<PAGE>
EXHIBIT 4.24
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BOND PURCHASE AGREEMENT
among
CONNECTICUT DEVELOPMENT AUTHORITY,
THE CONNECTICUT WATER COMPANY
and
A.G. EDWARDS & SONS, INC.
Dated September 1, 2004
$5,000,000
Connecticut Development Authority
Water Facilities Refunding Revenue Bonds
(The Connecticut Water Company Project - 2004A Series)
$4,550,000
Connecticut Development Authority
Water Facilities Refunding Revenue Bonds
(The Connecticut Water Company Project - 2004B Series)
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<PAGE>
EXHIBIT 4.24
BOND PURCHASE AGREEMENT
AGREEMENT,
dated September 1, 2004, among the Connecticut Development
Authority (the "Authority"), The
Connecticut Water Company (the "Borrower") and
A.G. Edwards & Sons, Inc. (the
"Underwriter"), with respect to the sale and
purchase of the Authority's $5,000,000
Water Facilities Refunding Revenue Bonds
(The Connecticut Water Company Project -
2004A Series) (the "Series 2004A
Bonds") and the Authority's $4,550,000
Water Facilities Refunding Revenue Bonds
(The Connecticut Water Company Project -
2004B Series) (the "Series 2004B
Bonds"; and, together with the Series 2004A
Bonds, the "Bonds") on the terms and
subject to the conditions herein set
forth:
1. The
Borrower has previously filed with the Authority its
application
for the issuance of the Bonds by the
Authority, and the Authority has authorized
the Bonds by a resolution duly adopted June
18, 2003 (the "Resolution"). The
Bonds will be special obligations of the
Authority payable solely out of the
revenues or other receipts, funds or moneys
pledged therefor, and from any
amounts otherwise available to the Trustee
for the payment thereof under the
indentures referred to below. The proceeds
of the sale of the Series 2004A Bonds
will be used to refund the Authority's
Water Facilities Revenue Bonds (The
Connecticut Water Company Project - 1993A
Series) (the "Series 1993A Prior
Obligations"), the proceeds of which were
used to refund tax exempt debt
previously issued by the Authority in 1988,
the proceeds of which were loaned to
the Borrower for use in the acquisition,
construction and installation of
certain additions to the water system of
the Borrower located in certain
municipalities within the State of
Connecticut (the "State") (the "Series 2004A
Project"). The proceeds of the sale of the
Series 2004B Bonds will be used to
refund the Authority's Water Facilities
Revenue Bonds (The Connecticut Water
Company Project - 1993B Series) (the
"Series 1993B Prior Obligations"; and,
together with the Series 1993A Prior
Obligations, the "Prior Obligations"), the
proceeds of which were used to refund tax
exempt debt previously issued by the
Authority in 1979, the proceeds of which
were loaned to the Borrower for use in
the acquisition, construction and
installation of certain additions to the water
system of the Borrower located in certain
municipalities within the State (the
"Series 2004B Project"; and, together with
the Series 2004A Project, the
"Project"). All such projects are to be
used for water facilities purposes, all
as more particularly described in the Loan
Agreements (the "Agreements"), each
dated as of August 1, 2004 and by and
between the Authority and the Borrower.
Pursuant to the Agreements, the Borrower
will execute and deliver to the
Authority the Borrower's notes (the
"Notes") to evidence its indebtedness
thereunder. Payments on the Notes shall be
applied to the amounts due on the
Bonds.
The Series
2004A Bonds shall be in all respects as described in, and shall
be issued under and pursuant to, an
Indenture of Trust (the "Series 2004A
Indenture"), dated as of August 1, 2004,
between the Authority and U.S. Bank
National Association, as trustee (the
"Trustee"). The Series 2004B Bonds shall
be in all respects as described in, and
shall be issued under and pursuant to,
an Indenture of Trust (the "Series 2004B
Indenture"; and, together with the
Series 2004A Indenture, the "Indentures"),
dated as of August 1, 2004, between
the Authority and the Trustee. In
connection with the execution and delivery of
the Indentures, the Authority and the
Trustee will execute and deliver a Letter
of Representation (the "Letter of
Representation") to The Depository Trust
Company ("DTC"). In order to assure the
exclusion of interest on the Bonds from
gross income for purposes of federal income
taxation, the Borrower, the
Authority
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EXHIBIT 4.24
and the Trustee will enter into Tax
Regulatory Agreements relating to each
series of Bonds, each dated as of the date
of issuance of the Bonds (the "Tax
Regulatory Agreements").
The
Agreements, the Tax Regulatory Agreements and the Indentures shall
be
in substantially the forms approved by the
Authority in connection with the
authorization of the Bonds.
In this
Bond Purchase Agreement, the term "Financing Documents", (1)
when
used with respect to the Borrower, means
the Agreements, the Notes, the Tax
Regulatory Agreements and the general
certificate of the Borrower delivered in
connection with the issuance of the Bonds
and (2) when used with respect to the
Authority, means any of the foregoing
documents and agreements referred to in
(1) above to which the Authority is a
direct party. The Financing Documents when
such term is used with respect to the
Borrower, do not include any documents or
agreements to which the Borrower is not a
direct party, including the Bonds, the
Indentures or the Letter of
Representation.
In order
to further secure the Bonds, Citizens Bank of Rhode Island (the
"Letter of Credit Bank") will deliver its
irrevocable direct-pay letters of
credit relating to each series of Bonds,
each dated as of September 2, 2004 (the
"Letters of Credit"). The Letters of Credit
will entitle the Trustee to draw an
amount sufficient to pay, when due, the
principal of, or the principal component
of the purchase price of, and up to 45
days' interest on the respective series
of Bonds. The Letters of Credit will be
issued pursuant to separate
Reimbursement and Credit Agreements
relating to each series of Bonds, each dated
as of August 1, 2004 (the "Reimbursement
Agreements"), by and between the
Borrower and the Letter of Credit Bank.
A.G.
Edwards & Sons, Inc. will serve as remarketing agent for the
Bonds
(the "Remarketing Agent") pursuant to
Remarketing Agreements relating to each
series of Bonds, each dated as of the date
of issuance of the Bonds, by and
between the Borrower and the Remarketing
Agent (the "Remarketing Agreements").
2. Subject
to the terms and conditions and upon the basis of the
representations hereinafter set forth, the
Authority hereby agrees to sell the
Series 2004A Bonds to the Underwriter and
the Underwriter hereby agrees to
purchase the Series 2004A Bonds from the
Authority at the purchase price of
$5,000,000.00. The Series 2004A Bonds shall
be dated the date of their delivery,
shall mature on July 1, 2028 and shall
initially bear interest at a variable
rate per annum, determined and payable as
provided in the 2004A Indenture. It
will be a condition to the Authority's
obligation to sell the Series 2004A Bonds
to the Underwriter and the obligation of
the Underwriter to purchase the Series
2004A Bonds that all Series 2004A Bonds be
sold and delivered by the Authority
and paid for by the Underwriter on the
Closing Date, as hereinafter defined.
3.
[Reserved].
4. Subject
to the terms and conditions and upon the basis of the
representations hereinafter set forth, the
Authority hereby agree to sell the
Series 2004B Bonds to the Underwriter and
the Underwriter hereby agrees to
purchase the Series 2004B Bonds from the
Authority at the purchase price of
$4,550,000.00. The Series 2004B Bonds shall
be dated the date of their delivery,
shall mature on September 1, 2028 and shall
initially bear interest at a
variable rate per annum, determined and
payable as provided in the 2004B
Indenture. It will be a
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EXHIBIT 4.24
condition to the Authority's obligation to
sell the Series 2004B Bonds to the
Underwriter and the obligation of the
Underwriter to purchase the Series 2004B
Bonds that all Series 2004B Bonds be sold
and delivered by the Authority and
paid for by the Underwriter on the Closing
Date, as hereinafter defined.
5. The
date of delivery and payment for the Bonds (the "Closing Date")
will be September 2, 2004 unless not later
than the fifth day preceding such
date the Borrower and the Underwriter agree
that the Closing Date will be a
specified date not later than the thirtieth
day subsequent to such date, in
which event the Closing Date will be the
date so specified. The Bonds shall be
available for inspection and packaging at
least twenty-four hours before the
Closing Date.
The
Authority will authorize the Trustee to authenticate and deliver
the
Bonds to the Underwriter through the
facilities of DTC, 55 Water Street, New
York, New York, utilizing the FAST System
pursuant to which the Trustee will
take custody of the Bonds as agent for DTC,
at approximately 11:00 A.M., New
York City time on the Closing Date, in
typewritten form, bearing CUSIP numbers,
duly executed and authenticated, registered
in the name of Cede & Co., as
nominee for DTC, against payment therefor
by wire transfer or other manner
payable in immediately available funds to
the Trustee for the account of the
Authority. The payment for the Bonds to the
Authority and the delivery thereof
to the Underwriter shall be made at the
offices of Murtha Cullina LLP, City
Place I, 185 Asylum Street, Hartford,
Connecticut. The Bonds will be delivered
in the form and denominations and shall be
otherwise as described in the
Indentures.
6. The
Authority hereby represents and warrants that:
(a) It is
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 of Connecticut, particularly
the State Commerce Act, constituting
Connecticut General Statutes, Sections
32-la through 32-23zz, as amended (the
"Act"). The Authority is authorized to
issue the Bonds in accordance with the Act
and to lend the proceeds thereof to
the Borrower to refund the Prior
Obligations of the Authority thereby
refinancing the improvements described in
the Indenture.
(b) The
Authority has complied with the provisions of the Act and has
full
power and authority pursuant to the Act to
consummate all transactions
contemplated by this Bond Purchase
Agreement, the Bonds, the Resolution, the
Indentures and the Financing Documents, and
to issue, sell and deliver the Bonds
to the Underwriter as provided herein.
(c) By
resolution duly adopted by the Authority and still in full
force
and effect, the Authority has authorized
the execution, delivery and due
performance of this Bond Purchase
Agreement, the Bonds, the Indentures and the
Financing Documents, and the taking of any
and all action as may be required on
the part of the Authority to carry out,
give effect to and consummate the
transactions contemplated by this Bond
Purchase Agreement, and all approvals
necessary in connection with the foregoing
have been received, except the State
Treasurer's approval.
(d) When
delivered to and paid for by the Underwriter in accordance with
the terms of this Bond Purchase Agreement,
the Bonds will have been duly
authorized, executed, authenticated, issued
and delivered and will constitute
valid and binding special obligations
of
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EXHIBIT 4.24
the Authority payable solely from revenues
or other receipts, funds or moneys
pledged therefor under the respective
Indentures and from any amounts otherwise
available therefor under the Indentures,
and will be entitled to the benefit of
the Indentures. Neither the State nor any
municipality thereof will be obligated
to pay the Bonds or the interest thereon.
Neither the faith and credit nor the
taxing power of the State nor any
municipality thereof is pledged for the
payment of the principal, and premium, if
any, of and interest on the Bonds.
(e) The
execution and delivery of this Bond Purchase Agreement, the
Bonds,
the Indentures and the Financing Documents,
and compliance with the provisions
thereof, will not conflict with or
constitute on the part of the Authority a
violation of, breach of or default under
its by-laws or any statute, indenture,
mortgage, deed of trust, note agreement or
other agreement or instrument to
which the Authority is a party or by which
the Authority is bound, or, to the
knowledge of the Authority, any order, rule
or regulation of any court or
governmental agency or body having
jurisdiction over the Authority or any of its
activities or properties, and all consents,
approvals, authorizations and orders
of governmental or regulatory authorities
which are required for the
consummation by the Authority of the
transactions contemplated thereby have been
obtained, except the State Treasurer's
approval.
(f)
Subject to the provisions of the Agreements and the Indentures,
the
Authority will apply the proceeds from the
sale of the Bonds to the purposes
specified in the respective Indentures and
the Financing Documents.
(g) To the
best knowledge of the Authority, there is no action, suit,
proceeding or investigation at law or in
equity before or by any court, public
board or body pending or threatened against
or affecting the Authority, or to
the best knowledge of the Authority, any
basis therefor, wherein an unfavorable
decision, ruling or finding would adversely
affect the transactions contemplated
hereby and by the Indentures, or which, in
any way, would adversely affect the
validity of the Bonds, the Resolution, the
Indentures, the Financing Documents,
this Bond Purchase Agreement, any agreement
or instrument to which the Authority
is a party and which is used or
contemplated for use in consummation of the
transactions contemplated hereby and by the
Indentures or the exemption from
taxation as set forth therein.
(h) Any
certificate signed by any Authorized Representative of the
Authority under the Resolution or this Bond
Purchase Agreement and delivered to
the Underwriter or to the Trustee shall be
deemed a representation and warranty
by the Authority to the Underwriter and the
Borrower as to the statements made
therein.
(i) The
information with respect to the Authority in the Official
Statement of the Authority (the "Official
Statement"), dated August 27, 2004, is
correct and complete, except that none of
the representations and warranties
herein apply to statements in or omissions
from the Official Statement made in
reliance on or in conformity with
information furnished to the Authority by the
Borrower, or to information under the
headings "THE PROJECT", "THE
BONDS--Book-Entry Only System", "THE
LETTERS OF CREDIT", "BONDOWNER'S
CONSIDERATIONS", "TAX MATTERS", "LEGAL
MATTERS" and "INDEPENDENT ACCOUNTANTS" or
to anything contained or incorporated by
reference in the appendices to the
Official Statement or otherwise with
respect to the Borrower. The Authority has
authorized the use of the Official
Statement and delivered duly executed copies
thereof in final form to the
Underwriter.
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EXHIBIT 4.24
It is
specifically understood and agreed that the Authority makes no
representation as to the financial position
or business condition of the
Borrower, the Letter of Credit Bank or any
other person and does not, with
respect to the Official Statement or
otherwise, except to the extent the
Authority deems the Official Statement to
be final as provided in Section 11
hereof, represent or warrant as to any of
the statements, materials (financial
or otherwise), representations or
certifications furnished or to be made and
furnished by the Borrower, the Letter of
Credit Bank or any other person in
connection with the sale of the Bonds, or
as to the correctness, completeness or
accuracy of any of such statements,
materials, representations or certificates.
7. The
Borrower represents and warrants that:
(a) The
Borrower has been duly organized and validly exists as a
corporation under the laws of the State,
having all requisite corporate power to
carry on its business as now
constituted.
(b) The
execution and delivery by the Borrower of the Financing
Documents,
the Reimbursement Agreements, the
Remarketing Agreements and this Bond Purchase
Agreement, and all other agreements herein
contemplated to be performed by the
Borrower, and the performance of the
conditions herein contained and those in
each of such instruments to be performed
are not in contravention of law and
will not conflict with or result in any
breach of any of the terms, conditions
or provisions of, or constitute a default
under any indenture, mortgage deed of
trust or other agreement or instrument to
which the Borrower is a party, or the
Certificate of Incorporation and any
special acts incorporated by reference
therein or Bylaws of the Borrower, or any
order, rule or regulation applicable
to the Borrower of any court or of any
federal or State regulatory body or
administrative agency or other governmental
body having jurisdiction over the
Borrower or over any of its properties, or
any statute, rule or regulation of
any jurisdiction applicable to the
Borrower, or result in the creation or
imposition of any lien, charge or
encumbrance upon any of the properties or
assets of the Borrower pursuant to the
terms of any indenture, agreement or
undertaking binding upon it; and, to the
extent required by law, the Connecticut
Department of Public Utility Control (the
"DPUC") has approved or waived
approval of all matters relating to the
Borrower's participation in the
transactions contemplated in the Financing
Documents and the Reimbursement
Agreements which require such approval or
waiver of approval; such approval or
waiver of approval remains in full force
and effect in the form issued; and,
assuming that the Bonds are securities
described in Section 3(a)(2) of the
Securities Act of 1933, as amended (the
"Securities Act"), and Sections 3(a)(12)
and (29) of the Securities Exchange Act of
1934, as amended (the "Exchange
Act"), no other consent, approval,
authorization or other order of any
regulatory body or administrative agency or
other governmental body is legally
required for the Borrower's participation
in connection therewith, except as
have been obtained.
(c) Except
as disclosed or incorporated by reference 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 Borrower
threatened, wherein an unfavorable decision,
ruling or finding would (i) in the opinion
of the Borrower, involve the
possibility of any judgment or liability to
the extent not covered by insurance
which would result in any material adverse
change in the business, properties or
operations of the Borrower, (ii) materially
adversely affect the transactions
contemplated by this Bond Purchase
Agreement or
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EXHIBIT 4.24
(iii) materially adversely affect the
validity or enforceability of the Bonds,
the Indentures, the Financing Documents,
the Reimbursement Agreements, the
Remarketing Agreements or this Bond
Purchase Agreement.
(d) The
Borrower will not take or omit to take any action which action
or
omission will in any way cause the proceeds
from the sale of the Bonds to be
applied in a manner contrary to that
provided in the Indentures, the Financing
Documents and the Reimbursement Agreements,
as in force from time to time.
(e) Except
as disclosed or incorporated by reference in the Official
Statement, the Borrower is not a party to
or bound by any contract, agreement or
other instrument, or subject to any
judgment, order, writ, injunction, decree,
rule or regulation which, in the Borrower's
opinion, materially adversely
affects, or in the future may, so far as
the Borrower can now reasonably
foresee, materially adversely affect the
business, operations, properties,
assets or condition, financial or
otherwise, of the Borrower.
(f)
Neither this Bond Purchase Agreement, other than Section 6 hereof
as
to which no representation is made, nor any
other document, certificate or
written statement furnished to the
Underwriter or the Authority by or on behalf
of the Borrower, when read together with
the information disclosed or
incorporated by reference in Appendix A to
the Official Statement, contains any
untrue statement of a material fact or
omits to state a material fact necessary
in order to make the statements contained
herein and therein, in light of the
circumstances under which they were made,
not misleading or incomplete.
(g) The
Borrower has not taken and will not take any action and knows
of
no action that any other person, firm or
corporation has taken or intends to
take, which would cause interest on the
Bonds to be includable in the gross
income of the recipients thereof for
federal income tax purposes.
(h) The
Borrower will deliver or cause to be delivered all opinions,
certificates, letters and other instruments
and documents required to be
delivered by the Borrower pursuant to this
Bond Purchase Agreement.
(i) The
Financing Documents, the Reimbursement Agreements, the
Remarketing
Agreements and this Bond Purchase
Agreement, when executed and delivered, will
be legal, valid, binding and enforceable
obligations of the Borrower, except to
the extent that such enforceability may be
limited by bankruptcy or insolvency
or other laws affecting creditors' rights
generally or by general principles of
equity.
(j)
[Reserved].
(k) The
Borrower has authorized and consents to the use of the Official
Statement by the Underwriter. The
information with respect to the Borrower
included or incorporated by reference in
Appendix A to the Official Statement
and the descriptions contained therein of
the Agreements, the Indentures and the
Financing Documents and the Borrower's
participation in the transactions
contemplated thereby, are correct and do
not contain any untrue statement of a
material fact or omit to state a material
fact required to be stated therein or
necessary to make the statements therein in
light of the circumstances under
which they were made not misleading, except
that the Borrower makes no
representation as to (A) the information
contained in
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EXHIBIT 4.24
Appendices D, E and F to the Official
Statement or the information contained in
the Official Statement under the captions
"INTRODUCTION - The Authority", "THE
AUTHORITY", "THE BONDS - Book Entry Only
System", "TAX MATTERS", "THE BANK",
"THE LETTERS OF CREDIT" and "UNDERWRITING"
or (B) the information with respect
to DTC and its book-entry system. The
financial statements included in Appendix
B to the Official Statement have been
prepared in accordance with generally
accepted accounting principles as applied
in the case of rate-regulated public
utilities, comply with the Uniform System
of Accounts and ratemaking practices
prescribed by the DPUC (except as otherwise
described in the notes to such
financial statements) and fairly present
the financial position, results of
operations, retained earnings and
statements of cash flows of the Borrower at
the respective dates and for the respective
periods indicated.
(l) There
has been no material adverse change in the business,
properties,
operations or financial condition of the
Borrower from that shown or
incorporated by reference in the Official
Statement.
(m) The
Borrower will use its best efforts to cause the delivery of the
Letters of Credit.
(n) The
representations and warranties of the Borrower contained in
Section 2.2 of each of the Loan Agreements
are true and correct as of the date
hereof.
(o) The
Borrower has obtained all approvals required in connection with
the execution and delivery of, and
performance by the Borrower of its
obligations under, this Bond Purchase
Agreement, the Financing Documents, the
Reimbursement Agreements and the
Remarketing Agreements.
(p) Any
certificate signed by an officer of the Borrower and delivered
to
the Underwriter at the time of the purchase
and sale of the Bonds shall be
deemed a representation and warranty by the
Borrower to the Underwriter as to
the statements made therein.
(q) The
Borrower deems the Official Statement to be final as of its
date
for purposes of Rule 15c2-12 of the
SEC.
(r) No
material event of default or event which, with notice or lapse
of
time or both, would constitute a material
event of default or default under any
material agreement or material instrument
to which the Borrower is a party or by
which the Borrower is bound or to which any
of the property or assets of the
Borrower is subject has occurred and is
continuing.
(s) The
Borrower will undertake, upon conversion of the Bonds to Fixed
Rate Bonds, to provide certain annual
financial information and notices of the
occurrence of certain events, if material,
in accordance with and pursuant to
Rule 15c2-12 of the Securities Exchange Act
of 1934.
The
Borrower agrees to indemnify and hold harmless the Authority,
the
Underwriter, any member, officer, official,
employee or agent of the Authority
or the State of Connecticut or the
Underwriter, and each person, if any, who
controls the Underwriter within the meaning
of Section 15 of the Securities Act
of 1933 (the "Act"), as amended (for
purposes of this paragraph, collectively
the "Indemnified Parties"), to the extent
permitted under the applicable law,
against
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EXHIBIT 4.24
any and all losses, claims, damages,
liabilities or expenses whatsoever, joint
or several, caused by (1) any breach of any
representation or warranty made by
the Borrower in this Bond Purchase
Agreement, the Financing Documents, the
Reimbursement Agreements or the Remarketing
Agreements or (2) any untrue
statement or misleading statement or
allegedly misleading statement of a
material fact contained in the Official
Statement or caused by any omission or
alleged omission from the Official
Statement of any material fact necessary in
order to make the statements made therein,
in light of the circumstances under
which they were made, not misleading,
except insofar as such losses, claims,
damages, liabilities or expenses are caused
by any such untrue or misleading
statement or omission or allegedly untrue
or misleading statement or omission in
the information contained under the
captions "INTRODUCTION - The Authority",
"THE AUTHORITY", "THE BONDS - Book-Entry
Only System", "THE BANK", "THE LETTERS
OF CREDIT", "UNDERWRITING" or "TAX MATTERS"
or in Appendices D, E and F thereto
(except to the extent that the information
set forth in such sections is
premised on facts and representations made
in writing by the Borrower);
provided, however, that in the case of
clause (2) above such indemnity shall not
inure to the benefit of the Underwriter (or
any person controlling the
Underwriter or any officer or employee of
the Underwriter) if the Borrower has
caused to be delivered to the Underwriter
on a timely basis sufficient
quantities of the Official Statement, as
amended or supplemented, and a copy of
the Official Statement, as then so amended
or supplemented, was not sent or
given by or on behalf of the Underwriter to
the person asserting any such loss,
claim, damage, liability or expense prior
to or with written confirmation of the
sale of such Bonds to such person by the
Underwriter and the receipt of the
Official Statement, as then so supplemented
or amended, would have been a valid
defense to the loss, claim, damage,
liability or expense asserted. This
indemnity agreement shall not be construed
as a limitation on any other
liability which the Borrower may otherwise
have to any Indemnified Party.
The
Underwriter agrees to indemnify and hold harmless the Authority
and
the Borrower, and each director, officer,
or employee of the Authority and the
Borrower, and each person who controls
either of them within the meaning of the
Act (for purposes of this paragraph, an
"Indemnified Party") to the same extent
as the foregoing indemnity from the
Borrower to the Underwriter, but only with
reference to written information furnished
to the Borrower by or on behalf of
the Underwriter specifically for inclusion
in the Official Statement under the
caption "UNDERWRITING". This indemnity
agreement shall not be construed as a
limitation on any other liability which the
Underwriter may otherwise have to
any Indemnified Party.
An
Indemnified Party will, promptly after receiving notice of the
commencement of any action against such
Indemnified Party in respect of which
indemnification may be sought against the
Borrower or the Underwriter, as the
case may be (in any case the "Indemnifying
Party"), notify the Indemnifying
Party in writing of the commencement of the
action, enclosing a copy of all
papers served, but the omission so to
notify the Indemnifying Party of any such
action shall not relieve the Indemnifying
Party of any liability which it may
have to any Indemnified Party otherwise
than under this Section. If such action
is brought against an Indemnified Party and
such Indemnified Party notices the
Indemnifying Party of its commencement, the
Indemnifying Party may, or if so
requested by the Indemnified Party shall,
participate in it or assume its
defense, with counsel reasonably
satisfactory to the Indemnified Party, and
after notice from the Indemnifying Party to
the Indemnified Party of an election
to assume the defense, the Indemnifying
Party will not be liable to the
Indemnified Party under this Section for
any legal or other expenses
subsequently incurred by such Indemnified
Party in connection with the defense
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EXHIBIT 4.24
other than reasonable costs of
investigation subsequently incurred by the
Indemnified Party in connection with the
defense thereof. Until the Indemnifying
Party assumes the defense of any such
action at the request of the Indemnified
Party, the Indemnifying Party may
participate at its own expense in the defense
of the action. If the Indemnifying Party
does not employ counsel to have charge
of the defense or if any Indemnified Party
reasonably concludes that there may
be defenses available to it or them which
are different from or in addition to
those available to the Indemnifying Party
or the Indemnified Party and the
Indemnifying Parties may have conflicting
interests which would make it
inappropriate for the same counsel to
represent both of them, reasonable legal
and other expenses incurred by such
Indemnified Party will be paid by the
Indemnifying Party and the Indemnifying
Party shall not have the right to direct
the defense of such action on behalf of
such Indemnified Party (it being
understood, however, that the Indemnifying
Party shall not be liable for the
expenses of more than one separate counsel
(in addition to local counsel)
approved by the Underwriter in the case of
paragraph (a) representing all
Indemnified Parties who are parties to such
action). Any obligation under this
Section 7 of an Indemnifying Party to
reimburse an Indemnified Party for
expenses includes the obligation to
reimburse the Indemnified Party to cover
such expenses in reasonable amounts and at
reasonable periodic intervals upon
receipt by the Indemnifying Party of an
invoice for such expenses not more often
than monthly as requested by the
Indemnifying Party. Notwithstanding the
foregoing, the Indemnifying Party shall not
be liable for any settlement of any
action or claim effected without its
consent, which consent shall not be
unreasonably withheld.
In order
to provide for just and equitable contribution in circumstances
in which the indemnification provided for
above is due in accordance with its
terms but is for any reason held by a court
to be unavailable from the Borrower
or Underwriter on grounds of policy or
otherwise, the Borrower and the
Underwriter shall contribute to the total
losses, claims, damages and
liabilities (including reasonable legal or
other expenses of investigation or
defense) to which they may be subject (i)
in such proportion as is appropriate
to reflect the relative benefits received
by the Borrower and the Underwriter
from the offering of the Bonds or (ii) if
the allocation provided by clause (i)
above is not permitted by applicable law,
in such proportion as is appropriate
to reflect not only the relative benefits
referred to in clause (i) above but
also the relative fault of the Borrower and
the Underwriter in connection with
the statements or omissions which resulted
in such losses, claims, damages or
liabilities, as well as any other relevant
equitable considerations. The
respective relative benefits received by
the Borrower and the Underwriter shall
be deemed to be in the same proportion as
the proceeds from the sale (i.e., the
principal amount of the Bonds) bears to the
discount or fee in connection with
such sale received by the Underwriter as an
underwriting fee, as set forth in
Section 14 hereof. The relative fault of
the Borrower and the Underwriter shall
be determined by reference to, among other
things, whether the untrue or alleged
untrue statement of a material fact or the
omission or alleged omission to state
a material fact relates to information
supplied by the Borrower or by the
Underwriter and the parties' relative
intent, knowledge, access to information
and opportunity to correct or prevent such
statement or omission. However, no
person guilty of fraudulent
misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be
entitled to contribution from any person
who was not guilty of such fraudulent
misrepresentation. For purposes of this
Section, each person who controls the
Underwriter within the meaning of Section
15 of the Securities Act will have the same
rights to contribution as the
Underwriter, and each person who controls
the Borrower within the meaning of the
Securities Act and each officer and each
director of the Borrower will have the
same rights to contribution as the
Borrower, subject to the foregoing sentence.
Any party entitled to contribution will,
promptly after
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EXHIBIT 4.24
receiving notice of commencement of any
action, suit or proceeding against such
party in respect of which a claim for
contribution may be made under this
paragraph, notify each party from whom
contribution may be sought, but the
omission to notify such party shall not
relieve any party from whom contribution
may be sought from any other obligation it
may have otherwise than pursuant to
this paragraph.
8.
[Reserved].
9. The
Borrower's obligations hereunder, except those contained in
Sections 7 and 14, will be conditioned upon
the approval by the Department of
Public Utility Control (the "DPUC") of the
issuance of the Notes, the loans
under the Agreements and the transactions
of the Borrower contemplated by the
Financing Documents, the Reimbursement
Agreements and the Remarketing
Agreements; the delivery of the Letters of
Credit; the purchase of and payment
for the Bonds in accordance herewith on the
Closing Date; the performance of the
obligations of the Authority and the
Underwriter not dependant on the
performance of the Borrower; and the
delivery to the Authority of the approving
opinions of Winston & Strawn LLP, Bond
Counsel, in form and substance
substantially in the forms set forth as
Appendix D to the Official Statement.
10. The
Authority's obligation to deliver the Bonds and to accept
