BOND PURCHASE AGREEMENT among CONNECTICUT DEVELOPMENT AUTHORITY, THE CONNECTICUT WATER COMPANY and EDWARD D. JONES & CO., L.P. Dated December 2, 2009 Connecticut Development Authority
among
CONNECTICUT
DEVELOPMENT AUTHORITY,
THE
CONNECTICUT WATER COMPANY
and
XXXXXX X.
XXXXX & CO., L.P.
Dated
December 2, 2009
$20,000,000
Connecticut
Development Authority
5.10 %
Water Facilities Revenue Bonds
(The
Connecticut Water Company Project – 2009A Series) (non AMT)
AGREEMENT,
dated December 3, 2009, among the Connecticut Development Authority (the
“Authority”), The Connecticut Water Company (the "Company") and Xxxxxxx X. Xxxxx
& Co., L.P. (the "Underwriter"), with respect to the sale and purchase of
the Authority’s $20,000,000 5.10 % Water Facilities Revenue Bonds (The
Connecticut Water Company Project – 2009A Series) (non-AMT) (the "Bonds") on the
terms and subject to the conditions herein set forth:
1. The
Company has previously filed with the Authority its application for the issuance
of the Bonds by the Authority, and the Authority has authorized the Bonds by a
resolution duly adopted October 21, 2009 (the “Resolution”). The
Bonds will be special obligations of the Authority payable solely out of the
revenues or other receipts, funds or moneys pledged therefore, and from any
amounts otherwise available to the Trustee for the payment thereof under the
indenture referred to below. The proceeds of the sale of the Bonds
will be loaned to the Company for use in the acquisition, construction and
installation of certain additions to the water system of the Company (the
“Project”) located in certain municipalities within the State of Connecticut
(the “State”). All such projects are to be used for water facilities
purposes, all as more particularly described in the Loan Agreement (the
“Agreement”), dated as of December 1, 2009 by and between the Authority and the
Company. Pursuant to the Agreement, the Company will execute and
deliver to the Authority the Company’s note (the “Note”) to evidence its
indebtedness thereunder. Payments on the Note shall be applied to the
amounts due on the Bonds.
The Bonds
shall be in all respects as described in, and shall be issued under and pursuant
to, an Indenture of Trust (the “Indenture”), dated as of December 1, 2009,
between the Authority and U.S. Bank National Association, as trustee (the
"Trustee"). In connection with the execution and delivery of the
Indenture, the Authority and the Trustee will execute and deliver a Letter of
Representation (the "Letter of Representation") to The Depository Trust Company
("DTC"). In order to assure the exclusion of interest on the Bonds
from gross income for purposes of federal income taxation, the Company, the
Authority and the Trustee will enter into a Tax Regulatory Agreement relating to
the Bonds, dated as of the date of issuance of the Bonds (the “Tax Regulatory
Agreement”).
In this
Bond Purchase Agreement, the term "Financing Documents" (1) when used with
respect to the Company, means the Agreement, the Note, the Tax Regulatory
Agreement, the Continuing Disclosure Agreement dated as of December 1, 2009
between the Company and the Trustee, as dissemination agent (the “Disclosure
Agreement”), and the general certificate of the Company delivered in connection
with the issuance of the Bonds and (2) when used with respect to the Authority,
means any of the foregoing documents and agreements referred to in (1) above to
which the Authority is a direct party. The Financing Documents when
such term is used with respect to the Company, do not include any documents or
agreements to which the Company is not a direct party, including the Bonds, the
Indenture or the Letter of Representation.
2. Subject
to the terms and conditions and upon the basis of the representations
hereinafter set forth, the Authority hereby agrees to sell the Bonds to the
Underwriter and the Underwriter hereby agrees to purchase the Bonds from the
Authority at the purchase price of $20,000,000.00. The Bonds shall be
dated their date of delivery, shall mature on December 1, 2039 and shall bear
interest at a rate of 5.10 % per annum, payable on June 1 and December 1 in each
year, commencing June 1, 2010. It will be a condition to the
Authority’s obligation to sell the Bonds to the Underwriter and the obligation
of the Underwriter to purchase the Bonds that all Bonds be sold and delivered by
the Authority and paid for by the Underwriter on the Closing Date, as
hereinafter defined.
3. The
date of delivery and payment for the Bonds (the "Closing Date") will be December
17, 2009 unless not later than the fifth day preceding such date the Authority,
the Company and the Underwriter agree that the Closing Date will be a specified
date not later than the thirtieth day subsequent to such date, in which event
the Closing Date will be the date so specified. The Bonds shall be
available for inspection and packaging at least twenty-four hours before the
Closing Date.
The
Authority will authorize the Trustee to authenticate and deliver the Bonds to
the Underwriter through the facilities of DTC, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, utilizing the FAST System pursuant to which the Trustee will take custody
of the Bonds as agent for DTC, at approximately 11:00 A.M., New York City time
on the Closing Date, in typewritten form, bearing CUSIP numbers, duly executed
and authenticated, registered in the name of Cede & Co., as nominee for DTC,
against payment therefor by wire transfer or other manner payable in immediately
available funds to the Trustee for the account of the Authority. The
payment for the Bonds to the Authority and the delivery thereof to the
Underwriter shall be made at the offices of Xxxxxx Xxxxxxx LLP, City Place I,
000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx. The Bonds will be delivered
in the form and denominations and shall be otherwise as described in the
Indenture.
4. The
Authority represents and warrants that:
(a) It
is a body corporate and politic constituting a public instrumentality and
political subdivision of the State of Connecticut duly organized and existing
under the laws of the State of Connecticut, particularly the State Commerce Act,
constituting Connecticut General Statutes, Sections 32-la through 32-23zz, as
amended (the “Act”). The Authority is authorized to issue the Bonds
in accordance with the Act and to lend the proceeds thereof to the Company to
finance the improvements described in the Indenture.
(b) The
Authority has complied with the provisions of the Act and has full power and
authority pursuant to the Act to consummate all transactions contemplated by
this Bond Purchase Agreement, the Bonds, the Resolution, the Indenture and the
Financing Documents, and to issue, sell and deliver the Bonds to the Underwriter
as provided herein.
(c) The
Resolution has been duly adopted by the Authority and is still in full force and
effect. The Resolution has authorized the execution, delivery and due
performance of this Bond Purchase Agreement, the Bonds, the Indenture and the
Financing Documents, and the taking of any and all action as may be required on
the part of the Authority to carry out, give effect to and consummate the
transactions contemplated by this Bond Purchase Agreement, and all approvals
necessary in connection with the foregoing have been received, except the State
Treasurer’s approval.
(d) When
delivered to and paid for by the Underwriter in accordance with the terms of
this Bond Purchase Agreement, the Bonds will have been duly authorized,
executed, authenticated, issued and delivered and will constitute valid and
binding special obligations of the Authority payable solely from revenues or
other receipts, funds or moneys pledged therefor under the Indenture and from
any amounts otherwise available therefor under the Indenture, and will be
entitled to the benefit of the Indenture. Neither the State nor any
municipality thereof will be obligated to pay the Bonds or the interest
thereon. Neither the faith and credit nor the taxing power of the
State nor any municipality thereof is pledged for the payment of the principal,
and premium, if any, of and interest on the Bonds.
(e) The
execution and delivery of this Bond Purchase Agreement, the Bonds, the Indenture
and the Financing Documents, and compliance with the provisions thereof, will
not conflict with or constitute on the part of the Authority a violation of,
breach of or default under its by-laws or any statute, indenture, mortgage, deed
of trust, note agreement or other agreement or instrument to which the Authority
is a party or by which the Authority is bound, or, to the knowledge of the
Authority, any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Authority or any of its activities or
properties, and all consents, approvals, authorizations and orders of
governmental or regulatory authorities which are required for the consummation
by the Authority of the transactions contemplated thereby have been obtained,
except the State Treasurer’s approval.
(f) Subject
to the provisions of the Agreement and the Indenture, the Authority will apply
the proceeds from the sale of the Bonds to the purposes specified in the
Indenture and the Financing Documents.
(g) To
the best knowledge of the Authority, there is no action, suit, proceeding or
investigation at law or in equity before or by any court, public board or body
pending or threatened against or affecting the Authority, or to the best
knowledge of the Authority, any basis therefor, wherein an unfavorable decision,
ruling or finding would adversely affect the transactions contemplated hereby
and by the Indenture, or which, in any way, would adversely affect the validity
of the Bonds, the Resolution, the Indenture, the Financing Documents,
this Bond Purchase Agreement, or any agreement or instrument to which the
Authority is a party and which is used or contemplated for use in consummation
of the transactions contemplated hereby and by the Indenture or the exemption
from taxation as set forth therein.
(h) The
representations and warranties of the Authority contained in Section 2.1 of the
Loan Agreement are true and correct as of the date hereof.
(i) Any
certificate signed by any Authorized Representative of the Authority under the
Resolution or this Bond Purchase Agreement and delivered to the Underwriter or
to the Trustee shall be deemed a representation and warranty by the Authority to
the Underwriter and the Company as to the statements made therein.
(j) The
information with respect to the Authority in the Official Statement of the
Authority, dated the date hereof, is correct and complete, except that none of
the representations and warranties herein apply to statements in or omissions
from the Official Statement made in reliance on or in conformity with
information furnished, to the Authority by the Company, or to information under
the headings “THE PROJECT”, “THE BONDS--Book-Entry Only System”, “TAX MATTERS”,
“LEGAL MATTERS” and “INDEPENDENT ACCOUNTANTS”, or to anything contained or
incorporated by reference in the appendices to the Official Statement or
otherwise with respect to the Company. The Authority has authorized
the use of the Official Statement in both its preliminary and final forms and
delivered duly executed copies thereof in final form to the
Underwriter.
It is
specifically understood and agreed that the Authority makes no representation as
to the financial position or business condition of the Company or any other
person and does not, with respect to the Official Statement or otherwise, except
to the extent the Authority deems the Preliminary Official Statement to be final
as provided in Section 9 hereof, represent or warrant as to any of the
statements, materials (financial or otherwise), representations or
certifications furnished or to be made and furnished by the Company or any other
person in connection with the sale of the Bonds, or as to the correctness,
completeness or accuracy of any of such statements, materials, representations
or certificates.
5. The
Company represents and warrants that:
(a) The
Company has been duly organized and validly exists as a corporation under the
laws of the State of Connecticut, having all requisite corporate power to carry
on its business as now constituted.
(b) The
execution and delivery by the Company of the Financing Documents and this Bond
Purchase Agreement, and all other agreements herein contemplated to be performed
by the Company, and the performance of the conditions herein contained and those
in each of such instruments to be performed are not in contravention of law and
will not conflict with or result in any breach of any of the terms, conditions
or provisions of, or constitute a default under any indenture, mortgage deed of
trust or other agreement or instrument to which the Company is a party, or the
Certificate of Incorporation and any special acts incorporated by reference
therein or Bylaws of the Company, or any order, rule or regulation applicable to
the Company of any court or of any federal or State regulatory body or
administrative agency or other governmental body having jurisdiction over the
Company or over any of its properties, or any statute, rule or regulation of any
jurisdiction applicable to the Company, or result in the creation or imposition
of any lien, charge or encumbrance upon any of the properties or assets of the
Company pursuant to the terms of any indenture, agreement or undertaking binding
upon it; and, to the extent required by law, the Connecticut Department of
Public Utility Control (the "DPUC") has approved or waived approval of all
matters relating to the Company’s participation in the transactions contemplated
in the Financing Documents which require such approval or waiver of approval;
such approval or waiver of approval remains in full force and effect in the form
issued; and, assuming that the Bonds are securities described in Section 3(a)(2)
of the Securities Act of 1933, as amended (the "Securities Act") and Section
3(a)(12) and (29) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), no other consent, approval, authorization or other order of any
regulatory body or administrative agency or other governmental body is legally
required for the Company’s participation in connection therewith, except as have
been obtained.
(c) Except
as disclosed or incorporated by reference in the Official Statement, there is no
action, suit, proceeding, inquiry or investigation, at law or in equity, or
before or by any court, public board or body, pending, or to the knowledge of
the Company threatened, wherein an unfavorable decision, ruling or finding would
(i) in the opinion of the Company, involve the possibility of any judgment or
liability to the extent not covered by insurance which would result in any
material adverse change in the business, properties or operations of the
Company, (ii) materially adversely affect the transactions contemplated by this
Bond Purchase Agreement or (iii) materially adversely affect the validity or
enforceability of the Financing Documents or this Bond Purchase
Agreement.
(d) The
Company will not take or omit to take any action which action or omission will
in any way cause the proceeds from the sale of the Bonds to be applied in a
manner contrary to that provided in the Financing Documents.
(e) Except
as disclosed or incorporated by reference in the Official Statement, the Company
is not a party to or bound by any contract, agreement or other instrument, or
subject to any judgment, order, writ, injunction, decree, rule or regulation
which, in the Company’s opinion, materially adversely affects, or in the future
may, so far as the Company can now reasonably foresee, materially adversely
affect the business, operations, properties, assets or condition, financial or
otherwise, of the Company.
(f) Neither
this Bond Purchase Agreement, other than Section 4 hereof as to which no
representation is made, nor any other document, certificate or written statement
furnished to the Underwriter or the Authority by or on behalf of the Company,
when read together with the information disclosed or incorporated by reference
in the Official Statement, contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained herein and therein, in light of the circumstances under which they
were made, not misleading or incomplete.
(g) The
Company has not taken and will not take any action and knows of no action that
any person, firm or corporation has taken or intends to take, which would cause
interest on the Bonds to be includable in the gross income of the recipients
thereof for federal income tax purposes.
(h) The
Company will deliver or cause to be delivered all opinions, certificates,
letters and other instruments and documents required to be delivered by the
Company pursuant to this Bond Purchase Agreement.
(i) The
Financing Documents and this Bond Purchase Agreement, when executed and
delivered, will be legal, valid, binding and enforceable obligations of the
Company, except to the extent that such enforceability may be limited by
bankruptcy or insolvency or other laws affecting creditors’ rights generally or
by general principles of equity.
(j) The
Company has authorized and consents to the use of the Official Statement by the
Underwriter. The information with respect to the Company included or
incorporated by reference in Appendix A to the Preliminary Official Statement
and the descriptions contained therein of the Indenture and the Financing
Documents and the Company’s participation in the transactions contemplated
thereby, with such additions or amendments as heretofore have been agreed upon
between the Authority, the Company and the Underwriter and which are reflected
in the Official Statement, are correct and do not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein in light of circumstances
under which they were made not misleading except that the Company makes no
representation as to (A) the information contained in Appendix D of each of the
Preliminary Official Statement and the Official Statement or the information
contained in each of the Preliminary Official Statement and the Official
Statement under the captions “INTRODUCTION - The Authority”, “THE AUTHORITY”,
“THE BONDS - Book Entry Only System”, “TAX MATTERS” and “UNDERWRITING” or (B)
the information with respect to DTC and its book-entry system. The
financial statements included in Appendix B to each of the Preliminary Official
Statement and the Official Statement have been prepared in accordance with
generally accepted accounting principles as applied in the case of
rate-regulated public utilities, comply with the Uniform System of Accounts and
ratemaking practices prescribed by the DPUC (except as otherwise disclosed in
the notes to such financial statements) and fairly present the financial
position, results of operations, retained earnings and statements of cash flows
of the Company at the respective dates and for the respective periods
indicated.
(k) There
has been no material adverse change in the business, properties, operations or
financial condition of the Company, taking into account season revenue
fluctuations, from that shown or incorporated by reference in the Official
Statement.
(l) The
representations and warranties of the Company contained in Section 2.2 of the
Loan Agreement are true and correct as of the date hereof.
(m) The
Company has obtained all approvals required in connection with the execution and
delivery of, and performance by the Company of its obligations under, this Bond
Purchase Agreement and the Financing Documents.
(n) Any
certificate signed by an officer of the Company and delivered to the Underwriter
at the time of the purchase and sale of the Bonds shall be deemed a
representation and warranty by the Company to the Underwriter as to the
statements made therein.
(o) The
Company deems the Preliminary Official Statement to be final as of its date for
purposes of Rule 15c2-12 of the SEC.
(p) No
material event of default or event which, with notice or lapse of time or both,
would constitute a material event of default or default under any material
agreement or material instrument to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the Company is
subject has occurred and is continuing.
(q) The
Company will undertake, pursuant to the Disclosure Agreement, to provide certain
annual financial information and notices of the occurrence of certain events, if
material.
6. The
Company agrees to indemnify and hold harmless the Authority, the Underwriter,
any member, officer, official, employee or agent of the Authority or the State
or the Underwriter, and each person, if any, who controls the Underwriter within
the meaning of Section 15 of the Securities Act, as amended (for purposes of
this paragraph, collectively the "Indemnified Parties"), to the extent permitted
under the applicable law, against any and all losses, claims, damages,
liabilities or expenses whatsoever, joint or several, caused by (1) any breach
of any representation or warranty made by the Company in this Bond Purchase
Agreement or the Financing Documents or (2) any untrue statement or misleading
statement or allegedly misleading statement of a material fact contained in the
Official Statement or caused by any omission or alleged omission from the
Official Statement of any material fact necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims, damages,
liabilities or expenses are caused by any such untrue or misleading statement or
omission or allegedly untrue or misleading statement or omission in the
information contained under the captions “INTRODUCTION - The Authority”, “THE
AUTHORITY”, “THE BONDS - Book Entry Only System”, “TAX MATTERS” and
“UNDERWRITING” or in Appendix D thereto (except to the extent that the
information set forth in such section is premised on facts and representations
made in writing by the Company); provided, however, that in the case of clause
(2) above such indemnity shall not inure to the benefit of the Underwriter (or
any person controlling the Underwriter or any officer or employee of the
Underwriter) if (i) the Company has caused to be delivered to the Underwriter on
a timely basis sufficient quantities of the Official Statement, as amended or
supplemented, and (ii) a copy of the Official Statement, as then so amended or
supplemented, was not sent or given by or on behalf of the Underwriter to the
person asserting such loss, claim, damage, liability or expense prior to or with
written confirmation of the sale of such Bonds to such person by the
Underwriter, and (iii) the receipt of the Official Statement, as then so
supplemented or amended, would have been a valid defense to the loss, claim,
damage, liability or expense asserted. This indemnity agreement shall
not be construed as a limitation on any other liability which the Company may
otherwise have to any Indemnified Party.
The Underwriter agrees to indemnify and
hold harmless the Authority and the Company, and each director, officer or
employee of the Authority and the Company, and each person who controls either
of them within the meaning of Section 15 of the Securities Act (for purposes of
this paragraph, an “Indemnified Party”) to the same extent as the foregoing
indemnity from the Company to the Underwriter, but only with reference to
written information furnished to the Authority or the Company by or on behalf of
the Underwriter specifically for inclusion in the Official Statement under the
caption “UNDERWRITING”. This indemnity agreement shall not be
construed as a limitation on any other liability which the Underwriter may
otherwise have to any Indemnified Party.
An
Indemnified Party will, promptly after receiving notice of the commencement of
any action against such Indemnified Party in respect of which indemnification
may be sought against the Company or the Underwriter, as the case may be (in any
case the "Indemnifying Party"), notify the Indemnifying Party in writing of the
commencement of the action, enclosing a copy of all papers served, but the
omission so to notify the Indemnifying Party of any such action shall not
relieve the Indemnifying Party of any liability which it may have to any
Indemnified Party otherwise than under this Section. If such action
is brought against an Indemnified Party and such Indemnified Party notices the
Indemnifying Party of its commencement, the Indemnifying Party may, or if so
requested by the Indemnified Party shall, participate in it or assume its
defense, with counsel reasonably satisfactory to the Indemnified Party, and
after notice from the Indemnifying Party to the Indemnified Party of an election
to assume the defense, the Indemnifying Party will not be liable to the
Indemnified Party under this Section for any legal or other expenses
subsequently incurred by such Indemnified Party in connection with the defense
other than reasonable costs of investigation subsequently incurred by the
Indemnified Party in connection with the defense thereof. Until the
Indemnifying Party assumes the defense of any such action at the request of the
Indemnified Party, the Indemnifying Party may participate at its own expense in
the defense of the action. If the Indemnifying Party does not employ counsel to
have charge of the defense or if any Indemnified Party reasonably concludes that
there may be defenses available to it or them which are different from or in
addition to those available to the Indemnifying Party or the Indemnified Party
and the Indemnifying Parties may have conflicting interests which would make it
inappropriate for the same counsel to represent both of them, reasonable legal
and other expenses incurred by such Indemnified Party will be paid by the
Indemnifying Party and the Indemnifying Party shall not have the right to direct
the defense of such action on behalf of such Indemnified Party (it being
understood, however, that the Indemnifying Party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel)
approved by the Underwriter in the case of paragraph (a) representing all
Indemnified Parties who are parties to such action). Any obligation
under this Section 5 of an Indemnifying Party to reimburse an Indemnified Party
for expenses includes the obligation to reimburse the Indemnified Party to cover
such expenses in reasonable amounts and at reasonable periodic intervals upon
receipt by the Indemnifying Party of an invoice for such expenses not more often
than monthly as requested by the Indemnifying Party. Notwithstanding
the foregoing, the Indemnifying Party shall not be liable for any settlement of
any action or claim effected without its consent, which consent shall not be
unreasonably withheld.
In order
to provide for just and equitable contribution in circumstances in which the
indemnification provided for above is due in accordance with its terms but is
for any reason held by a court to be unavailable from the Company or Underwriter
on grounds of policy or otherwise, the Company and the Underwriter shall
contribute to the total losses, claims, damages and liabilities (including
reasonable legal or other expenses of investigation or defense) to which they
may be subject (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Underwriter from the offering of the
Bonds or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Underwriter in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The respective relative
benefits received by the Company and the Underwriter shall be deemed to be in
the same proportion as the proceeds from the sale (i.e., the principal amount of
the Bonds) bears to the discount or fee in connection with such sale received by
the Underwriter as an underwriting fee, as set forth in Section 12
hereof. The relative fault of the Company and the Underwriter shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriter and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. However, no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the
Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section, each person who controls the Underwriter within the meaning of Section
15 of the Securities Act will have the same rights to contribution as the
Underwriter, and each person who controls the Company within the meaning of
Section 15 of the Securities Act and each officer and each director of the
Company will have the same rights to contribution as the Company, subject to the
foregoing sentence. Any party entitled to contribution will, promptly
after receiving notice of commencement of any action, suit or proceeding against
such party in respect of which a claim for contribution may be made under this
paragraph, notify each party from whom contribution may be sought, but the
omission to notify such party shall not relieve any party from whom contribution
may be sought from any other obligation it may have otherwise than pursuant to
this paragraph.
7. The
Company’s obligations hereunder, except those contained in Sections 6 and 12,
will be conditioned upon the approval by the DPUC of the issuance of the Note,
the loan under the Agreement and the transactions of the Company contemplated by
the Financing Documents; the purchase of and payment for the Bonds in accordance
herewith on the Closing Date; the performance of the obligations of the
Authority and the Underwriter not dependant on the performance of the Company;
and the delivery to the Authority of the approving opinion of Winston &
Xxxxxx LLP, Bond Counsel, in form and substance substantially in the form set
forth as Appendix D to the Official Statement.
8. The
Authority’s obligation to deliver the Bonds and to accept payment therefor are
subject to the performance of the obligations of the Company and the Underwriter
not dependent on the performance of the Authority, and will be conditioned upon
the approval by the DPUC of the issuance of the Note, the loan under the
Agreement and the transactions of the Company contemplated by the Financing
Documents; the purchase of and payment for the Bonds in accordance herewith on
the Closing Date; the delivery by the Underwriter to the Authority of a
certificate substantially in the form of Schedule I to the Tax Regulatory
Agreement; and the delivery to the Authority of the approving opinion of Winston
& Xxxxxx LLP, Bond Counsel, in form and substance substantially in the form
set forth as Appendix D to the Official Statement, and will be subject to the
further condition that all documents, certificates, opinions and other items to
be delivered at the closing pursuant hereto and as otherwise may reasonably be
requested by Bond Counsel not be unsatisfactory in form and substance to Bond
Counsel.
9. The
Underwriter’s obligations hereunder to purchase and pay for the Bonds will be
subject to (i) the approval by the DPUC of the issuance of the Note, the loan
under the Agreement and the transactions of the Company contemplated by the
Financing Documents, (ii) the performance by the Authority of its
obligations to be performed hereunder at or prior to the Closing Date,
(iii) the performance by the Company of its obligations to be performed
hereunder at or prior to the Closing Date, (iv) the continued accuracy in all
material respects of the representations and warranties of the Authority and the
Company contained herein and in the Agreement as of the date hereof and as of
the Closing Date, and (v) in the reasonable judgment of the Underwriter, the
following conditions:
(a) After
the date hereof, no litigation may be threatened or pending in any court (i)
seeking to restrain or enjoin the issuance or delivery of the Bonds or the
payment, collection or application of the proceeds thereof or moneys and
securities pledged or to be pledged under the Indenture, or (ii) in any way
questioning or affecting the validity of the Bonds or any provisions of the
Indenture, the Financing Documents or this Bond Purchase Agreement or any
proceedings taken by the Authority with respect to the foregoing, or (iii)
questioning the Authority’s creation, organization or existence or the titles to
office of any of its officers authorized under the Resolution, or its power to
lend or provide money in connection with the Project as referred to in the
Indenture and the Agreement, or (iv) questioning the Company’s power to enter
into and perform the Financing Documents or this Bond Purchase
Agreement;
(b) The
market value of the Bonds has not been adversely affected by reason of the fact
that between the date hereof and the Closing Date:
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(1)
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legislation
has been enacted by the Congress or recommended to the Congress for
passage by the President of the United States, or favorably reported for
passage to either House of the Congress by any Committee of such House to
which such legislation has been referred for consideration,
or
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(2)
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a
decision has been rendered by a Court of the United States, or the United
States Tax Court, or
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(3)
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an
order, ruling, regulation or official statement has been made by the
Treasury Department of the United States or the Internal Revenue
Service,
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with the
purpose or effect, directly or indirectly, of imposing federal income taxation
upon such revenues or other income as would be derived by the Authority under
the Agreement or such interest on the Bonds as would be received by the true
owners and holders thereof, other than a person who, within the meaning of
Section 147(a) of the Internal Revenue Code of 1986, as amended (the “Code”), is
a “substantial user” or “related person”;
(c) The
market value of the Bonds has not in the opinion of the Underwriter been
materially adversely affected by reason of the fact that between the date hereof
and the Closing Date any legislation, ordinance, rule or regulation has been
introduced in or enacted by any governmental body, department or agency in the
State, or a decision has been rendered by any court of competent jurisdiction
within the State with the purpose or effect, directly or indirectly, of imposing
state income taxation upon such revenues or other income as would be derived by
the Authority under the Agreement or such interest on the Bonds as would be
received by the true owners and holders thereof;
(d) No
stop order, ruling, regulation or official statement by, or on behalf of, the
Securities and Exchange Commission may have been issued or made after the date
hereof to the effect that the issuance, offering or sale of obligations of the
general character of the Bonds, or the Bonds, as contemplated hereby or by the
Official Statement, is in violation or would be in violation unless registered
or otherwise qualified under any provisions of the Securities Act of 1933, as
amended and as then in effect, or the Trust Indenture Act of 1939, as amended
and as then in effect;
(e) After
the date hereof, no legislation may have been introduced in or enacted by the
House of Representatives or the Senate or the Congress of the United States of
America, nor shall a decision by a court of the United States of America have
been rendered, or a ruling, regulation or official statement by or on behalf of
the Securities and Exchange Commission or other governmental agency having
jurisdiction of the subject matter have been made or proposed to the effect that
obligations of the general character of the Bonds, or the Bonds, are not exempt
from registration, qualification or other requirements of the Securities Act of
1933, as amended and as then in effect, or of the Securities Act of 1934, as
amended and then in effect, or of the Trust Indenture Act of 1939, as amended
and as then in effect;
(f) (i)
No event shall have occurred after the date hereof, which, in the opinion of the
Underwriter, makes untrue, incorrect or inaccurate, in any material respect, any
statement or information contained or incorporated by reference in the Official
Statement (including the Appendices thereto), or which is not reflected in the
Official Statement but should be reflected therein for the purpose for which the
Official Statement is to be used in order to make the statements and information
contained therein in light of the circumstances under which they were made not
misleading in any material respect, and (ii) there shall be no material adverse
change (not in the ordinary course of business) in the condition of the Company
from that set forth in or incorporated by reference in the Official Statement
and the Appendix A thereto;
(g) In
the judgment of the Underwriter, the market price of the Bonds, or the market
price generally of obligations of the general character of the Bonds, shall not
have been adversely affected because: (a) additional material restrictions not
in force as of the date hereof shall have been imposed upon trading in
securities generally by any governmental authority or by any national securities
exchange; (b) the New York Stock Exchange, Inc. or other national securities
exchange, or any governmental authority, shall impose, as to the Bonds or
similar obligations, any material restrictions not now in force, or increase
materially those now in force, with respect to the extension of credit by, or
the charge to the net capital requirements of, underwriters; (c) a general
banking moratorium shall have been established by federal, New York or
Connecticut authorities; or (d) a war involving the United States of America
shall have been declared, or any other national calamity shall have occurred, or
any conflict involving the armed forces of the United States of America has
escalated to such a magnitude as to materially adversely affect the
Underwriter’s ability to market the Bonds;
(h) All
matters relating to this Bond Purchase Agreement, the Bonds and the sale
thereof, the Indenture, the Financing Documents and the consummation of the
transactions contemplated by this Bond Purchase Agreement must be approved by
the Underwriter but such approval may not be unreasonably withheld;
and
(i) At
or prior to the Closing Date the Underwriter must have received the following
documents:
(1) Certified
copies of the executed Financing Documents and the Indenture.
(2) The
legal opinions of the following, dated the Closing Date, in the form and
substance satisfactory to Bond Counsel and the Underwriter:
(A) Xxxxxx
Xxxxxxx LLP, counsel to the Company.
(B) Xxx
Xxxxxx LLP, counsel to the Trustee.
(C) Winston
& Xxxxxx LLP, Bond Counsel, substantially in the form set forth as Appendix
D to the Official Statement.
(D) Winston
& Xxxxxx LLP, Bond Counsel, concerning supplementary matters.
The
respective forms of such opinions above are subject, in each case, only to such
changes therein as counsel to the Underwriter approve;
(3) The
legal opinion of Xxxxxxx, Sosensky & Marks, LLC, counsel to the Underwriter,
addressed to the Underwriter in the form and substance satisfactory to the
Underwriter;
(4) A
certificate of an Authorized Representative of the Authority, dated the Closing
Date, to the effect that (i) on and as of the Closing Date, each of the
representations and warranties of the Authority set forth in Section 4 hereof is
true, accurate and complete and all agreements of the Authority herein provided
and contemplated to be performed on or prior to the Closing Date have been so
performed; (ii) the executed copies of the Financing Documents and the certified
copies of the Resolution authorizing the Bonds are true, correct and complete
copies of such documents and have not been modified, amended, superseded or
rescinded but remain in full force and effect as of the Closing Date; (iii) the
Bonds have been duly authorized, executed and delivered by the Authority; (iv)
this Bond Purchase Agreement, the Indenture and the Financing Documents and any
and all other agreements and documents required to be executed and delivered by
the Authority in order to carry out, give effect to and consummate the
transactions contemplated hereby and by the Indenture have each been duly
authorized, executed and delivered by the Authority, and as of the Closing Date
each is in full force and effect and substantially all right, title and interest
inuring to the Authority under the Agreement has been duly pledged, and the loan
payments thereunder assigned, to the Trustee under the Indenture for the benefit
of the holders of the Bonds; (v) no litigation is pending or threatened to
restrain or enjoin the issuance or sale of the Bonds or in any way contesting
the validity or affecting the authority for the issuance of the Bonds, the
authorization, execution or performance of the Indenture and the Financing
Documents, or the existence or powers of the Authority or the right of the
Authority to finance the Project; and (vi) the Treasurer of the State has
approved all matters and resolutions of the Authority required by the Act to be
approved by the Treasurer with respect to the issuance, sale and delivery of the
Bonds;
(5) A
certificate of the Chairman, President and Chief Executive Officer, Vice
President-Finance, Chief Financial Officer and Treasurer, any Vice President,
Assistant Treasurer or Secretary of the Company, dated the Closing Date, as to
the due incorporation, valid existence of the Company under the laws of the
State, and the due authorization, execution and delivery by the Company of this
Bond Purchase Agreement and the Financing Documents and annexing resolutions of
the Board of Directors or Executive Committee or both with respect to such
authorizations;
(6) A
certificate of the Chairman, President and Chief Executive Officer, Vice
President-Finance, Chief Financial Officer and Treasurer, any Vice President,
Assistant Treasurer or Secretary of the Company, dated the Closing Date,
certifying severally that (i) the Company does not have any material contingent
obligations or any material contractual agreements which are not disclosed or
incorporated by reference in the Official Statement, including Appendix B
thereto (ii) so far as is known to the Company, there are no material pending or
threatened legal proceedings to which the Company is or may be made a party or
to which any of its property is or may become subjugated, which has not been
fully disclosed or incorporated by reference in the Official Statement, (iii)
there is no action or proceeding pending, or to its best knowledge threatened,
looking toward the dissolution or liquidation of the Company and there is no
action or proceeding pending, or to its best knowledge threatened, by or against
the Company affecting the validity and enforceability of the terms of the
Financing Documents or this Bond Purchase Agreement, (iv) since December 31,
2008 there has been no material adverse change in the financial condition of the
Company, taking into account seasonal revenue fluctuations, not disclosed or
incorporated by reference in the Official Statement, and (v) the representations
and warranties of the Company contained herein are true, complete and correct as
of the Closing Date, with the same effect as if those representations and
warranties had been made on and as of such date;
(7) A
certificate, satisfactory in form and substance to the Underwriter, of one or
more duly authorized officers of the Trustee, dated the Closing Date, as to the
due execution and delivery of the Indenture and the Disclosure Agreement by the
Trustee and the due authentication and delivery of the Bonds by the Trustee
thereunder;
(8) Letters
from Standard & Poor’s Ratings Service, the rating agency, indicating that
the rating for the Bonds is no less than "A";
(9) A
letter from PricewaterhouseCoopers LLP, independent auditors for the Company,
dated the Closing Date and addressed to the Underwriter;
(10) A
copy of the order of the DPUC approving the issuance of the Bonds and the
transactions of the Company contemplated by the Financing
Documents;
(11) Certificates
evidencing that the insurance required to be obtained pursuant to the Agreement
is in place;
(12) A
letter or other written evidence satisfactory to Bond Counsel that the State
Treasurer has approved the issuance of the Bonds in accordance with the
Act;
(13) A
letter or other written evidence satisfactory to Bond Counsel that an elected
official has approved the issuance of the Bonds in accordance with the
applicable provisions of the Code; and
(14) Such
additional certificates, instruments or other documents as the Underwriter may
reasonably require to evidence the accuracy, as of the Closing Date, of the
representations and warranties herein contained, and the due performance and
satisfaction by the Company at or prior to such time of all agreements then to
be performed and all conditions then to be satisfied by any one or all of them
in connection with this Bond Purchase Agreement, the Financing Documents or the
Indenture.
In
addition:
The
Authority hereby represents that the Preliminary Official Statement, with such
additions and amendments as have been heretofore agreed upon between the
Authority and the Underwriter, is deemed final as of the date thereof, except
for the omission of offering prices, interest rates, selling compensation,
aggregate principal amount, principal amount per maturity, delivery dates,
ratings and other terms of the Bonds depending on such matters. Such
representation is made in reliance upon the Company’s representation herein that
material relating to the Company included in the Preliminary Official Statement
is true and correct. The Company has contracted with a printer
acceptable to the Underwriter for the delivery to the Underwriter at Company’s
expense of the number of copies requested by the Underwriter of the Official
Statement and will cooperate with the Underwriter to secure the delivery thereof
with reasonable promptness and within seven business days. The
Underwriter agrees to file a copy of such Official Statement with a nationally
recognized municipal securities information repository within five (5) days
after such final Official Statements are made available to the Underwriter and
to advise the Authority as to the location and time of such
filing. Should the Underwriter require additional copies of the
Official Statement, the Authority agrees to cooperate with the Underwriter in
obtaining such copies at Company’s expense if such request is made within 90
days from the date hereof and at the Underwriter’s expense if such request is
made thereafter. The Underwriter has taken and will continue to take
action to comply with the Securities Exchange Commission Municipal Securities
Disclosure Rule, 17 C.F.R. §240.15c2-12 and the provisions of this paragraph
shall survive the expiration hereof to the extent necessary for such
purpose.
Except as
provided in Sections 6 and 12 hereof, if the Authority or the Company shall fail
or be unable to satisfy the conditions of their obligations contained in this
Bond Purchase Agreement, or if the Underwriter’s obligations hereunder shall be
terminated for any reason permitted by this Bond Purchase Agreement, this Bond
Purchase Agreement shall terminate and neither the Authority nor the Underwriter
nor the Company shall be under any further obligation hereunder.
SIMULTANEOUSLY
WITH OR BEFORE DELIVERY OF THE BONDS, THE UNDERWRITER SHALL FURNISH TO THE
AUTHORITY A CERTIFICATE SUBSTANTIALLY IN FORM ATTACHED TO THE TAX REGULATORY
AGREEMENT ACCEPTABLE TO BOND COUNSEL TO THE EFFECT THAT (I) THE UNDERWRITER HAS
MADE A BONA
FIDE PUBLIC
OFFERING OF THE BONDS TO THE PUBLIC AT INITIAL OFFERING PRICES NOT GREATER THAN
THE RESPECTIVE PRICES SHOWN ON THE COVER OF THE OFFICIAL STATEMENT, OR IN THE
CASE OF DISCOUNT OBLIGATIONS SOLD ON A YIELD BASIS, AT YIELDS NO LOWER THAN
THOSE SHOWN ON THE COVER, INCLUDING INTEREST ACCRUED ON THE BONDS FROM THE DATE
THEREOF, AND (II) A SUBSTANTIAL AMOUNT OF THE FINAL AMOUNT OF EACH MATURITY OF
THE BONDS WAS SOLD TO THE FINAL PURCHASER THEREOF (NOT INCLUDING BOND HOUSES AND
BROKERS OR SIMILAR PERSONS OR ORGANIZATIONS ACTING IN THE CAPACITY OF
UNDERWRITER OR WHOLESALERS) AT PRICES NOT GREATER THAN SUCH OFFERING PRICES OR
YIELDS. Bond Counsel advises that (i) such certificate must be made
on the best knowledge, information and belief of the Underwriter, (ii) the sale
to the public of 10% or more of each maturity of the Bonds at prices or yields
not greater than the Initial Offering Prices or Yields would be sufficient for
the purpose of certifying as to the sale of a substantial amount of the Bonds,
and (iii) reliance on other facts as a basis for such certification would
require evaluation by Bond Counsel to assure compliance with the statutory
requirement.
10. The
Authority and the Company agree that all representations, warranties and
covenants made by them herein, and in certificates or other instruments
delivered pursuant hereto or in connection herewith, shall be deemed to have
been relied upon by the Underwriter notwithstanding any investigation heretofore
or hereafter made by the Underwriter on its behalf, and that all
representations, warranties and covenants made by the Authority and the Company
herein and therein and all of the Underwriter’s rights hereunder and thereunder
shall survive the delivery of the Bonds.
11. The
Authority shall pay, but only from proceeds of the Bonds or moneys to be
provided by the Company, any expenses incident to the performance of its
obligations hereunder including but not limited to (a) the cost of the
preparation and printing (for distribution on or prior to the date hereof) of
the Financing Documents, the Indenture, the Preliminary Official Statement and
the final Official Statement (in such numbers as the Authority, the Company and
the Underwriter shall mutually agree upon), and this Bond Purchase Agreement;
(b) the cost of the preparation and printing of the Bonds; (c) the fees and
disbursements of Winston & Xxxxxx LLP, Bond Counsel; (d) the fees of any
other attorneys, experts or consultants retained by the Authority; and (e) any
fee to the rating agencies.
The
Underwriter shall pay (a) the cost of the preparation and printing of the Blue
Sky Survey, if any; (b) all advertising expenses in connection with the public
offering of the Bonds; (c) the fees and disbursements of Xxxxxxx, Sosensky &
Marks, LLC, counsel to the Underwriter, subject to reimbursement by the Company;
and (d) all other expenses incurred by the Underwriter in connection with their
public offering and distribution of the Bonds, including the fees and
disbursements of all attorneys, experts and consultants retained by
them.
On or
prior to the Closing Date, the Company shall pay the Underwriter’s fee of
$600,000 and shall reimburse the Underwriter for the fees and disbursements of
Xxxxxxx, Sosensky & Marks, LLC, counsel to the Underwriter of
$15,300.
12. All
communications hereunder shall be in writing and, unless otherwise directed in
writing, shall be addressed as follows: if to the Authority at 000 Xxxx Xxxxxx,
Xxxxx Xxxx, Xxxxxxxxxxx 00000, Attention: Executive Director; if to the Company
at 00 Xxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000, Attention: Vice
President-Finance, Chief Financial Officer and Treasurer; if to the Underwriter
at 00000 Xxxxxxxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Xxx
Xxxxx, Director.
13. This
Bond Purchase Agreement shall be construed and enforceable in accordance with
the laws of the State of Connecticut.
14. All
terms used but not defined herein shall have the meanings set forth in the
Official Statement.
15. This
Bond Purchase Agreement may be executed in any number of counterparts, each of
which, when so executed and delivered shall be an original; but such
counterparts shall together constitute but one and the same Bond Purchase
Agreement.
16. In
case any one or more of the provisions contained in this Bond Purchase Agreement
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Bond Purchase Agreement, but this Bond Purchase
Agreement shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein.
17. This
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Underwriter, the Authority and the Company. This Agreement may be
signed in several counterparts each of which shall be an original and all of
which shall constitute but one and the same instrument.
18. As
provided in Connecticut General Statutes (“CGS”) Section 4a-60, as amended, and
to the extent required by Connecticut law, the Company and the Underwriter each
(1) agrees and warrants that in the performance of this agreement it will not
discriminate or permit discrimination against any person or group of persons on
the grounds of race, color, religious creed, age, marital status, national
origin, ancestry, sex, mental retardation, mental disability or physical
disability, including, but not limited to, blindness, unless it is shown that
such disability prevents performance of the work involved, in any manner
prohibited by the laws of the United States or of the State of
Connecticut, (2) agrees to take affirmative action to insure that
applicants with job-related qualifications are employed and that employees are
treated when employed without regard to their race, color, religious creed, age,
marital status, national origin, ancestry, sex, mental retardation, mental
disability or physical disability, including, but not limited to, blindness,
unless it is shown by it that such disability prevents performance of the work
involved; (3) agrees in all solicitations or advertisements for employees placed
by or on behalf of it, to state that it is an "affirmative action-equal
opportunity employer" in accordance with regulations adopted by the Commission
on Human Rights and Opportunities (“CHRO”), (4) agrees to provide each labor
union or representative of workers with which it has a collective bargaining
agreement or other agreement or understanding and each vendor with which it has
an agreement or understanding, a notice to be provided by CHRO advising the
labor union or workers' representative of its commitments under CGS Section
4a-60, and to post copies of the notice in conspicuous places available to
employees and applicants for employment, (5) agrees to comply with each
provision of CGS Sections 4a-60, 46a-68e and 46a-68f and with each regulation or
relevant order issued by CHRO pursuant to CGS Sections 46a-56, 46a-68e and
46a-68f, (6) agrees to provide the CHRO with such information requested by the
commission, and permit access to pertinent books, records and accounts,
concerning the employment practices and procedures of it as relate to the
provisions of CGS Sections 4a-60 and 46a-56. This provision is
qualified in its entirety by the following proviso: provided the State
of Connecticut laws are not in conflict with the Defense of Marriage Act
(“DOMA”) and provided further that this provision does not apply to any such
policies, practices or plans governed by the Employee Retirement Income Security
Act of 1974 (“ERISA”).
As
provided in CGS Section 4a-60a, as amended, and to the extent required by
Connecticut law, the Company and the Underwriter each (1) agrees and warrants
that in the performance of this agreement it will not discriminate or permit
discrimination against any person or group of persons on the grounds of sexual
orientation, in any manner prohibited by the laws of the United States or of the
State of Connecticut, and that employees are treated when employed without
regard to their sexual orientation; (2) agrees to provide each labor union or
representative of workers with which it has a collective bargaining agreement or
other agreement or understanding and each vendor with which it has an agreement
or understanding, a notice to be provided by the CHRO advising the labor union
or workers' representative of its commitments under CGS Section 4a-60a, and to
post copies of the notice in conspicuous places available to employees and
applicants for employment; (3) agrees to comply with each provision of CGS
Section 4a-60a and with each regulation or relevant order issued by CHRO
pursuant to CGS Sections 4a-60a and 46a-56; (4) agrees to provide the CHRO with
such information requested by CHRO, and permit access to pertinent books,
records and accounts, concerning the employment practices and procedures of it
which relate to the provisions of CGS Sections 4a-60a and
46a-56. This provision is qualified in its entirety by the following
proviso: provided the
State of Connecticut laws are not in conflict with the Defense of Marriage Act
(“DOMA”) and provided further that this provision does not apply to any such
policies, practices or plans governed by the Employee Retirement Income Security
Act of 1974 (“ERISA”).
CONNECTICUT DEVELOPMENT
AUTHORITY
By:
Authorized Representative
THE CONNECTICUT WATER
COMPANY
By: /s/ Xxxxx
X. Xxxxxx
Xxxxx X.
Xxxxxx, Vice President-Finance, CFO and Treasurer
XXXXXX X. XXXXX & CO,
L.P.
By: /s/ Xxx
Xxxxx
Xxx
Xxxxx, Director
