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GUARANTY

Guarantee Agreement

GUARANTY | Document Parties: CONNECTICUT WATER SERVICE, INC.  | U.S. BANK NATIONAL ASSOCIATION, You are currently viewing:
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CONNECTICUT WATER SERVICE, INC. | U.S. BANK NATIONAL ASSOCIATION,

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Title: GUARANTY
Governing Law: Connecticut     Date: 3/31/2006
Industry: Water Utilities     Sector: Utilities

GUARANTY, Parties: connecticut water service  inc.  , u.s. bank national association
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EXHIBIT 4.29

     

 

 

GUARANTY

 

from

CONNECTICUT WATER SERVICE, INC.

to

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)

 

 


 

Exhibit 4.29

TABLE OF CONTENTS

 

 

 

 

 

 

 

Page

Preambles

 

 

1

 

 

 

 

 

 

ARTICLE I

 

 

 

 

 

 

 

 

 

REPRESENTATIONS AND WARRANTIES

 

 

 

 

 

 

 

 

 

Section 1.1. Guarantor Representations and Warranties

 

 

1

 

 

 

 

 

 

ARTICLE II

 

 

 

 

 

 

 

 

 

COVENANT AND AGREEMENTS

 

 

 

 

 

 

 

 

 

Section 2.1. The Guaranty

 

 

3

 

Section 2.2. Unconditional Nature of Guaranty

 

 

3

 

Section 2.3. Waiver of Notice; Payment of Costs

 

 

5

 

Section 2.4. The Guarantor to Maintain Corporate Existence

 

 

5

 

Section 2.5. Access to Books and Records

 

 

6

 

Section 2.6. Discharge of Obligations

 

 

6

 

Section 2.7. Further Assurances

 

 

6

 

Section 2.8. Maintenance of Books and Records

 

 

7

 

Section 2.9. Indemnification, Payment of Expenses, and Advances

 

 

7

 

Section 2.10. Restrictions on Amendments

 

 

8

 

 

 

 

 

 

ARTICLE III

 

 

 

 

 

 

 

 

 

DEFAULTS AND REMEDIES

 

 

 

 

 

 

 

 

 

Section 3.1. Events of Default

 

 

8

 

Section 3.2. Right of Trustee and Bondholders to Proceed Against Guarantor

 

 

9

 

 

 

 

 

 

ARTICLE IV

 

 

 

 

 

 

 

 

 

NOTICE AND SERVICE OF PROCESS, PLEADINGS AND OTHER PAPERS

 

 

 

 

 

 

 

 

 

Section 4.1. Designation of Agent for Service of Process

 

 

10

 

Section 4.2. Consent to Service of Process

 

 

10

 

Section 4.3. Notices

 

 

10

 

 

 

 

 

 

ARTICLE V

 

 

 

 

 

 

 

 

 

GENERAL

 

 

 

 

 

 

 

 

 

Section 5.1. Amendments, etc.

 

 

10

 

Section 5.2. No Remedy Exclusive; Effect of Waiver

 

 

10

 

Section 5.3. Continuing Guaranty

 

 

11

 

Section 5.4. Governing Law

 

 

11

 

Section 5.5. Counterparts

 

 

11

 

Section 5.6. Third Party Beneficiaries

 

 

11

 

Section 5.7. Consent of Bond Insurer

 

 

11

 

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Exhibit 4.29

 

 

 

 

 

 

 

Page

Section 5.8. Amendments to Guaranty

 

 

11

 

Section 5.9. Terms

 

 

11

 

Section 5.10. Severability

 

 

11

 

-ii -


 

Exhibit 4.29

GUARANTY

     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).

WITNESSETH:

     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:

ARTICLE I

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”).

 


 

Exhibit 4.29

     (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

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Exhibit 4.29

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.

ARTICLE II

COVENANT AND AGREEMENTS

     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;

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Exhibit 4.29

     (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

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Exhibit 4.29

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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