Manner of Payment.
Issuance of Bonds.
Issuance, Delivery and Surrender of Mortgage Bonds.
Credit Facility; Cancellation; Notices.
Borrower's Option to Elect Rate Period.
Borrower's Obligation to Purchase Bonds.
Effective Date and Term.
No Additional Bonds.
Completion of the Project.
No Warranty Regarding Condition, Suitability or Cost of Project.
No Abatement of Payments Hereunder.
which Exceptions Permitted.
Indemnification, Payment of Expenses, and Advances.
Incorporation of Tax Regulatory Agreement; Payments Upon Determination of Taxability. 21
Covenant by Borrower with Respect to Change in Use.
Further Assurances and Corrective Instruments.
Covenant by Borrower as to Compliance with Indenture.
Assignment of Agreement or Mortgage Bonds.
Covenant Against Discrimination.
Covenant to Provide Disclosure.
Events of Default.
Remedies on Default.
No Duty to Mitigate Damages.
Notice by the Borrower of Optional Prepayment.
Mandatory Prepayment on Determination of Taxability.
Mandatory Prepayment Upon Change in Use of the Project.
Benefit of and Enforcement by Bondholders.
Compliance with C.G.S. Sections 4a-60 and 4a-60a.
Prior Agreements Superseded.
Execution of Counterparts.
Separability of Invalid Provisions.
Third Party Beneficiaries.
References to Credit Facility.
such bonds, to pledge or assign such a loan, lease or sale agreement and the revenues and receipts derived by the Authority from such a project; and
Indenture and from any amounts otherwise available under the Indenture for the payment of the Bonds; and
Section 1.1. Definitions. In addition to the words and terms defined elsewhere in this Agreement, for the purposes of this Agreement, the following words and terms shall have the respective meanings set forth as follows, and any capitalized word or term used but not defined herein is used as defined in the Indenture.
“Act” means the State Commerce Act, constituting Connecticut General Statutes, Sections 32-la through 32-23zz, as amended.
“Agreement” means this Loan Agreement and any amendments and supplements hereto.
“Authority” means the Connecticut Development Authority, a body corporate and politic constituting a public instrumentality and political subdivision of the State, duly organized and existing under the laws of the State, and any body, board, authority, agency or other political subdivision or instrumentality of the State which shall hereafter succeed to the powers, duties and functions thereof.
“Authorized Representative” means, in the case of the Authority, the Chairman or Vice Chairman, the President, any Executive Vice President, Deputy Director or any Senior Vice President or any Vice President thereof and, in the case of the Borrower, the Chairman, Vice Chairman, President, any Vice President, Chief Financial Officer, Treasurer, Assistant Treasurer, Secretary or Assistant Secretary thereof and, when used with reference to the performance of any act, the discharge of any duty or the execution of any certificate or other document, any officer, employee or other person authorized to perform such act, discharge such duty or execute such certificate or other document.
“Beneficial Owner” means the owner of beneficial interests in the Bonds under the Book Entry System of a Depository.
“Bonds” means the $125,000,000 Pollution Control Revenue Refunding Bonds (The Connecticut Light and Power Company Project - 2011B Series) authorized and issued pursuant to Sections 2.1 and 2.2 of the Indenture.
“Bond Counsel” means Xxxxxx Beach PLLC or such other nationally recognized bond counsel selected by the Authority and reasonably satisfactory to the Borrower and the Trustee.
“Book Entry Form” or “Book Entry System” means, with respect to the Bonds, a form or system, as applicable, under which (i) physical Bond certificates in fully registered form are registered only in the name of the Depository or its nominee as Holder, with the physical Bond certificates “immobilized” in the custody of the Depository (or its agent) and (ii) the ownership of beneficial interests in Bonds and payments of principal or purchase price of, Redemption Price, if any, and interest thereon may be transferred only through a book entry made by others than the Trustee or the Registrar. The records maintained by others than the Trustee or the Registrar constitute the written record that identifies the owners, and records the transfer, of beneficial interests in those Bonds and payments of principal of, Redemption Price, if any, and interest thereon.
“Borrower” means (i) The Connecticut Light and Power Company, a corporation organized and existing under the laws of the State, and its successors and assigns, and (ii) any surviving, resulting or transferee corporation as provided in Section 6.1 hereof.
“Business Day” means any day (i) that is not a Saturday or Sunday, (ii) that is a day on which banks located in Hartford, Connecticut and New York, New York are not required or authorized to remain closed, (iii) that is a day on which banking institutions in the cities in which the principal offices of the Trustee, the Mortgage Trustee, the Credit Facility Issuer, the Remarketing Agent and the Paying Agent are located are not required or authorized to remain closed and (iv) that is a day on which the New York Stock Exchange, Inc. is not closed.
“Change in Use” shall mean (i) any change in the use or operation of the Project, or any portion thereof, from the use for which the Project originally financed by the proceeds of the Original Pollution Control Revenue Bonds was used or expected to be used, or (ii) any change in the use or operation of the Project, or any portion thereof, which would cause the Project to no longer qualify as a “project” under the Act.
“Code” means the Internal Revenue Code of 1986, as amended, and the Treasury regulations promulgated thereunder.
“Credit Facility” means an irrevocable direct-pay letter of credit or other credit enhancement or liquidity support facility, or any combination thereof, delivered to and in favor of the Trustee for the benefit of the owners of the Bonds pursuant to Section 14.1 of the Indenture, and includes any Alternate Credit Facility delivered to the Trustee pursuant to Section 14.3 of the Indenture.
“Credit Facility Issuer” means the issuer of any Credit Facility then in effect. “Drawing Office” of the Credit Facility Issuer means the office specified in the Credit Facility as the office at which certificates for drawings on the Credit Facility are to be presented. “Principal Office” of the Credit Facility Issuer means the office designated as such by the Credit Facility Issuer in writing to the Trustee, the Authority, the Registrar, the Borrower and the Remarketing Agent.
“Debt Service Fund” means the special trust fund so designated, established pursuant to Section 5.1 of the Indenture.
“Depository” means means The Depository Trust Company (a limited purpose trust company), New York, New York until a successor Depository shall have become such pursuant to the applicable provisions of this Indenture and, thereafter, Depository shall mean the successor Depository. Any Depository shall be a securities depository that is a clearing agency under federal law operating and maintaining, with its participants or otherwise, a Book Entry System to record ownership of beneficial interests in Bonds or payments of principal, Redemption Price, if any, and interest thereon, and to effect transfers of beneficial interests in the Bonds, in a Book Entry Form.
“Determination of Taxability” means (1) a published revenue ruling by the Internal Revenue Service and an Opinion of Bond Counsel, unless the Borrower timely requests the Authority to proceed in accordance with Section 6.3(G) of this Agreement and proceedings pursuant to such section are continuing, (2)(a)(i) a private ruling specifically applicable to the Bonds or (ii) the receipt by any owner of the Bonds of a notice of assessment and demand for payment from the Internal Revenue Service and (b)(i) the expiration of the appeal period provided therein if no appeal is taken or (ii) if an appeal is taken, a final unappealable decision by a court of competent jurisdiction; provided that in the case of an event described in clause (2) that the Authority or the owner of the Bonds, as the case may be, has given the Borrower and the Trustee prompt written notice of any application for such a private ruling or, as the case may be, any proposed assertion of taxability by the Internal Revenue Service and, if the Borrower agrees to pay all expenses in connection therewith, permits the Borrower to contest such action, either directly or in the name of the registered owner, through any level of appeal determined by the Borrower, or (3) the admission in writing by the Borrower, in the case of clause (1), (2) and (3) to the effect that the interest on
the Bonds is includable in the gross income for federal income tax purposes (other than for purposes of any alternative minimum tax, environmental tax or foreign branch profits tax) of an owner or former owner thereof, other than for a period during which such owner or former owner is or was a “Substantial User” of the Project or a “Related Person” as such terms are defined in the Code. For purposes of this definition only, the term owner means the Beneficial Owner of the Bonds so long as the Book Entry System is in effect.
“Disclosure Agreement” means the agreement by and between the Borrower and the Trustee, dated the date of the initial delivery of the Bonds, providing for the provision of certain information subsequent to the issuance of the Bonds.
“Event of Default” means an Event of Default as defined in Section 7.1 hereof.
“Financing Documents” means (1) when used with respect to the Borrower, this Agreement, the Tax Regulatory Agreement, the Mortgage Bonds, the Disclosure Agreement and the general certificate of the Borrower delivered in connection with the issuance of the Bonds, but shall not include the Mortgage, and (2) when used with respect to the Authority, any of the foregoing documents and agreements to which the Authority is a direct party. The Financing Documents do not include any documents or agreements to which the Borrower is not a direct party, including the Bonds or the Indenture.
“Indenture” means the Indenture of Trust relating to the Bonds, of even date herewith, by and between the Authority and the Trustee, together with all indentures supplemental thereto made and entered into in accordance therewith.
“Interest Payment Date” shall have the meaning ascribed thereto in the Indenture.
“Loan Payments” means the amounts required to be paid by the Borrower in repayment of the loan made to the Borrower by the Authority pursuant to the provisions of this Agreement and the Mortgage Bonds, including all amounts realized by the Trustee thereunder in accordance with Article VIII of the Indenture.
“Mortgage” means the Indenture of Mortgage and Deed of Trust dated as of May 1, 1921, as amended and restated as of April 7, 2005, between the Borrower and the Mortgage Trustee, as heretofore amended and supplemented (including by the Mortgage Supplemental Indenture) and as hereafter amended or supplemented in accordance with the provisions thereof.
“Mortgage Bonds” means the First and Refunding Mortgage Bonds, 2011 Series B, issued by the Borrower and delivered to the Trustee pursuant to Section 3.7 hereof and the Mortgage.
“Mortgage Trustee” means, Deutsche Bank Trust Company Americas, as successor trustee under the Mortgage, or any successor as the trustee under the Mortgage.
“1954 Code” means the Internal Revenue Code of 1954, as amended, as in effect on August 1, 1986.
“Outstanding”, when used with reference to a Bond or Bonds, as of any particular date, means all Bonds which have been authenticated and delivered under the Indenture, except:
any Bonds canceled by the Trustee because of payment or redemption prior to maturity or surrendered to the Trustee for cancellation;
any Bond (or portion of a Bond) paid or redeemed or for the payment or redemption of which there has been separately set aside and held in the Debt Service Fund either:
monies in an amount sufficient to effect payment of the principal or applicable Redemption Price thereof, together with accrued interest on such Bond to the payment or redemption date, which payment or redemption date shall be specified in irrevocable instructions given to the Trustee to apply such monies to such payment on the date so specified; or
obligations of the kind described in Section 12.1(B) of the Indenture in such principal amounts, of such maturities, bearing such interest and otherwise having such terms and qualifications as shall be necessary to provide monies in an amount sufficient to effect payment of the principal or applicable Redemption Price of such Bond, together with accrued interest on such Bond to the payment or redemption date, which payment or redemption date shall be specified in irrevocable instructions given to the Trustee to apply such obligations to such payment on the date so specified; or
any combination of (a) and (b) above;
Bonds in exchange for or in lieu of which other Bonds shall have been authenticated and delivered under Article III of the Indenture; and
any Bond deemed to have been paid as provided in Section 12.1 of the Indenture.
“Paying Agent” means any paying agent for the Bonds appointed pursuant to Section 9.10 of the Indenture (and may include the Trustee), and its successor or successors and any other corporation which may at any time be substituted in its place in accordance with the Indenture.
“Permitted Encumbrances” mean, as of any particular date, (i) the lien of the Mortgage, (ii) liens and encumbrances permitted by the Mortgage, (iii) liens for taxes not yet due and payable, (iv) any lien created by this Agreement and the Indenture, (v) utility, access and other easements and rights-of-way, that will not interfere with or impair the value or use of the Project as herein provided, (vi) any mechanic’s, laborer’s, materialman’s, supplier’s or vendor’s lien or right in respect thereof if payment is not yet due and payable and for which statutory lien rights exist, and (vii) such minor defects, irregularities, easements, and, rights-of-way (including agreements with any railroad the purpose of which is to service the railroad siding) as normally exist with respect to property similar in character to the Project and which do not materially impair the value or use of the property affected thereby for the purpose for which it was acquired hereunder.
“Principal User” means any principal user of the Project within the meaning of Section 144(a)(2)(B) of the Code, or 103(b)(6)(B) of the 1954 Code, as applicable, including without limitation any person who is a greater-than-10-percent-owner (or if none, the person(s) who holds the largest ownership interest in the Project), lessee or user of more than 10% of the Project measured either by occupiable space or fair rental value under any formal or informal agreement or, under the particular facts and circumstances, anyone who is a principal customer of the Project. The term “principal customer” means any person, who purchases output of the Project under a contract if the percentage of output taken or to be taken by such person, multiplied by a fraction the numerator of which is the term of such contract and the denominator of which is the economic life of the Project, exceeds 10%. In the case of a person who purchases output of an electric or thermal energy, gas, water or other similar facility, such person is a principal customer if the total output purchased by such person during any one-year period beginning with the date the facility is placed in service is more than 10 percent of the facility’s output during each
such period. Co-owners or co-lessees who are shareholders in a corporation or who are collectively treated as a partnership subject to subchapter K under section 761(a) of the Code are not treated as Principal Users merely by reason of their ownership of corporate or partnership interests.
“Project” means the realty and other interests in the real property, if any, and all personal property, goods, leasehold improvements, machinery, equipment, furnishings, furniture, fixtures, tools and attachments wherever located and whether now owned or hereafter acquired, refinanced in whole or in part with the proceeds of the Bonds, and any additions and accessions thereto, substitutions therefor and replacements thereof, including, without limitation the project components described in Appendix A hereto, as amended from time to time in accordance herewith.
“Redemption Price” means, when used with respect to a Bond or a portion thereof, the principal amount of such Bond or portion thereof plus the applicable premium, if any, payable upon redemption thereof pursuant to the Indenture.
“Reimbursement Agreement” means any reimbursement agreement between the Borrower and a Credit Facility Issuer setting forth the obligations of the Borrower to such Credit Facility Issuer arising out of any payments under a Credit Facility and which provides that it shall be deemed to be a Reimbursement Agreement for the purpose of the Indenture.
“Related Person” means, with respect to any Principal User, a person which is a related person (as defined in Section 144(a)(3) of the Code, or Section 103(b)(6)(B) of the 1954 Code, as applicable, and by reference to Sections 267, 707(b) and 1563(a) of the Code, except that 50% is to be substituted for 80% in Section 1563(a)).
“Substantial User” means any substantial user of the Project or a Related Person thereto within the meaning of Section 147(a) of the Code.
“Supplemental Indenture” means any indenture supplemental to the Indenture or amendatory of the Indenture, adopted by the Authority in accordance with Article X of the Indenture.
“Tax Incidence Date” means the date as of which interest on the Bonds becomes or became includable in the gross income of the recipient thereof (other than the Borrower or another Substantial User or Related Person) for federal income tax purposes for any cause, as determined by a Determination of Taxability.
“Tax Regulatory Agreement” means the Tax Regulatory Agreement, dated as of the date of initial issuance and delivery of the Bonds, between the Authority and the Borrower, and any amendments and supplements thereto.
“Term”, when used with reference to this Agreement, means the term of this Agreement determined as provided in Article III hereof.
“Trustee” means U.S. Bank National Association, Hartford, Connecticut, and its successor or successors hereafter appointed in the manner provided in the Indenture.
Section 1.2. Interpretation. In this Agreement:
The terms “hereby”, “hereof”, “hereto”, “herein”, “hereunder” and any similar terms, as used in this Agreement, refer to this Agreement, and the term “hereafter” means after, and the term “heretofore” means before, the date of this Agreement.
Words of the masculine gender mean and include correlative words of the feminine and neuter genders and words importing the singular number mean and include the plural number and vice versa.
Words importing persons include firms, associations, partnerships (including, without limitation, general and limited partnerships), limited liability entities, joint ventures, societies, estates, trusts, corporations and other legal entities, including public or governmental bodies, as well as natural persons.
Any headings preceding the texts of the several Articles and Sections of this Agreement, and any table of contents appended to copies hereof, shall be solely for convenience of reference and shall not constitute a part of this Agreement, nor shall they affect its meaning, construction or effect.
Nothing contained in this Agreement shall be construed to cause the Borrower to become the agent for the Authority or the Trustee for any purpose whatsoever, nor shall the Authority or the Trustee be responsible for any shortage, discrepancy, damage, loss or destruction of any part of the Project wherever located or for whatever cause.
All approvals, consents and acceptances required to be given or made by any person or party hereunder shall be at the sole discretion of the party whose approval, consent or acceptance is required.
All notices to be given hereunder shall be given in writing within a reasonable time unless otherwise specifically provided.
If any provision of this Agreement shall be ruled invalid by any court of competent jurisdiction, the invalidity of such provision shall not affect any of the remaining provisions hereof.
Section 6.2. Indemnification, Payment of Expenses, and Advances. (A) The Borrower agrees to protect, defend and hold harmless the Authority, the State, agencies of the State, members, servants, agents, directors, officers and employees, now or forever, of the Authority or the State (each an “Authority Indemnified Party”), the Trustee and the Paying Agent, agents, directors, officers and employees, now or forever, of the Trustee and the Paying Agent (each an “Indemnified Party”), from any claim, demand, suit, action or other proceeding and any liabilities, costs, and expenses whatsoever by any person or entity whatsoever, arising or purportedly arising from or in connection with the Financing Documents, the Indenture, the Bonds, or the transactions contemplated thereby or actions taken thereunder by any person (including without limitation the filing of any information, form or statement with the Internal Revenue Service, if applicable), except for any willful and material misrepresentation, willful misconduct or gross negligence on the part of the Indemnified Party or the Authority Indemnified Party or any bad faith on the part of any indemnitee other than an Authority Indemnified Party
The Borrower agrees to indemnify and hold harmless any Indemnified Party against any and all claims, demands, suits, actions or other proceedings and all liabilities, costs and expenses whatsoever caused by any untrue statement or misleading statement or alleged untrue statement or alleged misleading statement of a material fact contained in the written information provided by the Borrower in connection with the issuance of the Bonds or incorporated by reference therein or caused by any omission or alleged omission from such information of any material fact required to be stated therein or necessary in order to make the statements made therein in the light of the circumstances under which they were made, not misleading.
The Authority and the Trustee shall not be liable for any damage or injury to the persons or property of the Borrower or its members, directors, officers, agents, servants or employees, or any other person who may be about the Project due to any act or omission of any person other than the Authority or the Trustee, respectively, or their respective members, directors, officers, agents, servants and employees.
The Borrower releases each Indemnified Party from, agrees that no Indemnified Party shall be liable for, and agrees to hold each Indemnified Party harmless against, any attorney fees and expenses, expenses or damages incurred because of any investigation, review or lawsuit commenced by the Trustee or the Authority in good faith with respect to the Financing Documents, the Indenture, the Bonds and the Project and the Authority or the Trustee, as the case may be, shall promptly give written notice to the Borrower with respect thereto.
All covenants, stipulations, promises, agreements and obligations of the Authority and the Trustee contained herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the Authority and the Trustee and not of any member, director, officer or employee of the Authority or the Trustee in its individual capacity, and no recourse shall be had for the payment of the Bonds or for any claim based thereon or hereunder against any member, director, officer or employee of the Authority or the Trustee or any natural person executing the Bonds.
In case any action shall be brought against one or more of the Indemnified Parties based upon any of the above and in respect of which indemnity may be sought against the Borrower, such Indemnified Party shall promptly notify the Borrower in writing, enclosing a copy of all papers served, but the omission so to notify the Borrower of any such action shall not relieve it of any liability which it may have to any Indemnified Party otherwise than under this Section 6.2. In case any such action shall be brought against any Indemnified Party and it shall notify the Borrower of the commencement thereof, the Borrower shall be entitled to participate in and, to the extent that it shall wish, to assume the defense thereof with counsel satisfactory to such Indemnified Party, and after notice from the Borrower to such Indemnified Party of the Borrower’s election so to assume the defense thereof, the Borrower shall not be liable to such Indemnified Party for any subsequent legal or other expenses attributable to such defense, except as set forth below, other than reasonable costs of investigation subsequently incurred by such Indemnified Party in connection with the defense thereof. The Indemnified Party shall have the right to employ its own counsel in any such action, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) the employment of counsel by such Indemnified Party has been authorized by the Borrower, (ii) the Indemnified Party shall have reasonably concluded that there may be a conflict of interest between the Borrower and the Indemnified Party in the conduct of the defense of such action (in which case the Borrower shall not have the right to direct the defense of such action on behalf of the Indemnified Party); or (iii) the Borrower shall not in fact have employed counsel satisfactory to the Indemnified Party to assume defense of such action; provided, however, that the Borrower shall not be responsible for the fees and expenses of more than one such law firm unless an Indemnified Party shall have reasonably concluded that there may be a conflict of interest between such Indemnified Party and any other Indemnified Party requiring the use of separate counsel, or the Borrower has not employed counsel which is satisfactory to each Indemnified Party. The Borrower shall not be liable for any settlement of any action or claim effected without its consent.
The Borrower also agrees to pay all reasonable or necessary out-of-pocket expenses of the Authority and the Trustee in connection with the issuance of the Bonds, the administration of the Financing Documents and the enforcement of its rights thereunder, including without limitation the costs of preparation and distribution of closing transcripts relating thereto.
In the event the Borrower fails to pay any amount or perform any act under the Financing Documents, the Trustee or the Authority may pay the amount or perform the act, in which event the costs, disbursements, expenses and reasonable counsel fees and expenses thereof, together with interest thereon from the date the expense is paid or incurred at the prime interest rate publicly announced from time to time by the Trustee as a commercial bank plus 1% shall be an additional obligation hereunder payable upon demand by the Authority or the Trustee.
The Borrower shall defend, indemnify, and hold the Authority, its agents, members, officers and employees, and the Trustee and its agents, directors, officers and employees, harmless from and against any claims, demands, penalties, fines, liabilities, settlements, damages, costs, or expenses of whatever kind or nature, known or unknown, contingent or otherwise, related to or in connection with the Project, arising out of, or in any way related to, (i) the presence, disposal, release, or threatened release of any hazardous materials, asbestos, petroleum or petroleum by-products which are on, from, or affecting the soil, water, vegetation, buildings, personal property, persons, animals, or otherwise, except in compliance with all applicable federal, State and local laws or regulations; (ii) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to hazardous materials, asbestos, petroleum or petroleum by-products; (iii) any lawsuit brought or threatened, settlement reached, or government order relating to such hazardous materials, asbestos, petroleum or petroleum by-products and/or (iv) any violation of laws, orders, regulations, requirements or demand of government authorities or any policies or requirements of the Authority which are based upon or in any way related to such hazardous materials, asbestos, petroleum or petroleum by-products including, without limitation, reasonable attorney and consultant fees, investigation and laboratory fees, court costs, and litigation expenses. Notwithstanding the foregoing, the Borrower shall have no obligation to defend, indemnify and hold harmless the Authority or the Trustee or their respective agents, members, officers or employees under this Section 6.2(H) in the event and to the extent that any such claims, demands, penalties, fines, liabilities, settlements, damages, costs or other expenses arise out of or result from the willful misconduct or gross negligence of the Authority or the Trustee or their respective agents, members, officers or employees. The provisions of this paragraph shall be in addition to any and all other obligations and liabilities the Borrower may have to the Authority or the Trustee at common law, and shall survive the termination of this Agreement.
Any obligation of the Borrower to the Authority under this Section shall be separate from and independent of the other obligations of the Borrower hereunder, and may be enforced directly by the Authority against the Borrower, irrespective of any action taken by or on behalf of the owners of the Bonds.
The obligations of the Borrower under this section, notwithstanding any other provisions contained in the Financing Documents, shall survive the termination of this Agreement and shall be recourse to the Borrower, and for the enforcement thereof any Indemnified Party shall have recourse to the general credit of the Borrower.