Exhibit 10.1
EXECUTION COPY
$82,000,000
New York State Energy Research and Development Authority
4.70% Gas Facilities Revenue Bonds
(The Brooklyn Union Gas Company
d/b/a KeySpan Energy Delivery New York Project)
2005 Series A
-----------------------
BOND PURCHASE AGREEMENT
-----------------------
October 26, 2005
New York State Energy Research and
Development Authority
17 Columbia Circle
Albany, New York 12203-6399
The Brooklyn Union Gas Company
d/b/a KeySpan Energy Delivery New York
One MetroTech Center
Brooklyn, New York 11201-3851
Ladies and Gentlemen:
Morgan Stanley
& Co.
Incorporated, BNY
Capital Markets, Inc.,
Sovereign
Securities Corporation, LLC and The Williams Capital Group, L.P. (each, an
"Underwriter" and collectively, the "Underwriters") offer to enter into the
following agreement with New York State Energy Research and Development
Authority (the "Authority") and The Brooklyn Union Gas Company d/b/a
KeySpan
Energy Delivery New York (the "Company"), which, upon acceptance of this Bond
Purchase Agreement (the "Bond Purchase
Agreement") by the
Authority and by the
Company, will be binding upon the
Authority, the Company
and the Underwriters.
This offer is made subject to acceptance of
this Bond Purchase
Agreement by the
Authority and the Company on or before 4:00 P.M. New York time on the date
hereof, and if not so accepted, will be subject to withdrawal by the
Underwriters upon notice delivered to your offices, at any time prior to the
acceptance hereof by the Authority and the Company. Terms used in the Bond
Purchase Agreement but not defined
herein shall have the
meanings assigned
to
them in the Indenture (as hereinafter
defined).
1.
Background
Per the request of the Company, the Authority has agreed to issue
$82,000,000 aggregate principal amount of 4.70% Gas Facilities
Revenue Bonds
(The Brooklyn Union Gas Company d/b/a
KeySpan Energy Delivery New York Project),
2005 Series A (the "Bonds"), for the purpose of refunding the Authority's
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Adjustable Rate Gas Facilities Revenue Bonds, Series 1989A (The Brooklyn
Union
Gas Company Project) and Adjustable Rate Gas
Facilities Revenue
Bonds, Series
1989B (The Brooklyn Union Gas Company
Project) in the aggregate principal amount
of $82,000,000 (collectively, the "Prior Bonds"). The Prior Bonds were
previously issued to provide all or part of the funds for the acquisition,
construction, and installation (or any combination thereof) of certain
facilities for the local furnishing of
gas.
The Bonds shall
be issued under and
secured by an indenture of trust dated
as of November 1, 2005 (the "Indenture") between the Authority and Citibank,
N.A., as trustee (the "Trustee"), and pursuant to a bond
resolution
of the
Authority, Resolution No. 1093 adopted
September 19, 2005 (the "Resolution"). In
connection with the issuance of the Bonds,
the Authority and the Company will
enter into a participation agreement related to the Bonds dated as of
November
1, 2005 (the "Participation Agreement") pursuant to which the Company
proposes
to issue a promissory note, substantially in the form attached to the
Participation Agreement, to evidence the obligation of the Company to the
Authority to repay the advance of the proceeds of the Bonds (the "Company
Note"). On the Closing Date (as defined in
Section 7 hereof), the
Company will
also execute a Rule 15c2-12(b)(5)
continuing disclosure
certificate, dated
the
Closing Date relating to the Bonds (the
"Company's Disclosure Certificate"). On
and after the Closing Date, the payment of
the regularly scheduled principal of,
and interest on, the Bonds will be insured by a municipal bond new issue
insurance policy (the "Support Facility" or the "Insurance
Policy") issued by
Financial Guaranty Insurance Company (the
"Insurer").
The Bonds will
be limited obligations
of the Authority
payable solely out
of revenues or other receipts, funds or moneys pledged therefor under the
Indenture or from the proceeds of the
Support Facility.
2. Purchase and
Sale of Bonds. Subject
to the terms and conditions of this
Bond Purchase Agreement, on the Closing Date, the
Underwriters
will purchase
$82,000,000 principal amount of the Bonds
from the Company at a price of 100% of
the principal amount thereof. The Underwriters will be paid a fee in an
amount
equal to 0.50% of the principal amount of
the Bonds, plus
certain out of pocket
expenses of the Underwriters, by the
Company on the Closing Date.
The Underwriters
will take up and pay
for all of the Bonds to be purchased
by it if any are taken. The Underwriters will initially reoffer the Bonds
purchased by them to the public at a price
of 100% of the par
amount thereof.
The purchase will be made by the delivery
of immediately available funds through
the facilities of The Depository Trust
Company in New York, New York.
3. Official
Statement and
Compliance with Rule 15c2-12. The Authority and
the Company have made available to the
Underwriters an official statement dated
the date hereof, executed on behalf of the
Authority as indicated thereon,
including (i) an appendix consisting of financial and other information in
respect of the Company (the "Company
Appendix"), (ii) an
appendix consisting of
the form of approving opinion of Hawkins Delafield & Wood LLP, Bond
Counsel to
the Authority to be delivered upon the issuance of the Bonds (the
"Opinion
Appendix"), (iii) an appendix consisting of a copy of a form of the
Insurance
Policy of the Insurer (the "Policy
Appendix") and (iv) an appendix consisting of
a form of the Company's Disclosure Certificate (the "Disclosure Certificate
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Appendix" and, together with the Company
Appendix, the Opinion
Appendix and the
Policy Appendix, the "Appendices").
Such Official
Statement, together
with the
Appendices, and any supplements and
amendments to such Official Statement or the
Company Appendix, is hereinafter called the
"Official Statement." The Authority
and the Company consent to such use by the
Underwriters prior to the date hereof
of a preliminary official statement dated October 19, 2005, including the
appendices thereto (the "Preliminary
Official Statement").
For a period of
time extending to the
end of the
underwriting period
for
the Bonds, the Company will make available to
the Underwriters
such number of
copies of the Official Statement as the
Underwriters shall
reasonably
request.
The "end of the underwriting period" shall have the meaning
given to such term
in paragraph (f)(2) of Rule 15c2-12
promulgated by the
Securities and Exchange
Commission (the "Commission") under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). The Underwriters will promptly advise the
Authority and the Company of the date they
believe the
underwriting period
for
the Bonds has ended (which in the absence of such
advice shall be deemed
to be
the Closing Date), and until and unless it shall be determined by the
Underwriters that the underwriting period has ended on a different
date, such
date shall be deemed the end of the
underwriting
period for
purposes of this
Bond Purchase Agreement.
The Authority
hereby represents and
warrants to the Underwriters that the
information contained in the Preliminary
Official Statement as of the date of
the Preliminary Official Statement, and in
the Official Statement as of the date
the Official Statement is delivered to the
Underwriters, is complete, within the
meaning of paragraph (f)(3) of Rule 15c2-12, except for the following
information:
(i) under the heading "THE
BONDS--Securities
Depository"
concerning The
Depository Trust
Company ("DTC") and its book-entry system ("DTC
Information");
(ii) under
the headings "THE PROJECT" and "CONTINUING DISCLOSURE
UNDERTAKING";
(iii) in the
Company Appendix ("Company Information");
(iv) under the
heading "UNDERWRITING"
in the first
sentence of the
first
paragraph
and the last sentence of the second paragraph ("Underwriters
Information")
(v) in the Policy Appendix and under the headings "THE INSURANCE
AGREEMENT" and "THE INSURANCE POLICY" ("Insurer Information").
The Company
hereby represents and warrants to the
Underwriters
that the
information contained in the Preliminary
Official Statement as of the date of
the Preliminary Official Statement, and in
the Official Statement as of the date
the Official Statement is delivered to the Underwriters, other than the
Authority Information (as defined in Section
5(l) hereof), the DTC Information,
the Underwriters Information, the Insurer
Information, and the Opinion Appendix,
is complete, within the meaning of
paragraph (f)(3)of Rule 15c2-12.
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The Authority and the Company confirm that, as of the date of the
Preliminary Official Statement, and as of the date of the Official
Statement,
the Authority deemed the information in the
Preliminary Official
Statement and
the Official Statement, other than the information
referenced in
subparagraphs
(i) through (vi) above, and the Company deemed the information in the
Preliminary Official Statement and the Official Statement, other than the
Authority Information, the DTC Information and the
Insurer Information, to have
been final for purposes of paragraph (b)(1) of Rule 15c2-12 as of the date
delivered to the Underwriters (except for the omission of that information
permitted to be omitted by Rule
15c2-12).
The Underwriters
agree to file the Official Statement and any amendments or
supplements thereto before the end of the
underwriting period
with each of the
"nationally recognized municipal securities
information repositories" within the
meaning of Rule 15c2-12.
The Underwriters
acknowledge that no financial statements or operating data
concerning the Authority are to be included
in the Official Statement, and that
no undertaking to provide such information
in the future will be required.
The Authority and the Company hereby authorize the Indenture, the
Participation Agreement and the Official
Statement and the information contained
therein to be used by the Underwriters, and ratify the use by the
Underwriters
prior to the date hereof of the
Preliminary
Official Statement in connection
with the offering and sale of the
Bonds.
4. Sale of all the Bonds; Offering. The Underwriters agree to make an
offering of all of the Bonds at a price not
in excess of the
initial offering
price, as set forth on the cover page of
the Official Statement. Simultaneously
with or before delivery of the Bonds,
the Underwriters shall furnish to the
Authority a certificate acceptable to Bond Counsel to the effect that
(1) the
Underwriters have made a bona fide public
offering of the Bonds to the public at
an initial offering price not greater than the price
shown on the cover of the
Official Statement and (2) ten percent
(10%) or more of the final amount of the
Bonds was sold to the final purchasers thereof (not including bond houses and
brokers or similar persons or organizations acting in the capacity of
Underwriters or wholesalers) at a price not
greater than such initial offering
price.
5.
Representations,
Warranties, Covenants and Agreements of the Authority.
The Authority, by its acceptance hereof,
represents,
warrants, covenants and
agrees with the Underwriters and the
Company as follows:
(a) The Authority is a body corporate and politic, duly established and
existing
under the constitution and laws of the State of New York as a
public benefit
corporation, and is
authorized by the provisions of the New
York State
Energy Research and Development Authority Act, Title 9 of
Article
8 of the Public Authorities Law of the State of New York, as
amended (the
"Act"), (i) to offer,
issue, sell and deliver the Bonds for
the purposes
specified in the Indenture, (ii) to secure the payment of
the
Bonds by causing
the Company to deliver the Company Note to the Trustee and
by pledging and assigning to the Trustee certain of the rights of the
Authority under
the Participation Agreement, the Company Note, the Revenues
(as defined in
the Indenture) and the
Tax Regulatory
Agreement and
(iii)
subject
to the granting or waiver of the Approvals, to enter into and
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perform its
obligations under this Bond Purchase Agreement, the Bonds, the
Participation
Agreement,
the Indenture,
the Tax Regulatory
Agreement and
any other
instrument
or agreement
to which the
Authority is a party
and
which has been
executed in connection with the transactions contemplated by
the foregoing
documents in order to accomplish the foregoing actions.
(b) Subject to the granting or waiver
of such approvals by
the Governor of the
State
of New York, the Comptroller of the State of New York, the
Commissioner
of Taxation
and Finance of the
State of New York and the New
York
State Public Authorities Control Board (the "Approvals") as are
required by law,
including the Act, and
as have not been granted or waived
on the date
hereof, the
Authority has full
power and authority to execute
and deliver,
to take all actions
required or permitted
to be taken by the
Authority
by or under,
and to perform and observe the covenants and
agreements
on its part
contained in, this
Bond Purchase
Agreement,
the
Bonds,
the Participation Agreement, the Indenture, the Tax Regulatory
Agreement and
any other instrument
or agreement relating
thereto to which
the Authority is a party, and the Authority has complied with all
provisions of
applicable law,
including the Act, in all matters related to
such
actions. The Authority will use its best efforts to secure the
Approvals.
(c) The Authority has, on or before the date hereof, duly taken all action
necessary
to be taken by it or
on its behalf prior to
such date for: (i)
the offering,
sale and delivery of
the Bonds upon the terms and conditions
and for the
purposes described herein and in the Official Statement, (ii)
the adoption of
the Resolution,
(iii) the execution
and delivery by it of
the Indenture
(including the pledge by the Authority of the amounts payable
by the Company
under the Participation Agreement and its interest in
the
Company Note),
(iv) the execution,
delivery and
performance of this
Bond
Purchase
Agreement, the
Participation
Agreement, the
Indenture, the Tax
Regulatory
Agreement and any other instrument or agreement to which the
Authority
is a party and which
has been or will be executed in connection
with the
transactions
contemplated
by the foregoing documents and the
Official
Statement, (v) the approval, execution, delivery and
distribution
of the Official
Statement,
and (vi) the carrying
out, giving effect to,
consummation
and performance of the transactions and obligations
contemplated
hereby and by the Official Statement; provided that no
representation
is made with respect
to compliance with the
securities or
"Blue
Sky" laws of the
various states of the United States. Executed
counterparts
of the Indenture, the Participation Agreement and the Tax
Regulatory
Agreement and three signed copies of the Official Statement
will
be delivered to
the Underwriters by the Authority on the Closing Date.
(d) This Bond Purchase Agreement has been duly executed and
delivered by the
Authority.
The Resolution has
been duly adopted by the Authority and is in
full force and
effect, and this Bond Purchase Agreement, the Participation
Agreement,
the Indenture, the Tax Regulatory Agreement and any other
instrument
or agreement to which the Authority is a party and which
has
been or
will be executed in connection with the consummation of the
transactions
contemplated by the
foregoing documents,
when duly executed
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<PAGE>
and delivered by
the parties thereto,
will constitute valid and binding
obligations
of the Authority enforceable against the Authority in
accordance with
their respective terms, except as the enforcement
thereof
may be limited
by bankruptcy,
insolvency,
reorganization,
moratorium or
other laws
relating to or affecting the enforcement of creditors' rights
or
contractual
obligations
generally or by
principles of equity
or judicial
discretion.
(e) Subject to the granting or waiver of the Approvals, the execution and
delivery
of the Official Statement, and the execution, delivery and
performance
by the Authority of this Bond Purchase Agreement, the
Participation
Agreement,
the Bonds,
the Indenture, the Tax Regulatory
Agreement and
any other instrument or agreement to which the Authority is a
party
and which has been or will be executed in connection with the
consummation of
the transactions
contemplated by the foregoing documents,
the compliance
with the terms, conditions or provisions hereof and thereof,
and the
consummation of the transactions herein and therein contemplated
do
not and will not
conflict with or constitute a breach of or a default under
or result in a violation of (i) the Act, (ii) any agreement or other
instrument
to which the
Authority is a party
or by which the Authority or
any of its
properties is bound,
or (iii) any
constitutional or
statutory
provision
or order, rule, regulation, decree or ordinance of any
court,
government or
governmental authority having jurisdiction over the Authority
or any of its properties.
(f) On and as of the Closing Date, all
authorizations,
consents and
approvals
of, notices to,
registrations or filings with, or actions in respect of any
governmental
body, agency or other
instrumentality or court required to be
obtained,
given or taken on
behalf of the Authority in connection with the
execution,
delivery and
performance by the Authority of this Bond Purchase
Agreement,
the Bonds, the
Participation
Agreement, the Indenture, the Tax
Regulatory
Agreement and any other agreement or instrument to which the
Authority
is a party and which
has been or will be executed in connection
with
consummation
of the transactions contemplated by the foregoing
documents,
including,
without limitation, the granting or waiver of the
Approvals,
will have been obtained, given or taken and will be in
full
force and
effect, provided that
no representation is
made with respect to
compliance
with the securities or
"Blue Sky" laws of the various states of
the United
States.
(g) There is no action, suit,
proceeding, inquiry or investigation before or by
any court,
public board or body
pending or, to the
best knowledge of
the
Authority,
threatened
against or affecting the Authority wherein an
unfavorable
decision, ruling or finding would adversely affect (i) the
validity or
enforceability of, or the authority or ability of the Authority
to perform its
obligations under, this Bond Purchase Agreement, the Bonds,
the
Participation Agreement, the Indenture, the Tax Regulatory
Agreement or
any other
agreement or
instrument
to which the
Authority is a party
and
which has been
or will be executed in connection with the consummation by
the Authority of
the transactions
contemplated by the foregoing documents
or (ii) the
exclusion from gross
income for Federal income tax purposes of
interest on the
Bonds afforded by Section 103 of the Internal Revenue Code
of 1986, as
amended.
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(h) On the Closing Date the Bonds will
be duly authorized, executed, issued and
delivered
and constitute valid and binding limited obligations of the
Authority
enforceable in
accordance with their
terms and the terms of the
Resolution
and the Indenture and entitled to the
benefits and security of
the Indenture,
the Participation
Agreement, the Tax
Regulatory Agreement,
the Company Note and the Act, except as the enforcement thereof may be
limited by
bankruptcy, insolvency, reorganization, moratorium or other
laws
relating
to or affecting the enforcement of creditors' rights or
contractual
obligations
generally or by
principles of equity
or judicial
discretion.
(i) On and as of the Closing Date, the Bonds will be secured by a
lien and a
pledge of (1)
the Revenues; (2) the Participation Agreement and the Company
Note and all
rights, remedies and interest of the Authority under the
Participation
Agreement and the Company Note and any other agreement
relating to the
Project (except the
rights and interests
of the Authority
with
respect to (a) administrative compensation, attorney's fees and
indemnification,
(b) the receipt of
notices, opinions,
reports, copies of
instruments and
other items of a similar nature required to be delivered to
the Authority
under the Participation Agreement, (c) granting approvals and
consents and
making determinations
when required under
the Participation
Agreement,
(d) making requests for information and inspections in
accordance with
the Participation
Agreement,
(e) Sections 4.03,
4.08 and
4.09 of the
Participation
Agreement and, insofar as the obligations of the
Company under
Section 4.07 relate to taxes and assessments imposed upon the
Authority
and not the
Trustee, Section 4.12 thereof and (f) the
right to
amend the
Participation
Agreement); (3) the
Tax Regulatory
Agreement and
all rights,
remedies and interest
of the Authority
thereunder (subject to
the reservation
by the Authority of the right to enforce the obligations of
the Company thereunder independently of the Trustee and subject to the
provisions
of the Tax Regulatory Agreement relating to the amendment
thereof);
(4) all other monies,
rights and properties
held by the Trustee
or other depositary under the
Indenture including, but only for the benefit
of the
persons specified in the Indenture, the proceeds of any draw,
borrowing or
payment under any Support Facility (other than the Insurance
Policy) and the
securities (and the interest, income and profits therefrom)
in which such
monies may from time
to time be invested
(exclusive of the
proceeds
of a Support
Facility or the Rebate
Fund); and (5) any and all
other
real or personal property of every nature from time to time by
delivery
or by writing of any kind specially mortgaged, pledged or
hypothecated,
as and for additional
security under the
Indenture, by the
Company in favor
of the Trustee or the Authority.
(j) The Authority will cooperate with
the Underwriters and their counsel in the
qualification
of the Bonds for
offering and sale and the determination of
the eligibility of the Bonds for investment under the laws of such
jurisdictions as
the Underwriters shall
designate and to continue any such
qualification
in effect so long as
required for the
distribution
of the
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Bonds
by the Underwriters, provided that the Authority shall not be
required to take
any action which would
subject it to general
service of
process
in any jurisdiction where it is not now so subject. It is
understood that
the Authority is not responsible for compliance with or the
consequences
of the failure to comply with the
securities
or "Blue Sky"
laws of the
various states of the United States.
(k) The Authority is not in default in
the payment of principal of, premium, if
any, or interest
on any bonds or notes and, other than the Indenture, the
Authority
has not entered
into any contract or arrangement of any kind
which might give
rise to any lien or encumbrance on the assets, funds and
interests
pledged pursuant to, or subject to the lien of, the Indenture.
(l) The information contained under the heading "THE
AUTHORITY"
("Authority
Information") in
the Preliminary Official Statement as of its date was, and
in the Official
Statement is, and as
of the Closing Date will be, true and
correct
and does not and will not contain any untrue or incorrect
statement,
or misleading statement, of a material fact and does not
and
will not
omit to state a material fact necessary in order to make the
statements
made therein,
in light of the
circumstances
under which they
were made, not
misleading.
(m) Any certificate authorized by resolution of the
Authority, signed by
any
authorized
official or officials
of the Authority and delivered to the
Underwriters
or the Company, shall be deemed a representation by the
Authority to the
Underwriters or the Company, as the case may be, as to the
statements made
therein.
(n) The Authority will take or cause to be taken
such other action as may
reasonably
be required on its part to consummate the transactions
contemplated by
this Bond Purchase Agreement, the Bonds, the Indenture, the
Tax Regulatory
Agreement, and the Participation Agreement.
(o) Until the end of the underwriting period, the Authority will advise the
Company and the
Underwriters
promptly (i) of the
institution of any legal
or regulatory proceedings affecting the Authority of which
the Authority
has knowledge affecting the use of the Official
Statement in
connection
with the offer
and sale of the Bonds
and (ii) if the
Authority believes
that the
Authority Information is not true or correct, contains any untrue
or incorrect
statement or misleading statement of a material fact or
omits
to state a
material fact necessary in order to make the statements
therein,
in light of the
circumstances under which they were made, not misleading.
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6. Representations, Warranties, Covenants and Agreements of the
Company.
The Company, by its acceptance hereof, represents, warrants, covenants and
agrees with the Underwriters and the
Authority as follows:
(a) The Company has been duly
incorporated
and is in good
standing under the
laws of the
State of New York, is
qualified to do business in the State of
New York and in
every other
jurisdiction where the
nature of its business
requires
it to be so
qualified,
is not required to be qualified to do
business in any
other jurisdiction,
has corporate
power and authority
to
own its
properties and to conduct its business and, except as described in
the Preliminary
Official Statement and
the Official
Statement,
possesses
all material licenses and approvals necessary for the conduct of its
business
as described in the Preliminary Official Statement and the
Official
Statement;
(b) The Company has corporate
power and authority to execute and deliver,
to
take all
actions required or permitted to be taken by the Company by
or
under,
and to perform
its obligations and observe the covenants and
agreements
on its part
contained in, and to engage in the transactions
contemplated
on its part by, this
Bond Purchase
Agreement, the
Company's
Disclosure
Certificate,
the Participation Agreement, the Insurance
Agreement, the
Company Note and the Tax Regulatory Agreement;
(c) The Company has, on or before the date hereof, duly taken all action
necessary
to be taken by it
prior to such date for the authorization of:
(i) the
execution,
delivery and
performance
by the Company of this
Bond
Purchase
Agreement, the
Participation Agreement, the Company Note, the Tax
Regulatory
Agreement, the
Insurance Agreement and the Company's Disclosure
Certificate and
(ii) the carrying out, giving effect to, consummation and
performance by
the Company of the transactions and obligations contemplated
hereby,
thereby and by the
Preliminary Official Statement and the Official
Statement;
provided, that no representation is made with respect to
compliance
with the securities or
"Blue Sky" laws of the various states of
the United
States;
(d) This Bond Purchase Agreement has been duly executed and
delivered by the
Company.
This Bond Purchase
Agreement, the
Participation
Agreement, the
Company Note,
the Tax Regulatory Agreement, the Insurance Agreement and the
Company's
Disclosure
Certificate
when duly executed and
delivered by the
parties thereto,
will constitute legal,
valid and binding
obligations of
the Company, enforceable against the Company in accordance with their
respective
terms, except as the enforcement thereof may be limited by
bankruptcy,
insolvency,
reorganization,
moratorium or other laws relating
to or
affecting the enforcement of creditors' rights or contractual
obligations
generally or by principles of equity or judicial discretion and
except
as rights of indemnification or contribution under this Bond
Purchase
Agreement may be limited by applicable securities laws or
principles
of public policy and except as indemnification provisions of
this Bond
Purchase Agreement purport to indemnify the Authority or the
Underwriters
against their own gross negligence or willful misconduct;
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<PAGE>
(e) The execution and delivery by the
Company of this Bond Purchase Agreement,
the Participation Agreement, the Company Note, the Tax Regulatory
Agreement, the Insurance Agreement and the Company's Disclosure
Certificate,
the compliance by the Company with the
terms, conditions
or
provisions
hereof and thereof,
and the consummation
by the Company of the
transactions
contemplated
herein and
therein do not and
will not violate
any existing law
or any material regulation, rule, order, writ, injunction
or decree of any
court, Federal or
state regulatory body,
administrative
agency or other
governmental body applicable to the Company, or contravene
the Certificate
of Incorporation or by-laws of the Company, or result in a
breach of any of
the terms, conditions
or provisions
of, or constitute
a
default under,
any material mortgage, indenture, agreement or instrument to
which the
Company is a party or by which it or any
of its properties
is
bound or result
in the creation or imposition of any mortgage, lien, charge
or other
security interest or encumbrance of any nature whatsoever upon
any
of the
properties or assets
of the Company other than any liens, charges,
security
interests or
encumbrances created,
permitted or
contemplated by
the
Participation Agreement or the Company Note;
(f) On and as of the Closing Date, all
authorizations,
consents and
approvals
of, notices to, registrations or filings with, or actions in
respect of,
any governmental body, agency, regulatory
authority
or other
instrumentality
or court required to be obtained, given or taken on behalf
of the Company
in connection with the
offering and sale of the Bonds, the
procurement
of the Insurance Policy and the execution, delivery and
performance
by the Company of this Bond Purchase Agreement, the
Participation
Agreement,
the Company Note, the
Tax Regulatory
Agreement,
the Insurance Agreement and the Company's Disclosure Certificate,
including,
without limitation,
orders of the Public
Service Commission of
the State of New
York with respect to
the issuance of the Company Note and
the execution
and delivery by the Company of the Participation Agreement,
will
have been obtained, given or taken and will be in full force and
effect,
provided that no
representation is made with respect to compliance
with the
securities or "Blue
Sky" laws of the various states of the United
States;
(g) Except as stated in the Official Statement, there is no action, suit,
proceeding,
inquiry or
investigation
at law or in equity or
before or by
any court, public board or body pending or, to the knowledge of the
Company,
threatened
against or affecting the Company, or to the best
knowledge
of the Company, any basis therefor, wherein an unfavorable
decision,
ruling or finding
would have a material
adverse effect on the
properties,
business,
condition (financial or other) or results of
operations
of the Company or the
transactions
contemplated
by this Bond
Purchase
Agreement or by the Participation Agreement, the Company Note,
the
Indenture,
the Tax Regulatory Agreement, the Insurance Policy, the
Insurance
Agreement or the Company's Disclosure Certificate, or which
would
10
<PAGE>
adversely
affect the validity or enforceability of the Bonds or the
Indenture,
or the authority or ability of the Company to perform its
obligations
under, this Bond Purchase Agreement, the Participation
Agreement,
the Company Note, the
Tax Regulatory
Agreement, the
Insurance
Agreement or the
Company's Disclosure Certificate;
(h) The Company is not in default
under any indenture or other agreement or
instrument
governing outstanding indebtedness issued by the
Company, nor
has any event
occurred and is
continuing which with
notice or the passage
of time or both
would constitute a default under any such document, and the
Company
is in compliance with all prior undertakings pursuant to Rule
15c2-12(b)(5);
(i) The financial statements included as part of the Company
Appendix present
fairly the
financial position,
results of operation
and cash flows of the
Company at the
respective dates and for the respective periods indicated,
all in
conformity with generally accepted accounting principles applied
(except as
otherwise noted) on a
consistent basis
throughout the
periods
involved.
The Company has no
material contingent
obligation which is
not
disclosed in the
Company Appendix;
(j) The Bonds, the Indenture,
the Participation
Agreement,
the Company Note,
the Project,
the Tax Regulatory Agreement, the Insurance Policy, the
Insurance
Agreement and the Company's Disclosure Certificate conform in
all
material
respects to the
descriptions
thereof or
statements
in respect
thereof in the
Official Statement;
(k) Except as reflected in or contemplated by the Official Statement,
subsequent
to the dates as of
which information
is given in the
Official
Statement
and prior to the date
hereof there has been no material adverse
change
or a prospective adverse change in the properties, business,
condition
(financial
or other) or results
of operations
of the Company,
whether
or not arising from transactions in the ordinary course of
business;
(l) The Company will not take or omit to take any
action which action or
omission (i)
would in any way cause the proceeds from the sale of the Bonds
to be applied in
a manner contrary to
that provided for in the Indenture,
the Participation Agreement and the Tax Regulatory
Agreement or (ii) would
result
in a breach
of the covenants contained in Section 5.04 of the
Participation
Agreement;
(m) The Company will cooperate with
the Underwriters
and their counsel in
the
arrangements
for the qualification of the Bonds for
offering and sale and
the determination of the eligibility
of the Bonds for investment under the
laws of such
jurisdictions
as the Underwriters shall designate and will
cooperate in the
continuation of any such qualifications in effect so
long
as required for
the distribution of the Bonds by the Underwriters, provided
that the
Company shall not be required to qualify to do business in
any
jurisdiction
where it is not now so
qualified or to take
any action which
would subject it
to general service of process in any jurisdiction where it
is not now so
subject. It is understood that the Company is not responsible
for compliance with or the consequences of failure to comply with the
securities or
"Blue Sky" laws of the various states of the United States;
11
<PAGE>
(n) The descriptions and information contained in the Preliminary Official
Statement as of
its date was, and in the Official Statement is, and as of
the Closing
Date will be,
true and correct and does not, and as of the
Closing Date
will not, contain any
untrue statement of a
material fact or
omit to state
any material fact
necessary in order to make the statements
made therein, in
light of the circumstances under which they were made, not
misleading,
provided that no representation is made with respect to the
Authority
Information, the DTC
Information, the
Underwriters Information,
the Insurer
Information or the
Opinion Appendix,
or any statements in
or
omissions from
the Preliminary Official Statement or the Official Statement
under the
heading "TAX MATTERS." Until the end of the underwriting
period,
the Company will
advise the Authority and the Underwriters promptly if the
Company believes
that the information
contained in the Official Statement
contains any
untrue or incorrect
statement or
misleading
statement of a
material fact or
omits to state a material fact necessary in order to make
the statements
therein, in light of the circumstances under which they were
made,
not misleading. If at any time from the date
hereof until 90
days
following the
end of the underwriting period, when, in the opinion of the
Underwriters,
the Official Statement should be delivered in connection with
the sale of the
Bonds, any event
occurs as a result of which, if the event
relates to the
Company, in the opinion of counsel to the Company, the
Official
Statement (except for the Authority Information, the DTC
Information,
the Underwriters
Information,
the Insurer
Information, the
Opinion
Appendix or any statements in or omissions from the Official
Statement under
the heading "TAX MATTERS", as to which the Company makes no
representation
or warranty) as then
amended or supplemented would include
an untrue
statement of a
material fact, or omit to state any material fact
necessary to
make the statements
therein, in light of the circumstances
under which they
were made, not misleading, the Company will cooperate with
the Underwriters
in preparing an amendment or supplement which will correct
such statement
or omission;
(o) The Company will furnish or cause to be
furnished to the Underwriters
copies of the
Indenture, the
Participation
Agreement, the Tax
Regulatory
Agreement,
the Insurance
Agreement, the
Company's Disclosure
Certificate
and the Official
Statement and all amendments and supplements to such
documents,
in each case as soon
as available and in such quantities as the
Underwriters may
reasonably request;
(p) The Company will not amend or
supplement the Official Statement without the
consent of the
Underwriters and the Authority;
(q) The Company will advise the
Authority and the Underwriters promptly of the
institution of
any legal or regulatory proceedings of which the Company has
knowledge
affecting the use of
the Official Statement
in connection with
the offer and
sale of the Bonds;
12
<PAGE>
(r) Any certificate authorized by resolution of the Company, signed by any
authorized
officer or officers of the Company and delivered to the
Authority
or the Underwriters, shall be deemed a representation by the
Company to the
Authority or the Underwriters, as the case may be, as to the
statements made
therein;
(s) The Insurance Policy will be in full force and
effect on the Closing Date;
and
(t) The Company will undertake, pursuant to the Company's Disclosure
Certificate to provide
certain annual financial information and notices of
the occurrence of certain events, if material. A form of the Company's
Disclosure
Certificate is set
forth in the Disclosure Certificate Appendix
to the Official
Statement.
7. Closing.
At 10:00 A.M.,
New York time, on
November 1, 2005, or on such
other date as shall be agreed upon in
writing by the Authority, the Company and
the Underwriters (the "Closing Date"), the Company will instruct DTC to
credit
the Bonds to the account of, or as
otherwise instructed by, the Underwriters and
upon receipt of the other documents
hereinafter mentioned, the Underwriters will
accept such delivery and pay the purchase price of the Bonds as set forth
in
Section 2 hereof, by wire transfer of immediately available funds to the
Trustee. Acceptance of each delivery and
payment as aforesaid
shall be made at
the office of Hawkins Delafield & Wood
LLP, 67 Wall Street,
New York, New York.
The Bonds shall be in definitive form, bearing CUSIP numbers and shall be
registered in the name of Cede &
Co.
8. Conditions of Closing.
The obligation of the
Underwriters to
purchase
and pay for the Bonds on the Closing Date shall be subject to the due
performance by the Authority and the
Company of their respective obligations to
be performed under this Bond Purchase
Agreement prior to or on the Closing Date,
and the accuracy of the respective representations and warranties of the
Authority and the Company contained herein, as of the date
hereof and as of the
Closing Date, and shall also be subje
