CONNECTICUT WATER SERVICE,
INC.
U.S. BANK NATIONAL
ASSOCIATION,
as Trustee
Dated as of October 1,
2005
Connecticut Development
Authority
$5,000,000 Water Facilities Revenue Bonds
(The Crystal Water Company of Danielson Project — 2005A
Series)
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Page
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1
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REPRESENTATIONS AND
WARRANTIES
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Section 1.1. Guarantor Representations and
Warranties
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1
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Section 2.1. The Guaranty
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3
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Section 2.2. Unconditional Nature of
Guaranty
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3
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Section 2.3. Waiver of Notice; Payment of
Costs
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5
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Section 2.4. The Guarantor to Maintain
Corporate Existence
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5
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Section 2.5. Access to Books and
Records
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6
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Section 2.6. Discharge of
Obligations
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6
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Section 2.7. Further Assurances
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6
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Section 2.8. Maintenance of Books and
Records
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7
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Section 2.9. Indemnification, Payment of
Expenses, and Advances
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7
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Section 2.10. Restrictions on
Amendments
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8
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Section 3.1. Events of Default
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8
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Section 3.2. Right of Trustee and
Bondholders to Proceed Against Guarantor
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9
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NOTICE AND SERVICE OF PROCESS,
PLEADINGS AND OTHER PAPERS
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Section 4.1. Designation of Agent for
Service of Process
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10
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Section 4.2. Consent to Service of
Process
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10
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10
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Section 5.1. Amendments, etc.
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10
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Section 5.2. No Remedy Exclusive; Effect of
Waiver
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10
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Section 5.3. Continuing Guaranty
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11
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Section 5.4. Governing Law
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11
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Section 5.5. Counterparts
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11
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Section 5.6. Third Party
Beneficiaries
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11
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Section 5.7. Consent of Bond
Insurer
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11
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-i -
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Page
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Section 5.8. Amendments to
Guaranty
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11
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11
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Section 5.10. Severability
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11
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-ii -
This GUARANTY made
and dated as of October 1, 2005 (the “Guaranty”),
from CONNECTICUT WATER SERVICE, INC., a corporation duly organized
and existing under the laws of the State of Connecticut (the
“Guarantor”), to U.S. BANK NATIONAL ASSOCIATION, a
national banking association organized, existing and authorized to
accept trusts under and by virtue of the laws of the United States
of America (the “Trustee”), as Trustee under an
Indenture of Trust, of even date herewith, between the Connecticut
Development Authority and the Trustee. Capitalized terms used
herein and not otherwise defined shall have the meanings ascribed
thereto in the Indenture (as defined below).
WHEREAS, the
Connecticut Development Authority (the “Authority”), a
body corporate and politic constituting a public instrumentality
and political subdivision of the State of Connecticut (the
“State”) intends to issue its Water Facilities Revenue
Bonds (The Crystal Water Company of Danielson Project — 2005A
Series) in the aggregate principal amount of $5,000,000 (the
“Bonds”); and
WHEREAS, the Bonds
are to be issued pursuant to the State Commerce Act, constituting
Connecticut General Statutes, Sections 32-la through 32-23zz,
as amended, a resolution of the Authority adopted August 17,
2005 and under and pursuant to an Indenture of Trust dated as of
October 1, 2005, by and between the Authority and the Trustee
(the “Indenture”); and
WHEREAS, the
proceeds derived from the issuance of the Bonds are to be applied
to the financing of the Project as defined in the Loan Agreement
(the “Agreement”) dated as of October 1, 2005
between the Authority and The Crystal Water Company of Danielson
(the “Borrower”); and
WHEREAS, the
obligation of the Borrower to the Authority under the Agreement is
evidenced by the promissory note of the Borrower dated as of
November 30, 2005 (the “Note”); and
WHEREAS, the
Borrower is a wholly owned subsidiary of the Guarantor and the
Guarantor will benefit from the loan of the proceeds of the Bonds
from the Authority to the Borrower;
NOW, THEREFORE, to
induce the purchase of the Bonds by all who shall at any time be
holders of the Bonds, the Guarantor does hereby, subject to the
terms hereof, covenant and agree with the Trustee as
follows:
REPRESENTATIONS AND
WARRANTIES
Section 1.1.
Guarantor Representations and Warranties . The Guarantor
hereby represents and warrants that:
(1) The Guarantor
has been duly incorporated and validly exists as a corporation
under the laws of the State, and is not in violation of any
provision of its certificate of incorporation or its by-laws, and
has all requisite power and authority to own and operate its
properties, to carry on business as now conducted and proposed to
be conducted, to enter into the Guaranty and all other documents
contemplated hereby to which the Guarantor is a party, and to carry
out the terms hereof and thereof.
(2) The Guarantor
has delivered to the Trustee a true and complete copy of its
certificate of incorporation and all amendments thereto, and its
by-laws and all amendments thereto, as in effect on the date hereof
(collectively, the “Corporate Documents”).
(3) The Guarantor
is qualified or authorized to do business in the jurisdictions in
which the character of the properties to be owned by it, or the
nature of the activities conducted by it, makes such qualification
or authorization necessary or in which the failure to qualify would
have a material adverse effect on the properties or business of the
Guarantor.
(4) The Guarantor
has taken or caused to be taken all necessary and proper corporate
action to authorize or approve, as appropriate, the execution,
issuance and delivery of, and the performance of its obligations
under this Guaranty, and any and all instruments and documents
required to be executed or delivered pursuant to or in connection
therewith.
(5) The execution
and delivery of, and performance by the Guarantor of its
obligations under this Guaranty and any and all instruments or
documents required to be executed or delivered pursuant to or in
connection herewith, were and are within the powers of the
Guarantor and (i) will not violate any material provision of
any applicable law, regulation, decree or governmental
authorization the violation of which would have a material adverse
affect upon its ability to perform its obligations under this
Guaranty, and (ii) will not violate or cause a default under
any material provision of any contract, agreement, mortgage,
indenture or other undertaking to which the Guarantor is a party or
which is binding upon the Guarantor or any of its property or
assets, and (iii) will not result in the imposition or
creation of any lien, charge, or encumbrance upon any of the
properties or assets of the Guarantor pursuant to the provisions of
any such contract, agreement, mortgage, indenture or other
undertaking which would have a material adverse effect upon its
ability to perform its obligations under this Guaranty or the
Corporate Documents.
(6) All material
authorizations, licenses, permits, certificates, franchises,
consents, approvals and undertakings which are required to be
obtained by the Guarantor under any applicable law in connection
with (i) the conduct of its activities, and (ii) the
ownership, use, operation or maintenance of the properties of the
Guarantor, the execution, delivery and performance by the Guarantor
of its obligations to the Trustee under, or in connection with,
this Guaranty have been obtained and are in full force and
effect.
(7) This Guaranty
constitutes the valid and legally binding obligation of the
Guarantor, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors’ rights generally and provided
that the availability of equitable remedies is subject to the
application of equitable principles.
(8) There is no
action, suit, investigation or proceeding pending, or to the
knowledge of the Guarantor, threatened, against the Guarantor
before any court, arbitrator or administrative or governmental body
which might result in any material adverse change in the operations
of the Guarantor or which might materially adversely affect the
ability of the Guarantor to comply with its obligations hereunder
or in connection with the transactions contemplated
hereby.
(9) No document,
certificate or statement furnished to the Trustee by or on behalf
of the Guarantor in connection with the transactions contemplated
hereby contains any untrue statement of any material fact with
respect to the Guarantor or omits to state any material fact
necessary in order to make the statements contained herein or
therein not misleading with respect to the Guarantor.
(10) The Guarantor
has filed or caused to be filed all tax returns required by law to
be filed and has paid or caused to be paid all taxes, assessments
and other governmental charges levied upon or in respect of any of
its properties, assets, or franchises, except to the extent such
are being contested in good faith by appropriate proceedings, in
which event such may remain unpaid during the period of such
contest; provided , however, that such taxes,
assessments and other
-2-
governmental
charges must be paid on or before the date on or after which
failure to pay would result in the creation of liens upon or in
respect of any such properties, assets or franchises. The charges,
accruals and reserves on the books of the Guarantor in respect of
taxes for all fiscal periods are adequate, and there is no unpaid
assessment for additional taxes for any fiscal period or any basis
therefor.
(11) On
the date of issuance of the Bonds (as defined in the Indenture),
after giving effect to all indebtedness (including this Guaranty)
being incurred by the Guarantor in connection therewith,
(i) the sum of the property, at a fair valuation, of the
Guarantor will exceed the Guarantor’s debts; (ii) the
present fair saleable value of the assets of the Guarantor will be
greater than the amount that will be required to pay the
Guarantor’s liability on debts as such debts become absolute
and mature; and (iii) the Guarantor will have sufficient
capital with which to conduct its business. For purposes of this
clause (11), “debt” means any liability in a claim, and
“claim” means any (A) right to payment, whether or
not such right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal,
equitable, secured, or unsecured; or (B) right to an equitable
remedy for breach of performance if such breach gives rise to a
right to payment, whether or not such right to an equitable remedy
is reduced to judgment, fixed, contingent, matured, unmatured,
disputed, undisputed, secured or unsecured.
(12) The
assumption by the Guarantor of its obligations hereunder will
result in a direct and material financial benefit to the
Guarantor.
Section 2.1.
The Guaranty . The Guarantor hereby unconditionally
guarantees to the Trustee for the benefit of the Trustee and the
holders from time to time of the Bonds the full and prompt payment
of (1) the principal or redemption price, if any, of any Bond
when and as the same shall become due, whether at the stated
maturity thereof, by acceleration, call for redemption or
otherwise; (2) the interest on any Bond when and as the same
shall become due and payable; and (3) all other amounts due under
the Agreement and the Note. All payments by the Guarantor shall be
paid in lawful money of the United States of America. Each and
every payment obligation or liability guaranteed hereunder shall
give rise to a separate cause of action, and separate suits may but
need not be brought hereunder as each cause of action
arises.
Section 2.2.
Unconditional Nature of Guaranty . (A) The obligations
of the Guarantor under this Guaranty shall be absolute and
unconditional and shall remain in full force and effect until every
payment, obligation or liability guaranteed hereunder shall have
been fully and finally paid and performed. The Guarantor further
guarantees that all payments made by the Borrower with respect to
any liabilities hereby guaranteed will, when made, be final and
agrees that if any such payment is recovered from or repaid by the
Authority, the Trustee or the holders of the Bonds in whole or in
part in any bankruptcy, insolvency or similar proceeding instituted
by or against the Borrower, this Guaranty shall continue to be
fully applicable to such liabilities to the same extent as though
the payment so recovered or repaid had never been originally made
on such liabilities. Such payment shall not be affected, modified
or impaired upon the happening from time to time of any event,
including without limitation any of the following, whether or not
with notice to, or consent of the Guarantor:
(1) The
compromise, settlement, release, change, modification whether
material or otherwise or termination of any or all of the
liabilities, obligations, covenants or agreements of the Borrower,
or the release, substitution or exchange of collateral by the
Trustee or the Authority, under the Financing Documents or the
Indenture;
-3-
(2) The failure to
give notice to the Guarantor of the occurrence of an event of
default under the terms and provisions of this Guaranty, the
Financing Documents, the Bonds or the Indenture;
(3) The assignment
or mortgaging or the purported assignment or mortgaging of all or
any part of the interest of the Authority, the Trustee or the
Borrower in the Project or any failure of title with respect to any
such interest in the Project;
(4) The waiver of
the payment, performance or observance by the Authority, the
Trustee or the Guarantor of any of the obligations, conditions,
covenants or agreements of any of them contained in the Financing
Documents, the Bonds, the Indenture or this Guaranty;
(5) The extension
of the time for payment of the principal of, and premium, if any,
or interest on any Bond owing or payable on such Bond, under the
Agreement or under this Guaranty or of the time for performance of
any other obligations, covenants or agreements under or arising out
of the Financing Documents, the Bonds, the Indenture or this
Guaranty or the extension or the renewal of either
thereof;
(6) The
modification or amendment (whether material or otherwise) of any
duty, obligation, covenant or agreement set forth in the Indenture
or the Bonds;
(7) The taking or
the failure to take any of the actions referred to in the Financing
Documents, the Indenture or this Guaranty;
(8) Any failure,
omission, delay or lack on the part of the Authority or the Trustee
to enforce, assert or exercise any right, power or remedy conferred
on the Authority or the Trustee in this Guaranty, the Financing
Documents, the Bonds, or the Indenture, or any other act or acts on
the part of the Authority, the Trustee or any of the holders from
time to time of the Bonds;
(9) The full or
partial discharge of the Borrower in bankruptcy or similar
proceedings or otherwise;
(10) The release
or discharge of any other guarantor of the payments, obligations
and liabilities guaranteed hereby by operation of law or
otherwise;
(11) The default
or failure of the Guarantor fully to perform any of its obligations
set forth in this Guaranty;
(12) The addition
or release of any party primarily or secondarily liable with
respect to the Bonds, whether or not notice thereof is given to the
Guarantor;
(13) Any lack of
validity or enforceability of the Agreement, the Note, the
Indenture or any other agreement or instrument relating
thereto;
(14) The amendment
or supplement of the Agreement, the Note, or the Indenture as
permitted therein; or
(15) Any other
circumstance which might otherwise constitute a defense available
to, or a discharge of, the Borrower or the Guarantor.
(B) No act of
commission or omission of any kind or at any time upon the part of
the Borrower, the Authority or the Trustee, or their successors and
assigns, with respect to any matter whatsoever shall in any way
impair the rights of the Authority or the Trustee to enforce any
right, power or benefit under this Guaranty and no set-off,
counterclaim, reduction, or diminution of any obligation, or any
defense of any kind or nature which the Guarantor has or may have
against the Borrower, the Authority or the
-4-
Trustee or any
assignee or successor thereof shall be available hereunder to the
Guarantor against the Trustee.
(C) The
Guarantor agrees that the Guarantor’s obligations under this
Guaranty shall not be impaired, modified, changed, revised or
limited, in any manner whatsoever by any modification, change,
release or limitation of the liability of the Borrower, or its
estate in bankruptcy, resulting from the operation of any present
or future provision of the Federal Bankruptcy Code or other similar
state or federal statute or from the decision of any court. If any
payment made by the Borrower to the Authority, the Trustee or the
holders of the Bonds is recovered from the Authority, the Trustee
or the holders of the Bonds in whole or in part, including after
payment in full of all obligations owed to the Authority, the
Trustee or the holders of the Bonds, in any bankruptcy, insolvency
or similar proceeding instituted by or against the Borrower, then
this Agreement shall continue to be fully applicable to the same
extent as though the payment so recovered or repaid had never been
originally made.
Section 2.3.
Waiver of Notice; Payment of Costs . (A) This Guaranty
is a guaranty of payment and not of collectibility or performance
and is in no way conditioned or contingent upon any attempt to
collect from the Borrower or to realize upon any property subject
to the lien of the Indenture or to realize upon any property
pledged as security thereunder or hereun
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