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EXHIBIT 4.13
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CONNECTICUT DEVELOPMENT AUTHORITY
TO
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE
-------------------
INDENTURE OF TRUST
-------------------
DATED AS OF OCTOBER 1, 2003
CONNECTICUT DEVELOPMENT AUTHORITY
$8,000,000 WATER FACILITIES REFUNDING REVENUE BONDS
(THE CONNECTICUT WATER COMPANY PROJECT - 2003A SERIES)
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TABLE OF CONTENTS
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Parties and
Preambles...............................................................................
1
Form of
Bond........................................................................................
4
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1.
Definitions.........................................................................
13
Section 1.2.
Interpretation......................................................................
21
ARTICLE II
AUTHORIZATION, TERMS AND ISSUANCE OF BONDS
Section 2.1. Authorization
for
Indenture.........................................................
23
Section 2.2. Authorization
and Obligation of
Bonds............................................... 23
Section 2.3. Issuance and
Terms of the
Bonds.....................................................
23
Section 2.4. Redemption of
Bonds.................................................................
26
Section 2.5. Execution and
Authentication of
Bonds............................................... 27
Section 2.6. Delivery of
Bonds...................................................................
28
Section 2.7. No Additional
Bonds.................................................................
28
ARTICLE III
GENERAL TERMS AND PROVISIONS OF BONDS
Section 3.1. Date of
Bonds.......................................................................
29
Section 3.2. Form and
Denominations..............................................................
29
Section 3.3.
Legends.............................................................................
29
Section 3.4. Medium of
Payment...................................................................
29
Section 3.5. Bond
Details........................................................................
29
Section 3.6.
Interchangeability, Transfer and
Registry........................................... 29
Section 3.7. Bonds
Mutilated, Destroyed, Stolen or
Lost.......................................... 30
Section 3.8. Cancellation
and Destruction of
Bonds............................................... 30
Section 3.9. Requirements
With Respect To
Transfers..............................................
30
Section 3.10.
Registrar..........................................................................
31
Section 3.11. Payment
Procedure Pursuant to the Bond Insurance
Policy............................ 31
ARTICLE IV
APPLICATION OF BOND PROCEEDS AND OTHER AMOUNTS
Section 4.1. Accrued
Interest....................................................................
33
Section 4.2. Bond
Proceeds.......................................................................
33
Section 4.3. Borrower
Contribution...............................................................
33
ARTICLE V
CUSTODY AND INVESTMENT OF FUNDS
Section 5.1. Creation of
Funds...................................................................
34
Section 5.2. Refunding
Fund......................................................................
34
Section 5.3. Debt Service
Fund...................................................................
34
Section 5.4. Rebate
Fund.........................................................................
36
Section 5.5. Renewal
Fund........................................................................
36
Section 5.6. Investment of
Funds and
Accounts....................................................
36
Section 5.7. Non-presentment
of
Bonds............................................................
37
ARTICLE VI
REDEMPTION OF BONDS
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Section 6.1. Privilege of
Redemption and Redemption
Price........................................ 38
Section 6.2. Selection of
Bonds to be
Redeemed...................................................
38
Section 6.3. Notice of
Redemption................................................................
38
Section 6.4. Payment of
Redeemed
Bonds...........................................................
38
Section 6.5. Notice to
Authority and Borrower of Deceased Bondholder
Redemption.................. 39
Section 6.6. Cancellation of
Redeemed
Bonds......................................................
39
ARTICLE VII
PARTICULAR COVENANTS
Section 7.1. No Pecuniary
Liability on Authority or
Officers..................................... 40
Section 7.2. Payment of
Principal, Redemption Price, if any, and
Interest........................ 40
Section 7.3. Performance of
Covenants............................................................
40
Section 7.4. Further
Assurances..................................................................
40
Section 7.5. Inspection of
Project
Books.........................................................
40
Section 7.6. Rights under
Financing
Documents....................................................
41
Section 7.7. Creation of
Liens,
Indebtedness.....................................................
41
Section 7.8. Recording and
Filing................................................................
41
ARTICLE VIII
REMEDIES OF BONDHOLDERS
Section 8.1. Events of
Default; Acceleration of Due
Dates........................................ 42
Section 8.2. Enforcement of
Remedies.............................................................
42
Section 8.3. Application of
Revenue and Other Moneys After
Default............................... 44
Section 8.4. Actions by
Trustee..................................................................
44
Section 8.5. Majority
Bondholders Control
Proceedings............................................
45
Section 8.6. Individual
Bondholder Action
Restricted.............................................
45
Section 8.7. Effect of
Discontinuance of
Proceedings.............................................
45
Section 8.8. Remedies Not
Exclusive..............................................................
45
Section 8.9. Delay or
Omission Upon
Default......................................................
45
Section 8.10. Notice of
Default..................................................................
46
Section 8.11. Waivers of
Default.................................................................
46
ARTICLE IX
TRUSTEE AND PAYING AGENTS
Section 9.1. Appointment and
Acceptance of
Duties................................................ 47
Section 9.2.
Indemnity...........................................................................
47
Section 9.3.
Responsibilities of
Trustee.........................................................
47
Section 9.4.
Compensation........................................................................
48
Section 9.5. Evidence on
Which Trustee May
Act................................................... 48
Section 9.6. Evidence of
Signatures of Owners of the Bonds and Ownership of
Bonds................ 49
Section 9.7. Trustee and any
Paying Agent, May Deal in Bonds and With
Borrower................... 49
Section 9.8. Resignation or
Removal of
Trustee...................................................
49
Section 9.9. Successor
Trustee...................................................................
50
Section 9.10. Appointment
and Responsibilities of Paying
Agent................................... 51
Section 9.11. Resignation or
Removal of Paying Agent;
Successors................................. 51
Section 9.12. Monies Held
for Particular
Bonds...................................................
52
Section 9.13. Continuation
Statements............................................................
52
Section 9.14. Obligation to
Report
Defaults......................................................
52
Section 9.15. Payments Due
on non-Business
Day................................................... 52
Section 9.16. Appointment of
Co-Trustee..........................................................
52
Section 9.17. Project
Description................................................................
53
ARTICLE X
AMENDMENTS OF INDENTURE
Section 10.1. Limitation on
Modifications........................................................
54
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Section 10.2. Supplemental
Indentures Without Consent of Owners of the
Bonds..................... 54
Section 10.3. Supplemental
Indentures With Consent of Owners of the
Bonds........................ 55
Section 10.4. Supplemental
Indenture Part of the
Indenture....................................... 56
ARTICLE XI
AMENDMENTS OF FINANCING DOCUMENTS
Section 11.1. Rights of
Borrower.................................................................
57
Section 11.2. Amendments of
Financing Documents Not Requiring Consent of Owners of the
Bonds..... 57
Section 11.3. Amendments of
Financing Documents Requiring Consent of Owners of the
Bonds......... 57
ARTICLE XII
DISCHARGE OF INDENTURE
Section 12.1.
Defeasance.........................................................................
58
ARTICLE XIII
GENERAL PROVISIONS
Section 13.1.
Notices............................................................................
59
Section 13.2. Covenant
Against
Discrimination....................................................
59
Section 13.3. Rights of Bond
Insurer.............................................................
59
Section 13.4. Bond Insurer
Consent...............................................................
60
Section 13.5. Notices to the
Bond
Insurer........................................................
60
Section 13.6. Parties
Interested
Herein..........................................................
60
Section 13.7. Bond Insurer
as Third Party
Beneficiary............................................
60
Section 13.8. Effective
Date;
Counterparts.......................................................
60
Section 13.9. Date for
Identification Purposes
Only.............................................. 60
Section 13.10. Separability
of Invalid
Provisions................................................
60
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THIS INDENTURE OF TRUST, made and dated as of October 1, 2003, by
and
between the CONNECTICUT DEVELOPMENT
AUTHORITY, a body corporate and politic
constituting a public instrumentality and
political subdivision of the State of
Connecticut, and U.S. BANK NATIONAL
ASSOCIATION, a national banking association
organized, existing and authorized to
accept and execute trusts of the character
herein set out under and by virtue of the
laws of the United States of America,
with a corporate trust office located in
Hartford, Connecticut, as Trustee,
WITNESSETH THAT:
WHEREAS, the State Commerce Act, constituting Connecticut
General
Statutes, Sections 32-1a through 32-23yy,
as amended (the "Act"), declares that
there is a continuing need in the State (1)
for industrial development and
activity to provide and maintain employment
and tax revenues and to control,
abate and prevent pollution to protect the
public health and safety, (2) for the
development of recreation facilities to
promote tourism, provide and maintain
employment and tax revenues, and promote
the public welfare, (3) for the
development of commercial and retail sales
and service facilities in urban areas
to provide and maintain construction and
permanent employment and tax revenues,
to improve conditions of deteriorated
physical development, slow economic growth
and eroded financial health of the public
and private sectors in urban areas and
to revitalize the economy of urban areas,
and (4) for assistance to public
service businesses providing transportation
and utility services in the State,
and that the availability of financial
assistance and suitable facilities are
important inducements to industrial and
commercial enterprises to remain or
locate in the State and to provide
industrial, recreation, urban and public
service projects; and
WHEREAS, the Act provides that (1) the term "project" as used
therein
means any facility, plant, works, system,
building, structure, utility, fixture
or other real property improvement located
in the State, and the land on which
it is located or which is reasonably
necessary in connection therewith, which is
of a nature or which is to be used or
occupied by any person for purposes which
would constitute it as an economic
development project, recreation project,
urban project, public service project or
health care project, and any real
property improvement reasonably related
thereto, and (2) a project may also
include or consist exclusively of
machinery, equipment or fixtures; and
WHEREAS, the Act provides that the Authority shall have power
to
determine the location and character of,
and extend credit or make loans to any
person for the planning, designing,
acquiring, improving and equipping of, a
project which may be secured by loan, lease
or sale agreements, contracts and
other instruments, upon such terms and
conditions as the Authority shall
determine to be reasonable, to require the
inclusion in any contract, loan
agreement or other instrument of such
provisions for the construction, use,
operation, maintenance and financing of the
project as the Authority may deem
necessary or desirable, to issue its bonds
for such purposes, subject to the
approval of the Treasurer of the State,
and, as security for the payment of the
principal or redemption price, if any, of
and interest on any such bonds, to
pledge or assign such a loan, lease or sale
agreement and the revenues and
receipts derived by the Authority from such
a project; and
WHEREAS, the Authority has heretofore issued and sold $8,000,000 of
its
Water Facilities Refunding Revenue Bonds
(The Connecticut Water Company Project
- 1993 Series) (all of which were
outstanding as of the date of this Indenture)
(the "Prior Obligations"), the proceeds of
which were used to refund in full the
Authority's Water Facilities Revenue Bonds
(The Connecticut Water Company
Project - 1983 Series), the proceeds of
which were used to finance various
capital improvements constituting a portion
of the Borrower's existing water
system (the "Project"); and
WHEREAS, the Authority has by a resolution adopted on June 18,
2003
authorized the issuance of $8,000,000
principal amount of its Water Facilities
Refunding Revenue Bonds (The Connecticut
Water Company - 2003A Series) for the
purpose of refunding in full the Prior
Obligations; and
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WHEREAS, the Authority has determined that the issuance, sale
and
delivery of the Bonds, as hereinafter
provided, is needed to refinance the cost
of the Project, and concurrently herewith
the Authority and the Borrower have
entered into a Loan Agreement, dated as of
October 1, 2003, providing for a loan
by the Authority to the Borrower for such
purpose in an amount equal to the
principal amount of the Bonds; and
WHEREAS, the Connecticut Department of Public Utility Control
(the
"DPUC") has approved the issuance of the
Note; and
WHEREAS, the Bonds shall be special obligations of the
Authority,
payable solely out of the revenues and
other receipts, funds or monies derived
by the Authority under the Agreement or the
Indenture and from any amounts
otherwise available under this Indenture
for the payment of the Bonds; and
WHEREAS, the Bonds are to be originally issued as fully
registered
bonds and such Bonds and the Trustee's
certificate of authentication to be
endorsed thereon shall be in substantially
the following form, with appropriate
variations, omissions and insertions as
permitted or required by this Indenture,
to wit:
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[FORM OF BOND]
No. R-
$
NEITHER THE STATE OF
CONNECTICUT NOR ANY MUNICIPALITY THEREOF IS OBLIGATED
TO PAY, AND NEITHER
THE FAITH AND CREDIT NOR TAXING POWER OF THE STATE OF
CONNECTICUT NOR ANY
MUNICIPALITY THEREOF IS PLEDGED TO THE PAYMENT OF, THE
PRINCIPAL, PREMIUM, IF
ANY, OF OR INTEREST ON THIS BOND.
XL CAPITAL ASSURANCE
INC. (THE "BOND INSURER"), NEW YORK, NEW YORK, HAS
DELIVERED ITS
MUNICIPAL BOND INSURANCE POLICY (THE "BOND INSURANCE POLICY")
WITH RESPECT TO THE
SCHEDULED PAYMENTS DUE OF PRINCIPAL OF, AND INTEREST ON,
THIS BOND TO U.S. BANK
NATIONAL ASSOCIATION OR ITS SUCCESSOR, AS PAYING
AGENT FOR THE BONDS
(THE "PAYING AGENT"). SAID BOND INSURANCE POLICY IS ON
FILE AND AVAILABLE FOR
INSPECTION AT THE PRINCIPAL OFFICE OF THE PAYING
AGENT AND A COPY
THEREOF MAY BE OBTAINED FROM THE BOND INSURER OR THE PAYING
AGENT.
CONNECTICUT DEVELOPMENT AUTHORITY
WATER FACILITIES REFUNDING REVENUE BOND
(THE CONNECTICUT WATER COMPANY PROJECT - 2003A SERIES)
BOND DATE: October 1, 2003
MATURITY DATE: December 15, 2020
INTEREST PAYMENT DATES: June 15 and
December 15
INTEREST RATE: %
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT: $8,000,000.00***
CUSIP NUMBER:
CONNECTICUT DEVELOPMENT AUTHORITY (the "Authority"), a body
corporate
and politic constituting a public
instrumentality and political subdivision of
the State of Connecticut (the "State"), for
value received, hereby promises to
pay to the REGISTERED OWNER or registered
assigns, on the MATURITY DATE, solely
from the sources and in the manner
hereinafter provided, upon presentation and
surrender hereof, in lawful money of the
United States of America, the PRINCIPAL
AMOUNT and in like manner to pay interest
on the unpaid principal balance
thereof until the Authority's obligation
with respect to the payment of such sum
shall be discharged. Interest shall be
payable (computed on the basis of a
360-day year consisting of twelve 30-day
months) from the most recent INTEREST
PAYMENT DATE, to which interest has been
paid or duly provided for or, if no
interest has been paid, from the DATE OF
THIS BOND at the INTEREST RATE per
annum, payable semi-annually on the
INTEREST PAYMENT DATES until the date on
which this bond becomes due, whether at
maturity or by acceleration or
redemption. From and after that date, any
unpaid principal will bear interest at
the same rate until paid or duly provided
for.
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Payment of Principal and Interest. The principal and premium, if
any,
of this Bond is payable to the REGISTERED
OWNER hereof but only upon
presentation and surrender of this bond at
the corporate trust office of U.S.
Bank National Association, as Paying Agent
(with its successors, the "Paying
Agent"). Interest is payable by check or
draft mailed by the Paying Agent to the
REGISTERED OWNER of this bond (or of one or
more predecessor or successor Bonds
(as defined below)), determined as of the
close of business on the applicable
record date, at its address as shown on the
registration books maintained by the
Paying Agent. If any payment, redemption or
maturity date for principal, premium
or interest shall not be a Business Day
then the payment thereof may be made on
the next succeeding Business Day with the
same force and effect as if made on
the specified payment date and no interest
shall accrue for the period after the
specified payment date. Payment shall be in
any coin or currency of the United
States of America, which, on the respective
dates of payment thereof, is legal
tender for the payment of public and
private debts.
The record date for payment of interest is the first day of the
month
in which the interest is to be paid,
provided that, with respect to overdue
interest or interest payable on redemption
of this bond other than on an
INTEREST PAYMENT DATE or interest on any
overdue amount, the Trustee (as defined
below) may establish a special record date.
The special record date may be not
more than thirty (30) days before the date
set for payment. The Paying Agent
will mail notice of a special record date
to the registered owners of the Bonds
(the "Bondholders") at least ten (10) days
before the special record date. The
Paying Agent will promptly certify to the
Authority and the Trustee that it has
mailed such notice to all Bondholders, and
such certificate will be conclusive
evidence that such notice was given in the
manner required hereby.
Authorization and Purpose. This bond is one of an authorized issue
of
Bonds of the Authority in the aggregate
principal amount of $8,000,000
designated: Water Facilities Refunding
Revenue Bonds (The Connecticut Water
Company Project - 2003A Series) (the
"Bonds") which are issued for the purpose
of refunding in full the Authority's
$8,000,000 aggregate principal amount of
Water Facilities Refunding Revenue Bonds
(The Connecticut Water Company Project
- 1993 Series) (the "Prior Obligations"),
which were issued for the purpose of
refunding in full the Authority's Water
Facilities Revenue Bonds (The
Connecticut Water Company Project - 1983
Series), which were issued for the
purpose of financing various capital
improvements constituting a portion of the
Borrower's existing water system (the
"Project"), for the benefit of The
Connecticut Water Company (the "Borrower"),
a corporation organized and existing
under the laws of the State of Connecticut,
and paying necessary expenses
incidental thereto. The Bonds are issued
pursuant to the State Commerce Act,
constituting Connecticut General Statutes,
Sections 32-1a through 32-23yy, as
amended, a resolution adopted by the
Authority on June 18, 2003 and an Indenture
of Trust, dated as of October 1, 2003
(which Indenture as from time to time
amended and supplemented is herein referred
to as the "Indenture"), duly
executed and delivered by the Authority to
U.S. Bank National Association, as
trustee (with its successors, the
"Trustee"), and are equally and ratably
secured by and entitled to the protection
of the Indenture, which is on file in
the office of the Trustee.
Pledge and Security. Pursuant to the Indenture, the Authority
has
assigned to the Trustee all of its right,
title and interest in and to a Loan
Agreement, dated as of October 1, 2003, as
it may be amended or supplemented
from time to time (the "Agreement"),
between the Authority and the Borrower, and
the Note evidencing the Borrower's
obligations under the Agreement (except for
certain enforcement and indemnification
rights which are reserved in the
Indenture), including all rights to receive
loan payments sufficient to pay the
principal or premium if any, of and
interest and all other amounts due on the
Bonds as the same become due, to be made by
the Borrower pursuant to the
Agreement. The Agreement sets forth the
terms and conditions under which the
Authority will provide for the refinancing
of the Project and under which the
Borrower will use and occupy the Project
and make loan payments to the Authority
in such amounts as are necessary to pay the
principal of, premium if any, and
interest on the Bonds. Reference is hereby
made to the Indenture for the
definition of any capitalized word or term
used but not
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defined herein and for a description of the
property pledged, assigned and
otherwise available for the payment of the
Bonds, the provisions, among others,
with respect to the nature and extent of
the security, the rights, duties and
obligations of the Authority, the Trustee
and the owners of the Bonds, and the
terms upon which the Bonds are issued and
secured, and the holders of the Bonds
are deemed to assent to the provisions of
the Indenture by the acceptance of
this bond.
Event of Default. In case any Event of Default occurs and is
continuing, the principal amount of this
bond together with accrued interest may
be declared due and payable in the manner
and with the effect provided in the
Indenture.
General Optional Redemption. The Bonds are subject to redemption
prior
to maturity from time to time pursuant to
the Indenture at the option of the
Authority, which option shall be exercised
at the direction of the Borrower, as
a whole or in part on any date on or after
December 15, 2008, at the Redemption
Price equal to 100% of the principal amount
thereof, plus accrued interest to
the redemption date.
Extraordinary Optional Redemption. In addition, at the option of
the
Authority, which option shall be exercised
upon the giving of notice by the
Borrower of its intention to prepay amounts
due under the Agreement, the Bonds
are subject to redemption prior to maturity
as a whole on any date at a
Redemption Price equal to 100% of the
principal amount thereof plus accrued
interest to the date of redemption, if any
one or more of the events of casualty
to or condemnation of the Project or change
in law or certain economic events
affecting the Project specified in
subsection 8.1(B) of the Agreement shall have
occurred, as evidenced in each case by the
filing of a certificate of an
Authorized Representative of the
Borrower.
Mandatory Taxability Redemption. In the event of a Determination
of
Taxability, the Bonds shall be redeemed on
any day selected by the Borrower that
is not more than 180 days after the
occurrence of such Determination of
Taxability as provided in the Indenture, at
the Redemption Price equal to 100%
of the principal amount thereof plus
accrued interest to the date of redemption.
Redemption under this paragraph shall be in
whole unless not less than
forty-five (45) days prior to the
redemption date the Borrower delivers to the
Trustee an opinion of Bond Counsel
reasonably satisfactory to the Trustee to the
effect that a redemption of less than all
of the Bonds will preserve the
tax-exempt status of interest on the
remaining Bonds outstanding subsequent to
such redemption.
Deceased Bondholder Redemptions. For purposes of this section only,
the
owner of a Bond shall mean the Beneficial
Owner of said Bond so long as the
Book-Entry Only System shall be in
effect.
Notwithstanding the foregoing redemption provisions, the estate
of,
successor in interest to and, in the case
of jointly held Bonds (whether by
joint tenancy, tenancy in common or tenancy
by the entirety) any surviving joint
owner may, within two years of the date of
death of a deceased owner, request
the redemption of Bonds of which such
deceased owner on the date of his or her
death was an owner or joint owner
("Deceased Owner Bonds"), and the Authority
will redeem such Bonds within 60 days of
receipt by the Trustee of such request
at a Redemption Price of 100% of the
principal amount thereof plus accrued
interest to the date of redemption in the
manner and as provided in Article VI
of the Indenture, subject to the following
limitations: (i) the Authority shall
not be obligated to redeem any Deceased
Owner Bonds prior to September 1, 2005:
(ii) the maximum aggregate principal amount
of Deceased Owner Bonds that the
Authority shall be required to redeem
during each 12-month period commencing
September 1, 2005 and each September 1
thereafter through maturity of the Bonds
is $450,000; (iii) during any such 12-month
period, the Authority shall not be
required to redeem in excess of $25,000
aggregate principal amount of Deceased
Owner Bonds with respect to any one
deceased owner, and (iv) such Deceased Owner
Bonds had been held by such owner for at
least six months prior to his or her
death. A request for redemption of Deceased
Owner Bonds shall be made by the
executor of
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the estate of or successor in interest to
the deceased owner or, in the case of
jointly owned Bonds, by any joint owner
surviving the deceased owner, in
writing, in form satisfactory to the
Trustee, signed by the person requesting
redemption or such person's legal
representative, with such signature
guarantees, evidences of due authorization
to make such request for redemption,
evidence of death of the deceased owner and
ownership of such Bond(s) at the
time of death, evidence of tax waivers and
such other evidence as the Trustee
may require under the Indenture. A request
for redemption shall specify the
Bonds to be redeemed. Subject to the
limitations herein provided, requests for
redemption shall be accepted and honored by
the Trustee in the order of receipt
of such requests by the Trustee. Upon the
receipt by the requesting party of
notice from the Trustee in accordance with
Article VI of the Indenture that the
Bonds with respect to which a request for
redemption has been made are eligible
for redemption and shall be redeemed, such
Bonds shall be tendered to the
Trustee no later than the date set for
redemption. Any request for redemption
may be withdrawn at any time prior to the
Trustee's sending notice of redemption
pursuant to the Indenture; after notice of
redemption is sent, a request for
redemption is irrevocable.
Selection of Bonds to be Redeemed. If less than all of the
Outstanding
Bonds are to be called for redemption, the
Bonds (or portions thereof) to be
redeemed shall be selected as provided in
the Indenture.
Notice of Redemption. In the event this bond is selected for
redemption, notice (which notice may state
that it is subject to the receipt of
the redemption moneys by the Trustee on or
before the date fixed for redemption
and which notice shall be of no effect
unless such moneys are so received on or
before such date) will be mailed no more
than forty-five (45) days nor less than
thirty (30) days prior to the redemption
date to the REGISTERED OWNER at its
address shown on the registration books
maintained by the Paying Agent. Failure
to mail notice to the owner of any other
Bond or any defect in the notice to
such an owner shall not affect the
redemption of this bond.
If this bond is of a denomination in excess of five thousand
dollars
($5,000), portions of the principal amount
in the amount of five thousand
dollars ($5,000) or any multiple thereof
may be redeemed. If less than all of
the principal amount is to be redeemed,
upon surrender of this bond to the
Paying Agent, there will be issued to the
REGISTERED OWNER, without charge, a
new Bond or Bonds, at the option of the
REGISTERED OWNER, for the unredeemed
principal amount.
Notice of redemption having been duly mailed, and moneys for
the
redemption having been deposited with the
Paying Agent, this bond, or the
portion called for redemption, will become
due and payable on the redemption
date at the applicable redemption price
from and after the date fixed for
redemption, interest on this bond (or such
portion) will no longer accrue.
Transfer of Bonds. This bond is transferable by the REGISTERED
OWNER,
in person or by its attorney duly
authorized in writing, at the office of the
Paying Agent, upon surrender of this bond
to the Paying Agent for cancellation.
Upon the transfer, a new Bond or Bonds in
authorized denominations of the same
aggregate principal amount will be issued
to the transferee at the same office.
This bond may also be exchanged at the
office of the Paying Agent for a new Bond
or Bonds in authorized denominations of the
same aggregate principal amount
without transfer to a new registered owner.
Exchanges and transfers will be
without expense to the owner except for
applicable taxes or other governmental
charges, if any. The Paying Agent will not
be required to make an exchange or
transfer of this bond during the fifteen
(15) days preceding any date fixed for
selection for redemption if this bond (or
any portion thereof) is eligible to be
selected for redemption.
Amendment of Indenture. The Indenture permits, with certain
exceptions
as therein provided, the amendment thereof
and the modification of the rights
and obligations of the Authority and the
rights of the owners of the Bonds at
any time by the Authority with the consent
of the Bond Insurer, unless the Bond
Insurer is in default under the Bond
Insurance Policy, in which case such
amendment shall require
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<PAGE>
the consent of the owners of not less than
51% in aggregate principal amount of
the Bonds at the time outstanding
thereunder. Any such consent shall be
conclusive and binding upon each such owner
and upon all future owners of each
Bond and of any such Bond issued upon the
transfer thereof, whether or not
notation of such consent is made thereon.
The Indenture also permits the
amendment thereof by the Authority but
without the consent of the owners of the
Bonds or the Bond Insurer for certain
specified purposes.
Limitation on Bondholder Enforcement Rights. The owner of this
bond
shall have no right to enforce the
provisions of the Indenture, to institute
action to enforce the provisions and
covenants thereof or to institute, appear
in or defend any suit or other proceedings
with respect thereto, except as
provided in the Indenture. Anything in the
Indenture to the contrary
notwithstanding, upon the occurrence and
continuance of an Event of Default
under the Indenture, so long as the Bond
Insurance Policy is in effect and the
Bond Insurer is not in default thereunder,
the Bond Insurer shall be entitled to
control and direct the enforcement of all
rights and remedies granted to the
holders of the Bonds or the Trustee for the
benefit of the holders of the Bonds
under the Indenture.
Special Obligations of the Authority. This bond and the issue of
which
it forms a part are special obligations of
the Authority, payable solely out of
the revenues or other receipts, funds or
moneys of the Authority pledged under
the Indenture and from any amounts
otherwise available under the Indenture for
the payment of the Bonds. Neither the State
nor any municipality thereof shall
be obligated to pay the principal or
redemption price, if any, of or interest on
this bond and neither the faith and credit
nor taxing power of the State or any
municipality thereof is pledged to such
payment. The Bonds do not now and shall
never constitute a debt or liability of the
State or any municipality thereof or
bonds issued or guaranteed by either of
them within the meaning of any
constitutional or statutory limitation.
Estoppel Clause. This bond is issued pursuant to and in full
compliance
with the Constitution and laws of the
State. It is hereby certified, recited and
declared that all acts, conditions and
things required to exist, happen and be
performed precedent to and in the issuance
of this bond do exist, have happened
and have been performed in due time, form
and manner as required by law and that
the issuance of this bond and of the issue
of which it forms a part, together
with all other obligations of the
Authority, do not exceed or violate any
constitutional or statutory limitation.
NEITHER THE AUTHORITY, THE TRUSTEE NOR ANY PAYING AGENT WILL HAVE
ANY
RESPONSIBILITY OR OBLIGATION TO
PARTICIPANTS, TO INDIRECT PARTICIPANTS OR TO ANY
BENEFICIAL OWNER WITH RESPECT TO (I) THE
ACCURACY OF ANY RECORDS MAINTAINED BY
DTC OR ANY SUCCESSOR SECURITIES DEPOSITORY,
ANY PARTICIPANT, OR ANY INDIRECT
PARTICIPANT; (II) THE PAYMENT BY DTC OR ANY
SUCCESSOR SECURITIES DEPOSITORY OR
ANY PARTICIPANT OR INDIRECT PARTICIPANT OF
ANY AMOUNT WITH RESPECT TO THE
PRINCIPAL OF, OR PREMIUM, IF ANY, OR
INTEREST ON THE BONDS; (III) THE SELECTION
BY DTC OR ANY SUCCESSOR SECURITIES
DEPOSITORY OR ANY DIRECT OR INDIRECT
PARTICIPANT OF ANY PERSON TO RECEIVE
PAYMENT IN THE EVENT OF A PARTIAL
REDEMPTION OF THE BONDS; (IV) ANY CONSENT
GIVEN OR OTHER ACTION TAKEN BY DTC OR
ANY SUCCESSOR SECURITIES DEPOSITORY AS
BONDHOLDER; OR (V) THE DELIVERY TO ANY
PARTICIPANT, OR INDIRECT PARTICIPANT,
BENEFICIAL OWNER OR OTHER PERSON OTHER
THAN DTC OR ANY SUCCESSOR SECURITIES
DEPOSITORY OF ANY NOTICE WITH RESPECT TO
THE BONDS, INCLUDING BUT NOT LIMITED TO,
ANY NOTICE OF REDEMPTION.
No Personal Liability. Neither the officers, directors or employees
of
the Authority or the Trustee nor any person
executing this bond shall be liable
personally or be subject to any personal
liability or accountability by reason
of the issuance hereof.
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<PAGE>
Authentication. This bond shall not be valid or become obligatory
for
any purpose or be entitled to any security
or benefit under the Indenture until
the certificate of authentication hereon
shall have been signed by the Trustee
or the Paying Agent.
Authorized Denomination. The Bonds are issuable only in fully
registered form in denominations of $5,000
or any multiple thereof.
Persons Deemed Owners. The Authority, the Trustee, the Paying Agent
and
the Borrower may treat the REGISTERED OWNER
as the absolute owner of this bond
for all purposes, notwithstanding any
notice to the contrary.
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<PAGE>
IN WITNESS WHEREOF, the CONNECTICUT DEVELOPMENT AUTHORITY has
caused
this Bond to be executed in its name by the
manual or facsimile signature of its
Authorized Representative.
CONNECTICUT DEVELOPMENT AUTHORITY
By _____________________________________
Authorized Representative
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<PAGE>
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This bond is one of the Bonds of the issue described in the
within
mentioned Indenture.
Date of Registration:
U.S. BANK NATIONAL ASSOCIATION, Trustee
By ______________________________[,or
Authorized Signature
U.S. BANK NATIONAL ASSOCIATION,
Paying Agent
By _____________________________________
Authorized Signature]
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<PAGE>
[FORM OF ASSIGNMENT]
ASSIGNMENT
For value received the
undersigned sells, assigns and transfers this bond to
________________________________________________________________________________
(Name and Address of Assignee)
________________________________________________________________________________
Social Security or Other Identifying Number
of Assignee
and irrevocably appoints
__________________________________ attorney-in-fact to
transfer it on the books kept for
registration of the bond, with full power of
substitution.
_____________________________________________________________________
NOTE: The signature to this assignment must
correspond with the name as written
on the face of the bond without alteration
or enlargement or other change and
must be guaranteed by a Participant in a
Recognized Signature Guaranty Medallion
Program.
Dated:
Signature Guaranteed:
___________________________________________
Participant in a Recognized
Signature Guaranty Medallion Program
By:
_________________________________________________
Authorized
Signature
[END OF FORM OF BOND]
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<PAGE>
WHEREAS, all things necessary to make the Bonds, when authenticated
by
the Trustee and issued as in this Indenture
provided, the valid, binding and
legal obligations of the Authority
according to the import thereof, and to
constitute this Indenture a valid pledge of
revenues to the payment of the
principal or Redemption Price, if any, of
and interest on the Bonds and all
other amounts due in connection therewith
and a valid assignment of the rights
of the Authority (except as stated below)
under the Agreement and the Note have
been done and performed, and the creation,
execution and delivery of this
Indenture and the creation, execution and
issuance of the Bonds subject to the
terms hereof, have in all respects been
duly authorized;
NOW, THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS:
GRANTING CLAUSES
That the Authority in consideration of the premises and the
acceptance
by the Trustee of the trusts hereby created
and of the purchase and acceptance
of the Bonds by the holders and owners
thereof, and of the sum of One Dollar,
lawful money of the United States of
America, to it duly paid by the Trustee at
or before the execution and delivery of
these presents, and for other good and
valuable consideration, the receipt of
which is hereby acknowledged, and in
order to secure the payment of the
principal of, Redemption Price, if any, and
interest on the Bonds according to their
tenor and effect and all other amounts
due in connection therewith and the
performance and observance by the Authority
of all the covenants expressed or implied
herein and in the Bonds, does hereby
grant, bargain, sell, convey, pledge and
assign unto, and grant a security
interest in and to the Trustee, and unto
its respective successors in trust, and
to their respective assigns, forever, for
the securing of the performance of the
obligations of the Authority hereinafter
set forth, the following:
I.
The Agreement and the Note (except to the extent to which any
such
document provides for the indemnification
or the payment of expenses of the
Authority, rights of the Authority to
inspect the Project, receive notices and
grant approvals) including all extensions
and renewals of the term thereof, if
any, together with all right, title and
interest of the Authority therein,
including, but without limiting the
generality of the foregoing, the present and
continuing right to claim, collect and
receive any of the moneys, income,
revenues, issues, profits and other amounts
payable or receivable thereunder, to
bring actions and proceedings thereunder or
for the enforcement thereof, and to
do any and all things which the Authority
is or may become entitled to do under
the Agreement and the Note but reserving,
however, to the Authority rights of
the Authority under Sections 6.2, 6.4,
7.2(A)(2) and 7.3 of the Agreement upon
the conditions therein set forth;
II.
All Funds and Accounts (except the Rebate Fund and the Refunding
Fund)
and moneys therein; and
III.
All moneys and securities from time to time held by the Trustee or
the
Paying Agent under the terms of this
Indenture (except moneys and securities in
the Rebate Fund and the Refunding Fund) and
any and all other real or personal
property of every name and nature
concurrently herewith or from time to time
hereafter by delivery or by writing of any
nature conveyed, mortgaged, pledged,
assigned or transferred as and for
additional security hereunder by the
Authority or by anyone in its behalf, or
with its
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<PAGE>
written consent, to the Trustee or the
Paying Agent, which are hereby authorized
to receive any and all such property at any
and all times and to hold and apply
the same subject to the terms hereof;
TO HAVE AND TO HOLD all and singular the trust estate, whether
now
owned or hereafter acquired, unto the
Trustee and its respective successors and
assigns in trust forever to its and their
own proper use and behoof but:
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth
for
the equal and proportionate benefit,
security and protection of all present and
future holders and owners of the Bonds from
time to time issued and to be issued
under and secured by this Indenture without
privilege, priority or distinction
as to the lien or otherwise of any of the
Bonds over any of the other Bonds;
PROVIDED, HOWEVER, that if the Authority, its successors or
assigns,
shall well and truly pay, or cause to be
paid, the principal of, Redemption
Price, if any, and interest on, the Bonds
due or to become due thereon, and all
other amounts due thereunder, at the times
and in the manner mentioned in the
Bonds according to their tenor, and shall
cause the payments to be made on the
Bonds as required under Article VII hereof,
or shall provide, as permitted
hereby, for the payment thereof by
depositing with the Trustee the entire amount
due or to become due thereon, and shall
well and truly keep, perform and observe
all the covenants and conditions pursuant
to the terms of this Indenture to be
kept, performed and observed by it, and
shall pay or cause to be paid to the
Trustee all sums of money due or to become
due to it in accordance with the
terms and provisions of the Agreement, the
Note and this Indenture, then upon
the final payment thereof this Indenture
and the rights hereby granted shall
cease, determine and be void; otherwise
this Indenture to be and remain in full
force and effect.
THIS INDENTURE OF TRUST FURTHER WITNESSETH, and it is expressly
declared, that all Bonds issued and secured
hereunder are to be issued,
authenticated and delivered and all of the
property, rights and interests,
including, without limitation the loan
payments and other amounts hereby
assigned and pledged are to be dealt with
and disposed of under, upon and
subject to the terms, conditions,
stipulations, covenants, agreements, trusts,
uses and purposes as hereinafter expressed,
and the Authority has agreed and
covenanted, and does hereby agree and
covenant with the Trustee and with the
respective holders and owners of the Bonds
as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. DEFINITIONS. As used in this Indenture:
"Account" or "Accounts" shall mean the Account or Accounts
established
pursuant to Article V herein below.
"Act" means the State Commerce Act, constituting Connecticut
General
Statutes, Sections 32-la through 32-23yy,
as amended.
"Agreement" means the Loan Agreement of even date herewith between
the
Authority and the Borrower, and any
amendments and supplements thereto.
"Authority" means the Connecticut Development Authority, 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, and any body, board,
authority, agency or other political
subdivision or instrumentality of the State
which shall hereafter succeed to the
powers, duties and functions thereof.
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<PAGE>
"Authorized Investments" means any of the following:
A.
Direct obligations of the United States of America (including
obligations issued or held in book-entry form on the books of
the Department of the Treasury, and CATS and TIGRS) or
obligations the principal of and interest on which are
unconditionally guaranteed by the United States of America.
B.
Bonds, debentures, notes or other evidence of indebtedness
issued or guaranteed by any of the following federal agencies
and provided such obligations are backed by the full faith and
credit of the Untied States of America (stripped securities
are only permitted if they have been stripped by the agency
itself):
1. U.S.
Export-Import Bank (Eximbank)
Direct obligations or fully guaranteed certificates
of beneficial ownership
2.
Farmers Home Administration (FmHA)
Certificates of Beneficial Ownership
3.
Federal Financing Bank
4. Federal
Housing Administration Debentures (FHA)
5.
General Services Administration
Participation Certificates
6.
Government National Mortgage Association (GNMA or
Ginnie Mae)
GNMA - guaranteed mortgage-backed bonds
GNMA - guaranteed pass-through obligations
7. U.S.
Maritime Administration
Guaranteed Title XI financing
8. U.S.
Department of Housing and Urban Development
(HUD)
Project Notes
Local Authority Bonds
New Communities
Debentures - U.S. government
guaranteed debentures
U.S. Public Housing Notes and Bonds - U.S. government
guaranteed public housing notes and bonds
C.
Bonds, debentures, notes or other evidence of indebtedness
issued or guaranteed by any of the following federal agencies
which are not backed by the full faith and credit of the
United States of America (stripped securities are only
permitted if they have been stripped by the agency itself):
1.
Federal Home Loan Bank System
Senior debt obligations
2.
Federal Home Loan Mortgage Corporation (FHLMC or
Freddie Mac)
Participation Certificate
Senior debt obligations
3.
Federal National Mortgage Association (FNMA or Fannie
Mae)
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<PAGE>
Mortgage-backed securities and senior debt
obligations
4.
Student Loan Marketing Association (SLMA or Sallie
Mae)
Senior debt obligations
5.
Resolution Funding Corp. (REFCORP) obligations
6. Farm
Credit System
Consolidated systemwide bonds and notes
D.
Money market funds registered under the Federal Investment
Company Act of 1940, whose shares are registered under the
Federal Securities Act of 1933, and having a rating by S&P
of
AAAm-G; AAA-m; or AA-m and if rated by Moody's rated Aaa, Aa1
or Aa2.
E.
Certificates of deposit secured at all times by collateral
described in (A) and/or (B) above. Such certificates must be
issued by commercial banks, savings and loan associations or
mutual savings banks. The collateral must be held by a third
party and the bondholders must have a perfected first security
interest in the collateral.
F.
Certificates of deposit, savings accounts, deposit accounts or
money market deposits which are fully insured by FDIC,
including BIF and SAIF.
G.
Investment Agreements, including GIC's, Forward Purchase
Agreements and Reserve Fund Put Agreements acceptable to the
Bond Insurer.
H.
Commercial paper rated, at the time of purchase, "Prime - 1"
by Moody's and "A-1" or better by S&P.
I.
Bonds or notes issued by any state or municipality which are
rated by Moody's and S&P in one of the two highest rating
categories assigned by such rating agencies.
J.
Federal funds or bankers acceptances with a maximum term of
one year of any bank which has an unsecured, uninsured and
unguaranteed obligation rating of "Prime - 1" or "A3" or
better by Moody's and "A-1" or "A" or better by S&P.
K.
Repurchase Agreements ("Repos") for 30 days or less must
follow the following criteria. Repos which exceed 30 days must
be acceptable to the Bond Insurer (criteria available upon
request).
Repos provide for the transfer of securities from a dealer
bank or securities firm (seller/borrower) to a municipal
entity (buyer/lender), and the transfer of cash from a
municipal entity to the dealer bank or securities firm with an
agreement that the dealer bank or securities firm will repay
the cash plus a yield to the municipal entity in exchange for
the securities at a specified date.
1.
Repos must be between the municipal entity and a
dealer bank or securities firm.
a.
Primary dealers on the Federal Reserve
reporting dealer list which are rated A or
better by S&P and A2 or better by Moody's,
or
b.
Banks rated "A" or better by S&P and A2 or
better by Moody's.
2. The
written repurchase agreement must include the
following:
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<PAGE>
a.
Securities which are acceptable for transfer
are:
(1) Direct
obligations of the United
States of America referred to in
Section A above, or
(2)
Obligations of federal agencies
referred to in Section
B above
(3)
Obligations of FNMA and FHLMC
b. The
term of the Repos may be up to 30 days.
c. The
collateral must be delivered to the
municipal entity, trustee (if trustee is not
supplying the collateral) or third party
acting as agent for the trustee is (if the
trustee is supplying the collateral)
before/simultaneous with payment (perfection
by possession of certificated securities).
d. Valuation
of Collateral.
(1) the
securities must be valued
weekly, marked-to-market at current
market price plus accrued interest.
(2) The value
of collateral must be
equal to 104% of the amount of cash
transferred by the municipal entity
to the dealer bank or security firm
under the repo plus accrued
interest. If the value of
securities held as collateral slips
below 104% of the value of the cash
transferred by the municipal
entity, then additional cash and/or
acceptable securities must be
transferred. If, however, the
securities used as collateral are
FNMA or FHLMC, then the value of
collateral must equal 105%.
(3) A legal
opinion which must be
delivered to the municipal entity
that states that the Repo meets
guidelines under state law for
legal investment of public funds.
"Authorized Representative" means, in the case of the Authority,
the
Chairman or Vice Chairman, the President,
the Executive Vice President, Deputy
Director or any Senior Vice President or
any Vice President thereof and, in the
case of the Borrower, the Chairman, the
President and Chief Executive Officer,
the Vice President-Chief Financial Officer
and Treasurer, and any Vice
President, Assistant Treasurer or Secretary
thereof and, when used with
reference to the performance of any act,
the discharge of any duty or the
execution of any certificate or other
document, any officer, employee or other
person authorized to perform such act,
discharge such duty or execute such
certificate or other document.
"Beneficial Owner" shall have the meaning specified in Section
2.3(F)
hereof. If any person claims to the Trustee
to be a Beneficial Owner, for
purposes of Sections 2.4(C), such person
shall prove such claim to the
satisfaction of the Trustee with such
documentation and signature guaranties as
the Trustee may request and shall be
responsible for and pay any costs
associated with such claim.
"Bonds" means the $8,000,000 Water Facilities Refunding Revenue
Bonds
(The Connecticut Water Company Project -
2003A Series) authorized and issued
pursuant to Section 2.3 hereof.
"Bond Counsel" means Winston & Strawn LLP or such other
nationally
recognized bond counsel selected by the
Authority and reasonably satisfactory to
the Borrower and Trustee.
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<PAGE>
"Bondholder", "holder" or "owner" or words of similar import when
used
with reference to Bonds, shall unless
otherwise specified, mean any person who
shall be the registered owner of any
Outstanding Bond.
"Bond
Insurance Policy" means the financial guaranty insurance policy
issued by the Bond Insurer insuring the
payment when due of the principal of and
interest on the Bonds as provided
therein.
"Bond Insurer" means XL Capital Assurance Inc., a financial
guaranty
insurance company incorporated under the
laws of the State of New York, and its
successors and assigns.
"Borrower" means (i) The Connecticut Water Company, a
corporation
organized and existing under the laws of
the State of Connecticut, and its
successors and assigns and (ii) any
surviving, resulting or transferee
corporation as provided in Section 6.1 of
the Agreement.
"Business Day" means any day (i) that is not a Saturday or Sunday,
(ii)
that is a day on which banks located in
Hartford, Connecticut and New York, New
York are not required or authorized to
remain closed, (iii) that is a day on
which banking institutions in all of the
cities in which the principal offices
of the Trustee and the Paying Agent are
located and are not required or
authorized to remain closed and (iv) that
is a day on which the New York Stock
Exchange, Inc. is not closed.
"Cede & Co." means the nominee for The Depository Trust Company
(DTC)
who shall act as securities depository for
the Bonds.
"Code" means the Internal Revenue Code of 1986, as amended and
regulations promulgated thereunder.
"Computation Period" means each period from the date of
issuance
through the date on which a determination
of the Rebatable Arbitrage is made or
required to be made pursuant to Section 8.3
of the Tax Regulatory Agreement.
"Debt Service Fund" means the special trust fund so designated,
established pursuant to Section 5.1
hereof.
"Default" means any event or condition which will, with the lapse
of
time, or the giving of notice, or both,
become an Event of Default.
"DTC" or "The Depository Trust Company" shall mean the
limited-purpose
trust company organized under the laws of
the State of New York which shall act
as securities depository for the Bonds, and
any successor thereto.
"Depository" means DTC or any other depository holding the Bonds
for
purpose of a book-entry system.
"Determination of Taxability" means with respect to the Bonds, (1)
a
ruling by the Internal Revenue Service, (2)
the receipt by the owner of any of
the Bonds from the Internal Revenue Service
of a notice of assessment and demand
for payment (provided the Borrower has been
afforded the opportunity to
participate at its own expense in all
appeals and proceedings to which such
owner of any Bonds is a party relating to
such assessment and demand for
payment) and the expiration of the appeal
period provided therein if no appeal
is taken or, if an appeal is taken by such
owner of any Bonds as provided in
Section 6.3 of the Agreement within the
applicable appeal period which has the
effect of staying the demand for payment, a
final unappealable decision by a
court of competent jurisdiction, or (3) the
admission in writing by the
Borrower, in any case to the effect that
the interest on the Bonds is includable
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<PAGE>
in the gross income for federal income tax
purposes (other than for purposes of
alternative minimum tax, environmental tax
or foreign branch profits tax) of an
owner or former owner thereof, other than
for a period during which such owner
or former owner is or was a "substantial
user" of the Project financed by such
Bonds or a "related person" as such terms
are defined in the Code. For purposes
of this definition only, the term owner
means the Beneficial Owner of the Bonds
so long as the Book-Entry Only System is in
effect.
"Disclosure Agreement" means the agreement by and between the
Borrower
and U.S. Bank National Association, as
dissemination agent, dated the date of
the initial delivery of the Bonds and
providing for the provision of certain
information subsequent to the issuance of
the Bonds.
"Event of Bankruptcy" means the filing of a petition in bankruptcy
or
the commencement of a proceeding under the
United States Bankruptcy Code or any
other applicable law concerning insolvency,
reorganization or bankruptcy by or
against the Authority, the Borrower, or any
guarantor of the Bonds, as debtor.
"Event of Default" has the meaning given such term in Section
8.1
hereof.
"Federal Securities" means any direct and general obligations of,
or
any obligations whose full and timely
payment is unconditionally guaranteed by,
the United States of America.
"Financing Documents" means (1), when used with respect to the
Borrower, means the Agreement, the Tax
Regulatory Agreement, the Note, the
Disclosure Agreement and the general
certificate of the Borrower delivered in
connection with the issuance of the Bonds,
but shall not include the Mortgage,
and (2) when used with respect to the
Authority, means any of the foregoing
documents and agreements to which the
Authority is a direct party. The Financing
Documents do not include any documents or
agreements to which the Borrower is
not a direct party, including the Bonds or
the Indenture.
"Fund" or "Funds" shall mean the Fund or Funds established pursuant
to
Article V herein below.
"Indenture" means this Indenture as from time to time amended
or
supplemented by Supplemental Indentures in
accordance with Article X hereof.
"Indirect Participant" shall have the meaning set forth in
Section
2.3(F) hereof.
"Interest Payment Date" shall mean each date on which interest
is
payable on the Bonds as provided in the
form of the Bonds.
"Loan Payments" means the amounts required to be paid by the
Borrower
in repayment of the loan made to the
Borrower by the Authority pursuant to the
provisions of the Agreement and the Note,
including all amounts realized by the
Trustee thereunder in accordance with
Article VIII hereof.
"Moody's" means Moody's Investors Service, Inc., a corporation
organized and existing under the laws of
the State of Delaware, its successors
and their assigns, and if such corporation
shall be dissolved or liquidated or
shall no longer perform the functions of a
securities rating agency, "Moody's"
shall be deemed to refer to any other
nationally recognized securities rating
agency designated by the Authority, at the
direction of the Borrower, by notice
to the Trustee and the Borrower.
"Mortgage" means the Indenture of Mortgage and Deed of Trust, dated
as
of June 1, 1956, between the Borrower and
U.S. Bank National Association
(successor to The Connecticut Bank and
Trust
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<PAGE>
Company), as Mortgage Bond Indenture
Trustee, as amended as of the date hereof
and as may be amended hereafter.
"Mortgage Bond Indenture Trustee" means U.S. Bank National
Association,
acting as Mortgage Bond Indenture Trustee
pursuant to the Mortgage.
"Note" means the promissory note of the Borrower to the
Authority,
dated the date of initial delivery of the
Bonds in the form attached as Appendix
A to the Agreement, and any amendments of
supplements made in conformity with
the Agreement and this Indenture.
"Outstanding", when used with reference to a Bond or Bonds, as of
any
particular date, means all Bonds which have
been authenticated and delivered
hereunder, except:
(1) Any Bonds
cancelled by the Trustee because of payment or
redemption prior to maturity or surrendered to the Trustee for
cancellation;
(2) any Bond
(or portion of a Bond) paid or redeemed or for the
payment or redemption of which there has been separately set
aside and held in the Debt Service Fund either:
(a) moneys in
an amount sufficient to effect payment of
the principal or applicable Redemption Price thereof,
together with accrued interest on such Bond to the
payment or redemption date, which payment or
redemption date shall be, specified in irrevocable
instructions given to the Trustee to apply such
moneys to such payment on the date so specified; or
(b)
obligations of
the kind described in subsection
12.1(B) hereof in such principal amounts, of such
maturities, bearing such interest and otherwise
having such terms and qualifications as shall be
necessary to provide moneys in an amount sufficient
to effect payment of the principal or applicable
Redemption Price of such Bond, together with accrued
interest on such Bond to the payment or redemption
date, which payment or redemption date shall be
specified in irrevocable instructions given to the
Trustee to
apply such obligations to such payment on
the date so specified; or
(c) any
combination of (a) and (b) above;
(3) Bonds in
exchange for or in lieu of which other Bonds shall
have been authenticated and delivered under Article III
hereof; and
(4) any Bond
deemed to have been paid as provided in Section 12.1
hereof.
"Participant" means one of the entities that deposits
securities,
directly or indirectly, in the Book-Entry
Only System.
"Paying Agent" means any paying agent for the Bonds appointed
pursuant
to Section 9.10 hereof (and may include the
Trustee), and its successor or
successors and any other corporation which
may at any time be substituted in its
place in accordance herewith.
"Principal and Interest Account" means the special trust account of
the
Debt Service Fund so designated,
established pursuant to Section 5.3 hereof.
"Prior Obligations" means the $8,000,000 aggregate principal amount
of
the Authority's Water Facilities Refunding
Revenue Bonds (The Connecticut Water
Company Project - 1993 Series).
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"Project" means the Borrower's interest in the Project Realty and
other
interests in the real property, and in all
Project Equipment wherever located
and whether now owned or hereafter
acquired, acquired or refinanced in whole or
in part with the proceeds of the Bonds, and
any additions and accessions
thereto, substitutions therefor and
replacements, improvements, extensions and
restorations thereof, described in
appendices to the Agreement, as amended from
time to time in accordance with the
Agreement.
"Project
Equipment" means all personal property, goods, leasehold
improvements, machinery, equipment,
furnishings, furniture, fixtures, tools and
attachments wherever located and whether
now owned or hereafter acquired,
refinanced in whole or in part with the
proceeds of the Bonds, and any additions
and accessions thereto, substitutions
therefor and replacements thereof,
including without limitation the Project
Equipment described in appendices to
the Agreement, as amended from time to time
in accordance herewith.
"Project Realty" means the realty and other interests in the
real
property refinanced in whole or in part
from the proceeds of the Bonds, together
with all replacements, improvements,
extensions, substitutions, restorations and
additions thereto which are made pursuant
hereto including without limitation
the Project Realty described in appendices
to the Agreement, as amended from
time to time in accordance herewith.
"Rebate Fund" means the special trust fund so designated,
established
pursuant to Section 5.1 hereof.
"Redemption Account" means the special trust account of the
Debt
Service Fund so designated, established
pursuant to Section 5.3 hereof.
"Redemption Price" means, when used with respect to a Bond or a
portion
thereof, the principal amount of such Bond
or portion thereof plus the
applicable premium, if any, payable upon
redemption thereof pursuant to this
Indenture.
"Refunding Fund" means the special trust fund so designated,
established pursuant to Section 5.1
hereof.
"Renewal Fund" means the special trust fund so designated,
established
pursuant to Section 5.1 hereof.
"Representation Letter" has the meaning given such term in
Section
2.3(F) hereof.
"Revenues" means (a) the Loan Payments, (b) all amounts paid to
the
Trustee with respect to the principal of,
redemption premium, if any, or
interest on, the Bonds (1) by the Borrower
as required under the Agreement and
(2) upon deposit in the Debt Service Fund
from the proceeds of the Bonds and (c)
investment income with respect to any
moneys held by the Trustee in the
Refunding Fund, the Debt Service Fund and
the Renewal Fund. The term "Revenues"
does not include any moneys or investments
or investment income in the Rebate
Fund.
"S&P" means Standard & Poor's Ratings Services, a division
of McGraw
Hill, Inc., a corporation organized and
existing under the laws of the State of
New York, its successors and their assigns,
and, if such corporation or division
shall be dissolved, eliminated,
reorganized, or liquidated or shall no longer
perform the functions of a securities
rating agency, "S&P" shall be deemed to
refer to any other nationally recognized
securities rating agency designated by
the Authority, at the direction of the
Borrower, by notice to the Trustee and
the Borrower.
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"State" means the State of Connecticut.
"Supplemental Indenture" means any indenture supplemental hereto
or
amendatory hereof, adopted by the Authority
in accordance with Article X hereof.
"Tax Incidence Date" means the date as of which interest on the
Bonds
becomes or became includable in the gross
income of the recipient thereof (other
than the Borrower or another substantial
user or related person) for federal
income tax purposes for any cause, as
determined by a Determination of
Taxability.
"Tax Regulatory Agreement" means the Tax Regulatory Agreement,
dated as
of the date of initial issuance and
delivery of the Bonds, among the Authority,
the Borrower and the Trustee, and any
amendments and supplements thereto.
"Term", when used with reference to the Agreement, means the term
of
the Agreement determined as provided in
Article III thereof.
"Trustee" means U.S. Bank National Association, and its successor
or
successors hereafter appointed in the
manner provided in this Indenture.
SECTION 1.2. INTERPRETATION. (A) In this Indenture:
(1) Any
capitalized word or term used but not
defined herein shall have the meaning ascribed to such word or
term in the Agreement or the Tax Regulatory Agreement, as the
case may be.
(2)
The terms
"hereby", "hereof", "hereto",
"herein", "hereunder" and any similar terms, as used in this
Indenture, refer to this Indenture, and the term "hereafter"
means after, and the term "heretofore" means before, the date
of execution of this Indenture.
(3) Words of
the masculine gender mean and
include correlative words of the feminine and neuter genders
and
words importing the singular number mean and include the
plural number and vice versa.
(4) Words
importing persons include firms,
associations, partnerships (including limited partnerships),
limited liability companies, trusts, corporations and other
legal entities, including public bodies, as well as natural
persons.
(5) Any
headings preceding the texts of the
several Articles and Sections of this Indenture, and any table
of contents appended to copies hereof, shall be solely for
convenience of reference and shall not constitute a part of
this Indenture, nor shall they affect its meaning,
construction or effect.
(6) All
approvals, consents and acceptances
required to be given or made by any person or party hereunder
shall be at the sole discretion of the party whose approval,
consent or acceptance is required.
(7) This
Indenture shall be governed by and
construed in accordance with the applicable laws of the State.
(B) Whenever
the Authority is named or referred to, it shall be
deemed to include its successors and
assigns whether so expressed or not. All of
the covenants, stipulations, obligations,
and
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agreements by or on behalf of, and other
provisions for the benefit of, the
Authority contained in this Indenture shall
bind and inure to the benefit of
such successors and assigns and shall bind
and inure to the benefit of any
officer, board, commission, authority,
agency or instrumentality to whom or to
which there shall be transferred by or in
accordance with law any right, power
or duty of the Authority, or of its
successors or assigns, the possession of
which is necessary or appropriate in order
to comply with any such covenants,
stipulations, obligations, agreements or
other provisions hereof.
(C) If any one
or more of the covenants or agreements provided
herein on the part of the Authority, the
Trustee or any Paying Agent to be
performed should be contrary to law, then
such covenant or covenants or
agreement or agreements, shall be deemed
separable from the remaining covenants
and agreements hereof, and shall in no way
affect the validity of the other
provisions of this Indenture or of the
Bonds.
(D) All
approvals, consents and actions of the Trustee under this
Indenture, the Bonds and the Financing
Documents may be given or withheld or
taken or not taken in accordance with the
direction of the owners of not less
than 51% of the principal amount of the
Outstanding Bonds or of the Bond Insurer
as provided herein.
(E) If the
Paying Agent shall be removed and the duties and
obligations of such Paying Agent discharged
pursuant to Section 9.10 hereof,
then each and every such duty and
obligation to be performed by such Paying
Agent set forth herein and in the Financing
Documents shall be performed to the
same extent and in the same manner by the
Trustee, and each and every reference
herein and in the Financing Documents to
the Paying Agent shall refer to and
shall be deemed to refer to the Trustee
unless a successor Paying Agent shall
have been appointed.
(F) For
purposes hereof the Trustee shall not be deemed to have
knowledge or actual knowledge of any fact
or the occurrence of any event unless
and until an officer of the Trustee's
corporate trust administration department
has written notice thereof.
(G) In the
event of any solicitation of consents from and voting
by owners of the Bonds, the Trustee shall
establish a record date for such
purposes and give DTC notice of such record
date not less than fifteen calendar
days in advance of such record date to the
extent possible.
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ARTICLE II
AUTHORIZATION, TERMS AND ISSUANCE OF BONDS
SECTION 2.1. AUTHORIZATION FOR INDENTURE. This Indenture is made
and
entered into by virtue of and pursuant to
the provisions of the Act. The
Authority has ascertained and hereby
determines and declares that the execution
and delivery of this Indenture is necessary
to carry out the powers and duties
expressly provided by the Act, that each
and every act, matter, thing or course
of conduct as to which provision is made
herein is necessary or convenient in
order to carry out and effectuate the
purposes of the Authority in accordance
with the Act and to carry out powers
expressly given thereby, and that each and
every covenant or agreement herein
contained and made is necessary, useful or
convenient in order to better secure the
Bonds and necessary, useful or
convenient to carry out and effectuate its
corporate purposes under the Act.
SECTION 2.2. AUTHORIZATION AND OBLIGATION OF BONDS. (A) Bonds of
the
Authority issued hereunder, each to be
entitled Water Facilities Refunding
Revenue Bonds (The Connecticut Water
Company Project - 2003A Series), shall be
subject to the terms, conditions and
limitations established herein. No Bonds
may be authenticated and delivered except
in accordance with this Article.
(B) All Bonds
shall be entitled to the benefit of the continuing
pledge and lien created by this Indenture
to secure the full and final payment
of the principal or Redemption Price, if
any, thereof and the interest thereon
and all other amounts due under the
Financing Documents. The Bonds shall be
special obligations of the Authority,
payable solely out of the revenues or
other receipts, funds or moneys pledged
therefor pursuant to this Indenture and
from any amounts otherwise available under
this Indenture for the payment of the
Bonds. Neither the State nor any
municipality thereof shall be obligated to pay
the principal or Redemption Price, if any,
of or the interest on the Bonds and
neither the faith and credit nor the taxing
power of the State or any
municipality thereof is pledged to pay such
principal, Redemption Price or
interest. The Bonds shall never constitute
a debt or liability of the State or
any municipality thereof or bonds issued or
guaranteed by the State or any
municipality thereof within the meaning of
any constitutional or statutory
limitation.
SECTION 2.3. ISSUANCE AND TERMS OF THE BONDS. (A) There shall be
issued
under and secured by this Indenture a
series of Bonds to be designated Water
Facilities Refunding Revenue Bonds (The
Connecticut Water Company Project -
2003A Series) in the principal amount of
$8,000,000. The Bonds shall be issuable
in fully registered form without coupons
and shall be dated as provided in
Section 3.1 hereof.
(B) The Bonds
shall mature on December 15, 2020 and bear interest
at the per annum rate of 4.40% payable on
December 15, 2003 and on each June 15
and December 15 thereafter until maturity
or prior redemption.
(C) Interest
on the Bonds shall be computed on the basis of a
360-day year consisting of twelve (12)
30-day months.
(D) The Bonds
shall be numbered from one upward in consecutive
numerical order. Bonds issued in exchange
shall be numbered in such manner as
the Trustee and the Paying Agent in their
discretion shall determine.
(E) The
principal or Redemption Price, if any, of the Bonds as
they respectively become due shall be
payable upon presentation and surrender of
the Bonds at the corporate trust office of
the Trustee in Hartford, Connecticut,
or at the office designated for such
payment of any successor Paying Agent.
Payment of each installment of interest on
the Bonds shall be made to the
registered owners thereof who shall appear
on the registration books of the
Authority maintained by the Trustee at the
close of business
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on the fifteenth day of the calendar month
next preceding such Interest Payment
Date, by check or draft mailed to each such
registered owner at his address as
it appears on such registration books.
Alternatively, payment shall be made as
otherwise agreed in writing by the
Bondholder and the Trustee and, at the
written request to the Trustee of and at
the expense of any holder of at least
$1,000,000 in Bonds, such payment may be
made by wire transfer or other
reasonable method to an account or place
designated by such registered owner.
(F) Book-Entry
Only System for the Bonds
(1) The
Depository Trust Company ("DTC"), New York, New York shall
act as securities depository for the Bonds.
One fully registered bond in the
aggregate principal amount of the Bonds
shall be registered in the name of Cede
& Co., as nominee for DTC.
Notwithstanding any provision herein to the contrary,
the provisions of this Section 2.3(F) and
the Representation Letter (as defined
below) shall apply with respect to any Bond
registered to Cede & Co. or any
other nominee of DTC, New York, New York,
while the Book-Entry Only System
(meaning the system of registration
described in paragraph (2) of this Section
2.3(F)) is in effect. DTC is a
limited-purpose trust company organized under the
New York Banking Law, a "banking
organization" within the meaning of the New
York Banking Law, a member of the Federal
Reserve System, a "clearing
corporation" within the meaning of the New
York Uniform Commercial Code, and a
"clearing agency" registered pursuant to
the provisions of Section 17A of the
Securities Exchange Act of 1934. DTC holds
securities that its participants
("Participants") deposit with DTC. DTC also
facilitates the settlement among
Participants of securities transactions,
such as transfers and pledges, in
deposited securities through electronic
computerized book-entry changes in
Participants' accounts, thereby eliminating
the need for physical movement of
securities certificates. Direct
Participants ("Direct Participants") include
securities brokers and dealers, banks,
trust companies, clearing corporations,
and certain other organizations. DTC is
owned by a number of its Direct
Participants and by the New York Stock
Exchange, Inc., the American Stock
Exchange, Inc., and the National
Association of Securities Dealers, Inc. Access
to the DTC system is also available to
others such as securities brokers and
dealers, banks, and trust companies that
clear through or maintain a custodial
relationship with a Direct Participant,
either directly or indirectly ("Indirect
Participants"). The Rules applicable to DTC
and its Participants are on file
with the Securities and Exchange
Commission.
(2) The Bonds
in or to be in the Book-Entry Only System shall be
issued in the form of a separate single
authenticated fully registered Bond in
substantially the form provided for in this
Indenture. Any legend required to be
on the Bonds by DTC may be added by the
Trustee or Paying Agent. On the date of
original delivery thereof, the Bonds shall
be registered in the registry books
of the Paying Agent in the name of Cede
& Co., as nominee of The Depository
Trust Company as agent for the Authority in
maintaining the Book-Entry Only
System.
WITH RESPECT TO BONDS REGISTERED IN THE REGISTRY BOOKS KEPT BY
THE
PAYING AGENT IN THE NAME OF CEDE & CO.,
AS NOMINEE OF DTC, THE AUTHORITY, THE
PAYING AGENT, THE BORROWER AND THE TRUSTEE
SHALL HAVE NO RESPONSIBILITY OR
OBLIGATION TO ANY PARTICIPANT (WHICH MEANS
SECURITIES BROKERS AND DEALERS,
BANKS, TRUST COMPANIES, CLEARING
CORPORATIONS AND VARIOUS OTHER ENTITIES, SOME
OF WHOM OR THEIR REPRESENTATIVES OWN DTC)
OR TO ANY BENEFICIAL OWNER (WHICH
MEANS, WHEN USED WITH REFERENCE TO THE
BOOK-ENTRY ONLY SYSTEM, THE PERSON WHO IS
CONSIDERED THE BENEFICIAL OWNER OF THE
BONDS PURSUANT TO THE ARRANGEMENTS FOR
BOOK ENTRY DETERMINATION OF OWNERSHIP
APPLICABLE TO DTC) WITH RESPECT TO THE
FOLLOWING: (A) THE ACCURACY OF THE RECORDS
OF DTC, CEDE & CO. OR ANY PARTICIPANT
WITH RESPECT TO ANY OWNERSHIP INTEREST IN
THE BONDS, (B) THE DELIVERY TO OR FROM
ANY PARTICIPANT, ANY BENEFICIAL OWNER OR
ANY OTHER PERSON, OTHER THAN DTC, OF
ANY NOTICE WITH RESPECT TO THE OTHER
PERSON,
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OTHER THAN DTC, OF ANY NOTICE WITH RESPECT
TO THE BONDS, INCLUDING ANY NOTICE OF
REDEMPTION (WHETHER MANDATORY OR OPTIONAL),
OR (C) THE PAYMENT TO ANY
PARTICIPANT, ANY BENEFICIAL OWNER OR ANY
OTHER PERSON, OTHER THAN DTC, OF ANY
AMOUNT WITH RESPECT TO THE PRINCIPAL OR
PREMIUM, IF ANY, OR INTEREST ON THE
BONDS.
The Paying Agent shall pay all principal of and premium, if any,
and
interest on the Bonds only to or upon the
order of DTC, and all such payments
shall be valid and effective fully to
satisfy and discharge the Authority's
obligations with respect to the principal
of and premium, if any, and interest
on Bonds to the extent of the sum or sums
so paid. No person other than DTC
shall be entitled to receive an
authenticated Bond evidencing the obligation of
the Authority to make payments of principal
and premium, if any, and interest
pursuant to this Indenture. Upon delivery
by DTC to the Paying Agent of written
notice to the effect that DTC has
determined to substitute a new nominee in
place of Cede & Co., the words "Cede
& Co." in this Indenture shall refer to
such new nominee of DTC.
The Authority, the Borrower, the Trustee and the Paying Agent shall
be
entitled to treat the registered owner of a
Bond (initially, DTC or its nominee)
as the absolute owner thereof for all
purposes of this Indenture and any
applicable laws, notwithstanding any notice
to the contrary received by any of
them. So long as all Bonds are registered
in the name of DTC or its nominee or
any qualified successor, the Borrower and
the Paying Agent shall cooperate with
DTC or its nominee or any qualified
successor in effecting payment of the
principal of, redemption premium, if any,
and interest on the Bonds by arranging
for payment in such manner that funds for
such payments are properly identified
and are made to DTC when due.
(3) Upon
receipt by the Trustee or the Paying Agent of written
notice from DTC to the effect that DTC is
unable or unwilling to discharge its
responsibilities, the Authority shall issue
and the Paying Agent shall transfer
and exchange Bonds as requested by DTC in
appropriate amounts and in authorized
denominations, and whenever DTC requests
the Authority, the Paying Agent and the
Trustee to do so, the Trustee, the Paying
Agent and the Authority will, at the
expense of the Borrower, cooperate with DTC
in taking appropriate action after
reasonable notice (A) to arrange for a
substitute bond depository willing and
able upon reasonable and customary terms to
maintain custody of the Bonds or (B)
to make available for transfer and exchange
Bonds registered in whatever name or
names and in whatever authorized
denominations as DTC shall designate.
(4) In such
event, the Borrower shall so notify DTC, the Paying
Agent and the Trustee, whereupon DTC will
notify the Participants of the
availability through DTC of Bond
certificates. In such event, the Authority
shall issue and the Paying Agent shall
transfer and exchange Bond certificates
as requested by DTC in appropriate amounts
and in authorized denominations.
Whenever DTC requests the Paying Agent to
do so, the Paying Agent will cooperate
with DTC in taking appropriate action after
reasonable notice to make available
for transfer and exchange Bonds registered
in whatever name or names and in
whatever authorized denominations as DTC
shall designate.
(5) The
Authority may decide to discontinue use of the system of
book-entry transfers through DTC (or a
successor securities depository). In that
event, Bond certificates will be printed
and delivered.
(6)
Notwithstanding any other provisions of this Indenture to the
contrary, so long as any Bond
