Exhibit 10.44
Execution Copy
BOND PURCHASE AGREEMENT
$28,200,000
DELAWARE COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
$25,000,000 $3,200,000
Water Facilities Revenue Bonds Water Facilities Revenue Refunding Bonds
(Pennsylvania Suburban Water (Pennsylvania Suburban Water
Company Project) Company Project)
Series A of 2002 Series B of 2002
Bond Purchase Agreement dated December 19, 2002, among the DELAWARE
COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY (the "Authority"), PENNSYLVANIA SUBURBAN
WATER COMPANY, a Pennsylvania corporation (the "Company"), and THE GMS GROUP,
L.L.C., a Pennsylvania limited liability company, as representative (the
"Representative") for itself, First American Municipals Inc. and Xxxxxx
Xxxxxxxxxx Xxxxx LLC (collectively, the "Underwriters").
1. Background.
(a) The Authority proposes to enter into a Financing Agreement
(the "Financing Agreement") dated as of December 15, 2002 with the Company,
under which the Authority will agree to loan to the Company funds to (i) finance
the cleaning, re-lining and related improvement of pipelines and related
equipment and facilities located in the Counties of Delaware, Xxxxxxxxxx and
Bucks in Pennsylvania (the "2002A Facilities") and that are part of the
Company's system (the "System") for the distribution of water to its customers,
and related financing costs (collectively, the "Construction Project") and pay
costs of issuance; and (ii) currently refund (the "Refunding Project") the
Authority's Water Facilities Revenue Refunding Bonds (Philadelphia Suburban
Water Company Project) Series of 1992 (the "1992 Bonds"), which were issued to
refund a like principal amount of Delaware County Industrial Development
Authority Water Facilities Revenue Bonds (Philadelphia Suburban Water Company
Project) Series A of 1980, (the "1980 Bonds"). The 1980 Bonds were issued to
finance the acquisition, construction, installation and equipping of the certain
facilities (the "2002B Facilities" and, together with the 2002A Facilities, the
"Facilities") and pay costs of issuance of the 1980 Bonds. The 2002B Facilities
include water mains, pipelines, reservoirs, xxxxx and related equipment and
facilities in various locations in Bucks, Chester, Delaware and Xxxxxxxxxx
Counties. To finance the loan under the Financing Agreement, the Authority
proposes to issue and sell $25,000,000 aggregate principal amount of Delaware
County Industrial Development Authority Water Facilities Revenue Bonds,
(Pennsylvania Suburban Water Company Project) Series A of 2002 (the "Series A
Bonds") and $3,200,000 aggregate principal amount of Delaware County Industrial
Development Authority Water Facilities Revenue Refunding Bonds, (Pennsylvania
Suburban Water Company Project) Series B of 2002 (the "Series B Bonds" and,
together with the Series A Bonds, the "Bonds") to the Underwriters, who will in
turn reoffer the Bonds for sale to the public.
(b) The Bonds will be issued pursuant to the Pennsylvania
Economic Development Financing Law, Act of August 23, 1967, P.L. 251, as amended
and supplemented (the "Act"), resolutions adopted by the Authority on October
25, 2002 and November 8, 2002 (together, the "Authority Resolution") and under a
Trust Indenture dated as of December 15, 2002 (the "Trust Indenture"), between
the Authority and Wachovia Bank, National Association, as trustee (the
"Trustee"). The Bonds will have such terms as are set forth in Schedule I
attached hereto.
The Series A Bonds will be payable out of payments by the
Company under the Financing Agreement, including payments under its First
Mortgage Bond issued with respect to the Series A Bonds in the principal amount
of $25,000,000 (the "2002A First Mortgage Bond"). The Series B Bonds will be
payable out of payments by the Company under the Financing Agreement, including
payments under its First Mortgage Bond issued with respect to the Series B Bonds
in the principal amount of $3,200,000 (the "2002B First Mortgage Bond" and
together with the 2002A First Mortgage Bond, the "First Mortgage Bonds"). The
First Mortgage Bonds will be issued concurrently with the Bonds pursuant to the
Company's Indenture of Mortgage (the "Indenture of Mortgage") dated as of
January 1, 1941, from the Company to X.X. Xxxxxx Trust Company, National
Association, as trustee (successor to The Pennsylvania Company for Insurance on
Lives and Granting Annuities, The Pennsylvania Company for Banking and Trusts,
The First Pennsylvania Banking and Trust Company, First Pennsylvania Bank, N.A.,
CoreStates Bank, N.A., Mellon Bank, N.A. and Chase Manhattan Trust Company,
National Association) (the "Mortgage Trustee"), as presently amended and
supplemented and as to be further supplemented by a Thirty-Seventh Supplemental
Indenture of Mortgage (the "Thirty-Seventh Supplemental Mortgage," which
together with the Indenture of Mortgage, as amended and supplemented, is
referred to hereinafter as the "Mortgage") to be dated as of December 15, 2002.
Each First Mortgage Bond will be issued in the same principal amount and will
mature on the date and bear interest at the rate of the series of Bonds that it
secures. All of the Authority's rights under the Financing Agreement to receive
and enforce repayment of its loan to the Company and to enforce payment of the
Bonds, including all of the Authority's rights to the First Mortgage Bonds, and
all of the Authority's rights to moneys and securities in the Project Funds, the
Revenue Funds and the Debt Service Funds (and the accounts within all such Funds
applicable to the Bonds) established by the Trust Indenture, except for the
Authority's rights to certain fees and reimbursements for expenses,
indemnification and notice thereunder and rights relating to amendments of and
notices under the Financing Agreement, will be assigned to the Trustee as
security for the Bonds pursuant to the Trust Indenture.
(c) The Construction Project and Refunding Project
(collectively, the "Project") will finance and refinance, respectfully, the
acquisition, construction, installation and equipping of facilities for the
furnishing of water for purposes of Section 142(a)(4) of the Internal Revenue
Code of 1986, as amended (the "Code"), so that the interest on the Bonds will
not be includable in gross income for federal income tax purposes under the Code
and the Underwriters may offer the Bonds for sale without registration under the
Securities Act of 1933, as amended (the "1933 Act") or qualification of the
Trust Indenture under the Trust Indenture Act of 1939, as amended (the "1939
Act").
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(d) A Preliminary Official Statement dated December 13, 2002,
including the Appendices thereto and all documents incorporated therein by
reference (the "Preliminary Official Statement"), has been supplied to the
parties hereto, and a final Official Statement to be dated as of the date
hereof, including the Appendices thereto and all documents incorporated therein
by reference, prepared for use in such offerings will be supplied to the parties
hereto as soon as it is available, subject to Section 10 hereof (such final
Official Statement, as it may be amended or supplemented with the consent of the
Authority, the Representative and the Company, is hereinafter referred to as the
"Official Statement").
2. Purchase, Sale and Closing. On the terms and conditions herein set
forth, the Underwriters will buy from the Authority, and the Authority will sell
to the Underwriters, all (but not less than all) of the Bonds at a purchase
price equal to $27,777,000, consisting of the aggregate principal amount of the
Bonds, less an Underwriting fee of $423,000. Payment shall be made in
immediately available funds to the Trustee for the account of the Authority.
Closing (the "Closing") will be at the offices of Obermayer Xxxxxxx Xxxxxxx &
Hippel LLP, bond counsel, at 10:00 a.m., Eastern Daylight Time, on December 31,
2002 or at such other date, time or place or in such other manner as may be
agreed on by the parties hereto. The Bonds will be delivered as fully registered
Bonds with one Bond for each maturity, each in the aggregate principal amount of
Bonds for each such maturity as requested in the name of Cede & Co., as nominee
for The Depository Trust Company ("DTC"), with CUSIP numbers printed thereon,
and shall conform in all respects to DTC's Book-Entry Only System. Delivery of
the Bonds will be made at the office of DTC in New York, New York (or such other
location as is acceptable to the Representative). If the Representative so
requests, the Bonds shall be made available to the Underwriters (prior to their
delivery to DTC) in Philadelphia, Pennsylvania at least three full business days
before the Closing for purposes of inspection.
The Underwriters agree to make a bona fide public offering of the Bonds
at the initial offering prices or yields set forth in the Official Statement;
provided, however, that the Underwriters reserve the right (and the Authority
and the Company hereby expressly acknowledge such right): (i) to make
concessions to dealers; (ii) to effect transactions that stabilize or maintain
the market price of the Bonds above that which might otherwise prevail in the
open market and to discontinue at any time such stabilizing transactions; and
(iii) to change such initial offering prices, all as the Underwriters shall deem
necessary in connection with the marketing of the Bonds.
3. Authority's Representations and Warranties. The Authority makes the
following representations and warranties, all of which shall survive Closing;
that:
(a) The Authority is a body politic and corporate, duly
created and existing under the Constitution and laws of the Commonwealth of
Pennsylvania (the "Commonwealth"), and has, and at the date of Closing will
have, full legal right, power and authority to: (i) enter into this Bond
Purchase Agreement; (ii) execute and deliver the Bonds, the Trust Indenture, the
Financing Agreement, this Bond Purchase Agreement and the Authority's tax
certificate and the other various certificates executed by the Authority in
connection therewith (collectively, with the Authority Resolution, the
"Authority Financing Documents"); (iii) issue, sell and deliver the Bonds to the
Underwriters as provided herein; and (iv) carry out and consummate the
transactions contemplated by the Authority Financing Documents and the Official
Statement to be carried out and/or consummated by it;
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(b) The Authority Resolution was duly adopted at two separate
public meetings of the Authority at which a quorum was present and acting
throughout; and the Authority Resolution is in full force and effect and has not
been amended, repealed or superseded in any way.
(c) The sections entitled "INTRODUCTORY STATEMENT" (insofar as
it relates to the Authority) and "THE AUTHORITY" contained in the Preliminary
Official Statement as of its date did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements contained therein, in the light of
the circumstances under which they were made, not misleading;
(d) The sections entitled "INTRODUCTORY STATEMENT" (insofar as
it relates to the Authority) and "THE AUTHORITY" contained in the Official
Statement as of its date does not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements contained therein, in the light of
the circumstances under which they were made, not misleading;
(e) The Authority has complied, and will at the Closing be in
compliance, in all material respects with the provisions of the Act;
(f) To the extent required by law, the Authority has duly
authorized and approved the Preliminary Official Statement and the Official
Statement; and has duly authorized and approved the execution and delivery of,
and the performance by the Authority of the obligations on its part contained
in, the Authority Financing Documents;
(g) To the best of the knowledge of the officer of the
Authority executing this Bond Purchase Agreement, the Authority is not in
material breach of or in default under any applicable law or administrative
regulation of the Commonwealth or the United States; and the execution and
delivery of the Authority Financing Documents, and compliance with the
provisions of each thereof, do not and will not conflict with or constitute a
breach of or default under any existing law, administrative regulation,
judgment, decree, loan agreement, note, resolution, agreement or other
instrument to which the Authority is a party or is otherwise subject;
(h) All approvals, consents and orders of any governmental
authority, board, agency or commission having jurisdiction that would constitute
a condition precedent to the Authority's legal ability to issue the Bonds or to
the Authority's performance of its obligations hereunder and under the Authority
Financing Documents have been obtained or will be obtained prior to the Closing;
(i) The Bonds, when issued, authenticated and delivered in
accordance with the Trust Indenture and sold to the Underwriters as provided
herein, will be validly issued and will be valid and binding limited obligations
of the Authority enforceable against the Authority in accordance with their
terms (except as an enforcement of remedies may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws or legal or equitable
principles affecting the enforcement of creditors' rights ("Creditors' Rights
Limitations"));
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(j) The terms and provisions of the Authority Financing
Documents when executed and delivered by the respective parties thereto will
constitute the valid, legal and binding obligations of the Authority enforceable
against the Authority in accordance with their respective terms (except as
enforcement of remedies may be limited by Creditors' Rights Limitations);
(k) There is no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court, or public board or
body, pending or, to the knowledge of the Authority after due inquiry,
threatened against the Authority, affecting the existence of the Authority or
the titles of its officers to their respective offices or seeking to prohibit,
restrain or enjoin the sale, issuance or delivery of the Bonds or of the
revenues or assets of the Authority pledged or to be pledged to pay the
principal of and interest on the Bonds, or the pledge thereof, or in any way
contesting or affecting the validity or enforceability of the Authority
Financing Documents or contesting in any way the completeness or accuracy of the
Preliminary Official Statement or the Official Statement, or contesting the
power or authority of the Authority with respect to the issuance of the Bonds or
the execution, delivery or performance of any of the Authority Financing
Documents, wherein an unfavorable decision, ruling or finding would affect in
any way the validity or enforceability of any of the Authority Financing
Documents;
(l) The net proceeds received from the Bonds and applied in
accordance with the Trust Indenture and Financing Agreement shall be used in
accordance with the Act as described in the Official Statement;
(m) The Authority has not been notified of any listing or
proposed listing by the Internal Revenue Service to the effect that the
Authority is a bond issuer whose arbitrage certifications may not be relied
upon; and
(n) Any certificate signed by any of the authorized officers
of the Authority and delivered to the Representative shall be deemed a
representation and warranty by the Authority to the Underwriters as to the
statements made therein.
4. Company's Representations and Warranties. The Company makes the
following representations and warranties, all of which will survive the Closing:
(a) The Company has not sustained since September 30, 2002 any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree; and since the respective dates
as of which information is given in the Official Statement, there have not been
any material changes in the outstanding capital stock or the long-term debt of
the Company or any material adverse change, or a development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company, otherwise than as set forth or contemplated in the Official
Statement.
(b) The Company was organized, is in good standing and
subsists as a corporation under the laws of the Commonwealth, with power
(corporate and other) to own its properties and conduct its business as
described in the Official Statement.
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(c) Each First Mortgage Bond has been duly authorized; and,
when issued and delivered as contemplated by this Bond Purchase Agreement, will
have been duly executed, authenticated, issued and delivered and will constitute
a valid and legally binding obligation of the Company entitled to the benefits
provided by the Mortgage.
(d) The Original Indenture has been duly authorized, executed
and delivered by the Company and the Mortgage Trustee, and the Thirty-Seventh
Supplemental Mortgage has been duly authorized. When the Thirty-Seventh
Supplemental Mortgage, in substantially the form approved by the Company, has
been executed and delivered by the Company and the Mortgage Trustee and recorded
as required by law, the Mortgage (i) will constitute a valid and legally binding
instrument enforceable in accordance with its terms except as enforceability may
be limited by Creditors' Rights Limitations; (ii) will constitute a direct,
valid and enforceable first mortgage lien (except as enforceability of such lien
may be limited by Creditors' Rights Limitations) upon all of the properties and
assets of the Company (not heretofore released as provided for in the Mortgage)
specifically or generally described or referred to in the Mortgage as being
subject to the lien thereof, excepting permitted liens under the Mortgage and
excepting property and assets that the Mortgage expressly excludes from the lien
thereof; and (iii) and will create a similar lien upon all properties and assets
acquired by the Company after the execution and delivery of the Thirty-Seventh
Supplemental Mortgage and required to be subjected to the lien of the Mortgage
pursuant thereto when so acquired, except for permitted liens under the
Mortgage. The Original Indenture has been and the Thirty-Seventh Supplemental
Mortgage will be duly filed, recorded or registered in each place in the
Commonwealth in which such filing, recording or registration was or is required
to protect and preserve the lien of the Mortgage; and all necessary approvals of
regulatory authorities, commissions and other governmental bodies having
jurisdiction over the Company required to subject the mortgaged properties and
assets or trust estate (as defined in the Mortgage) to the lien of the Mortgage
have been duly obtained.
(e) In each of the following cases with such exceptions as are
not material and do not interfere with the conduct of the business of the
Company, the Company has good and marketable title to (i) all of its real
property currently held in fee simple; (ii) all of its other interests in real
property (other than certain rights of way, easements, occupancy rights,
riparian and flowage rights, licenses, leaseholds, and real property interests
of a similar nature); and (iii) all personal property owned by it. In each case
such title is free and clear of all liens, encumbrances and defects except such
as may be described in the Official Statement, the lien of the Mortgage,
permitted liens under the Mortgage or such as do not materially affect the value
of such property and do not interfere with the use made and proposed to be made
of such property by the Company. Any real property and buildings held under
lease by the Company are held by it under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere with the
use made and proposed to be made of such property and buildings by the Company.
(f) In each of the following cases except for such exceptions
that are not material and do not interfere with the conduct of the business of
the Company, the Company has all licenses, franchises, permits, authorizations,
rights, approvals, consents and orders of all governmental authorities or
agencies necessary for the ownership or lease of the properties owned or leased
by it and for the operation of the business carried on by it as described in the
Official Statement, and all water rights, riparian rights, easements, rights of
way and other similar interests and rights described or referred to in the
Mortgage necessary for the operation of the business carried on by it as
described in the Official Statement. Except as otherwise set forth in the
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Official Statement, all such licenses, franchises, permits, orders,
authorizations, rights, approvals and consents are in full force and effect and
contain no unduly burdensome provisions; except as otherwise set forth in the
Official Statement, there are no legal or governmental proceedings pending or,
to its knowledge after due inquiry, threatened that would result in a material
modification, suspension or revocation thereof. The Company has the legal power
to exercise the rights of eminent domain for the purposes of conducting its
water utility operations.
(g) The issue and sale of the Bonds, the issue and delivery of
the First Mortgage Bonds and the compliance by the Company with all of the
applicable provisions of the First Mortgage Bonds and the Mortgage and the
execution, delivery and performance by the Company of the Thirty-Seventh
Supplemental Mortgage, the Financing Agreement, this Bond Purchase Agreement and
the Continuing Disclosure Agreement will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance (other than the
lien of the Mortgage) upon any of the property or assets of the Company pursuant
to the terms of any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company are subject,
nor will such action result in a violation of the provisions of the Articles of
Incorporation, as amended, or the Bylaws of the Company or any statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its property. No consent, approval,
authorization, order, registration or qualification of or with any court or any
such regulatory authority or other governmental body (other than those already
obtained) is required for the issue and sale of the Bonds, the issue and
delivery of the First Mortgage Bonds, the execution, delivery and performance by
the Company of this Bond Purchase Agreement, the Financing Agreement, the
Thirty-Seventh Supplemental Mortgage, the First Mortgage Bonds and the
Continuing Disclosure Agreement, or the consummation by the Company of the other
transactions contemplated by this Bond Purchase Agreement or the Mortgage.
(h) The Pennsylvania Public Utility Commission by order has
duly authorized the issuance and delivery of the First Mortgage Bonds on terms
not inconsistent with this Bond Purchase Agreement.
(i) The Company is not a holding company, a registered holding
company or an affiliate of a registered holding company within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
(j) There are no legal or governmental proceedings pending to
which the Company is a party or to which any property of the Company is subject,
other than as set forth in the Official Statement and other than litigation
incident to the kind of business conducted by the Company, wherein an
unfavorable ruling, decision or finding is likely that would have a material
adverse effect on the financial position, stockholders' equity or results of
operations of the Company; and, to the best of the Company's knowledge after due
diligence, no such proceedings are threatened by governmental authorities or
threatened by others.
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(k) (i) The Project consists of either land or property of a
character subject to depreciation for federal income tax purposes and will be
used to furnish water that is or will be made available to members of the
general public (including electric utility, industrial, agricultural, or
commercial users); (ii) the rates for the furnishing or sale of the water have
been established or approved by a State or political subdivision thereof, by an
agency or instrumentality of the United States, or by a public service or public
utility commission or other similar body of any State or political subdivision
thereof; and (iii) all other information supplied by the Company to the
Representative with respect to the exclusion from gross income pursuant to
Section 103 of the Code of the interest on the Bonds is correct and complete;
(l) The Company has not, within the immediately preceding ten
(10) years, defaulted in the payment of principal or interest on any of its
bonds, notes or other securities, or any legally authorized obligation issued by
it; and
(m) The information with respect to the Company and the
Project and the descriptions of the Financing Agreement, the First Mortgage
Bonds, the Mortgage and the Continuing Disclosure Agreement contained in the
Preliminary Official Statement and the Official Statement (including appendices
A and B thereto) do not contain an untrue statement of a material fact or omit
to state a material fact necessary to make such information and descriptions, in
the light of the circumstances under which they were made, not misleading.
5. Authority's Covenants. The Authority will:
(a) furnish such information, execute such instruments and
take such other action in cooperation with the Representative as the
Representative may reasonably request to qualify the Bonds for offer and sale
under the Blue Sky or other securities laws and regulations of such states and
other jurisdictions in the United States of America as the Representative may
designate and will assist, if necessary therefor, in the continuance of such
qualifications in effect so long as required for distribution of the Bonds;
provided, however, that the Authority shall in no event be required to file a
general consent to suit or service of process or to qualify as a foreign
corporation or as a dealer in securities in any such state or other
jurisdiction;
(b) not, on its part, amend or supplement the Official
Statement without prior notice to and the consent of the Representative and the
Company and will advise the Representative and the Company promptly of the
institution of any proceedings by any governmental agency or otherwise affecting
the use of the Official Statement in connection with the offer and sale of the
Bonds; and
(c) refrain from knowingly taking any action (and permitting
any action with regard to which the Authority may exercise control) which would
result in the loss of the exclusion from gross income for federal income tax
purposes of interest on the Bonds referred to under the caption "TAX MATTERS" in
the Official Statement.
6. Company's Covenants. The Company agrees that it will:
(a) refrain from knowingly taking any actions (and from
permitting any action; with regard to which the Company may exercise control)
that would result in the loss of the exclusion from gross income for federal tax
purposes of interest on the Bonds referred to under the caption "TAX MATTERS" in
the Official Statement;
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(b) indemnify and hold harmless the Authority, its members,
directors, officers, agents, attorneys, and employees and the Underwriters,
their officers, directors, officials, agents, attorneys, employees, and each
person, if any, who controls any of the Underwriters within the meaning of
Section 15 of the 1933 Act or Section 20 of the Securities Exchange Act of 1934,
as amended (the "1934 Act"), from and against all losses, claims, damages,
liabilities and expenses, joint or several, to which the Authority and the
Underwriters, or any of them, or any of their respective members, directors,
officers, agents, attorneys, and employees and each person, if any, who controls
any of the Underwriters within the meaning of the 1933 Act or 1934 Act as
aforedescribed may become subject, under federal laws or regulations, or
otherwise, insofar as such losses, claims, damages, liabilities and expenses (or
actions in respect thereof) arise out of or are based upon: (i) a breach of the
Company's representations included in this Agreement; (ii) any untrue statement
or alleged untrue statement of any material fact pertaining to the Project or
the Company set forth in the Official Statement, the Preliminary Official
Statement or any amendment either, or (iii) the willful or negligent omission of
(or the alleged omission to state) a material fact in the Official Statement, in
the Preliminary Official Statement, or in any amendment or supplement to either,
as such fact is required to be stated therein or necessary to make the
statements therein that pertain to the Company or the Project not misleading in
the light of the circumstances under which they were made, or (iv) arising by
virtue of the failure to register the Bonds under the 1933 Act or the failure to
qualify the Indenture under the 1939 Act;
(c) undertake, pursuant to the Continuing Disclosure Agreement
dated December 31, 2002 to be entered into between the Company and the Trustee
(the "Continuing Disclosure Agreement"), to provide annual reports and notices
of certain material events in accordance with Rule 15c2-12 under the 1934 Act,
as amended ("Rule 15c2-12"). A description of this undertaking and the
Continuing Disclosure Agreement is set forth in the Preliminary Official
Statement and will also be set forth in the Final Official Statement; and
(d) not amend or supplement the Official Statement without
prior notice to, and the consent of, the Representative, and will advise the
Representative and the Authority promptly of the institution of any proceedings
by any governmental agency or otherwise affecting the use of the Official
Statement in connection with the offer and the sale of the Bonds.
7. Underwriters' Covenant. By acceptance hereof the Underwriters agree
to indemnify and hold harmless the Authority, its members, directors, officers,
agents, attorneys, and employees and the Company, its officers, directors,
agents, attorneys, and employees and each person if any, who controls the
Company within the meaning of Section 15 of the 1933 Act against all or several
claims, losses, damages, liabilities and expenses asserted against them, or any
of them, at law or in equity, in connection with (i) the offering and sale of
the Bonds on the grounds that the information under the caption "UNDERWRITING"
in the Preliminary Statement or the Official Statement (or any supplement or
amendment to said information) contains an untrue or allegedly untrue statement
of a material fact or omits or allegedly omits to state any material fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made (it being understood that the
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Representative furnished only the information under such "UNDERWRITING"
heading), or (ii) failure on the part of any Underwriter to deliver an Official
Statement to any purchaser. The Underwriters will reimburse any legal or other
expenses reasonably incurred by a party, person or entity indemnifiable under
this Section 7 in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity agreement will be in addition
to any liability that the Underwriters may otherwise have. The Underwriters
shall not be liable for any settlement of, any such action effected without its
consent.
8. Notice of Indemnification; Settlement. Promptly after a party,
person or entity indemnifiable under Section 6 or 7 of this Bond Purchase
Agreement (an "Indemnitee") receives notice of the commencement of any action
against such Indemnitee in respect of which indemnity is to be sought by the
Indemnitee against the Company or an Underwriter, as the case may be (the
"Indemnifying Party"), the Indemnitee will notify the Indemnifying Party in
writing of such action, and the Indemnifying Party may assume the defense
thereof, including the employment of counsel and the payment of all expenses;
but the omission so to notify the Indemnifying Party will not relieve the
Indemnifying Party from any liability that it may have to the Indemnitee
otherwise than hereunder. The Indemnifying Party shall not be liable for any
settlement of any such action effected without its consent, but if settled with
the consent of the Indemnifying Party or if there is a final judgment for the
plaintiff in any such action, the Indemnifying Party will indemnify and hold
harmless the Indemnitee from and against any loss or liability by reason of such
settlement or judgment. The indemnity agreements contained in this Bond Purchase
Agreement (i) shall include reimbursement for expenses reasonably incurred by an
Indemnitee in investigating the claim and in defending it if the Indemnifying
Party declines to assume the defense and (ii) shall survive delivery of the
Bonds.
9. Equitable Contribution. If the indemnification provided for in
Section 6(b) of this Bond Purchase Agreement is unavailable to any Underwriter
(or any controlling person thereof) in respect of any losses, claims, damages or
liabilities referred to therein, then the Company shall, in lieu of indemnifying
such Underwriter, contribute to the amount paid or payable by such Underwriter
as a result of such losses, claims, damages or liabilities in such proportion as
is appropriate to reflect the relative benefits received by the Company and such
Underwriter, respectively, from the offering of the Bonds. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law, then the Company shall contribute to such amount paid or payable
by such Underwriter in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and such
Underwriter, respectively, in connection with the statements or omission which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefit received by the Company
or an Underwriter shall be deemed to be in the same proportion as the total
proceeds from the offering (before deducting issuance costs and expenses other
than underwriting fees and commissions) received by the Company, on the one
hand, bear to the total underwriting fees and commissions received by such
Underwriter, on the other hand. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
related to information supplied by the Company or such Underwriter and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to above in this Section 9. The amount paid or payable by an Underwriter as a
-10-
result of the losses, claims, damages or liabilities referred to above in this
Section 9 shall be deemed to include any reasonable legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 9, an Underwriter shall not be required to contribute any amount in
excess of the amount by which the total price at which the Bonds underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay by
reason of such untrue or allegedly untrue statement or omission or alleged
omission.
10. Official Statement; Public Offering.
(a) In order to enable the Underwriters to comply with Rule
15c2-12: (i) the Company has prepared (or caused to be prepared) the Preliminary
Official Statement, which the Company and the Authority (but, in the case of the
Authority, only with respect to the information therein under the headings "THE
AUTHORITY" and, insofar as it relates to the Authority, "INTRODUCTORY
STATEMENT") deem final and complete as of its date; (ii) the Company shall
provide to the Underwriters sufficient copies of the Official Statement in
sufficient time to accompany any confirmation that requires payment from any
customer and in any event within seven business days after the date of this Bond
Purchase Agreement; and (iii) of which the Company has or gains knowledge would
render the Official Statement misleading in any material respect in the period
from the date of its delivery to the Underwriters by the Company (as that phrase
is defined in Rule 15c2-12) then the Company shall promptly give the
Representative notice thereof. The Authority and the Company hereby authorize
the use of the Preliminary Official Statement and the Official Statement by the
Underwriters in connection with the offering of the Bonds.
(b) After the Closing, and until the Representative has
informed the Authority and the Company that the Underwriters have sold all the
Bonds, the Authority and the Company will not adopt or distribute any amendment
of or supplement to the Official Statement, except with the prior written
consent of the Representative; and if any event relating to or affecting the
Authority, the Company or the Bonds shall occur, the result of which shall make
it necessary, in the opinion of the Representative, to amend or supplement the
Official Statement in order to make it not misleading in the light of the
circumstances existing at that time, the Company shall forthwith prepare, and
the Company and the Authority shall approve for distribution, a reasonable
number of copies of an amendment of or supplement to the Official Statement, in
form and substance reasonably satisfactory to the Representative, so that the
Official Statement then will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances existing at that time, not misleading. The
Authority shall cooperate with the Company in the issuance and distribution of
any such amendment or supplement.
(c) Upon Closing, the Representative shall promptly provide a
Nationally Recognized Municipal Securities Information Repository ("NRMSIR") and
the Municipal Securities Rulemaking Board ("MSRB") with a copy of the Official
Statement for filing in accordance with Rule 15c2-12 and to inform the Authority
and the Company in writing as to (i) the date and place of such filing and (ii)
the date of the end of the underwriting period.
-11-
11. Conditions of Underwriters' and Authority's Obligations. The
Underwriters' obligations to purchase and pay for the Bonds and the Authority's
obligation to issue and deliver the Bonds are subject to fulfillment of the
following conditions at or before Closing:
(a) The representations of the Authority and the Company
herein shall be true in all material respects on and as of the date of the
Closing and shall be confirmed by appropriate certificates at Closing;
(b) Neither the Authority nor the Company shall be in default
in the performance of any of their respective covenants herein;
(c) The Representative shall have received:
(i) An opinion of Obermayer, Rebmann, Xxxxxxx &
Hippel, LLP, Bond Counsel, dated the date of Closing, substantially in
the form attached as Exhibit A hereto, addressed to (or with reliance
letters delivered in respect of) the Authority, the holders of the
Bonds and the Representative;
(ii) An opinion of Obermayer, Rebmann, Xxxxxxx &
Hippel, LLP, Bond Counsel, dated the date of Closing, substantially in
the form attached as Exhibit B hereto, addressed to the Representative;
(iii) An opinion of Blank Rome Xxxxxxx & XxXxxxxx
LLP, counsel for the Authority, dated the date of Closing, with respect
to the matters set forth in Exhibit C hereto, addressed to the
Representative and in form and substance reasonably satisfactory to the
Representative and Bond Counsel;
(iv) Opinions of Xxxxxxxx Xxxxxx LLP, counsel to the
Company, and the Company's Senior Vice President - Law and
Administration, dated the date of Closing, substantially in the forms
attached as Exhibit D hereto, addressed to the Representative, the
Authority and Bond Counsel, in form and substance reasonably
satisfactory to the Representative and to Bond Counsel;
(v) An opinion of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx,
LLP, counsel for the Underwriters, in form and substance reasonably
satisfactory to the Representative;
(vi) An opinion of legal counsel to the "Bond
Insurer" in form and substance reasonably satisfactory to the
Representative, relating to the enforceability of a municipal bond
insurance policy from the Bond Insurer (the "Bond Insurance Policy")
and the information concerning the Bond Insurer in the Official
Statement;
(vii) An agreed upon procedures letter dated the date
of Closing and addressed to the Representative from
PricewaterhouseCoopers LLP, the Company's auditors, with respect to
financial information set forth in Appendix A to the Official
Statement, in form and substance reasonably satisfactory to the
Representative;
-12-
(viii) A certificate dated the date of Closing
executed by the Chairman of the Authority to the effect that:
(A) the representations and warranties of
the Authority contained herein, to the best of the knowledge
of such Chairman, are true and correct in all material
respects as of the date of Closing; and
(B) to the best of the knowledge of such
Chairman, the Authority has complied in all material respects
with all agreements executed by the Authority in connection
with issuance of the Bonds and satisfied in all material
respects the Authority's covenants contained in Section 5
herein and all of the conditions on its part to be performed
or satisfied at or prior to the Closing;
(ix) A certificate dated the date of Closing executed
by the chief financial officer of the Company to the effect that:
(A) the representations and warranties of
the Company in this Bond Purchase Agreement are true and
correct in all material respects as of the date of Closing;
(B) the Preliminary Official Statement and
the Official Statement, as of their respective dates, insofar
as they relate to the Company, do not contain any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein, under the circumstances in which they were
made, not misleading in any respect; and
(C) no event affecting the Company has
occurred since the date of the Bond Purchase Agreement that is
required to be disclosed in the Official Statement in order to
make the statements and information therein not misleading in
any material respect;
(x) Two executed copies of the Trust Indenture, the
Financing Agreement, the Bond Purchase Agreement, the Thirty-Seventh
Supplemental Mortgage and the Continuing Disclosure Agreement;
(xi) Two copies of the Articles of Incorporation and
By-laws of the Company, as amended to the date of Closing, and of the
resolutions of the Board of Directors of the Company authorizing and
approving the execution and delivery of this Bond Purchase Agreement,
the Financing Agreement, the First Mortgage Bonds, the Thirty-Seventh
Supplemental Mortgage, the Continuing Disclosure Agreement and the
incurrence of indebtedness with respect thereto and all transactions
described in the Official Statement and contemplated by this Bond
Purchase Agreement, all certified by its Secretary or Assistant
Secretary;
(xii) Two copies of the Authority Resolution;
-13-
(xiii) A letter from PricewaterhouseCoopers LLP,
dated the date of Closing and addressed to the Representative;
consenting to the use of the financial statements prepared by such firm
and all references to such firm contained in the Preliminary Official
Statement and the Official Statement;
(xiv) Evidence of the issuance of the Bond Insurance
Policy by the Bond Insurer, which policy shall unconditionally and
irrevocably guarantee the payment when due of the principal of and
interest on the Bonds;
(xv) Evidence satisfactory to the Representative of a
rating of "AAA" assigned by Standard & Poor's Ratings Services, a
Division of The XxXxxx-Xxxx Companies, and that such rating is in full
force and effect as of the date of Closing;
(xvi) Evidence satisfactory to Bond Counsel and the
Representative of the receipt by the Authority of a Preliminary
Allocation relating to the Series A Bonds from the Pennsylvania
Department of Community and Economic Development and of the
registration of a Securities Certificate relating to the First Mortgage
Bonds and the Bonds with the Pennsylvania Public Utility Commission;
and
(xvii) Such additional documentation as the
Representative or its counsel or Bond Counsel may reasonably request to
evidence compliance with applicable law and the validity of the Bonds,
the Financing Agreement, the Trust Indenture, this Bond Purchase
Agreement, the Mortgage, the First Mortgage Bonds and the Continuing
Disclosure Agreement, and to evidence that the interest on the Bonds is
not includable in gross income under the Code and the status of the
offering under the 1933 Act and the 1939 Act.
(d) At Closing there shall not have been any material adverse
change in the financial condition of the Company or any adverse development
concerning the business or assets of the Company that would result in a material
adverse change in the prospective financial condition or results of operations
of the Company from that described in the Official Statement, which, in the
judgment of the Representative, makes it inadvisable to proceed with the sale of
the Bonds; and the Representative shall have received certificates of the
Company certifying that no such material adverse change has occurred or, if such
a change has occurred, full information with respect thereto; and
(e) The Representative shall deliver at Closing a certificate
in form acceptable to Bond Counsel to the effect that the Underwriters have sold
to the public (excluding bond houses and brokers) a substantial amount of the
Bonds at initial offering prices no higher than, or yields no lower than, those
shown on the cover page of the Official Statement and that such certificate may
be relied upon for purposes of determining compliance with Section 148 of the
Code.
12. Events Permitting the Underwriters to Terminate. The Underwriters
may terminate their obligation to purchase the Bonds at any time before Closing
if any of the following occurs:
-14-
(a) A legislative, executive or regulatory action or proposed
action, or a court decision, which in the reasonable judgment of the
Representative casts sufficient doubt on the legality of, or the exclusion from
gross income for federal income tax purposes of interest on, obligations such as
the Bonds so as to materially impair the marketability or materially lower the
market price of the Bonds; or
(b) Any action by the Securities and Exchange Commission or a
court that would require registration of the Bonds or the First Mortgage Bonds
under the 1933 Act or qualification of the Indenture under the 1939 Act; or
(c) Any general suspension of trading in securities on the New
York Stock Exchange or the establishment, by the New York Stock Exchange, by the
Securities and Exchange Commission, by any federal or state agency, or by the
decision of any court, of any limitation on prices for such trading, or any
outbreak of hostilities or other national or international calamity or crisis,
or any material escalation in any such hostilities, calamity or crisis, the
effect of which on the financial markets of the United States of America shall
be such as to materially impair the marketability or materially lower the market
price of the Bonds; or
(d) Any event or condition occurring or arising after the date
hereof, which in the reasonable judgment of the Representative renders untrue or
incorrect, in any material respect as of the time to which the same purports to
relate, the information contained in the Official Statement, or which requires
that information not reflected in the Official Statement or Appendices thereto
should be reflected therein in order to make the statements and information
contained therein not misleading in any material respect as of such time;
provided that the Authority, the Company and the Representative will use their
best efforts to amend or supplement the Official Statement to reflect, to the
reasonable satisfaction of the Representative, such changes in or additions to
the information contained in the Official Statement; or
(e) Pending or threatened litigation affecting or arising out
of the ownership of the Project or any other facilities of the Company or the
issuance of the Bonds, which, in the reasonable judgment of the Representative,
would materially impair the marketability or materially lower the market price
of the Bonds; or
(f) Quantities of the Official Statement are not delivered to
the Underwriters in a timely manner as required by Section 10 hereof. If the
Underwriters terminate their obligation to purchase the Bonds because any of the
conditions specified in Section 11 hereof or this Section 12 shall not have been
fulfilled at or before the Closing, such termination shall not result in any
liability on the part of the Authority, the Underwriters, or, except for the
payment of such costs of issuance described in Section 13 hereof which are due
and payable, the Company.
13. Expenses. All expenses and costs of the authorization, issuance,
sale and delivery of the Bonds including, without limitation, the preparation of
and furnishing to the Underwriters of the Preliminary Official Statement and the
Official Statement, the preparation and execution of the Bonds, the Financing
Agreement, the Trust Indenture, the First Mortgage Bonds, the Thirty-Seventh
Supplemental Mortgage and this Bond Purchase Agreement, the Insurance Policy
premium, rating agency fees, the issuance and closing fees of the Authority, the
fees and disbursements of counsel to the Authority, the fees and disbursements
of Bond Counsel, the fees and disbursements of counsel to the Underwriters and
the expenses incurred in connection with qualifying the Bonds for sale under the
securities laws of various jurisdictions and preparing Blue Sky and legal
investment memoranda, shall be paid by the Company. The Authority shall, bear no
out-of-pocket expense in connection with the transactions contemplated by this
Bond Purchase Agreement. The Underwriters will pay all other expenses of the
Underwriters in connection with the public offering of the Bonds.
-15-
14. Execution in Counterparts. This Bond Purchase Agreement may be
executed in any number of counterparts, all of which taken together shall
constitute one and the same instrument, and any of the parties hereto may
execute this Bond Purchase Agreement by signing any such counterpart.
15. Notices and Other Actions. All notices, requests, demands and
formal actions hereunder will be in writing mailed, faxed (with confirmation of
receipt) or delivered by nationally recognized, next-day delivery service to:
The Representative:
The GMS Group, L.L.C.
0000 Xxxxxxxxx Xxxx
Xxxxxxxx 000, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, III
Senior Vice President
Fax #: (000) 000-0000
Email: xxxxxxx@xxxxxxxx.xxx
--------------------
The Company:
Pennsylvania Suburban Water Company
000 Xxxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxx Xxxx, Vice President,
Treasurer & Rate Counsel
Fax #: (000) 000-0000
Email: xxxxx@xxxxxxxxxxxxx.xxx
-----------------------
-16-
The Authority:
Delaware County Industrial Development Authority
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxxxxxx 00000
Attention: J. Xxxxxxx Xxxxxxx, Commerce Director
Fax #: (000) 000-0000
Email: xxxxx@xxxxxxx.xxx
-----------------
16. Governing Law. This Bond Purchase Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania,
excluding those relating to choice of laws or conflict of laws, and may not be
assigned by the Authority, the Company or the Representative.
17. Successors. This Bond Purchase Agreement will inure to the benefit
of and be binding upon the parties and their respective successors and, as to
Sections 6, 7 and 8 hereof, the Indemnitees, and will not confer any rights upon
any other person. The term "successor" shall not include any holder of any Bonds
merely by virtue of such holding.
18. Limitations on Liability. No personal recourse shall be had for any
claim based on this Bond Purchase Agreement or the Bonds against any board
member, officer, agent, employee, or attorney past, present or future, of the
Authority or any successor body as such, either directly or through the
Authority or any successor body, under any constitutional provision, statute, or
rule of law or by enforcement of any assessment or penalty or otherwise.
Notwithstanding any provision or obligation to the contrary in this Bond
Purchase Agreement, the liability of the Authority for payments of any kind,
nature or description provided for herein or in any other document executed
pursuant hereto shall be limited to the revenues derived by the Authority from
the Financing Agreement.
-17-
Exhibit 10.44
Execution Copy
IN WITNESS WHEREOF, the Authority, the Company and the Representative
have caused their duly authorized representatives to execute and deliver this
Bond Purchase Agreement as of the date first written above.
DELAWARE COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Chairman
PENNSYLVANIA SUBURBAN WATER COMPANY
By: /s/ Xxxxx X. Xxxx
---------------------------------
Vice President and Treasurer
THE GMS GROUP, L.L.C.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx, III
Senior Vice President
S-1
SCHEDULE I
----------
Terms of Bonds
--------------
Principal Amounts: Series A Bonds: $25,000,000
Series B Bonds: $3,200,000
Dated Date: December 31, 2002
Maturity Dates: Series A Bonds: September 1, 2032
Series B Bonds: June 1, 2010
Interest Payment Dates: Series A Bonds: March 1 and September 1, commencing March 1, 2003
Series B Bonds: June 1 and December 1, commencing June 1, 2003
Rates of Interest: Series A Bonds: 5.15%
Series B Bonds: 3.75%
Redemption provisions:
The Bonds are subject to redemption as follows:
Optional Redemption. The Series A Bonds are subject to redemption prior
to maturity by the Authority, at the direction of the Company, on or after
September 1, 2013, as a whole or in part at any time, at a redemption price
equal to one hundred percent (100%) of the principal amount thereof, plus
interest accrued to the date fixed for redemption. The Series B Bonds are not
subject to optional redemption at any time.
Mandatory Sinking Fund Redemption. The Series B Bonds are subject to
mandatory sinking fund redemption prior to maturity by the Authority on the
dates and in the amounts set forth in the table below and at a redemption price
equal to one hundred percent (100%) of the principal amount thereof, plus
interest accrued to the date fixed for redemption. as a whole or in part at any
time, at a redemption price equal to one hundred percent (100%) of the principal
amount thereof, plus interest accrued to the date fixed for redemption.
Redemption Date Principal Amount
--------------- ----------------
June 1, 2003 $400,000
June 1, 2004 $400,000
June 1, 2005 $400,000
June 1, 2006 $400,000
June 1, 2007 $400,000
June 1, 2008 $400,000
June 1, 2009 $400,000
June 1, 2010* $400,000
* Maturity Date
EXHIBIT A
---------
FORMS OF APPROVING OPINIONS OF
OBERMAYER XXXXXXX XXXXXXX & HIPPEL LLP
(SEE APPENDIX D OF OFFICIAL STATEMENT)
A-1
EXHIBIT B
---------
FORM OF SUPPLEMENTAL OPINION OF
OBERMAYER XXXXXXX XXXXXXX & HIPPEL LLP
December 31, 2002
The GMS Group, L.L.C.
The Xxxxx at Victoria
0000 Xxxxxxxxx Xxxx
Xxxxxxxx 000, Xxxxx 000
Xxxxxxxxxxx, XX 00000
RE: Delaware County Industrial Development Authority
$25,000,000 Water Facilities Revenue Bonds
(Pennsylvania Suburban Water Company Project), Series A of 2002
$3,200,000 Water Facilities Revenue Refunding Bonds
(Pennsylvania Suburban Water Company Project), Series B of 2002
Ladies and Gentlemen:
We have acted as Bond Counsel in connection with the issuance by the
Delaware County Industrial Development Authority (the "Authority") of the
above-referenced bonds (the "Bonds"). The Bonds are being sold by the Authority
pursuant to a Bond Purchase Agreement, dated December 19, 2002 (the "Purchase
Contract") among the Authority, Pennsylvania Suburban Water Company (the
"Company") and The GMS Group, L.L.C., as representative (the "Representative")
for itself, First American Municipals, Inc. and Xxxxxx Xxxxxxxxxx Xxxxx LLC
(collectively, the "Underwriters"). This opinion is being delivered to you
pursuant to Section 11(c)(i) of the Purchase Contract. Capitalized terms used
herein and not otherwise defined shall have the meanings ascribed thereto in the
Purchase Contract.
The Bonds are being issued under the Pennsylvania Economic Development
Financing Law, as supplemented and amended (the "Act"), and a Trust Indenture,
dated as of December 15, 2002 (the "Indenture"), between the Authority and
Wachovia Bank, National Association, as trustee (the "Trustee"), to finance
certain projects for the benefit of the Company. The Authority and the Company
have entered into a Financing Agreement, dated as of December 15, 2002 (the
"Financing Agreement"), pursuant to which the Authority has agreed to loan the
proceeds of the issuance and sale of the Bonds to the Company and the Company
has agreed, among other things, to make payments to the Authority or its assigns
in such amounts and at such times as shall be sufficient to enable the Authority
to pay when due the principal of, premium if any, and interest on the Bonds.
B-1
As the basis for this opinion we have examined such matters of law and
such documents, certifications, instruments and records as we deemed necessary
to enable us to render the opinions set forth below, including the Act,
applicable provisions of the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder or made applicable with respect thereto
(collectively, "Code"), and original counterparts or certified copies of the
Authority Resolution, the Official Statement, the Purchase Contract,
certifications of certain Authority officials having responsibility for issuing
the Bonds given pursuant to the Code, opinions as to various matters delivered
by the Solicitor of the Authority and counsel to the Company, and the other
documents, certifications, instruments and records listed in the Index of
Closing Documents in respect of the Bonds.
In rendering this opinion, we have relied on the opinions referred to
above as to all matters of fact and law stated therein, and on the genuineness,
truthfulness and completeness of all documentation examined as referred to
above. We have assumed the conformity to original documents of all conformed
copies and photocopies, the genuineness of all signatures and, except with
respect to the Authority, the due authorization, execution and delivery of all
documents, the authority to do so of all persons executing such documents and
the enforceability thereof. We have further assumed that all certificates of
public officials examined by us have been duly and properly given and remain
accurate as of the date hereof.
Based on the foregoing and the other qualifications and limitations set
forth herein, we are of the opinion that:
1. The Bonds are not subject to the registration requirements
of the Securities Act of 1933, as amended, and the Indenture is not required to
be qualified under the Trust Indenture Act of 1939, as amended.
2. The Bond Purchase Agreement has been duly authorized,
executed and delivered by the Authority and constitutes the valid and binding
obligation of the Authority enforceable in accordance with its terms, subject
only to applicable bankruptcy, insolvency, moratorium, reorganization or other
laws affecting creditors' rights heretofore or hereafter enacted and to general
equity principles.
3. The execution and delivery of the Official Statement have
been authorized by the Authority.
4. The information and statements contained in the Official
Statement under the sections captioned "INTRODUCTORY STATEMENT," "THE BONDS,"
"SECURITY FOR THE BONDS" and in APPENDIX C thereto (insofar as Appendix C
purports to summarize provisions of the Bonds, the Trust Indenture and the
Financing Agreement) are fair and accurate summaries of the provisions of the
Bonds and the documents purported to be summarized therein, and matters set
forth in the section captioned "TAX MATTERS" and APPENDIX D thereto accurately
reflects our opinion as to such matters and the tax exempt nature of the
interest on the Bonds.
B-2
We have not verified and are not passing upon and do not assume any
responsibility for the accuracy, completeness or reasonableness of the
statements contained in the Official Statement, except for the determinations
with respect to the sections referred to in numbered paragraph 4 above, and
without having undertaken to determine independently the accuracy or
completeness of the statements contained in the Official Statement, nothing has
come to our attention which would lead us to believe that the Official Statement
(except for financial, tabular, demographic or statistical data therein and the
information contained under the headings "THE BONDS - Book-Entry Only System,"
"BOND INSURANCE," "ESTIMATED SOURCES AND USES OF FUNDS," "BONDHOLDERS' RISKS,"
and "LITIGATION" and in APPENDIX A, APPENDIX B and APPENDIX E of the Official
Statement, as to which we express no view) as of its date and as of the date of
Closing, contains any untrue statement of a material fact or omits to state any
material fact that is required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
Our opinion is specifically limited to the present internal laws of the
Commonwealth of Pennsylvania and present federal law and no opinion is expressed
as to the effect the law of any other jurisdiction might have upon the subject
matter of the opinions expressed herein under conflict of laws principles or
otherwise. We assume no obligation to update or supplement this opinion to
reflect any facts or circumstances that may hereafter come to our attention or
any changes in law that may hereafter occur. No opinion is expressed as to any
matter not set forth in the numbered paragraphs herein. This opinion is being
furnished to you solely in connection with the sale of the Bonds pursuant to the
Purchase Contract and may not be relied upon by any other person or for any
other purpose without our prior written consent.
This opinion may not be distributed or disclosed to any person, firm or
entity other than those represented at the Closing for the Bonds without our
prior written consent.
Very truly yours,
OBERMAYER XXXXXXX XXXXXXX & HIPPEL LLP
B-3
EXHIBIT C
---------
Points to be covered in Opinion of Counsel for the Authority
(Terms defined in Bond Purchase Agreement are used here with same meanings)
1. The Authority is a body corporate and politic constituting an
instrumentality of the Commonwealth and is duly created and existing pursuant to
the Act.
2. The Authority Resolution was duly adopted by the Authority at two
public meetings held in accordance with the provisions of Section 13 of the act
of July 3,1986, (P.L. 388, No. 84, as amended), known as the Pennsylvania
Sunshine Act; and the Authority resolution remains in full force and effect and
has not been amended, repealed or superseded in any way.
3. The Authority has by proper action duly authorized the execution and
issuance of the Bonds and the execution and delivery of the Authority Financing
Documents. The Bonds have been duly and validly issued by the Authority and the
Authority Financing Documents have each been duly and validly executed and
delivered by the Authority and the Bonds and each of such documents are valid
and binding agreements of the Authority, enforceable against the Authority in
accordance with their respective terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws or legal or
equitable principles affecting the enforcement of creditor's rights.
4. To the knowledge of such counsel, the execution and the issuance by
the Authority of the Bonds, the execution and delivery by the Authority of the
Authority Financing Documents and performance by the Authority of the
Authority's obligations under the Bonds and the Authority's Financing Documents,
do not conflict with or constitute on a part of the Authority a violation of,
breach of or default under any existing constitutional provision or statute of
the Commonwealth, or, to our knowledge without having undertaken any independent
investigation, any indenture, mortgage, deed of trust, resolution, note
agreement or other agreement or instrument to which the Authority is a party or
by which the Authority is bound, or, to our knowledge, any order, rule or
regulation of any court, governmental agency or body of the Commonwealth having
jurisdiction over the Authority or any of its activities or property.
5. To the knowledge of such counsel, there. is no action, suit,
proceeding, inquiry or investigation, at law or in equity, before or by any
court, public board or body, pending or threatened against the Authority,
wherein an unfavorable decision, ruling or finding would materially and
adversely affect the transactions contemplated by the Bonds.
6. The Authority has approved the distribution of the Preliminary
Official Statement and the Official Statement by the Underwriters in connection
with the sale of the Bonds.
7. The information contained in the Preliminary Official Statement and
the Official Statement under the headings "INTRODUCTORY STATEMENT - The
Authority" and "THE AUTHORITY" has been reviewed by us and nothing has come to
our attention which would lead us to believe that such information contains any
untrue statement of a material fact or omits to state a material fact which is
required to be stated therein or which is necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading in any material respect.
C-1
EXHIBIT D
---------
FORM OF OPINIONS OF THE COMPANY'S LEGAL COUNSEL AND
COMPANY'S SENIOR VICE PRESIDENT - LAW AND ADMINISTRATION
Delaware County Industrial Development Authority
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxxxxxx 00000
The GMS Group, L.L.C.,
The Xxxxx at Victoria
0000 Xxxxxxxxx Xxxx
Xxxxxxxx 000, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxxxx 00000
RE: $25,000,000 Aggregate Principal Amount of Delaware County
Industrial Development Authority Water Facilities Revenue
Bonds (Pennsylvania Suburban Water Company Project) Series A of 2002
and $3,200,000 Aggregate Principal Amount of Delaware County
Industrial Development Authority Water Facilities Revenue Refunding
Bonds (Pennsylvania Water Company Project) Series B of 2002
--------------------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Pennsylvania Suburban Water Company (the
"Company") in connection with (i) the issuance by Delaware County Industrial
Development Authority (the "Authority"), and the sale to The GMS Group, L.L.C.
pursuant to that certain Bond Purchase Agreement dated December 19, 2002 (the
"Purchase Agreement"), of $25,000,000 aggregate principal amount of Delaware
County Industrial Development Authority Water Facilities Revenue Bonds
(Pennsylvania Suburban Water Company) Series of A of 2002 and $3,200,000
aggregate principal amount of Delaware County Industrial Development Authority
Water Facilities Revenue Refunding Bonds (Pennsylvania Suburban Water Company)
Series B of 2002 (collectively, the "2002 Authority Bonds"), and (ii) the
issuance and delivery of $25,000,000 principal amount of the Company's First
Mortgage Bond, 5.15% Series due 2032 (the "Series A First Mortgage Bond") and
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$3,200,000 principal amount of the Company's First Mortgage Bond, 3.75% Series
due 2010 (the "Series B First Mortgage Bond" and, together with the Series A
First Mortgage Bond, the "First Mortgage Bonds"), issued under an Indenture of
Mortgage (the "Original Mortgage") dated as of January 1, 1941, as amended and
supplemented by supplemental indentures thereto, including the Thirty-Seventh
Supplemental Indenture dated as of December 1, 2002 (the "Thirty-Seventh
Supplemental Indenture") under which X.X. Xxxxxx Trust Company, National
Association is trustee (the "Mortgage Trustee"). The Original Mortgage as
amended and supplemented is hereinafter called the "Mortgage". Capitalized terms
used herein and not otherwise defined shall have the meanings ascribed to such
terms in the Purchase Agreement.
We have examined and reviewed, among other things:
(a) a copy of the Articles of Incorporation of the Company, as
amended and restated and now in effect;
(b) a copy of the bylaws of the Company as now in effect;
(c) resolutions of the Board of Directors of the Company
authorizing the execution and delivery of the Purchase
Agreement, the Financing Agreement, the Thirty-Seventh
Supplemental Indenture, the First Mortgage Bond, the
Continuing Disclosure Agreement and the Official Statement;
(d) the Purchase Agreement;
(e) the Construction and Financing Agreement dated as of December
1, 2002 (the "Financing Agreement") between the Authority and
the Company;
(f) the Continuing Disclosure Agreement dated December 31, 2002
(the "Continuing Disclosure Agreement") between the Company
and X.X. Xxxxxx Trust Company, National Association, as
trustee for the 2002 Authority Bonds (the "Trustee");
(g) the Official Statement relating to the 2002 Authority Bonds
dated December 19, 2002 (the "Official Statement");
(h) the Securities Certificate relating to the issue and sale of
the First Mortgage Bond, filed by the Company with the
Pennsylvania Public Utility Commission pursuant to the
provisions of Chapter 19 of the Pennsylvania Public Utility
Code, and a copy of the Order of the Public Utility Commission
registering such Securities Certificate, certified by the
Secretary of the Pennsylvania Public Utility Commission;
(i) a Subsistence Certificate from the Secretary of the
Commonwealth with respect to the Company;
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(j) executed counterparts of the Original Mortgage and of the
Thirty-Seventh Supplemental Indenture supplemental thereto and
evidence satisfactory to us of the due recordation thereof in
the Counties of Berks, Bradford, Bucks, Chester, Columbia,
Delaware, Xxxxxxxx, Mercer, Montgomery, Northumberland, Pike,
Schuylkill and Wayne, Pennsylvania;
(k) the documents delivered to the Mortgage Trustee in connection
with the authentication of the First Mortgage Bonds pursuant
to the provisions of Sections 2(B) and 3 of Article IV of the
Original Mortgage;
(l) the First Mortgage Bonds delivered to the Trustee at the
Closing held today;
(m) the certificates of the Company and other documents delivered
to the Mortgage Trustee at the Closing; and
(n) a certificate of the Company and various bringdown title
searches by Commonwealth Land Title Insurance Company in the
Counties of Berks, Bucks, Chester, Delaware and Montgomery,
Pennsylvania, by Xxxxx & Xxxxx of Sayre, Pennsylvania, in
Bradford County, Pennsylvania, by Fruit, Xxxx, Xxxxxxx and
Xxxxxx of Sharon, Pennsylvania, in the Counties of Xxxxxxxx
and Mercer, Pennsylvania, by Xxxxxxx & Xxxxxxx of Shamokin,
Pennsylvania in the Counties of Columbia, Northumberland and
Schuylkill, Pennsylvania, and by Xxxxxxx X. Xxxxxx of
Honesdale, Pennsylvania in the Counties of Pike and Wayne,
Pennsylvania, each dated as of a recent date (collectively,
"Title Searches"), as to matters relating to title to real
estate and the lien of the Mortgage thereon, on which
certificate and searches we are relying for the purposes of
this opinion; and
(o) various certificates of officers of the Company relating to
title to real property and the priority of any lien thereon.
In rendering this opinion, we have assumed that all signatures on
documents and instruments examined by us are genuine (except signatures of the
Company on the Purchase Agreement, the Thirty-Seventh Supplemental Indenture,
the Financing Agreement (collectively, the "Company Documents") and the Official
Statement), the authenticity of all documents submitted to us as originals and
the conformity with the original documents of all documents submitted to us as
copies. We have also assumed, with your permission, that none of the signatories
of the documents and instruments referred to above is an affiliate of the
Company within the meaning of 66 Pa.C.S. ss.2101 (1989).
As to questions of fact material to the opinions hereinafter expressed,
we have relied solely and without investigation upon certificates of public
officials, certificates of officers of the Company and the representations of
the Company contained in the Company Documents (including the exhibits and
schedules to such documents) and the certificates and other documents delivered
pursuant thereto. To the extent that the opinions contained herein are given to
the best of our knowledge, such knowledge means the actual knowledge of those
attorneys within our firm who have provided substantive representation to the
Company, without investigation and inquiry, and does not include matters of
which such attorneys could be deemed to have constructive knowledge.
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In rendering this opinion, we have also assumed that each of the
Company Documents has been duly authorized, executed and delivered by each party
thereto (other than the Company) and that each of the Company Documents is
binding and enforceable against each such party in accordance with its
respective terms.
Further, as to matters relating to title to real estate and the lien of
the Mortgage, we have relied exclusively upon various certificates of officers
of the Company and the Title Searches and we have not made, nor undertaken to
make, any investigation or inquiry with respect to title to real property or the
priority of any lien thereon.
We are generally familiar with the Company's operations as a public
utility within the Commonwealth of Pennsylvania (the "Commonwealth").
Based upon the foregoing and such other examination of fact and law as
we have deemed necessary for purposes of this opinion, we are of the opinion
that:
1. The Company was organized and subsists under the laws of the
Commonwealth, with power (corporate and other) to own its properties and conduct
its business as described in the Official Statement.
2. The Company has the corporate power and authority to enter into and
perform the Bond Purchase Agreement, the Financing Agreement, the First Mortgage
Bonds, Thirty-Seventh Supplemental Indenture and the Continuing Disclosure
Agreement. The execution, delivery and performance by the Company of the
Financing Agreement, the Bond Purchase Agreement, the First Mortgage Bonds,
Thirty-Seventh Supplemental Indenture and the Continuing Disclosure Agreement
have been duly authorized by all requisite corporate action.
3. Each First Mortgage Bond has been duly authorized, executed,
authenticated, issued and delivered and each constitutes a valid and legally
binding obligation of the Company entitled to the benefits provided by the
Mortgage.
4. The First Mortgage Bonds are not subject to the registration
requirements of the 1933 Act.
5. The Mortgage constitutes a direct, valid and enforceable mortgage
lien (except as enforceability of such lien may be limited by bankruptcy,
insolvency, reorganization or other laws affecting the enforcement of creditors'
rights) upon all of the properties and assets of the Company (not heretofore
released as provided for in the Mortgage) specifically or generally described or
referred to in the Mortgage as being subject to the lien thereof, except for
permitted liens under the Mortgage; the Original Mortgage and the Thirty-Seventh
Supplemental Mortgage have been properly recorded in the Counties of Berks,
Bradford, Bucks, Chester, Columbia, Delaware, Xxxxxxxx, Mercer, Montgomery,
Northumberland, Pike, Schuylkill and Wayne in the Commonwealth and such
recordations are the only recordations necessary in order to establish,
preserve, protect and perfect the lien of the Mortgage on all real estate and
fixed property of the Company (excluding easement and other similar rights)
described in the Mortgage as subject to the lien thereof.
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6. In each of the following cases with such exceptions as are not
material and do not interfere with the conduct of the business of the Company,
the Company has good and marketable title to all of its real property currently
held in fee simple; good and marketable title to all of its other interests in
real property (other than to certain rights of way, easements, occupancy rights,
riparian and flowage rights, licenses, leaseholds, and real property interests
of a similar nature); and good and marketable title to all personal property
owned by it; in each case free and clear of all liens, encumbrances and defects
except such as may be described in the Official Statement, the lien of the
Mortgage, permitted liens under the Mortgage or such as do not materially affect
the value of such property and do not interfere with the use made and proposed
to be made of such property by the Company; and any real property and buildings
held under lease by the Company are held by it under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company.
7. The Company is not a holding company, a registered holding company
or an affiliate of a registered holding company within the meaning of the Public
Utility Company Holding Act of 1935, as amended.
8. The Mortgage and the First Mortgage Bonds conform in all material
respects as to legal matters to the descriptions thereof in the Official
Statement.
Without having undertaken to determine independently the accuracy,
completeness and fairness of the statements contained in the Official Statement,
nothing has come to our attention in connection with our representation of the
Company in respect of the issuance of the First Mortgage Bonds which leads us to
believe that the information with respect to the Company and the Capital
Projects contained in the Official Statement (including Appendix A and the
information incorporated therein by reference) contain any untrue statement of a
material fact or omit to state a material fact which is required to be stated
therein or which is necessary to make such information and descriptions, in the
light of the circumstances under which they were made, not misleading in any
material respect.
The foregoing opinions are subject to the following
qualifications:
(i) The opinion expressed in paragraph 3 is subject to the
qualifications that the enforceability of the First Mortgage Bonds is subject to
(i) applicable bankruptcy, insolvency, reorganization, moratorium, and other
similar laws of general application relating to or affecting creditors' rights,
(ii) certain provisions of Pennsylvania law affecting the availability of
certain remedies, and (iii) the further qualification that the availability of
specific performance, injunctive relief or other equitable remedies is subject
to the discretion of the court before which any proceeding therefor may be
brought.
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(ii) Our opinions are subject to limitations imposed by
general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is considered in
proceedings at law or in equity).
(iii) We express no opinion as to the enforceability with
respect to any provisions purporting to waive the effect of applicable laws and
remedies and any provisions releasing any party from, or requiring
indemnification for, liability for gross negligence, recklessness or willful
misconduct.
(iv) Any requirements in any of the documents specifying that
provisions of a document may only be waived in writing may not be enforced to
the extent that an oral agreement or an implied agreement by trade practice or
course of conduct has been created modifying any provision of such document.
(v) We express no opinion as to the applicability to the
transactions contemplated by the Company Documents of Section 548 of the
Bankruptcy Code or any applicable state law relating to fraudulent transfers and
obligations.
(vi) Other applicable local, state and federal laws,
regulations and ordinances, court decisions and constitutional requirements may
limit or render unenforceable certain of the rights or remedies contained in the
Company Documents, but in our opinion, none of the same would materially impair
the practical realization of the benefits intended to be provided by the Company
pursuant to the Company Documents.
(vii) Our opinion is limited in all respects to the laws of
the Commonwealth in effect as of the date hereof and we express no opinion as to
the laws of any other jurisdiction.
(viii) This opinion is limited to the matters set forth
herein, no opinion may be inferred or implied beyond the matters expressly
stated herein, and our statements contained in the opinion portion of this
letter must be read in conjunction with the assumptions, limitations, exceptions
and qualifications set forth in this letter.
(ix) The opinions herein are expressed as of the date hereof
only and not as of some future date. We undertake no responsibility to advise
you of any change in law or new laws, regulations or judicial decisions in the
future. Nor do we assume any obligation to update or supplement this opinion to
reflect any facts or circumstances which may hereafter come to our attention.
References to "laws," "regulations" and "judicial decisions" herein shall
include only officially published laws and regulations of the Commonwealth of
Pennsylvania.
This opinion is solely for the benefit of each of you and the benefit
of any subsequent holder of the First Mortgage Bonds or the 2002 Authority Bonds
and may not be relied upon by any other person or for any other purpose.
Very truly yours,
D-6
The GMS Group, L.L.C.
The Xxxxx at Xxxxxxxx
0000 Xxxxxxxxx Xxxx
Building 200, Suite 245
Springfield, PA 19064103
Delaware County Industrial Development Authority
000 Xxxx Xxxxx Xxxxxx
Xxxxx, XX 00000
RE: $25,000,000 Aggregate Principal Amount of Delaware County
Industrial Development Authority Water Facilities Revenue Bonds
(Pennsylvania Suburban Water Company Project) Series A of 2002
and $3,200,000 Aggregate Principal Amount of Delaware County
Industrial Development Authority Water Facilities Revenue Refunding
Bonds (Pennsylvania Water Company Project) Series B of 2002
(collectively, the "Bonds")
Ladies and Gentlemen:
I am Senior Vice President - Law and Administration for Pennsylvania
Suburban Water Company (the "Company").
Pursuant to Section 11(c)(iii) of the Bond Purchase Agreement among the
Authority, the Underwriter and the Company dated December 19, 2002 relating to
the Bonds (the "Bond Purchase Agreement"), I have been asked to render an
opinion to you regarding certain matters involving the Company. Capitalized
terms used herein and not otherwise defined shall have the definitions as set
forth in the Bond Purchase Agreement.
In my opinion:
(i) In each of the following cases with such exceptions as are not
material and do not interfere with the conduct of the business of the Company,
the Company has all licenses, franchises, permits, authorizations, rights,
approvals, consents and order of all governmental authorities or agencies
necessary for the ownership or lease of the properties owned or leased by it and
for the operation of the business carried on by it as described in the Official
Statement, and all water rights, riparian rights, easements, rights of way and
other similar interests and rights described or referred to in the Mortgage
necessary for the operation of the business carried on by it as described in the
Official Statement; except as otherwise set forth in the Official Statement, all
such licenses, franchises, permits, orders, authorizations, rights, approvals
and consents are in full force and effect and contain no unduly burdensome
provisions; to the best of such counsel's knowledge, except as otherwise set
forth in the Official Statement, there are no legal or governmental proceedings
pending or, to its knowledge, threatened that would result in a material
modification, suspension or revocation thereof; and the Company has the legal
power to exercise the rights of eminent domain for the purposes of conducting
its water utility operations.
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(ii) The issue and sale of the Bonds; the issue and delivery of the
First Mortgage Bonds and the compliance by the Company with all of the
applicable provisions of the First Mortgage Bonds and the Mortgage; and the
execution, delivery and performance by the Company of the Thirty-Seventh
Supplemental Mortgage, the Financing Agreement, the Bond Purchase Agreement and
the Continuing Disclosure Agreement will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance (other than the
lien of the Mortgage) upon any of the property or assets of the Company pursuant
to the terms of, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company is subject,
nor will such action result in a violation of the provisions of the Articles of
Incorporation, as amended, or the Bylaws of the Company or any statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its property. No consent, approval,
authorization, order, registration or qualification of or with any court or any
such regulatory authority or other governmental body not already obtained is
required for the issue and delivery of the First Mortgage Bonds; the execution,
delivery and performance of the Bond Purchase Agreement, the Financing
Agreement, the Thirty-Seventh Supplemental Mortgage, the First Mortgage Bonds
and the Continuing Disclosure Agreement; or the consummation of the other
transactions contemplated by the Bond Purchase Agreement or the Mortgage.
(iii) There are no legal or governmental proceedings pending to which
the Company is a party or of which any property of the Company is the subject,
other than as set forth in the Official Statement and other than litigation
incident to the kind of business conducted by the Company, wherein an
unfavorable ruling, decision or finding is likely that would have a material
adverse effect on the financial position, stockholders' equity or results of
operations of the Company.
(iv) Each of the Indenture of Mortgage dated as of January 1, 1941 (the
"Original Indenture"), between the Company and The Philadelphia Company for
Insurance on Lives and Exacting Annuities (now X.X. Xxxxxx Trust Company,
National Association, as successor in interest), as trustee (the "Trustee") and
the thirty-seven indentures supplemental thereto, including the Thirty-Seventh
Supplemental Indenture dated as of December 1, 2002 between the Company and the
Trustee (the Original Indenture as so supplemented and amended, the "Indenture")
was duly authorized, executed and delivered by the Company and the Indenture
constitutes a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with tits terms (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other
similar laws relating to creditors' rights generally from time to time in
effect, and subject, as to enforceability, to general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law).
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My opinion is limited in all respects to the laws of the Commonwealth
of Pennsylvania in effect as of the date hereof and I express no opinion as to
the laws of any other jurisdiction.
This opinion is limited to the matters set forth herein, no opinion may
be inferred or implied beyond the matters expressly stated herein, and my
statements contained in the opinion portion of this letter must be read in
conjunction with the limitations, exemptions and qualifications set forth in
this letter.
The information set forth herein is as of the date set forth above and
the Company and I disclaim any undertaking to provide any updates or changes
which thereafter may be brought to our attention.
This opinion is solely for your benefit and may not be relied upon by
any other person or for any other purpose.
Very truly yours,
Xxx X. Xxxxx
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