which the Borrower is required to maintain; all of which
advances or expenditures the Bank is hereby expressly authorized to make without
prior request from or notice to the Borrower and without waiving any Event of
Default hereunder.
7.14 The Borrower shall notify the Bank immediately upon becoming
aware of the occurrence or creation of any Event of Default (as defined herein)
or any condition which, with the passage of time or the giving of notice or
both, would constitute an Event of Default.
SECTION 8. NEGATIVE COVENANTS OF BORROWER
So long as any portion of the Loan remains unpaid and outstanding or
the Borrower may borrow hereunder, the Borrower will not, without the express
written consent of the Bank:
8.01 Merge into or consolidate with, acquire or be acquired by, any
other firm, corporation or other entity, or acquire all or substantially all the
assets of any other firm, corporation or other entity.
8.02 Sell, lease or otherwise dispose of any substantial portion of
its assets.
EXHIBIT 4.11
8.03 Permit any liens, charges or encumbrances to be lodged upon or
against, or to remain upon or against, any of the Borrower's properties or
pledge or grant a security interest in any of its properties, except (a) the
liens granted pursuant to this Agreement; (b) the liens referred to in Section
6.07 and set forth and described in Exhibit G; (c) liens for taxes not yet due;
and (d) such liens for taxes, assessments and other charges as may be contested
in good faith, provided that during the pendency of such contest neither the
Borrower nor the Bank shall be exposed to criminal prosecution and no
enforcement of any lien shall take place, and further provided that during such
pendency adequate reserves against charges ultimately due shall be maintained.
8.04 In case any property is subjected to a lien in violation of
Section 8.03, the Borrower will forthwith make or cause to be made provision
whereby the Loan will be secured equally and ratably with all other obligations
secured by such lien, and in any case the Bank shall have the benefit, to the
full extent that, and with such priority as the Bank may be entitled thereto
under applicable law, of an equitable lien on such property securing the Loan.
Such violation of Section 8.03 shall constitute an Event of Default hereunder,
whether or not any such provision is made pursuant to this Section.
8.05 Undertake any business ventures significantly different from
those currently conducted by the Borrower.
8.06 Dissolve or change its present business form.
8.07 Permit or suffer any suspension or revocation of, or any
impairment of the benefits of, any franchise, license, permit, or certificate
issued by any governmental agency or subdivision, the maintenance of which is
necessary to the conduct of Borrower's business or any portion thereof.
8.08 Make any loan or advance to any person, firm, corporation or
association or any other individual or entity including any shareholder (all of
which are hereinafter collectively called "person") or assume or guarantee or
otherwise in any way become responsible for obligations of any person, whether
by agreement to purchase the indebtedness of any person, or agreement for
furnishing of funds to any person through the purchase of goods, supplies or
services or by way of stock purchases, capital contributions, advances or loans
for the purpose of payment or discharging the indebtedness of any person or
otherwise, or have or incur any other contingent liabilities, except in the
ordinary course of business.
8.09 Incur, create, assume or permit to exist any indebtedness, or
liability on account of advances or credit or leases (operating or capital), or
any liability evidenced by notes, bonds, debentures or similar obligations
except (a) the Loan contemplated herein, any renewal or extension thereof, and
any other indebtedness to the Bank, (b) those leases, arrangements, contracts
and other obligations set forth on Exhibit E attached hereto and made a part
hereof, (c) liabilities incurred in connection
EXHIBIT 4.11
with depositing checks and other negotiable instruments acquired in the normal
course of business, and (d) current operating liabilities (other than for
borrowed money) incurred in the ordinary course of business.
8.10 Directly or indirectly, purchase or acquire or otherwise have
any interest in the obligations or stock of, or any other debt or equity
interest in, any other person, firm, corporation, joint venture or other
enterprise whatsoever except (a) direct obligations of the United States of
America or (b) marketable certificates of deposit, time deposits, repurchase
agreements, or commercial paper issued or undertaken by the Bank.
8.11 Permit any amendment of the Certificate of Incorporation or
Bylaws of the Borrower.
8.12 Purchase any assets other than in the ordinary course of the
Borrower's business.
SECTION 9. CONDITIONS PRECEDENT
The Bank shall not be obligated to make any advance hereunder, unless
and until each and every one of the following Conditions Precedent shall be met,
fulfilled and completed to the Bank's full satisfaction or, in its sole
discretion, accepted as modified or waived:
9.01 All necessary steps to sustain or perfect the security
interests and assignments of security in connection with the security interests
granted herein shall have been completed to the Bank's satisfaction, and the
Bank shall have received the aforementioned documents in form and substance
satisfactory to the Bank.
9.02 Except as set forth in Exhibit F, there shall be no litigation
or administrative proceeding pending or threatened against the Borrower, which,
if decided adversely to the Borrower, would have, in the reasonable judgment of
the Bank, a materially adverse effect on the business, properties or assets of
the Borrower.
9.03 Except as set forth in Exhibit G, there shall be no liens,
mortgages, encumbrances, assessments or other charges against the Borrower or
any of the Borrower's properties, real or personal, other than those expressly
permitted by this Agreement, or as may have been consented to by the Bank.
9.04 The Bank shall have received an opinion from Xxxxxxxxxx,
Xxxxxx & Xxxxxx in form and substance substantially
EXHIBIT 4.11
as set forth in Exhibit H.
9.05 The Borrower shall have delivered to the Bank an Officer's
Certificate in the form and substance as set forth in Exhibit I.
9.06 The Borrower shall have paid the fees of the Bank's legal
counsel in connection with the preparation, negotiation and execution of this
Agreement and the documents contemplated herein.
9.07 The Borrower shall have delivered to the Bank a mortgagee's
policy of title insurance upon all real property of the Borrower in an amount
not less than the lesser of the principal amount of the Loan or the fair market
value of such real property.
9.08 The Borrower shall be in compliance with all other terms and
conditions of this Agreement.
SECTION 10. CLOSING
10.01 The parties will convene at a closing for the purposes of
satisfying all of the Conditions Precedent of this Agreement. The closing is
being held on the date of this Agreement, at the offices of the Bank.
SECTION 11. DEFAULT
11.01 The Borrower shall be (unless waived by the Bank in writing)
in default with respect to the Loan upon the occurrence of any of the following
events, each of which shall be deemed to be an Event of Default for the purposes
of this Agreement:
(a) Failure to pay any installment of principal or
interest of the Notes on the due date thereof.
(b) Failure of the Borrower or the Guarantor to perform
or satisfy any condition, undertaking, agreement or covenant stated to be
performed or satisfied by it under the terms of this Agreement or under the
terms of the Notes or any other agreement, document or instrument entered into
at any time in connection with the Loan, provided, however, that the Bank will
not exercise any of the rights which it may have by virtue of a failure to
perform or a failure to satisfy any of the covenants contained in Sections 7.02,
7.04, 7.05, 7.07, 7.11, 8.03, or 8.04 hereof unless the Borrower has failed to
cure any such failure
EXHIBIT 4.11
within thirty (30) days after notice from the Bank of the failure, provided
further, however, that the Bank will not exercise any of the rights which it may
have by virtue of a failure to perform or a failure to satisfy any of the
covenants contained in Sections 7.01(b) or 8.07 hereof unless the Borrower has
failed to apply to the appropriate court or other authority, within ten business
days after becoming aware of the failure to perform or satisfy such covenant,
for a stay of the suspension, forfeiture, lapse, revocation or impairment of
that Borrower's licenses, certificates, permits, franchises or other operating
rights or such court or other authority has, within thirty business days from
such failure to perform or satisfy, not issued such stay or any such stay, once
having been issued, subsequently ceases to be in effect.
(c) Any representation or warranty made in this Agreement
or in any writing furnished in connection herewith proves to be incorrect or
inaccurate or incomplete in any material respect as of the date it was made or
given.
(d) The Borrower shall fail for a period of thirty (30)
days to discharge any attachment, levy, garnishment, lien or other distraint
(not permitted by this Agreement), whether by judgment or otherwise, on any of
its properties, real or personal.
(e) The Borrower shall be in default or breach of any
material provision of any lease, agreement, contract or other undertaking
entered into by the Borrower in the course of the conduct of its business which,
in the Bank's reasonable discretion, is deemed to be material to the operations
or conduct of business by the Borrower.
(f) Dissolution, termination of existence or insolvency
of the Borrower, or its inability or failure to pay its debts generally as they
mature, or appointment of a receiver of any portion of its properties, or a
common law assignment or trust mortgage for the benefit of its creditors, or the
filing of a petition in bankruptcy or the commencement of any proceeding under
any bankruptcy or insolvency laws or any law relating to the relief of debtors
(state or federal) by or against the Borrower, or readjustment of its
indebtedness, reorganization, or composition, by or against and with or without
the consent of the Borrower provided, however, that with respect to the
commencement of any proceeding under the bankruptcy or insolvency laws brought
against the Borrower by a third party, such commencement shall not constitute an
Event of Default if such proceeding is dismissed within sixty (60) days from its
commencement.
11.02 Upon the occurrence of any Event of Default as described
herein, the Bank may, in its sole discretion, declare the principal balance of
the Notes, together with all interest and other charges, to be immediately due
and payable, whereupon the maturity of the then unpaid balance of principal of
the Notes shall be accelerated, and the same, together with all unpaid interest
accrued thereon, and costs of collection including reasonable attorneys' fees,
shall be immediately due and payable without any demand, protest or other notice
of any kind, all of which are hereby expressly waived by the Borrower, anything
contained herein or in the Notes to the contrary notwithstanding.
11.03 In the event that any one or more of the Events of Default as
described herein shall occur, the Bank may proceed to protect and enforce its
rights by suit in equity or by action at law or both, whether for the specific
performance of any
EXHIBIT 4.11
covenant, agreement or other provision herein contained, or contained in the
Notes, or in any document or instrument delivered in connection herewith or
otherwise, including, but not limited to, the Notes and the Open End Mortgage.
11.04 No right or remedy herein conferred upon the Bank is intended
to be exclusive of any other right or remedy contained in the Notes or in this
Agreement or in any instrument or document delivered in connection herewith, and
all such rights and remedies shall be cumulative and shall be in addition to
every other such right or remedy contained herein or therein or now or hereafter
existing at law or in equity or by statute or otherwise.
11.05 No course of dealing between the Bank and either Borrower nor
any failure or delay by the Bank to exercise any right, power or privilege
hereunder shall operate as a waiver of such right, power or privilege, or be
construed to prevent the further or future exercise of the same or any other
right, power or privilege.
11.06 The Borrower will pay all of the Bank's costs and expenses of
collection of the Notes and of the enforcement, protection, and realization upon
any security afforded under this Agreement or any instrument of security
delivered hereunder, including reasonable attorneys' fees, and may take judgment
for all such amounts in any applicable action, in addition to the other amounts
of unpaid principal and interest, or other items to which it may be entitled to
judgment.
SECTION 12. MISCELLANEOUS
12.01 No modification, amendment or waiver of any term or condition
of this Agreement, and no consent by the Bank to any departure therefrom, shall
be effective unless the same shall be in writing signed by a duly authorized
representative of the Bank, and the same shall then be effective only for the
period and upon the specific conditions recited in such writing.
12.02 (a) This Agreement, the Notes, and any and all other
instruments and documents contemplated herein shall be governed by, and
construed and enforced in accordance with, Connecticut law.
(b) The Borrower hereby waives trial by jury in any
action or proceeding of any kind or nature in any court in which an action may
be commenced arising out of this Agreement, the Loan, the Notes, or any other
instrument or document evidencing or securing the Loan, or any assignment
thereof, or by reason of any other cause or dispute whatsoever between the
Borrower and the Bank of any kind or nature. The Borrower and the Bank hereby
agree that the United States District Court for the District of Connecticut and
the Superior Court of the State of Connecticut, in each case located in Hartford
County, shall (in
EXHIBIT 4.11
addition to such courts as by law are otherwise proper) have jurisdiction to
hear and determine any claims or disputes between the Bank and the Borrower,
pertaining directly or indirectly to this Agreement or to any matter arising
therefrom. The Borrower expressly submits and consents in advance to such
jurisdiction in any action or proceeding commenced in either of such courts,
hereby waiving personal service of the writ, summons, complaint, or other
process of papers issued therein, and agree that service of such summons and
complaint, or other process or papers may be made by registered or certified
mail addressed to the Borrower at the addresses of the Borrower (either as set
forth in Section 12.03 of this Agreement or as provided to the Bank in writing)
or service upon any proper officer or agent as provided by law.
12.03 All notices, requests or other communications required or
permitted hereunder shall be in writing and shall be addressed to the Bank,
Attention Xxxxx X. Xxxxxxxxx, Assistant Treasurer, Farmington Savings Bank, 00
Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000, and to the Borrower, The Unionville
Water Company, X.X. Xxx 000, Xxxxxxxxxx, Xxxxxxxxxxx 00000.
12.04 Should any stamp, excise or other tax become levied against or
payable with respect to this Agreement, or any Note, or any modification of the
same, or any other document or instrument contemplated hereby, the Borrower
shall pay the same and hold the Bank harmless with respect thereto. Should there
be any charge for recording, filing or perfection of any document or instrument
contemplated hereby, the Borrower will pay the same and hold the Bank harmless
with respect thereto. In the event that any law, regulation, treaty or official
directive or the interpretation or application thereof by any court or
governmental authority or the compliance with any guideline or request of any
central bank or other governmental authority (whether or not having the force of
law):
(i) subjects the Bank to any tax with respect to any amounts
payable by the Borrower or otherwise with respect to the
transactions contemplated hereunder (except for taxes on the
overall net income of the Bank imposed by the United States of
America or any political subdivision thereof), or
(ii) imposes, codifies or deems applicable any deposit insurance,
reserve, special deposit, capital maintenance or similar
requirement against assets held by, or deposits in or for the
account of, or loans or advances or commitments to make loans
or advances by, the Bank to the Borrower (other than such
requirements the effect of which is included in the
determination of the interest rates for loans or advances made
hereunder or in connection with the Notes), or
(iii) imposes upon the Bank any other condition with respect to the
loans or advances or commitments to make loans or advances
made hereunder or under the Notes, and the result of any of
the foregoing is to increase the cost to the Bank, reduce the
income receivable by or return on equity of the Bank or impose
any expense upon the Bank with respect to any loans or
advances or commitments to make loans or advances hereunder or
under the Notes, the Bank shall so notify the Borrower.
EXHIBIT 4.11
The Borrower agrees to pay the Bank the amount of such increase in cost,
reduction in income, reduced return on equity or additional expense as and when
such cost, reduction in income, reduced return on equity or additional expense
is incurred or determined, upon presentation by the Bank of a statement of the
amount and setting forth the Bank's calculation thereof (in determining such
amount, the Bank may use any reasonable averaging and attribution methods),
which statement shall be deemed true and correct absent manifest error.
12.05 The captions of the various Sections hereof have been inserted
for the convenience of the parties only and are not intended as limitations upon
the text to which they refer.
12.06 This Agreement shall be binding upon the parties hereto, their
representatives, successors and assigns; provided, however, that the Bank may
assign any of its rights, powers or privileges hereunder at any time.
12.07 This Agreement may be executed in one or more counterparts,
each of which shall be an original instrument and all of which together shall
constitute one and the same instrument.
12.08 WITHOUT LIMITING OTHER RIGHTS ACCORDED THE BANK HEREUNDER, THE
BORROWER HEREBY CERTIFIES THAT THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT IS
A COMMERCIAL TRANSACTION AND HEREBY WAIVE ITS RIGHTS TO NOTICE AND HEARING UNDER
CHAPTER 903a OF THE CONNECTICUT GENERAL STATUTES, OR AS OTHERWISE ALLOWED BY LAW
WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH THE BANK MAY DESIRE TO USE.
12.09 The Borrower shall indemnify, defend, and hold harmless the
Bank against and in respect of any and all suits, claims, proceedings, damages,
and losses (other than as a result of the Bank's negligence or willful
misconduct) asserted against or incurred by the Bank and arising out of or
resulting from the failure of the Borrower to comply with the provisions of
applicable federal, state, and local laws, regulations, and ordinances.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their duly authorized representatives as of the date and year first
above written.
FARMINGTON SAVINGS BANK
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------
Assistant Treasurer
THE UNIONVILLE WATER COMPANY
EXHIBIT 4.11
By: /s/ Xxxxxxx X. Xxxx
-----------------------
Its President
STATE OF CONNECTICUT)
) ss.: Farmington: April 11, 1991
COUNTY OF HARTFORD )
On this date personally appeared before me Xxxxx X. Xxxxxxxxx, who
acknowledged herself to be an Assistant Treasurer of Farmington Savings Bank, a
banking corporation existing under the laws of the State of Connecticut, and
that she, as such Assistant Treasurer, being authorized so to do, executed the
foregoing Revolving and Term Loan and Security Agreement for the purposes
therein contained by signing the name of said corporation by herself as
Assistant Treasurer.
In Witness Whereof, I hereunto set my hand.
/s/ Xxxxxx X. Xxxxxx, Xx.
-----------------------
Commissioner of the Superior Court
STATE OF CONNECTICUT)
) ss.: Farmington: April 11, 1991
COUNTY OF HARTFORD )
On this date personally appeared before me Xxxxxxx X. Xxxx, who
acknowledged himself to be President of The Unionville Water Company, a
corporation organized under the laws of the State of Connecticut, and that he,
as such President, executed the Revolving and Term Loan and Security Agreement
for the purposes therein contained by signing the name of the Corporation by
himself as President.
In Witness Whereof, I hereunto set my hand.
/s/ Xxxxxx X. Xxxxxx, Xx.
-----------------------
Commissioner of the Superior Court
EXHIBIT 4.11
SCHEDULE OF EXHIBITS
EXHIBIT A Form of Term Note, Section 2.01.
EXHIBIT B Form of Line of Credit, Section 3.02.
EXHIBIT C-1 Description of Real Property included in the
Property, Section 5.01(a).
EXHIBIT C-2 Description of water supply, transmission and
distributing monies, etc., Section 5.01(b).
EXHIBIT C-3 Description of machinery, pumps, etc., Section 5.01
(c).
EXHIBIT D Form of Mortgage Deed, Section 5.01(a).
EXHIBIT E Form of Leases, Arrangements, Contracts, etc.,
Section 6.04.
EXHIBIT F List of Claims, Actions, Proceedings, etc. Section
7.06.
EXHIBIT G List of Liens and Encumbrances, Section 6.07.
EXHIBIT H Form of Opinion of Borrower's Counsel, Section 9.04.
EXHIBIT I Form of Officer's Certificate, Section 9.05.
EXHIBIT J Employee Benefit Plan, Section 6.10.
EXHIBIT 4.11
EXHIBIT A
TERM NOTE
Farmington, Connecticut
$1,900,000.00 Dated: April__, 1991
FOR VALUE RECEIVED, the undersigned, THE UNIONVILLE WATER COMPANY, a
public service company with its principal place of business at 00 Xxxx Xxxxxx,
X.X. Xxx 000, Xxxxxxxxxx, Xxxxxxxxxxx 00000 (the "Borrower"), hereby promises to
pay to the order of FARMINGTON SAVINGS BANK (the "Bank") the principal sum of
One Million, Nine Hundred Thousand Dollars ($1,900,000.00) together with
interest thereon from the date hereof on the unpaid principal balance hereof
remaining outstanding from time to time at the rate hereinafter provided.
The proceeds of this Term Note are to be used exclusively as set forth
in the Revolving and Term Loan and Security Agreement of even date herewith
between the Borrower and the Bank (the "Loan Agreement").
This Term Note shall bear interest on the unpaid principal balance
hereof from time to time as follows:
(i) from the date hereof through April 30, 1996, the interest rate
shall be _____ percent (___%) per annum; and
(ii) effective on May 1, 1996, and on each sixtieth (60th) monthly
anniversary date thereafter (each anniversary referred to
herein as an "Interest Change Date"), the interest rate shall
be increased or decreased to a rate determined by adding two
and one-half percentage points (2.5%) (the "Margin") to the
most recent Federal Home Loan Bank of Boston Long-Term,
Regular, 5 Year, Fixed Rate Mortgage Rate (the "Index"),
available forty-five (45) days prior to the Interest Change
Date (the Index so used prior to the applicable Interest
Change Date shall be referred to as the "Current Index"),
rounded to the next highest one-eighth of one percentage point
(0.125%). Each new interest rate will be effective beginning
on each Interest Change Date. If the Current Index is no
longer available, the Bank will use a similar index chosen by
it in the exercise of its reasonable discretion.
Interest shall be payable at the applicable aforesaid rates on the
outstanding principal balance of this Term Note, both before and after maturity,
by acceleration or otherwise, whether or not judgment is rendered hereon, until
paid in full. Interest shall be computed on the basis of a year of 360 days, and
shall be payable monthly in arrears for the actual number of days in each month.
The Borrower shall pay to the Bank, on the first day of each month
commencing on June 1, 1991 and continuing through May 1, 1996, equal monthly
payments of principal and interest in the amount of $___________ which payments
are designed to
EXHIBIT 4.11
amortize said principal and interest (at the initial rate hereunder) over the
period beginning June 1, 1991 and ending at the Final Maturity (as hereinafter
defined).
Beginning on June 1, 1996, and on each sixtieth (60th) monthly
anniversary of that date thereafter (each such date referred to hereinafter as a
"Payment Change Date"), the monthly payments of principal and interest shall be
adjusted to an amount so as to amortize the remaining balance of the principal
and interest hereunder, based upon the current rate of interest applicable at
the applicable Interest Change Date immediately preceding the Payment Change
Date, within the period measured from the applicable Interest Change Date until
the Final Maturity (as hereinafter defined).
On May 1, 2011, (the "Final Maturity"), the Borrower shall make one
final payment to the Bank in the amount of the then outstanding principal
balance of this Term Note, together with all accrued and unpaid interest and any
other sums due and owing hereunder.
The Borrower may prepay the principal balance outstanding under this
Term Note without penalty for the thirty (30) days preceding each Interest
Change Date upon thirty (30) days' prior written notice to the Bank. Prepayment
made at any other time shall be allowed only upon payment by the Borrower of a
"Prepayment Change," which shall be one hundred ten percent (110%) of the
present value of the difference between:
(a) the interest on the amount prepaid for the remaining
term to the next Interest Change Date, as determined by the Current
Index, and
(b) the interest on the same amount for the remaining
term to the next Interest Change Date, as determined by the Index in
effect for that maturity on the day prepayment is made.
Any payments received by the Bank under this Term Note shall be applied
first to any costs, fees, and expenses due hereunder, then to the payment of
interest, and finally to the payment of principal.
If any payment due hereunder, whether of principal, interest, fees or
otherwise, is not received by the Bank within 15 days after the date on which it
is payable, (a) the unpaid and outstanding balance of this Term Note shall bear
interest, from the date on which the overdue payment was originally payable, at
a rate which is three percentage points (3%) in excess of the applicable rate as
set forth above (the "default rate"), and (b) the Bank shall charge and collect,
in addition to interest at the default rate, a late charge equal to five percent
(5%) of the overdue payment.
Both principal and interest are payable in lawful money of the United
States of America to the Bank at 00 Xxxx Xxxxxx,
XXXXXXX 4.11
Xxxxxxxxxx, Xxxxxxxxxxx 00000, or at such other address as the Bank designates.
This Term Note is executed pursuant to the Loan Agreement, to which
reference may be had for a complete description of the terms and conditions of
borrowing hereunder, including certain Events of Default and rights of
acceleration. The indebtedness described herein shall have the benefit of the
collateral described in the Loan Agreement.
The loan evidenced by this Term Note was made in, and this Term Note
shall be governed by the laws of, the State of Connecticut.
The Bank shall have a lien on and, after an Event of Default, an option
to set off against, all deposits and other property of the Borrower in the
possession or control of or in transit to the Bank, without prior demand or
notice, against the indebtedness described herein.
This Term Note shall, at the option of the Bank, without necessity for
notice to or demand upon the Borrower, become immediately due and payable if any
payment of principal or interest on this Term Note is not paid within fifteen
(15) days of the date on which it is due, or upon the occurrence of any other
Event of Default, as defined in the Loan Agreement.
Following default, the interest rate on this Term Note shall increase
to the default rate, as that term is defined above.
If this Term Note is not paid when due, whether in accordance with the
terms hereof, by acceleration or otherwise, the undersigned agrees to pay all
the Bank's costs of collection, including reasonable attorneys' fees.
No modification, amendment, or waiver of any term or condition of this
Term Note, and no consent by the Bank to any departure therefrom, shall be
effective unless the same shall be in writing signed by a duly authorized
representative of the Bank, and the same shall be effective only for the period
and upon the specific conditions recited in such writing.
If this Term Note is subject to a law which sets maximum charges, and
that law is finally interpreted so that the interest or other charges collected
or to be collected with respect to this Term Note exceed the permitted limits,
then any such charge shall be reduced by the amount necessary to reduce the
charge to the permitted limit.
THE BORROWER ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS TERM NOTE
IS A PART IS A COMMERCIAL TRANSACTION, AND HEREBY VOLUNTARILY AND KNOWINGLY
WAIVES ITS RIGHT TO NOTICE AND HEARING UNDER CHAPTER 903a OF THE CONNECTICUT
GENERAL STATUTES,
EXHIBIT 4.11
OR AS OTHERWISE ALLOWED BY THE LAW OF ANY STATE OR FEDERAL LAW WITH RESPECT TO
ANY PREJUDGMENT REMEDY WHICH THE BANK MAY DESIRE TO USE.
THE BORROWER HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF
ANY KIND OR NATURE IN ANY COURT IN WHICH AN ACTION MAY BE COMMENCED ARISING OUT
OF THIS PROMISSORY NOTE.
The Borrower hereby waives presentment, demand for payment, protest,
notice of protest, and notice of dishonor.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Term Note as of the date and year first above written.
THE UNIONVILLE WATER COMPANY
By _____________________________________
Xxxxxxx X. Xxxx
Its President
EXHIBIT 4.11
EXHIBIT B
REVOLVING LINE OF CREDIT NOTE
Farmington, Connecticut
$500,000.00 Dated: April ___ , 1991
FOR VALUE RECEIVED, the undersigned, THE UNIONVILLE WATER COMPANY, a
Connecticut public service company with its principal place of business at 00
Xxxx Xxxxxx, X.X. Xxx 000, Xxxxxxxxxx, Xxxxxxxxxxx 00000 (the "Borrower"),
hereby promises to pay to the order of FARMINGTON SAVINGS BANK (the "Bank") the
principal sum of Five Hundred Thousand Dollars ($500,000.00) or so much thereof
as may have been advanced from time to time, together with interest thereon from
the date hereof on the unpaid principal balance hereof remaining outstanding
from time to time at the rate hereinafter provided.
The proceeds of this Revolving Line of Credit Note are to be used
exclusively as set forth in the Revolving and Term Loan and Security Agreement
of even date herewith between the Borrower and the Bank (the "Loan Agreement").
This Revolving Line of Credit Note shall bear interest on the unpaid
principal balance hereof from time to time at a rate which shall be a floating
rate equal to one percentage point (1.0%) above the Bank's "Base Rate," which
rate shall change and be adjusted simultaneously with any changes in the Base
Rate during the period any principal balance under this Revolving Line of Credit
Note is outstanding. The Bank's Base Rate is the rate published by the Bank from
time to time as such and is not necessarily the best or lowest interest rate
charged by the Bank. Interest shall be payable at the aforesaid rate(s) on the
outstanding principal payable monthly in arrears, on the first day of each
month, commencing May 1, 1991, for the actual number of days in each month.
Unless the term of this Revolving Line of Credit Note is extended by
the Bank in the Bank's sole discretion, the Borrower shall, on May 1, 1992, make
one final payment to the Bank in the amount of the then outstanding principal
balance of this Revolving Line of Credit Note, together with all accrued and
unpaid interest and any other sums due and owing hereunder.
The Borrower may prepay the principal balance outstanding under this
Revolving Line of Credit Note from time to time,
EXHIBIT 4.11
in full or in part, without penalty.
Any payments received by the Bank under this Revolving Line of Credit
Note shall be applied first to any costs, fees, and expenses due hereunder, then
to the payment of interest, and finally to the payment of principal.
If any payment due hereunder, whether of principal, interest, fees or
otherwise, is not received by the Bank within 15 days after the date on which it
is payable, (a) the unpaid and outstanding balance of this Revolving Line of
Credit Note shall bear interest, from the date on which the overdue payment was
originally payable, at a rate which is three percentage points (3%) in excess of
the applicable rate as set forth above (the "default rate"), and (b) the Bank
shall charge and collect, in addition to interest at the default rate, a late
charge equal to five percent (5%) of the overdue payment.
Both principal and interest are payable in lawful money of the United
States of America to the Bank at 00 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000,
or at such other address as the Bank designates.
This Revolving Line of Credit Note is executed pursuant to the Loan
Agreement, to which reference may be had for a complete description of the terms
and conditions of borrowing hereunder, including certain Events of Default and
rights of acceleration. The indebtedness described herein shall have the benefit
of the collateral described in the Loan Agreement.
The loan evidenced by this Revolving Line of Credit Note was made in,
and this Revolving Line of Credit Note shall be governed by the laws of, the
State of Connecticut.
The Bank shall have a lien on and, after an Event of Default, an option
to set off against all deposits and other property of the Borrower in the
possession or control of or in transit to the Bank, without prior demand or
notice, against the indebtedness described herein.
This Revolving Line of Credit Note shall, at the option of the Bank,
without necessity for notice to or demand on the Borrower, become immediately
due and payable if any payment of principal or interest on this Revolving Line
of Credit Note is not paid within 15 days after the date on which it is due, or
upon the occurrence of any other Event of Default, as defined in the Loan
Agreement.
Following default, the interest rate on this Revolving Line of Credit
Note shall increase to the default rate, as that term is defined above.
EXHIBIT 4.11
If this Revolving Line of Credit Note is not paid when due, whether in
accordance with the terms hereof, by acceleration or otherwise, the undersigned
agree to pay all the Bank's costs of collection, including reasonable attorneys'
fees.
No modification, amendment, or waiver of any term or conditions of this
Revolving Line of Credit Note, and no consent by the Bank to any departure
therefrom, shall be effective unless the same shall be in writing signed by a
duly authorized representative of the Bank, and the same shall be effective only
for the period and upon the specific conditions recited in such writing.
If this Revolving Line of Credit Note is subject to a law which sets
maximum charges, which law is finally interpreted so that the interest or other
charges collected or to be collected with respect to this Revolving Line of
Credit Note exceed the permitted limits, than any such charge shall be reduced
by the amount necessary to reduce the charge to the permitted limit.
THE BORROWER ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS REVOLVING
LINE OF CREDIT NOTE IS A PART IS A COMMERCIAL TRANSACTION, AND HEREBY
VOLUNTARILY AND KNOWINGLY WAIVES ITS RIGHT TO NOTICE AND HEARING UNDER CHAPTER
903a OF THE CONNECTICUT GENERAL STATUTES, OR AS OTHERWISE ALLOWED BY THE LAW OF
ANY STATE OR FEDERAL LAW WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH THE BANK
MAY DESIRE TO USE.
THE BORROWER HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF
ANY KIND OR NATURE IN ANY COURT IN WHICH AN ACTION XXX BE COMMENCED ARISING OUT
OF THIS PROMISSORY NOTE.
The Borrower hereby waives presentment, demand for payment, protest,
notice of protest, and notice of dishonor.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Revolving Line of Credit Note as of the date and year first above written.
THE UNIONVILLE WATER COMPANY
By _________________________
EXHIBIT 4.11
Xxxxxxx X. Xxxx
Its President
EXHIBIT 4.11
EXHIBIT C-1
PARCEL ONE:
A certain piece or parcel of land situated on the easterly side of the extension
of Knollwood Road in the Town of Farmington, County of Hartford and State of
Connecticut and more particularly bounded and described as follows, to wit:
Commencing at the northwesterly corner of Lot No. 128 on a map entitled,
"Revised map Part Four_Section Four The Highlands Property of Xxxxxx X.
Xxxxxx, Inc. Farmington, Conn. March 9, 1960 Scale 1"_50' Xxxxxx X. Xxxxxxxxx
C.E. Revised Sept. 25, 1961", on file in the Town Clerk's Office in said Town of
Farmington; thence running easterly along the northerly line of Xxx Xx. 000 xxx
Xxx Xx. 000 as shown on said map, a distance of 291.62 feet; thence running
northwesterly in a line making an interior angle with the last described line of
180 5' 00" a distance of 305.08 feet to a point; thence running southerly along
a curve to the left with a radius of 158.72 feet a distance of 84.92 feet;
thence running southerly along the easterly highway line of Knollwood Road a
distance of 11.15 feet to the point or place of beginning.
PARCEL TWO:
A certain piece or parcel of land, with the buildings and improvements thereon,
containing 53.617 acres more or less and sited on the Northeasterly side of the
Colt Highway, also known as Route 6, and on the Southerly and Easterly side of
Reservoir Road in the Town of Farmington, County of Hartford and State of
Connecticut, said parcel is more particularly shown on a map entitled: "Map of
Land Owned By Unionville Water Company Colt Highway & Reservoir Road Farmington,
Connecticut Scale 1" = 100' September 1986 Certified Substantially Correct in
Accordance with Class A--2 of the Code of Recommended Practice For Accuracy of
Surveys & Maps. Xxxxxx X. Xxxxxx, Surveyor, Xxxxx Surveying Associates, P.C.",
which map is on file in the Farmington Town Clerk's Office and to which
reference Is hereby made for a more particular description.
PARCEL THREE:
Those certain pieces or parcels of land, with the buildings and improvements
thereon, situated in the Town of Farmington, County of Hartford and State of
Connecticut being shown as "Portion A of Parcel A--3 Area = 1.52 ac." and
"Portion B of Parcel A--3 Area = 1.92 ac." on a map entitled "MAP OF FARMINGTON
INDUSTRIAL PARK & LAND OF WEST HARTFORD VILLAGE, INC., Et. Al. Farmington &
Plainville Connecticut" Scale 1" = 200'_September, 1962, bearing a latest
revision date of May, 1978, by the office of Xxxxxx Xxxxx & Assoc., which map is
on file in the Farmington Town Clerk's Office and to which reference is hereby
made for a more particular description; said premises are bounded and described
as follows:
Portion A of Parcel A--3
Commencing at a point in the westerly street line of proposed Xxxxxxx
Avenue, which point is marked by the intersection of the northeasterly
corner of land now or formerly of the City of New Britain and the
southeasterly corner of the land herein described, as shown on said
map; thence running N 77(degree) 38' 30" W, 256.96 feet to a point;
thence N 11(degree) 50' 41" W, 241.28 feet to a point; thence S
88(degree) 22' 15" H, 270.95 feet to a point; thence in a curve to the
left having a radius of 728.73 feet, a distance of 36.85 feet to a
point; thence S 6(degree) 10' E, 248.15 feet to the point and place of
beginning.
PORTION B OF PARCEL A--3
Commencing at a point 256.96 feet northwest of the westerly street line
of proposed Xxxxxxx Avenue, which point is marked by the intersection
of the southwesterly corner of "Portion A of Parcel A--3" and the
southeasterly corner of the land herein described, as shown on said
map; thence N 77(degree) 38' 30" W, 97.78 feet to a point; thence N
77(degree) 38' 34" W, 351.80 feet along the Farmington/Plainville Town
Line to a point; thence N 22(degree) 11' 12" W, 165.00 feet to a point;
thence S 88(degree) 22' 15" E, 452.12 feet to a point; thence S
11(degree) 50' 41" E, 241.28 feet to the point and place of beginning.
Said parcels are conveyed together with such easements or rights of way
appurtenant thereto as of record appear.
PARCEL FOUR:
A certain piece or parcel of land, with the buildings and improvements thereon,
situated in the Town of Plainville, County of Hartford and State of Connecticut
being shown as "Portion C of Parcel A--3 Area = 1.65 ac." on a map entitled "MAP
OF FARMINGTON INDUSTRIAL PARK & LAND OF WEST HARTFORD VILLAGE, INC., Et. Al.
Farmington & Plainville Connecticut" Scale 1" = 200'_September, 1962, hearing
a latest revision date of May, 1978, by the office of Xxxxxx Xxxxx & Assoc.,
which map is on file in the Plainville Town Clerk's Office and to which
reference is hereby made for a more particular description; said premises are
bounded and described as follows:
Commencing at a point, which point is marked by the intersection of the
northwesterly corner of land now or formerly of the City of New Britain and the
northeasterly corner of land now or formerly of Xxxxxx Xxxxxxx, Inc., as shown
on said map; thence S 83(degree) 33' 30" W, 126.54 feet to a point; thence S
82(degree) 18' W, 112.91 feet to a point; thence N 00(degree) 48' 38" W, 296.60
feet to a
EXHIBIT 4.11
point; thence S 77(degree) 38' 34" E, 351.80 feet along the Plainville/
Farmington Town Line to a point; thence S 27(degree) 56' 30" W, 217.29 feet to
the point and place of beginning.
Said parcel is conveyed together with such easements or rights of way
appurtenant thereto as of record appear.
PARCEL FIVE:
Two certain pieces or parcels of land situated on in the Town of Avon, County of
Hartford and State of Connecticut and being shown as Parcels "A" and "B" on a
map entitled: "Map of Land To Be Conveyed To The Unionville Water Company
Easterly of Huckleberry Hill Road, Avon, Conn. Scale 1" = 50' - February, 1965.
Revised April 20, 1965 to Show Addition of Parcel `B'", which map is certified
substantially correct by X.X. Xxxxxxxxx and Xxxxxx X. Xxxxxx, Surveyors Xxxxxx
Xxxxx & Associates, Engineers and Surveyors and is on file in the Avon Town
Clerk's Office, to which reference is hereby made for a more particular
description; said parcels are bounded and described as follows:
Parcel A
Commencing at a point at the southeasterly corner of said parcel, which
point marks the southwesterly corner of land now or formerly of Xxxxx
Xxxxx; thence running along land now or formerly of Xxxxxx X. and
Xxxxxxx X. Xxxxx N 85(degree) 06' W, a distance of 40.10 feet to a
point; thence running along land now or formerly of Xxxxxxx Xxxxx Xxx N
85 (degree) 37' N, a distance 64.13 feet to a point; thence running
along land now or formerly of Xxxxxxx X. Xxxxxxxxx, being a right of
way, N 31(degree) 31' 50" N, a distance of 154.00 feet to a point;
thence running along land now or formerly of said Xxxxxxxxx N
62(degree) 34' 50" E, a distance of 97.24 feet to a point; thence
running along land now or formerly of said Xxxxxxxxx N 2(degree) 10'
10" E, a distance of 225.00 feet to a point; thence running along land
now or formerly of said Xxxxxxxxx N 52(degree) 39' 20" E, a distance of
136.10 feet to a point on the westerly line of land now or formerly of
Xxxxx Xxxxx; thence running along land now or formerly of said Xxxxx
Xxxxx S 2(degree) 10' 10" W, a distance of 492.12 feet to the point or
place of beginning.
Said parcel contains 1.25 acres more or less.
Parcel B
Commencing at the southeasterly corner of land now or formerly of
Xxxxxxx X. Xxxxxxxxx, being shown as Parcel "A" on the above described
map, which point marks the southwesterly corner of the herein described
premises; thence running N 2(degree) 10' 10" E along the easterly line
of said Parcel "A" as shown on said map, a distance of 492.12 feet to a
point; thence running S 87(degree) 49' E along other land now or
formerly of Xxxxx Xxxxx, a distance of 260.00feet to a point; thence
running S 2(degree) 10' 10" W along other land now or formerly of Xxxxx
Xxxxx, a distance of 504.52 feet to a point on the northerly line of
land now or formerly of Xxxxxx X. and Xxxxxxx X. Xxxxx; thence running
along the northerly line of land now or formerly of said Xxxxxx, N
85(degree) 06' W, a distance of 260.30 feet to the point or place of
beginning.
Said parcel contains 2.97 acres more or less.
PARCEL SIX:
A certain piece or parcel of land situated on the easterly side of Waterville
Road in the Town of Farmington, County of Hartford and State of Connecticut and
bounded and described as follows, to wit:
Beginning at a concrete monument in the easterly line of Waterville Road, said
monument marking the intersection of the easterly line of said road with the
southerly line of the right of way of the Board of Water Commissioners of the
City of Hartford; thence running southerly along Waterville Road a distance of
45 feet; thence running easterly at right angles to the easterly line of
Waterville Road a distance of 60 feet; thence running northerly at right angles
to the last mentioned line, a distance of 15.3 feet more or less to the
southerly line of the right of way of The Board of Water Commissioners of the
City of Hartford, thence running westerly along the southerly line of said right
of way a distance of 67 feet more or less to the point and place of beginning.
PARCEL SEVEN:
A certain piece or parcel of land, with the buildings and improvements thereon,
situated on the Northwesterly side of Reservoir Road and the Southwesterly side
of Xxxxxxx Xxxx Road in the Town off Farmington, County of Hartford and State of
Connecticut; said premises are more particularly bounded and described as
follows:
Northeasterly by Xxxxxxx Xxxx Road;
Southeasterly by Reservoir Road;
Southwesterly by land now or formerly of Xxxxx X. and Xxxxx X. Xxxxxx; and
Westerly by land now or formerly of Xxxx X. and Xxxxxxx X. Xxxxxx.
EXHIBIT 4.11
EXHIBIT C-2
Description of Water Supply, Transmission
and Distribution Mains
Five gravel packed xxxxx at Xxxx House and Sons, Inc. well field off
Perry Street in the Unionville Section of Farmington, Connecticut, a gravel
packed well at Connecticut Sand and Stone site xxx Xxxxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxx, a rock well at Pondwood Acres off Coppermine Road,
Farmington, Connecticut, a rock well at Xxxxx Acres off Plainville Avenue,
Farmington, Connecticut and four xxxxx at Farmington Industrial Park off Xxxxxxx
Avenue, Farmington, Connecticut, all interconnected by various transmission
mains with three water storage tanks located on Reservoir Road and Colt Highway,
Farmington, Connecticut, Farmington Edge, Farmington, Connecticut and Anvil
Drive, Avon, Connecticut. Pump houses utilized in connection therewith and pump
houses for emergency connections to the Metropolitan District Commission water
transmission mains located on Huckleberry Hill Road, Avon, Knollwood Road,
Farmington and Waterville Road, Farmington, Connecticut.
Approximately 79 miles of cast iron, asbestos cement, galvanized iron,
PVC copper tubing and wrought iron transmission and distribution mains.
EXHIBIT 4.11
EXHIBIT C-3
Description of Machinery, Pumps, etc.
Various liquid chlorinators, water pumps, gas and diesel emergency
generators located at the Company's eleven well sites in the Town of Farmington.
Approximately 4273 5/8 inch meters, 286 one inch meters, 81 two inch
meters and 3 four inch meters; approximately 544 fire hydrants.
Various corporations, fittings, gates and boxes, hydrants and parts,
service materials, sleeves, and ductile iron pipe.
Personal property of the Unionville Water Company, including, but not
by way of limitation, all office furniture, furnishings and equipment, computer
hardware and software, laboratory and metering equipment, communication
equipment, tools, transportation equipment, power operated equipment, and
inventory and supplies.
EXHIBIT 4.11
EXHIBIT D
OPEN-END MORTGAGE AND SECURITY AGREEMENT
KNOW YE, that THE UNIONVILLE WATER COMPANY, a Connecticut public
service company with offices located at 00 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx
00000 (hereinafter called the "Grantor"), for the consideration of One Dollar
($1.00) and other valuable consideration received to its full satisfaction of
FARMINGTON SAVINGS BANK, having its principal place of business at 00 Xxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000 (hereinafter called the "Grantee"), does
give, grant, bargain, sell and confirm unto the Grantee, its successors and
assigns forever, all of the real property, tangible and intangible, personal
property, and all corporate rights and franchises, income, licenses, permits,
privileges of the Grantor including, but without limiting the generality of the
foregoing (a) all of those certain pieces or parcels of land, with all buildings
and improvements now existing or hereafter erected thereon, situated in the
Towns of Farmington and Avon, County of Hartford and State of Connecticut, more
particularly described in Exhibit A, attached hereto and hereby incorporated
herein by reference together with all tangible and intangible personal property
of the Grantor including but not limited to all easements, rights,
appurtenances, rents, royalties, mineral, oil and gas rights and profits, water,
water rights, machinery, pumps, generators, engines, implements, equipment,
pipelines, conduits, aqueducts, dams, reservoirs, fences, structures, fixtures
and all other personal property of whatever kind and nature necessary or
incidental to the proper use of the premises and the business of the Grantor,
now located on or hereafter placed upon said premises, all of which are declared
and shall be deemed to be fixtures and accessions to the freehold and a part of
the realty and shall be covered by this Mortgage and; (b) all water supply,
transmission and distributing mains, conduits and pipes of the Grantor, and all
meters, service pipes, hydrants, hydrant connections and other appliances and
apparatus connected with said mains, conduits and pipes including but not
limited to such property described in Exhibit B attached hereto and incorporated
herein by reference, (c) all machinery, pumps, generators, engines, implements,
boilers, equipment and systems and all other tangible personal property of the
Grantor, including but not limited to such property described in Exhibit C
attached hereto and incorporated herein by reference, (d) all intangible
personal property of the Grantor, including but not limited to Grantor's
accounts and accounts receivable, and (e) all after-acquired real and personal
property and rights and interests therein, of whatever nature (all property of
the Grantor, including without limitation such property as described in
paragraphs (a) through (e) above shall be collectively hereinafter referred to
as the "Mortgaged Property");
TO HAVE AND TO HOLD the herein granted and bargained Mortgaged
Property, with the appurtenances thereof, unto the Grantee, its successors and
assigns forever, to its and their proper use and behoof. And also, the Grantor
does for itself and its successors and assigns, covenant with the Grantee, its
successors and assigns, that, at and until the ensealing of these presents, it
EXHIBIT 4.11
is well seized of the Mortgaged Property as a good indefeasible estate IN FEE
SIMPLE, and has good right to bargain and sell the same in the manner and form
as above written; and the same is free from all encumbrance whatsoever, except
for such items listed in the schedules of exception to coverage in the title
insurance policy insuring Grantee's interest in the Mortgaged Property issued by
the Connecticut Attorneys Title Insurance Company of even date herewith.
AND FURTHERMORE, the Grantor does by these presents bind herself and
her successors and assigns forever, to WARRANT AND DEFEND the herein granted and
bargained Premises to the Grantee, its successors and assigns, against all
claims and demands whatsoever, except as above stated.
THE CONDITION OF THIS DEED is such that:
WHEREAS, (a) to refinance a demand obligation, the proceeds of which
were used to fund construction of certain utility plant facilities of the
Grantor and (b) to finance the construction of additional utility plant
facilities of the Grantor, and to finance the construction of the remainder of
the Improvements, the Grantee has agreed to lend the Grantor the sum of One
Million Nine Hundred Thousand Dollars ($1,900,000.00), said term loan to be
evidenced by the Grantor's term promissory note in the principal amount of One
Million Nine Hundred Thousand Dollars ($1,900,000.00) (hereinafter sometimes
called the "Term Note"), in the form attached hereto and made a part hereof as
Exhibit D; and
WHEREAS, to finance the Grantor's working capital needs the Grantor has
agreed to lend and relend to the Grantor from time to time, as requested by the
Grantor amounts which in the aggregate at any one time outstanding do not exceed
Five Hundred Thousand Dollars ($500,000.00), said revolving line of credit to be
evidenced by the Grantor's revolving line of credit promissory note in the
principal amount of Five Hundred Thousand Dollars ($500,000.00) (hereinafter
sometimes called the "Revolving Line of Credit Note") in the form attached
hereto and made a part hereof as Exhibit D-l (the Term Note and the Revolving
Line of Credit note hereinafter referred to collectively as the "Notes"); and
WHEREAS, the Grantor and the Grantee have entered into a certain
Revolving and Term Loan and Security Agreement of even date herewith
(hereinafter referred to as the Loan Agreement"); and
WHEREAS, the Grantor has executed the Notes, the Loan Agreement, and
certain other documents, all in favor of the Grantee and dated of even date
herewith (which documents are hereinafter collectively referred to as the "Loan
Documents"); and
WHEREAS, the Grantee desires to secure the prompt payment of the Notes
together with interest thereon and any
EXHIBIT 4.11
additional indebtedness accruing to it on account of any future payments,
advances or expenditures made by it pursuant to the terms hereof or the terms of
any of the Loan Documents (all hereinafter sometimes collectively referred to as
the "Liabilities");
NOW, THEREFORE, if the Liabilities shall be promptly paid according to
their tenor, and all agreements and provisions herein contained are fully kept
and performed by the Grantor, then this deed shall be void, otherwise to remain
in full force and effect.
The Grantor, in order to more fully protect the security of this
mortgage deed ("Mortgage"), does hereby covenant and agree that:
1. The Grantor shall pay and perform the Liabilities in accordance with
their terms and shall comply with the terms of the Loan Documents and this
Mortgage.
2. Grantor shall pay and discharge as the same become due all taxes and
assessments that may accrue, be levied, or assessed upon the Premises or any
part thereof, or upon Grantee's interest therein or upon this Mortgage or the
Liabilities or the Note, without regard to any law heretofore or hereafter
enacted imposing payment of the whole or any part thereof upon the Grantee; upon
the passage of any law imposing the payment of the whole or any part thereof
upon Grantee or upon the rendering of a decision by any court of competent
jurisdiction that the undertaking by Grantor to pay such taxes is legally
inoperative, then the Liabilities, without deduction, shall, at the option of
the Grantee, become immediately due and payable, notwithstanding anything
contained in this Mortgage or any law heretofore enacted.
Grantor shall pay or cause all such taxes or levies to be paid within
ten (10) days after the same are payable and shall provide the Grantee with
evidence of such payment within ten (10) days thereafter.
Notwithstanding the foregoing, such taxes, levies or assessments may be
contested by or on behalf of Grantor in good faith and by appropriate
proceedings provided that payments are made to the extent provided by law and
that the Grantor has made (in the reasonable opinion of the Grantee) adequate
financial provision for any unpaid portion thereof.
In the event Grantor, at any time or times hereafter, shall fail to pay
any such taxes or assessments or to obtain promptly the discharge of such lien,
Grantor shall so advise Grantee thereof in writing and the Grantee may (but
shall be under no obligation to do so), without waiving or releasing any
obligation or default of Grantor hereunder or any Event of Default hereunder, in
its sole discretion, at any time or times thereafter, make such payment, or any
part thereof, or obtain such discharge and take any other action with respect
thereto which Grantee deems advisable. All sums so paid by Grantee and any
expenses,
EXHIBIT 4.11
including reasonable attorneys' fees, court costs, expenses and other charges
relating thereto, shall be payable by the Grantor, upon demand, and payment of
such sums, together with interest at a Contract Rate which is three percentage
points (3%) per annum in excess of the rates then in effect under the Notes
(which rates shall be computed on the basis of a year of 360 days, but shall be
payable for the actual number of days such sums remain unpaid and which rate
shall hereinafter be referred to as the "Default Rate") shall be secured hereby
to the maximum extent permitted by law.
3. The Grantor, at its sole cost and expense, shall keep and maintain
the Mortgaged Property insured for the lesser of its full insurable value or
such amounts and with such deductibles as may be ordinarily maintained by others
engaged in the same or similar business as the Grantor against all risk of
physical loss, including damage by fire, theft, explosion, sprinklers,
vandalism, malicious mischief, and all other hazards and risk ordinarily insured
against by other owners or users of similar properties and notify Grantee
promptly of any event or occurrence causing a material loss or diminution in the
value of the Mortgaged Property and the estimated (or actual, if available)
amount of such loss or diminution. The Grantor shall also keep and maintain
public liability insurance naming the Grantee as an additional insured, in
amounts satisfactory to the Grantee. The original or a certified copy of each
policy of insurance shall be delivered to Grantee, together with evidence of
payment therefor. The original (or certified copy) of any renewal or replacement
policies or a certificate thereof shall be delivered to Grantee not less than
ten (10) days prior to the expiration of any such policies, together with
evidence of payment for such renewal or replacement policies. The provision of
such insurance by other persons, such as tenants, does not release the Grantor
from the aforesaid obligations.
All such policies of insurance shall be subject to the approval of the
Grantee with respect to companies, forms, expiration date, and amount, which
approval shall not be unreasonably withheld. No changes may be made in the
amount of such insurance without Grantee's prior approval, provided that the
amount of insurance coverage may be increased without approval of the Grantee.
Such policies of insurance shall contain an endorsement, in form and
substance satisfactory to Grantee, showing loss payable to Grantee. Such
endorsement, or an independent instrument furnished to Grantee, shall provide
that the insurance companies will give Grantee at least ten (10) days' prior
written notice before any such policy or policies of insurance shall be
materially altered or cancelled and that no act or default of Grantor or any
other person shall affect the right of Grantee to recover under such policy or
policies of insurance in case of loss or damage. Grantor hereby directs all
insurers under such policies of insurance to pay all proceeds payable thereunder
directly to Grantee. Grantor irrevocably makes, constitutes and appoints Grantee
(and all officers, employees or agents designated by Grantee), at the Grantee's
sole option, as Grantor's true and lawful attorney (and agent--in--fact) upon
the occurrence of, and during the continuation of, an Event of Default, as
described in Section 13 hereof, for the purpose of making, settling and
adjusting claims under such policies of insurance, endorsing the name of Grantor
on any check, draft, instrument or other item of payment for the proceeds of
such policies of insurance and for making all
EXHIBIT 4.11
determinations and decisions with respect to such policies of insurance. All
proceeds received under any insurance policy described herein shall be held and
applied, at the Grantee's sole option, towards the repair, restoration or
rebuilding of the Premises or towards the Liabilities in such manner as the
Grantee shall deem advisable.
In the event Grantor, at any time hereafter, shall fail to obtain or
maintain any of the policies of insurance required above or to pay any premium
in whole or in part relating thereto, then Grantee, without waiving or releasing
any obligation or default by Grantor hereunder, or any Event of Default as
defined herein, may (but shall be under no obligation to do so) at any time or
times thereafter obtain and maintain such policies of insurance and pay such
premium and take such other action with respect thereto which Grantee deems
advisable. All sums so disbursed by Grantee shall be payable by Grantor on
demand, and payment of such sums, together with interest at the Default Rate,
shall be secured hereby to the maximum extent permitted by law.
4. The Grantor shall comply, in all material respects, with all
agreements to which any portion of the mortgaged Property is subject.
5. During the term of the Notes, the Grantor shall not sell, transfer
or convey the Mortgaged Property or any part thereof or any interest, legal or
equitable, therein and shall not create or incur or suffer to be created or
incurred or to exist any mortgage, lien, or other encumbrance on the Mortgaged
Property, except encumbrances as to which Grantee has given its prior written
consent.
6. Grantor shall comply with all laws, regulations, or requirements of
any governmental agencies relating to the Mortgaged Property, and shall cause
any tenant or tenants in the Mortgaged Property to do the same.
7. The Grantee shall not be compelled to release, or be prevented from
foreclosing or enforcing this Mortgage upon all or any part of the Mortgaged
Property, unless the entire debt and all items hereby secured shall be paid in
lawful money as aforesaid; and the Grantee shall not be required to accept any
part or parts of the Mortgaged Property, as distinguished from the entire whole
thereof, as payment of or upon the said debt to the extent of the value of such
part or parts, and shall not be compelled to accept or allow such apportionment
of said debt to or among any separate parts of the Mortgaged Property.
8. The Grantor shall immediately pay to the Grantee all sums, including
costs, expenses, and reasonable agents' or attorneys' fees, which the Grantee
may expend or become obligated to pay in any proceedings, legal or otherwise, to
prevent the commission of waste, to establish or sustain the lien of this
Mortgage or its priority, or to defend against liens or encumbrances asserting
priority to this Mortgage (other than those specifically excepted herein); or in
payment, settlement, discharge or release
EXHIBIT 4.11
of any such asserted lien or encumbrance made upon advice of counsel that the
same is or may be superior or adverse to the lien of this Mortgage; or in
connection with any suit to enforce or foreclose this Mortgage; or to recover
any sums hereby secured. All such sums so paid by the Grantee shall be payable
by the Grantor on demand, and payment of such sums, together with interest at
the Default Rate, shall be secured hereby to the maximum extent permitted by
law.
9. No delay or failure of the Grantee to exercise any option herein
given or reserved shall constitute a waiver of such option or estop the Grantee
from afterwards exercising the same or any other option at any time, and the
payment or contracting to pay by the Grantee of anything the Grantor has herein
agreed to pay shall not constitute a waiver of the default of the Grantor in
failing to make said payments and shall not estop the Grantee from foreclosing
this Mortgage on account of such failure of the Grantor. The rights, options,
powers and remedies herein provided shall be cumulative and no one or more of
them shall be exclusive of the other or others, or of any right or remedy now or
hereafter given or allowed by law.
10. In the event the whole or any part of the Mortgaged Property shall
be taken by the exercise of the right of condemnation or eminent domain or
conveyed in lieu thereof to those authorized to exercise such right, or by
alteration of the grade of any highway or street or other injury to or decrease
in value of the Mortgaged Property, all awards and other monies payable to the
Grantor on account of such taking or injury shall be deposited with the Grantee
and shall be applied by the Grantee against the Liabilities in such manner as
the Grantee shall deem advisable.
The Grantee shall have the right to intervene and participate in any
proceedings for and in connection with any taking, alteration or injury referred
to in this Section 10; provided, however, that if such intervention shall not be
permissible or permitted by the Court, the Grantor shall, at its expense,
consult with the Grantee, its attorneys and experts and make all reasonable
efforts to cooperate with them in any presentation or participation in such
proceedings. The Grantor shall not enter into any agreement for the taking of
the Mortgaged Property or any part thereof, with any person or persons
authorized to acquire the same by condemnation or eminent domain, unless the
Grantee shall have consented thereto in writing.
For the purpose of effecting the provisions of this Section 10, the
Grantor hereby assigns to the Grantee all of its right, title, and interest in
and to any and all awards for any occurrences referred to in this Section 10,
subject to the provisions of this Section 10 and the provisions of Section 11
hereof. The Grantor hereby covenants and agrees, upon request of the Grantee to
make, execute and deliver any and all assignments and other instruments deemed
by the Grantee necessary or desirable for the purpose of confirming or further
evidencing said assignment by the Grantor of its share of the aforesaid awards
to the Grantee, free, clear and discharged of any and all encumbrances of any
kind or nature whatsoever created by the Grantor, except as above stated.
EXHIBIT 4.11
11. Notwithstanding any taking by eminent domain or conveyance in lieu
thereof, alteration of the grade of any highway or street or other injury to or
decrease in value of the Mortgaged Property by any public or quasi-public
authority or corporation, the Liabilities shall continue to earn interest at the
rate agreed upon until any such award or payment shall have been actually
received by the Grantee and any reduction in the principal sum resulting from
the application by the Grantee of such award or payment as hereinafter set forth
shall be deemed to take effect only on the date of such receipt. Said award or
payment shall, pursuant to the provisions of Section 10 hereof, at the option of
the Grantee, be applied by the Grantee against the Liabilities in such manner as
the Grantee shall deem advisable. If prior to the receipt by the Grantee of such
award or payment the Mortgaged Property shall have been sold on foreclosure of
this Mortgage, the Grantee shall have the right to receive said award or payment
to the extent of any deficiency found to be due upon such sale, with interest
thereon at the highest rate being borne by any of the Liabilities, whether or
not a deficiency judgment on this Mortgage shall have been sought or recovered
or denied, and of the reasonable counsel fees, costs and disbursements incurred
by the Grantee in connection with the collection of such award or payment.
12. The Grantee shall have the right to visit and inspect the Mortgaged
Property, to examine the books of account of the Grantor relating thereto, and
to discuss such accounts with the Grantor at all such reasonable times as the
Grantee may request. Upon the commencement of any action to foreclose this
Mortgage and upon the Grantee's request, the Grantor shall immediately deliver
to the Grantee all sets of plans, specifications, building drawings, permits,
licenses, leases, and other instruments pertaining to the Mortgaged Property.
13. The Grantor agrees that upon the occurrence of any Event of Default
under the Loan Agreement, then, any such occurrence being an Event of Default
hereunder, at the option of the Grantee, all sums owing from the Grantor to the
Grantee shall become immediately due and payable without the necessity for
demand or notice, and Grantee shall be entitled to all rights and remedies
provided herein and by law, which remedies shall be cumulative and not
exclusive.
14. As further and additional security for the performance of the terms
and conditions of this Mortgage, and for the payment of the Liabilities, the
Grantor hereby assigns, transfers, and sets over to the Grantee all rents from
the Mortgaged Property whether now or hereafter due and payable. Until the
occurrence of an Event of Default hereunder, Grantor may collect and retain such
rents. The Grantor hereby agrees that upon the occurrence of an Event of Default
as described in Section 13 hereof, the Grantee is hereby authorized and
empowered, by its servants, agents or attorneys, to enter upon the Mortgaged
Property and to collect and receive all rents therefrom, whether then due and
payable or thereafter becoming due and payable by reason of any lease or leases
which have heretofore or may hereafter be entered into with respect to the
Mortgaged Property, and to apply the same against the Liabilities in such manner
as the Grantee may deem advisable.
EXHIBIT 4.11
Nothing in this Section shall in any way impair or affect any right or
remedy which the Grantee might now or hereafter have were it not for the
provisions of this Section, but the rights and remedies given by the provisions
of this Section shall be in addition to all other rights and remedies which the
Grantee may have.
Grantor shall not, without the written consent of the Grantee, receive
or collect rent from any tenant or any person in possession of the whole or any
part of the Mortgaged Property for more than one (1) month in advance and shall
not waive, release, reduce, discount or otherwise discharge or compromise any
such rents. Grantor further agrees that it will not assign any of the rents,
issues, and profits of the Mortgaged Property.
15. THE GRANTOR ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS
MORTGAGE IS A PART IS A COMMERCIAL TRANSACTION, AND HEREBY VOLUNTARILY AND
KNOWINGLY WAIVES ITS RIGHT TO NOTICE AND HEARING UNDER CHAPTER 903a OF THE
CONNECTICUT GENERAL STATUTES, OR AS OTHERWISE ALLOWED BY THE LAW OF ANY STATE OR
BY FEDERAL LAW WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH THE GRANTEE MAY
DESIRE TO USE, AND AUTHORIZES GRANTEE'S ATTORNEY TO ISSUE A WRIT FOR A
PREJUDGMENT REMEDY WITHOUT COURT ORDER, PROVIDED THE COMPLAINT SHALL SET FORTH A
COPY OF THE WAIVER. FURTHER, THE GRANTOR HEREBY WAIVES, TO THE EXTENT PERMITTED
BY LAW, THE BENEFITS OF ALL VALUATION, APPRAISEMENT, HOMESTEAD EXEMPTION, STAY,
REDEMPTION AND MORATORIUM LAWS, NOW IN FORCE OR WHICH MAY HEREAFTER BECOME LAWS.
16. It is the intent of the parties hereto that this instrument shall
constitute a Security Agreement within the meaning of the Uniform Commercial
Code as then in effect (the "Uniform Commercial Code") with respect to (a) all
furniture, fixtures, machinery and equipment of the Grantor at any time located
in the Mortgaged Property and all replacements thereof, substitutions therefor
and additions and accessions thereto, and that a security interest shall attach
thereto and (b) all other personal property of the Grantor (said property being
sometimes hereinafter referred to as the "Collateral") for the benefit of the
Grantee to secure the Liabilities and all other sums and charges which may
become due hereunder. The Grantor hereby authorizes the Grantee to file
financing and continuation statements with respect to the Collateral without the
signature of the Grantor whenever lawful. Upon the occurrence of an Event of
Default described in Section 15 hereof, the Grantee, pursuant to the Uniform
Commercial Code, shall have the option of proceeding as to both real and
personal property in accordance with its rights and remedies in respect of the
real property, in which event the default provisions of the Uniform Commercial
Code shall not apply. The parties agree that in the event the Grantee elects to
proceed with respect to the Collateral described in subsection (a) above
separately from the real property, ten (10) days' notice of the sale of the
Collateral shall be reasonable notice. The
EXHIBIT 4.11
Grantor agrees that, without the written consent of the Grantee, the Grantor
will not remove or permit to be removed from the Mortgaged Property or the
improvements thereon any of the Collateral. Any replacements, renewals and
additions to or for the Collateral shall become and be immediately subject to
the security interest of this Mortgage and be covered thereby. The Grantor
shall, from time to time, on request of the Grantee, deliver to the Grantee an
inventory of the Collateral in reasonable detail, including an itemization of
all items leased to the Grantor or subject to a conditional xxxx of sale,
security agreement or other title retention agreement.
17. This Mortgage cannot be amended, modified or changed except by an
agreement in writing, signed by the party against whom enforcement of the change
is sought.
18. All the covenants, conditions and agreements hereof shall bind the
heirs, administrators, successors and assigns of the Grantor and shall inure to
the benefit of and be available to the successors and assigns of the Grantee.
19. A waiver, in one or more instances, of any of the terms and
provisions hereof, shall apply to the particular instance or instances at the
particular time or times only, and shall not be a continuing waiver, and all the
terms, covenants and agreements herein and all of the terms, covenants and
agreements of the Notes, the Loan Agreement, and all other instruments and
agreements executed and delivered in connection with any of the Liabilities
shall survive and continue to remain in full force and effect.
20. Grantee may collect a "late charge" not to exceed an amount equal
to five percent (5%) of any installment of interest, principal, taxes,
assessments and insurance which is not paid to Grantee within fifteen (15) days
of the due date thereof, to cover the extra expense involved in handling such
delinquent payment.
21. This Mortgage and the Notes are to be governed by and construed in
accordance with the laws of the State of Connecticut.
22. This is an open-end mortgage and the holder thereof shall have all
the rights, powers and protection to which the holder of any open-end mortgage
shall now or hereafter be entitled. As authorized by Connecticut General
Statutes Section 49-2(c), as amended, and all other applicable laws and subject
only to such limitations as are imposed by law, additional loans or advances are
specifically permitted to be made under this Mortgage and shall be secured
equally with, and with the same priority over the claims as, the debt secured
hereby at the time of recording this Mortgage.
EXHIBIT 4.11
IN WITNESS WHEREOF, the Grantor has caused this instrument to be duly
executed and delivered as of this 11th day of April, 1991.
Signed, sealed and delivered THE UNIONVILLE WATER COMPANY
in the presence of:
____________________________________ _________________________________
Xxxxxxx X. Xxxx,
____________________________________ Its President, Duly Authorized
STATE OF CONNECTICUT)
) ss.: Farmington: April 11, 1991
COUNTY OF HARTFORD )
On this date personally appeared before me Xxxxxxx X. Xxxx, who
acknowledged himself to be President of Unionville Water Company, a corporation
organized under the laws of the State of Connecticut, and that he, as such
President, executed the Open-End Mortgage and Security Agreement for the
purposes therein contained by signing the name of the Corporation by himself as
President.
In Witness Whereof, I hereunto set my hand.
__________________________________
Commissioner of the Superior Court
EXHIBIT 4.11
EXHIBIT D
TERM NOTE
Farmington, Connecticut
$1,900,000.00 Dated: April ___, 1991
FOR VALUE RECEIVED, the undersigned, THE UNIONVILLE WATER COMPANY, a
public service company with its principal place of business at 00 Xxxx Xxxxxx,
X.X. Xxx 000, Xxxxxxxxxx, Xxxxxxxxxxx 00000 (the "Borrower"), hereby promises to
pay to the order of FARMINGTON SAVINGS BANK (the "Bank") the principal sum of
One Million, Nine Hundred Thousand Dollars ($1,900,000.00) together with
interest thereon from the date hereof on the unpaid principal balance hereof
remaining outstanding from time to time at the rate hereinafter provided.
The proceeds of this Term Note are to be used exclusively as set forth
in the Revolving and Term Loan and Security Agreement of even date herewith
between the Borrower and the Bank (the "Loan Agreement").
This Term Note shall bear interest on the unpaid principal balance
hereof from time to time as follows:
(i) from the date hereof through May 31, 1996, the interest rate
shall be ______________ percent (%) per annum; and
(ii) effective on May 1, 1996, and on each sixtieth (60th) monthly
anniversary date thereafter (each anniversary referred to
herein as an "Interest Change Date"), the interest rate shall
be increased or decreased to a rate determined by adding two
and one-half percentage points (2.5%) (the "Margin") to the
most recent Federal Home Loan Bank of Boston Long-Term,
Regular, 5 Year, Fixed Rate Mortgage Rate (the "Index"),
available forty-five (45) days prior to the Interest Change
Date (the Index so used prior to the applicable Interest
Change Date shall be referred to as the "Current Index"),
rounded to the next highest one-eighth of one percentage point
(0.125%). Each new interest rate will be effective beginning
on each Interest Change Date. If the Current Index is no
longer available, the Bank will use a similar index chosen by
it in the exercise of its reasonable discretion.
Interest shall be payable at the applicable aforesaid rates on the
outstanding principal balance of this Term Note, both before and after maturity,
by acceleration or otherwise, whether or not judgment is rendered hereon, until
paid in full. Interest shall be computed on the basis of a year of 360 days, and
shall be payable monthly in arrears for the actual number of days in each month.
EXHIBIT 4.11
The Borrower shall pay to the Bank, on the first day of each month
commencing on June 1, 1991 and continuing through May 1, 1996, equal monthly
payments of principal and interest in the amount of $___________ which payments
are designed to amortize said principal and interest (at the initial rate
hereunder) over the period beginning June 1, 1991 and ending at the Final
Maturity (as hereinafter defined).
Beginning on June 1, 1996, and on each sixtieth (60th) monthly
anniversary of that date thereafter (each such date referred to hereinafter as a
"Payment Change Date"), the monthly payments of principal and interest shall be
adjusted to an amount so as to amortize the remaining balance of the principal
and interest hereunder, based upon the current rate of interest applicable at
the applicable Interest Change Date immediately preceding the Payment Change
Date, within the period measured from the applicable Interest Change Date until
the Final Maturity (as hereinafter defined).
On May 1, 2011, (the "Final Maturity"), the Borrower shall make one
final payment to the Bank in the amount of the then outstanding principal
balance of this Term Note, together with all accrued and unpaid interest and any
other sums due and owing hereunder.
The Borrower may prepay the principal balance outstanding under this
Term Note without penalty for the thirty (30) days preceding each Interest
Change Date upon thirty (30) days' prior written notice to the Bank. Prepayment
made at any other time shall be allowed only upon payment by the Borrower of a
"Prepayment Change," which shall be one hundred ten percent (110%) of the
present value of the difference between:
(a) the interest on the amount prepaid for the remaining
term to the next Interest Change Date, as determined by the Current
Index, and
(b) the interest on the same amount for the remaining
term to the next Interest Change Date, as determined by the Index in
effect for that maturity on the day prepayment is made.
Any payments received by the Bank under this Term Note shall be applied
first to any costs, fees, and expenses due hereunder, then to the payment of
interest, and finally to the payment of principal.
If any payment due hereunder, whether of principal, interest, fees or
otherwise, is not received by the Bank within 15 days after the date on which it
is payable, (a) the unpaid and outstanding balance of this Term Note shall bear
interest, from the date on which the overdue payment was originally payable, at
a rate which is three percentage points (3%) in excess of the applicable rate as
set forth above (the "default rate"), and (b) the Bank shall charge and collect,
in addition to interest at the
EXHIBIT 4.11
default rate, a late charge equal to five percent (5%) of the overdue payment.
Both principal and interest are payable in lawful money of the United
States of America to the Bank at 00 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000,
or at such other address as the Bank designates.
This Term Note is executed pursuant to the Loan Agreement, to which
reference may be had for a complete description of the terms and conditions of
borrowing hereunder, including certain Events of Default and rights of
acceleration. The indebtedness described herein shall have the benefit of the
collateral described in the Loan Agreement.
The loan evidenced by this Term Note was made in, and this Term Note
shall be governed by the laws of, the State of Connecticut.
The Bank shall have a lien on and, after an Event of Default, an option
to set off against, all deposits and other property of the Borrower in the
possession or control of or in transit to the Bank, without prior demand or
notice, against the indebtedness described herein.
This Term Note shall, at the option of the Bank, without necessity for
notice to or demand upon the Borrower, become immediately due and payable if any
payment of principal or interest on this Term Note is not paid within fifteen
(15) days of the date on which it is due, or upon the occurrence of any other
Event of Default, as defined in the Loan Agreement.
Following default, the interest rate on this Term Note shall increase
to the default rate, as that term is defined above.
If this Term Note is not paid when due, whether in accordance with the
terms hereof, by acceleration or otherwise, the undersigned agrees to pay all
the Bank's costs of collection, including reasonable attorneys' fees.
No modification, amendment, or waiver of any term or condition of this
Term Note, and no consent by the Bank to any departure therefrom, shall be
effective unless the same shall be in writing signed by a duly authorized
representative of the Bank, and the same shall be effective only for the period
and upon the specific conditions recited in such writing.
If this Term Note is subject to a law which sets maximum charges, and
that law is finally interpreted so that the interest or other charges collected
or to be collected with respect to this Term Note exceed the permitted limits,
then any such charge shall be reduced by the amount necessary to reduce the
charge to the permitted limit.
EXHIBIT 4.11
THE BORROWER ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS TERM NOTE
IS A PART IS A COMMERCIAL TRANSACTION, AND HEREBY VOLUNTARILY AND KNOWINGLY
WAIVES ITS RIGHT TO NOTICE AND HEARING UNDER CHAPTER 903a OF THE CONNECTICUT
GENERAL STATUTES, OR AS OTHERWISE ALLOWED BY THE LAW OF ANY STATE OR FEDERAL LAW
WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH THE BANK MAY DESIRE TO USE.
THE BORROWER HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF
ANY KIND OR NATURE IN ANY COURT IN WHICH AN ACTION MAY BE COMMENCED ARISING OUT
OF THIS PROMISSORY NOTE.
The Borrower hereby waives presentment, demand for payment, protest,
notice of protest, and notice of dishonor.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Term Note as of the date and year first above written.
THE UNIONVILLE WATER COMPANY
By ______________________________
Xxxxxxx X. Xxxx
Its President
EXHIBIT 4.11
EXHIBIT E
REVOLVING LINE OF CREDIT NOTE
Farmington, Connecticut
$500,000.00 Dated: April ___ , 1991
FOR VALUE RECEIVED, the undersigned, THE UNIONVILLE WATER COMPANY, a
Connecticut public service company with its principal place of business at 00
Xxxx Xxxxxx, X.X. Xxx 000, Xxxxxxxxxx, Xxxxxxxxxxx 00000 (the "Borrower"),
hereby promises to pay to the order of FARMINGTON SAVINGS BANK (the "Bank") the
principal sum of Five Hundred Thousand Dollars ($500,000.00) or so much thereof
as may have been advanced from time to time, together with interest thereon from
the date hereof on the unpaid principal balance hereof remaining outstanding
from time to time at the rate hereinafter provided.
The proceeds of this Revolving Line of Credit Note are to be used
exclusively as set forth in the Revolving and Term Loan and Security Agreement
of even date herewith between the Borrower and the Bank (the "Loan Agreement").
This Revolving Line of Credit Note shall bear interest on the unpaid
principal balance hereof from time to time at a rate which shall be a floating
rate equal to one percentage point (1.0%) above the Bank's "Base Rate," which
rate shall change and be adjusted simultaneously with any changes in the Base
Rate during the period any principal balance under this Revolving Line of Credit
Note is outstanding. The Bank's Base Rate is the rate published by the Bank from
time to time as such and is not necessarily the best or lowest interest rate
charged by the Bank. Interest shall be payable at the aforesaid rate(s) on the
outstanding principal payable monthly in arrears, on the first day of each
month, commencing May 1, 1991, for the actual number of days in each month.
Unless the term of this Revolving Line of Credit Note is extended by
the Bank in the Bank's sole discretion, the Borrower shall, on May 1, 1992, make
one final payment to the Bank in the amount of the then outstanding principal
balance of this Revolving Line of Credit Note, together with all accrued and
unpaid interest and any other sums due and owing hereunder.
The Borrower may prepay the principal balance outstanding under this
Revolving Line of Credit Note from time to time, in full or in part, without
penalty.
Any payments received by the Bank under this Revolving Line of Credit
Note shall be applied first to any costs, fees, and expenses due hereunder, then
to the payment of interest, and finally to the payment of principal.
EXHIBIT 4.11
If any payment due hereunder, whether of principal, interest, fees or
otherwise, is not received by the Bank within 15 days after the date on which it
is payable, (a) the unpaid and outstanding balance of this Revolving Line of
Credit Note shall bear interest, from the date on which the overdue payment was
originally payable, at a rate which is three percentage points (3%) in excess of
the applicable rate as set forth above (the "default rate"), and (b) the Bank
shall charge and collect, in addition to interest at the default rate, a late
charge equal to five percent (5%) of the overdue payment.
Both principal and interest are payable in lawful money of the United
States of America to the Bank at 00 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000,
or at such other address as the Bank designates.
This Revolving Line of Credit Note is executed pursuant to the Loan
Agreement, to which reference may be had for a complete description of the terms
and conditions of borrowing hereunder, including certain Events of Default and
rights of acceleration. The indebtedness described herein shall have the benefit
of the collateral described in the Loan Agreement.
The loan evidenced by this Revolving Line of Credit Note was made in,
and this Revolving Line of Credit Note shall be governed by the laws of, the
State of Connecticut.
The Bank shall have a lien on and, after an Event of Default, an option
to set off against all deposits and other property of the Borrower in the
possession or control of or in transit to the Bank, without prior demand or
notice, against the indebtedness described herein.
This Revolving Line of Credit Note shall, at the option of the Bank,
without necessity for notice to or demand on the Borrower, become immediately
due and payable if any payment of principal or interest on this Revolving Line
of Credit Note is not paid within 15 days after the date on which it is due, or
upon the occurrence of any other Event of Default, as defined in the Loan
Agreement.
Following default, the interest rate on this Revolving Line of Credit
Note shall increase to the default rate, as that term is defined above.
If this Revolving Line of Credit Note is not paid when due, whether in
accordance with the terms hereof, by acceleration or otherwise, the undersigned
agree to pay all the Bank's costs of collection, including reasonable attorneys'
fees.
EXHIBIT 4.11
No modification, amendment, or waiver of any term or conditions of this
Revolving Line of Credit Note, and no consent by the Bank to any departure
therefrom, shall be effective unless the same shall be in writing signed by a
duly authorized representative of the Bank, and the same shall be effective only
for the period and upon the specific conditions recited in such writing.
If this Revolving Line of Credit Note is subject to a law which sets
maximum charges, which law is finally interpreted so that the interest or other
charges collected or to be collected with respect to this Revolving Line of
Credit Note exceed the permitted limits, than any such charge shall be reduced
by the amount necessary to reduce the charge to the permitted limit.
THE BORROWER ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS REVOLVING
LINE OF CREDIT NOTE IS A PART IS A COMMERCIAL TRANSACTION, AND HEREBY
VOLUNTARILY AND KNOWINGLY WAIVES ITS RIGHT TO NOTICE AND HEARING UNDER CHAPTER
903a OF THE CONNECTICUT GENERAL STATUTES, OR AS OTHERWISE ALLOWED BY THE LAW OF
ANY STATE OR FEDERAL LAW WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH THE BANK
MAY DESIRE TO USE.
THE BORROWER HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF
ANY KIND OR NATURE IN ANY COURT IN WHICH AN ACTION MAY BE COMMENCED ARISING OUT
OF THIS PROMISSORY NOTE.
The Borrower hereby waives presentment, demand for payment, protest,
notice of protest, and notice of dishonor.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Revolving Line of Credit Note as of the date and year first above written.
THE UNIONVILLE WATER COMPANY
By_____________________________________
Xxxxxxx X. Xxxx
Its President
EXHIBIT 4.11
EXHIBIT E
Leases, Arrangements, Contracts and Other Obligations
Service Contracts:
1. Abacus Business Products
2. Acme Security Company
3. Cathodic Protection Services
4. Computer Support
5. Cummins Connecticut, Inc.
6. Decision Data
7. Mechanics Uniform Service
8. Pitney Xxxxx, Inc.
9. Russelectric, Inc.
10. Southern New England Telephone
11. Whistle Cleaning Service
Leases:
1. Xxxx. W. House & Sons, Inc.-- Well Field Lease
2. Tunxis Realty -- Office Lease
Others:
1. Extension Agreement with State of Connecticut for Tunxis Community
College
2. Agreement For Xxxxx Acres Well
3. Various Extension Agreements with developers
EXHIBIT 4.11
EXHIBIT F
Claims, Actions and Administrative Proceedings
Pending or Threatened
Docket No. 91--01--18
Application of Unionville Water Company for a Declaratory Ruling
(Re: RWR Forest Park and North Xxxxxxx).
EXHIBIT 4.11
EXHIBIT G
Liens and Encumbrances
All those items set forth in the schedules of exceptions to the
coverage in the Title Insurance Policy insuring Farmington Savings Bank's
interest in the property as issued by Connecticut Attorneys Title Insurance
Company (Mortgagee Policy #422105).
