Exhibit 10.2
EXECUTION COPY
$55,000,000
New York State Energy Research and Development Authority
Gas Facilities Revenue Bonds
(The Brooklyn Union Gas Company d/b/a
KeySpan Energy Delivery New York Project),
2005 Series B
-----------------------
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:
Goldman,
Sachs & Co.,
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
$55,000,000 aggregate principal amount of Gas Facilities Revenue Bonds (The
Brooklyn Union Gas Company d/b/a KeySpan
Energy Delivery New York Project), 2005
Series B (the "Bonds"), for the purpose of
refunding the Authority's $55,000,000
outstanding principal amount of Gas Facilities
Revenue Bonds, Series C (The
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Brooklyn Union Gas Company Project) (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. 1094 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"). In addition, the Trustee will enter into an
Auction Agency
Agreement
(the "Auction Agreement"), which the Company will
acknowledge
and agree to,
relating to the Bonds, dated as of November 1, 2005,
with The Bank of New
York
as Auction Agent (the "Auction Agent"),
providing, among other
things, that the
Auction Agent will follow certain auction procedures (each implementation
thereof, an "Auction") for the purpose of
determining the rate of interest which
the Bonds will bear when such rate is to be determined by an Auction. The
Company and the Auction Agent will also enter into a separate Broker-Dealer
Agreement with respect to the Bonds with each of
Goldman, Sachs &
Co. and BNY
Capital Markets, Inc. (each, a "Broker-Dealer" and collectively, the
"Broker-Dealers"), each dated as of November 1, 2005 (collectively, the
"Broker-Dealer Agreements"). 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
$55,000,000 aggregate 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 of
$192,500 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.
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3. Official
Statement and
Compliance with Rule 15c2-12. The Authority and
the Company have made available to the
Underwriters an official statement dated
October 19, 2005, 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"),
(iv) an appendix
consisting of a summary of the procedures
to be used in conducting Auctions (the
"Procedures Appendix") and (v) an appendix
consisting of a form of the Company's
Disclosure Certificate (the "Disclosure
Certificate Appendix" and, together with
the Company Appendix, the Opinion Appendix, the Policy Appendix and the
Procedures 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."
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 in
order to comply with paragraph (b)(4) of Rule 15c2-12 and the rules of the
Municipal Securities Rulemaking Board. 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 Official Statement is complete as of the date
delivered to the Underwriters, within the meaning of paragraph
(f)(3) of Rule
15c2-12, except for the following
information:
(i) under the heading "THE AUCTION RATE BONDS--Securities Depository"
concerning The
Depository
Trust Company
("DTC") and its
book-entry
system ("DTC Information");
(ii) under the
heading "INTRODUCTORY STATEMENT" in the last paragraph;
(iii) under
the headings "THE PROJECT" and "CONTINUING DISCLOSURE
CERTIFICATE";
(iv) in the
Company Appendix ("Company Information");
(v) under the heading "UNDERWRITING" in the second paragraph and on the
inside cover page in the last paragraph ("Underwriters
Information");
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(vi) under the
heading "THE
AUCTION RATE BONDS--Special Considerations
Relating to the Auction Rate Bonds Bearing Interest at Auction Period
Rates"; and
(vii) 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 Official Statement, 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 as of the date delivered to the Underwriters, within the meaning of
paragraph (f)(3)of Rule 15c2-12.
The Authority
and the Company
confirm that, as of the date of the Official
Statement, the Authority deemed the
information in the Official Statement, other
than the information referenced in
subparagraphs (i) through (vi) above, and the
Company deemed the information in the Official Statement, other than the
Authority Information, the DTC Information,
the Underwriters Information and the
Insurer Information, to have been final 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 and to notify the
Company and the
Authority of the date
of such filing.
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 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.
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,
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<PAGE>
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
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.
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(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 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
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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.
(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.
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(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
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 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
Official Statement,
possesses all
material licenses
and approvals necessary for the conduct of its
business as described in 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 Auction
Agreement, the
Broker-Dealer
Agreement, the
Remarketing 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,
the
Auction Agreement,
the Broker-Dealer Agreement, the Remarketing
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 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, the
Auction Agreement, the Broker-Dealer
Agreement, the
Remarketing
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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(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, the Auction Agreement,
the Broker-Dealer
Agreement,
the Remarketing 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, the Auction Agreement,
the Broker-Dealer
Agreement,
the Remarketing 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
10
<PAGE>
Policy, the
Insurance Agreement, the Auction Agreement, the
Broker-Dealer
Agreement, the
Remarketing Agreement, or the Company's
Disclosure
Certificate, or which
would 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, the Auction
Agreement, the
Broker-Dealer
Agreement, the Remarketing 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, the Auction
Agreement,
the Broker-Dealer
Agreement, the
Remarketing
Agreement and the
Company's Disclosure
Certificate conform
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 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 apply the proceeds of the Bonds in a manner
that is
consistent with the Indenture, the Participation Agreement and the
Tax
Regulatory Agreement
and 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
11
<PAGE>
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;
(n) The descriptions and information
contained 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
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 or the
Underwriters, the
Official Statement 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 Auction Agreement,
the Broker-Dealer
Agreement, the Remarketing 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 subject to
the following additional conditions:
(a) The Resolution shall have been duly adopted and the Official
Statement, the Bonds,
the Indenture, the Participation Agreement, the
Company Note, the Tax Regulatory Agreement, the Insurance Policy, the
Auction Agreement,
the Broker-Dealer Agreement, the Remarketing
Agreement and the
Company's Disclosure
Certificate
shall have been
duly authorized,
executed and
delivered,
and each of the
foregoing
shall be in full force
and effect
and shall not have
been amended,
modified or supplemented except as may have been mutually agreed to
by
the Underwriters.
(b) Subsequent to the acceptance of this Bond Purchase Agreement by the
Authority and the Company:
(i) There shall not
have occurred any material event in or affecting
particularly the
business or properties of the Company which, in
13
<PAGE>
the reasonable
judgment of the Underwriters, materially impairs
the investment quality of the Bonds;
(ii) The marketability
of the Bonds or the market price thereof shall
not, in the reasonable
judgment of the
Underwriters, have
been
materially and adversely affected by reason of:
(A) legislation
introduced
in or passed by the House of
Representatives or the
Senate of the Congress of the United
States, or recommended
to the Congress of the United States
for passage
by the President of the Uni
