Bond Purchase Agreement

AQUA PENNSYLVANIA, INC. $40,000,000 First Mortgage Bonds, 3.79% Series Due 2041 $20,000,000 First Mortgage Bonds, 3.80% Series Due 2042 $20,000,000 First Mortgage Bonds, 3.85% Series Due 2047 BOND PURCHASE AGREEMENT Dated as of November 8, 2012

Table of Contents

Exhibit 10.54

Execution Version

 

 

AQUA PENNSYLVANIA, INC.

$40,000,000 First Mortgage Bonds, 3.79% Series due 2041

$20,000,000 First Mortgage Bonds, 3.80% Series due 2042

$20,000,000 First Mortgage Bonds, 3.85% Series due 2047

 

 

BOND PURCHASE AGREEMENT

 

 

Dated as of November 8, 2012

 

 

 


Table of Contents

TABLE OF CONTENTS

 

SECTION

  HEADING      PAGE   

SECTION 1.

  AUTHORIZATION OF BONDS      1   

SECTION 2.

  SALE AND PURCHASE OF BONDS      2   

SECTION 3.

  CLOSING      2   

SECTION 4.

  CONDITIONS TO CLOSING      2   

Section 4.1.

 

Representations and Warranties

     2   

Section 4.2.

 

Performance; No Default

     2   

Section 4.3.

 

Compliance Certificates

     3   

Section 4.4.

 

Opinions of Counsel

     3   

Section 4.5.

 

Purchase Permitted by Applicable Law, Etc

     4   

Section 4.6.

 

Sale of Bonds

     4   

Section 4.7.

 

Payment of Special Counsel Fees

     4   

Section 4.8.

 

Private Placement Number

     4   

Section 4.9.

 

Changes in Corporate Structure

     4   

Section 4.10.

 

Funding Instructions

     4   

Section 4.11.

 

Proceedings and Documents

     4   

Section 4.12.

 

Execution and Delivery and Filing and Recording of the Supplement

     5   

Section 4.13.

 

Regulatory Approvals

     5   

SECTION 5.

  REPRESENTATIONS AND WARRANTIES OF THE COMPANY      5   

Section 5.1.

 

Organization; Power and Authority

     5   

Section 5.2.

 

Authorization, Etc

     5   

Section 5.3.

 

Disclosure

     6   

Section 5.4.

 

Organization and Ownership of Shares of Subsidiaries

     6   

Section 5.5.

 

Financial Statements; Material Liabilities

     7   

Section 5.6.

 

Compliance with Laws, Other Instruments, Etc

     7   

Section 5.7.

 

Governmental Authorizations, Etc

     7   

Section 5.8.

 

Litigation; Observance of Statutes and Orders

     7   

Section 5.9.

 

Taxes

     8   

Section 5.10.

 

Title to Property; Leases

     8   

Section 5.11.

 

Licenses, Permits, Etc

     8   

Section 5.12.

 

Compliance with ERISA

     8   

Section 5.13.

 

Private Offering by the Company

     9   

Section 5.14.

 

Use of Proceeds; Margin Regulations

     9   

Section 5.15.

 

Existing Debt

     10   

Section 5.16.

 

Foreign Assets Control Regulations, Etc

     10   

Section 5.17.

 

Status under Certain Statutes

     11   

Section 5.18.

 

Environmental Matters

     11   

Section 5.19.

 

Lien of Indenture

     12   

Section 5.20.

 

Filings

     12   

 

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SECTION 6.

 

REPRESENTATIONS OF THE PURCHASERS

     12   

Section 6.1.

 

Purchase for Investment

     12   

Section 6.2.

 

Source of Funds

     13   

SECTION 7.

 

INFORMATION AS TO COMPANY

     14   

Section 7.1.

 

Financial and Business Information

     14   

Section 7.2.

 

Officer’s Certificate

     17   

Section 7.3.

 

Visitation

     17   

SECTION 8.

 

PURCHASE OF BONDS

     18   

SECTION 9.

 

AFFIRMATIVE COVENANTS

     18   

Section 9.1.

 

Compliance with Law

     18   

Section 9.2.

 

Insurance

     18   

Section 9.3.

 

Maintenance of Properties

     18   

Section 9.4.

 

Payment of Taxes

     19   

Section 9.5.

 

Corporate Existence, Etc

     19   

Section 9.6.

 

Books and Records

     19   

SECTION 10.

 

NEGATIVE COVENANTS

     19   

Section 10.1.

 

Transactions with Affiliates

     19   

Section 10.2.

 

Merger, Consolidation, Etc

     19   

Section 10.3.

 

Line of Business

     20   

Section 10.4.

 

Terrorism Sanctions Regulations

     20   

SECTION 11.

 

PAYMENTS ON BONDS

     20   

Section 11.1.

 

Home Office Payment

     20   

SECTION 12.

 

REGISTRATION; EXCHANGE; EXPENSES, ETC

     21   

Section 12.1.

 

Registration of Bonds

     21   

Section 12.2.

 

Transaction Expenses

     21   

Section 12.3.

 

Survival

     21   

SECTION 13.

 

SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT

     22   

SECTION 14.

 

AMENDMENT AND WAIVER

     22   

Section 14.1.

 

Requirements

     22   

Section 14.2.

 

Solicitation of Holders of Bonds

     22   

Section 14.3.

 

Binding Effect, Etc

     23   

Section 14.4.

 

Bonds Held by Company, Etc

     23   

 

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SECTION 15.

  NOTICES      23   

SECTION 16.

  INDEMNIFICATION      24   

SECTION 17.

  REPRODUCTION OF DOCUMENTS      24   

SECTION 18.

  CONFIDENTIAL INFORMATION      25   

SECTION 19.

  MISCELLANEOUS      26   

Section 19.1.

 

Successors and Assigns

     26   

Section 19.2.

 

Accounting Terms

     26   

Section 19.3.

 

Severability

     26   

Section 19.4.

 

Construction, Etc

     26   

Section 19.5.

 

Counterparts

     27   

Section 19.6.

 

Governing Law

     27   

Section 19.7.

 

Jurisdiction and Process; Waiver of Jury Trial

     27   

Section 19.8.

 

Payments Due on Non-Business Days

     28   

 

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Table of Contents
Schedule A       Information Relating to Purchasers
Schedule B       Defined Terms
Schedule 5.4       Subsidiaries of the Company and Ownership of Subsidiary Stock
Schedule 5.5       Financial Statements
Schedule 5.15(a)       Existing Debt
Schedule 5.15(b)       Debt Instruments
Exhibit A       Form of Forty-seventh Supplemental Indenture
Exhibit 4.4(a)       Form of Opinion of Counsel for the Company
Exhibit 4.4(b)       Form of Opinion of Special Counsel for the Company
Exhibit 4.4 (c)       Form of Opinion of Special Counsel for the Purchasers

 

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AQUA PENNSYLVANIA, INC.

762 West Lancaster Avenue

Bryn Mawr, Pennsylvania 19010-3489

$40,000,000 First Mortgage Bonds, 3.79% Series due 2041

$20,000,000 First Mortgage Bonds, 3.80% Series due 2042

$20,000,000 First Mortgage Bonds, 3.85% Series due 2047

November 8, 2012

To Each of The Purchasers Listed in

Schedule A Hereto:

Ladies and Gentlemen:

Aqua Pennsylvania, Inc., a corporation organized under the laws of the Commonwealth of Pennsylvania (the “Company”), agrees with each of the purchasers whose names appear at the end hereof (each, a “Purchaser” and, collectively, the “Purchasers”) as follows:

 

SECTION 1. AUTHORIZATION OF BONDS.

The Company will authorize the issue and sale of (i) $40,000,000 aggregate principal amount of its First Mortgage Bonds, 3.79% Series due 2041 (the “Series A Bonds”) , (ii) $20,000,000 aggregate principal amount of its First Mortgage Bonds, 3.80% Series due 2042 (the “Series B Bonds”), and (iii) $20,000,000 aggregate principal amount of its First Mortgage Bonds, 3.85% Series due 2047 (the “Series C Bonds” and together with the Series A Bonds and Series B Bonds, the “Bonds”) and such term includes any such notes issued in substitution therefor). The Bonds will be issued under and secured by that certain Indenture of Mortgage dated as of January 1, 1941, from the Company (as successor by merger to the Philadelphia Suburban Water Company), as grantor, to The Bank of New York Trust Company, N.A., as successor trustee (the “Trustee”) (the “Original Indenture”), as previously amended and supplemented by Forty-six supplemental indentures and as further supplemented by the Forty-seventh Supplemental Indenture dated as of October 15, 2012 (such Forty-seventh Supplemental Indenture being referred to herein as the “Supplement”) which will be substantially in the form attached hereto as Exhibit A, with such changes therein, if any, as shall be approved by the Purchasers and the Company. The Original Indenture, as supplemented and amended by the aforementioned forty-six supplemental indentures and the Supplement, and as further supplemented or amended according to its terms, is hereinafter referred to as the “Indenture”. Certain capitalized and other terms used in this Agreement are defined in Schedule B; and references to a “Schedule” or an “Exhibit” are, unless otherwise specified, to a Schedule or an Exhibit attached to this Agreement. Terms used herein but not defined herein shall have the meanings set forth in the Indenture.


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SECTION 2. SALE AND PURCHASE OF BONDS.

Subject to the terms and conditions of this Agreement, the Company will issue and sell to each Purchaser and each Purchaser will purchase from the Company, at the Closing provided for in Section 3, Bonds in the principal amount and in the series specified opposite such Purchaser’s name in Schedule A at the purchase price of 100% of the principal amount thereof. The Purchasers’ obligations hereunder are several and not joint obligations and no Purchaser shall have any liability to any Person for the performance or non-performance of any obligation by any other Purchaser hereunder.

 

SECTION 3. CLOSING.

The execution and delivery of this Agreement and the sale and purchase of the Bonds to be purchased by each Purchaser shall occur at the offices of Chapman and Cutler LLP, 111 West Monroe Street, Chicago, Illinois 60603, at 10:00 a.m., Chicago time, at a closing (the “Closing”) on November 13, 2012 or on such other Business Day thereafter on or prior to November 30, 2012 as may be agreed upon by the Company and the Purchasers. At the Closing the Company will deliver to each Purchaser the Bonds to be purchased by such Purchaser in the form of one or more Bonds in each series to be purchased by such Purchaser, as applicable, in such denominations as such Purchaser may request (with a minimum denomination of $100,000 for each Bond), dated the date of the Closing and registered in such Purchaser’s name (or in the name of its nominee), against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor by wire transfer of immediately available funds for Account Number: 8559742757, Account Name: Aqua Pennsylvania, Inc., at PNC Bank, N.A., Philadelphia, Pennsylvania, ABA Number 031-000053. If at the Closing the Company shall fail to tender such Bonds to any Purchaser as provided above in this Section 3, or any of the conditions specified in Section 4 shall not have been fulfilled to such Purchaser’s satisfaction, such Purchaser shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any rights such Purchaser may have by reason of such failure or such nonfulfillment.

 

SECTION 4. CONDITIONS TO CLOSING.

Each Purchaser’s obligation to execute and deliver this Agreement and to purchase and pay for the Bonds to be sold to such Purchaser prior to or at the Closing is subject to the fulfillment to such Purchaser’s satisfaction at the Closing of the following conditions:

Section 4.1. Representations and Warranties. The representations and warranties of the Company in this Agreement shall be correct when made and at the time of the Closing.

Section 4.2. Performance; No Default. The Company shall have performed and complied with all agreements and conditions contained in each Financing Agreement required to be performed or complied with by the Company prior to or at the Closing, and after giving effect to the issue and sale of the Bonds (and the application of the proceeds thereof as contemplated by Section 5.14), no Default or Event of Default shall have occurred and be continuing.

 

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Section 4.3. Compliance Certificates. The Company shall have performed and complied with all agreements and conditions contained in the Indenture which are required to be performed or complied with by the Company for the issuance of the Bonds. In addition the Company shall have delivered the following certificates:

(a) Officer’s Certificate. The Company shall have delivered to such Purchaser (i) an Officer’s Certificate, dated the date of the Closing, certifying that the conditions specified in Section 4 of this Agreement have been fulfilled, and (ii) copies of all certificates and opinions required to be delivered to the Trustee under the Indenture in connection with the issuance of the Bonds under the Indenture, in each case, dated the date of the Closing.

(b) Secretary’s Certificate. The Company shall have delivered to such Purchaser a certificate of its Secretary or Assistant Secretary, dated the date of the Closing, certifying as to the resolutions attached thereto and other corporate proceedings relating to the authorization, execution and delivery of this Agreement, the Bonds and the Supplement.

(c) Certification of Indenture. Each Purchaser shall have received a composite copy of the Indenture (together with all amendments and supplements thereto), certified by the Company as of the date of the Closing, exclusive of property exhibits, recording information and the like.

Section 4.4. Opinions of Counsel. Such Purchaser shall have received opinions in form and substance satisfactory to such Purchaser, dated the date of the Closing (a) from Christopher P. Luning, counsel for the Company, covering the matters set forth in Exhibit 4.4(a) and covering such other matters incident to the transactions contemplated hereby as such Purchaser or its counsel may reasonably request (and the Company hereby instructs its counsel to deliver such opinion to the Purchasers) and (b) from Dilworth Paxson, LLP, special counsel to the Company, covering the matters set forth in Exhibit 4.4(b) and covering such other matters incident to the transactions contemplated hereby as the Purchaser or the Purchaser’s counsel may reasonably request (and the Company hereby instructs its counsel to deliver such opinion to the Purchasers), and (c) from Chapman and Cutler LLP, the Purchasers’ special counsel in connection with such transactions, substantially in the form set forth in Exhibit 4.4(c) and covering such other matters incident to such transactions as such Purchaser may reasonably request. The Company hereby directs its counsel to deliver the opinions required by this Section 4.4 and understands and agrees that each Purchaser will and hereby is authorized to rely on such opinions.

 

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Section 4.5. Purchase Permitted by Applicable Law, Etc. On the date of the Closing such Purchaser’s purchase of Bonds shall (a) be permitted by the laws and regulations of each jurisdiction to which such Purchaser is subject, without recourse to provisions (such as section 1405(a)(8) of the New York Insurance Law) permitting limited investments by insurance companies without restriction as to the character of the particular investment, (b) not violate any applicable law or regulation (including, without limitation, Regulation T, U or X of the Board of Governors of the Federal Reserve System) and (c) not subject such Purchaser to any tax, penalty or liability under or pursuant to any applicable law or regulation, which law or regulation was not in effect on the date of the Closing. If requested by such Purchaser, such Purchaser shall have received an Officer’s Certificate certifying as to such matters of fact as such Purchaser may reasonably specify to enable such Purchaser to determine whether such purchase is so permitted.

Section 4.6. Sale of Bonds. Contemporaneously with the Closing, the Company shall sell to each Purchaser and each Purchaser shall purchase the Bonds to be purchased by it at the Closing as specified in Schedule A.

Section 4.7. Payment of Special Counsel Fees. Without limiting the provisions of Section 12.2, the Company shall have paid on or before the Closing the reasonable fees, reasonable charges and reasonable disbursements of the Purchasers’ special counsel referred to in Section 4.4(c) to the extent reflected in a statement of such counsel rendered to the Company at least one Business Day prior to the Closing.

Section 4.8. Private Placement Number. A Private Placement Number issued by Standard & Poor’s CUSIP Service Bureau (in cooperation with the SVO) shall have been obtained for each series of Bonds.

Section 4.9. Changes in Corporate Structure. The Company shall not have changed its jurisdiction of incorporation or organization, as applicble, or been a party to any merger or consolidation or succeeded to all or any substantial part of the liabilities of any other entity, at any time following the date of the most recent financial statements referred to in Schedule 5.5.

Section 4.10. Funding Instructions. At least three Business Days prior to the date of the Closing, each Purchaser shall have received written instructions signed by a Responsible Officer on letterhead of the Company confirming the information specified in Section 3 including (a) the name and address of the transferee bank, (b) such transferee bank’s ABA number and (c) the account name and number into which the purchase price for the Bonds is to be deposited.

Section 4.11. Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated by this Agreement and all documents and instruments incident to such transactions shall be reasonably satisfactory to such Purchaser and its special counsel, and such Purchaser and its special counsel shall have received all such counterpart originals or certified or other copies of such documents as such Purchaser or such special counsel may reasonably request.

 

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Section 4.12. Execution and Delivery and Filing and Recording of the Supplement. The Supplement shall have been duly executed and delivered by the Company, and the Company shall have filed, or delivered for recordation, the Supplement in all locations in Pennsylvania (and financing statements in respect thereof shall have been filed, if necessary) in such manner and in such places as is required by law (and no other instruments are required to be filed) to establish, preserve, perfect and protect the direct security interest and mortgage Lien of the Trust Estate created by the Indenture on all mortgaged and pledged property of the Company referred to in the Indenture as subject to the direct mortgage Lien thereof and the Company shall have delivered satisfactory evidence of such filings and recordings.

Section 4.13. Regulatory Approvals. The issue and sale of the Bonds shall have been duly authorized by an order of the Pennsylvania Public Utility Commission and such order shall be in full force and effect on the Closing Date and all appeal periods, if any, applicable to such order shall have expired. The Company shall deliver satisfactory evidence that orders have been obtained approving the issuance of the Bonds from the Pennsylvania Public Utility Commission or that the Pennsylvania Public Utility Commission shall have waived jurisdiction thereof and such approval or waiver shall not be contested or subject to review, or that the Pennsylvania Public Utility Commission does not have jurisdiction.

 

SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.

The Company represents and warrants to each Purchaser that:

Section 5.1. Organization; Power and Authority. The Company is a corporation duly organized,validly existing and subsisting under the laws of the Commonwealth of Pennsylvania, and is duly qualified as a foreign corporation and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company has the corporate power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver this Agreement, the Bonds and the Supplement (and had the corporate power and authority to execute and deliver the Indenture at the time of execution and delivery thereof) and to perform the provisions of the Financing Agreements.

Section 5.2. Authorization, Etc. Each Financing Agreement has been duly authorized by all necessary corporate action on the part of the Company, and each Financing Agreement (other than the Supplement and the Bonds) constitutes, and when the Supplement is executed and delivered by the Company and the Trustee and when the Bonds are executed, issued and delivered by the Company, authenticated by the Trustee and paid for by the Purchasers, the Supplement and each Bond will constitute, a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its respective terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

 

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Section 5.3. Disclosure. This Agreement and the documents, certificates or other writings delivered to the Purchasers by or on behalf of the Company in connection with the transactions contemplated hereby, including the Private Placement Memorandum (including the documents incorporated therein by reference) dated October 11, 2012, and the financial statements listed in Schedule 5.5 (collectively, the “Disclosure Documents”), taken as a whole, do not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made. Since December 31, 2011, there has been no change in the financial condition, operations, business or properties of the Company or any of its Subsidiaries except changes that individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect. There is no fact known to management of the Company that, in the reasonable judgment of management of the Company, could be expected to have a Material Adverse Effect that has not been set forth herein or in the other documents, certificates and other writings delivered to the Purchaser by the Company specifically for use in connection with the transactions contemplated hereby.

Section 5.4. Organization and Ownership of Shares of Subsidiaries. (a) Schedule 5.4 contains a complete and correct list of the Company’s Subsidiaries, showing, as to each Subsidiary, the correct name thereof, the jurisdiction of its organization, and the percentage of shares of each class of its capital stock or similar equity interests outstanding owned by the Company and each other Subsidiary.

(b) All of the outstanding shares of capital stock or similar equity interests of each Subsidiary shown in Schedule 5.4 as being owned by the Company and its Subsidiaries have been validly issued, are fully paid and nonassessable and are owned by the Company or another Subsidiary free and clear of any Lien.

(c) Each Subsidiary identified in Schedule 5.4 is duly incorporated and is validly subsisting as a corporation under the laws of the Commonwealth of Pennsylvania, and is duly qualified as a foreign corporation or other legal entity and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each such Subsidiary has the corporate or other power and authority to own or hold under lease the properties it purports to own or hold under lease and to transact the business it transacts and proposes to transact.

 

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Section 5.5. Financial Statements; Material Liabilities. The Company has delivered to each Purchaser copies of the financial statements of the Company and its Subsidiaries listed on Schedule 5.5. All of said financial statements (including in each case the related schedules and notes) fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the respective dates specified in such financial statements and the consolidated results of their operations and cash flows for the respective periods so specified and have been prepared in accordance with GAAP consistently applied throughout the periods involved except as set forth in the notes thereto (subject, in the case of any interim financial statements, to normal year-end adjustments). The Company does not have any Material liabilities that are not disclosed on such financial statements or otherwise disclosed in the Disclosure Documents.

Section 5.6. Compliance with Laws, Other Instruments, Etc. The execution, delivery and performance by the Company of each Financing Agreement (including the prior execution and delivery of the Indenture), will not (a) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien, other than the Lien created under the Indenture, in respect of any property of the Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter or by-laws, or any other Material agreement or instrument to which the Company or any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective properties may be bound or affected, (b) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to the Company or any Subsidiary or (c) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company or any Subsidiary, except for any such default, breach, contravention or violation which would not reasonably be expected to have a Material Adverse Effect.

Section 5.7. Governmental Authorizations, Etc. No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution, delivery or performance by the Company of this Agreement, the Bonds and the Supplement, other than approval of the Pennsylvania Public Utility Commission, which has been obtained and is in full force and effect and final and is non-appealable.

Section 5.8. Litigation; Observance of Statutes and Orders. (a) There are no actions, suits, investigations or proceedings pending or, to the knowledge of the Company, threatened against or affecting the Company or any Subsidiary or any property of the Company or any Subsidiary in any court or before any arbitrator of any kind or before or by any Governmental Authority that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.

 

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(b) Neither the Company nor any Subsidiary is (i) in default under any term of any agreement or instrument to which it is a party or by which it is bound, (ii) in violation of any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority naming or referring to the Company or any Subsidiary or (iii) in violation of any applicable law, or, to the knowledge of the Company, any ordinance, rule or regulation of any Governmental Authority (including, without limitation, Environmental Laws the USA Patriot Act or any of the other laws and regulations that are referred to in Section 5.16), which default or violation, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

Section 5.9. Taxes. The Company and its Subsidiaries have filed all income tax returns that are required to have been filed in any jurisdiction, and have paid all taxes shown to be due and payable on such returns and all other taxes and assessments payable by them, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (i) the amount of which is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which the Company or a Subsidiary, as the case may be, has established adequate reserves in accordance with GAAP. The charges, accruals, and reserves on the books of the Company and its Subsidiaries in respect of federal, state or other taxes for all fiscal periods are adequate. The Federal income tax liabilities of the Company and its Subsidiaries have been finally determined (whether by reason of completed audits or the statute of limitations having run) for all fiscal years up to and including the fiscal year ended December 31, 2008 and all amount owing is respect of such audit have been paid.

Section 5.10. Title to Property; Leases. The Company and its Subsidiaries have good and sufficient title to their respective Material properties, including all such properties reflected in the most recent audited balance sheet referred to in Section 5.5 or purported to have been acquired by the Company or any Subsidiary after said date (except as sold or otherwise disposed of in the ordinary course of business), in each case free and clear of Liens prohibited by this Agreement or the Indenture, except for those defects in title and Liens that, individually or in the aggregate, would not have a Material Adverse Effect. All Material leases are valid and subsisting and are in full force and effect in all material respects.

Section 5.11. Licenses, Permits, Etc. The Company and its Subsidiaries own or possess all licenses, permits, franchises, certificates of conveyance and necessity, authorizations, patents, copyrights, proprietary software, service marks, trademarks and trade names, or rights thereto, that are Material, without known conflict with the rights of others, except for those conflicts that, individually or in the aggregate, would not have a Material Adverse Effect.

Section 5.12. Compliance with ERISA. (a) The Company and each ERISA Affiliate have operated and administered each Plan in compliance with all applicable laws except for such instances of noncompliance as have not resulted in and could not reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any ERISA Affiliate has incurred any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans (as defined in section 3 of ERISA), and no event, transaction or condition has occurred or exists that would reasonably be expected to result in the incurrence of any such liability by the Company or any ERISA Affiliate, or in the imposition of any Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to such penalty or excise tax provisions or to section 401(a)(29) or 412 of the Code or section 4068 of ERISA, other than such liabilities or Liens as would not be individually or in the aggregate Material.

 

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(b) The present value of the aggregate benefit liabilities under each of the Plans (other than Multiemployer Plans), determined as of January 1, 2012 based on such Plan’s actuarial assumptions as of that date for funding purposes as documented in such Plan’s actuarial valuation reports dated October 2012 and November 2012, did not exceed the aggregate current value of the assets of such Plan allocable to such benefit liabilities by more than $5,000,000 in the case of any single Plan and by more than $5,000,000 in the aggregate for all Plans. The term “benefit liabilities” has the meaning specified in section 4001 of ERISA and the terms “current value” and “present value” have the meaning specified in section 3 of ERISA.

(c) The Company and its ERISA Affiliates have not incurred withdrawal liabilities (and are not subject to contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer Plans that individually or in the aggregate are Material.

(d) The expected postretirement benefit obligation (determined as of the last day of the Company’s most recently ended fiscal year in accordance with Financial Accounting Standards Board Statement No. 106, without regard to liabilities attributable to continuation coverage mandated by section 4980B of the Code) of the Company and its Subsidiaries is not Material.

(e) The execution and delivery of this Agreement and the issuance and sale of the Bonds hereunder will not involve any transaction that is subject to the prohibitions of section 406 of ERISA or in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code. The representation by the Company to each Purchaser in the first sentence of this Section 5.12(e) is made in reliance upon and subject to the accuracy of such Purchaser’s representation in Section 6.2 as to the sources of the funds used to pay the purchase price of the Bonds to be purchased by such Purchaser.

Section 5.13. Private Offering by the Company. Neither the Company nor anyone acting on the Company’s behalf has offered the Bonds or any similar securities for sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any Person other than the Purchasers and not more than twenty (20) other Institutional Investors, each of which has been offered the Bonds in connection with a private sale for investment. Neither the Company nor anyone acting on its behalf has taken, or will take, any action that would subject the issuance or sale of the Bonds to the registration requirements of Section 5 of the Securities Act.

Section 5.14. Use of Proceeds; Margin Regulations. The Company will apply the proceeds of the sale of the Bonds to repay existing indebtedness and for general corporate purposes and in compliance with all laws referenced in Section 5.16. No part of the proceeds from the sale of the Bonds hereunder will be used, directly or indirectly, for the purpose of buying or carrying any margin stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or trading in any securities under such circumstances as to involve the Company in a violation of Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a violation of Regulation T of said Board (12 CFR 220). Margin stock does not constitute more than 2% of the value of the consolidated assets of the Company and its Subsidiaries and the Company does not have any present intention that margin stock will constitute more than 2% of the value of such assets. As used in this Section, the terms “margin stock” and “purpose of buying or carrying” shall have the meanings assigned to them in said Regulation U.

 

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Section 5.15. Existing Debt. Except as described therein, Schedule 5.15(a) sets forth a complete and correct list of all outstanding Debt of the Company and its Subsidiaries as of September 30, 2012, since which date except as described therein there has been no Material change in the amounts, interest rates, sinking funds, installment payments or maturities of the Debt of the Company or its Subsidiaries. Neither the Company nor any Subsidiary is in default and no waiver of default is currently in effect, in the payment of any principal or interest on any Debt of the Company or any Subsidiary and no event or condition exists with respect to any Debt of the Company or any Subsidiary, the outstanding principal amount of which exceeds $5,000,000 that would permit (or that with notice or the lapse of time, or both, would permit) one or more Persons to cause such Debt to become due and payable before its stated maturity or before its regularly scheduled dates of payment.

(b) Without limiting the representation in Section 5.6, the Company is not a party to, or otherwise subject to any provision contained in, any instrument evidencing Debt of the Company or any Subsidiary, any agreement relating thereto or any other agreement (including, but not limited to, its charter or other organizational document) which limits the amount of, or otherwise imposes restrictions on the incurring of, Debt evidenced by the Bonds, except as specifically indicated in Schedule 5.15(b).

Section 5.16. Foreign Assets Control Regulations, Etc. (a) Neither the Company nor any Controlled Entity is (i) a Person whose name appears on the list of Specially Designated Nationals and Blocked Persons published by the Office of Foreign Assets Control, U.S. Department of Treasury (“OFAC”) or a Person that is otherwise subject to an OFAC Sanctions Program (an “OFAC Listed Person”) or (ii) a department, agency or instrumentality of, or is otherwise controlled by or acting on behalf of, directly or indirectly, (x) any OFAC Listed Person or (y) any Person, entity, organization, foreign country or regime that is subject to any OFAC Sanctions Program (each OFAC Listed Person and each other Person, entity, organization and government of a country described in clause (ii), a “Blocked Person”).

(b) No part of the proceeds from the sale of the Bonds hereunder constitutes or will constitute funds obtained on behalf of any Blocked Person or will otherwise be used, directly by the Company or indirectly through any Controlled Entity, in connection with any investment in, or any transactions or dealings with, any Blocked Person or for investment in the Iranian energy sector (as defined in Section 201 (1) of CISADA).

(c) To the Company’s knowledge after making due inquiry, neither the Company nor any Controlled Entity (i) is under investigation by any Governmental Authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes under any applicable law (collectively, “Anti-Money Laundering Laws”), (ii) has been assessed civil penalties under any Anti-Money Laundering Laws or (iii) has had any of its funds seized or forfeited in an action under any Anti-Money Laundering Laws. The Company has taken reasonable measures appropriate to the circumstances (in any event as required by applicable law) to ensure that the Company and each Controlled Entity is and will continue to be in compliance with all applicable current and future Anti-Money Laundering Laws.

 

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(d) No part of the proceeds from the sale of the Bonds hereunder will be used, directly or indirectly, for any improper payments to any governmental official or employee, political party, official of a political party, candidate for political office, official of any public international organization or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage. The Company has taken reasonable measures appropriate to the circumstances (in any event as required by applicable law) to ensure that the Company and each Controlled Entity is and will continue to be in compliance with all applicable current and future anti-corruption laws and regulations.

Section 5.17. Status under Certain Statutes. Neither the Company nor any Subsidiary is subject to regulation under the Investment Company Act of 1940, as amended, the Public Utility Holding Company Act of 2005, as amended, the ICC Termination Act of 1995, as amended, or subject to rate regulation under the Federal Power Act, as amended.

Section 5.18. Environmental Matters. Neither the Company nor any Subsidiary has knowledge of any claim or has received any notice of any claim, and no proceeding has been instituted of which it has received notice, raising any claim against the Company or any of its Subsidiaries or any of their respective real properties now or formerly owned, leased or operated by any of them, or other assets, alleging damage to the environment or any violation of any Environmental Laws, except, in each case, such as could not reasonably be expected to result in a Material Adverse Effect. Except as otherwise disclosed to the Purchaser in writing:

(a) neither the Company nor any Subsidiary has knowledge of any facts which would give rise to any claim, public or private, for violation of Environmental Laws or damage to the environment emanating from, occurring on or in any way related to real properties or to other assets now or formerly owned, leased or operated by any of them or their use, except, in each case, such as could not reasonably be expected to result in a Material Adverse Effect;

(b) neither the Company nor any of its Subsidiaries has stored any Hazardous Materials on real properties now or formerly owned, leased or operated by any of them or has disposed of any Hazardous Materials in each case in a manner contrary to any Environmental Laws and in any manner that could reasonably be expected to result in a Material Adverse Effect; and

 

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(c) all buildings on all real properties now owned, leased or operated by the Company or any of its Subsidiaries are in compliance with applicable Environmental Laws, except where failure to comply could not reasonably be expected to result in a Material Adverse Effect.

Section 5.19. Lien of Indenture. The Indenture (and for avoidance of doubt including the Supplement) constitutes a direct and valid Lien upon the Trust Estate, subject only to the exceptions referred to in the Indenture and Permitted Liens, and will create a similar Lien upon all properties and assets acquired by the Company after the date hereof which are required to be subjected to the Lien of the Indenture, when acquired by the Company, subject only to the exceptions referred to in the Indenture and Permitted Liens, and subject, further, as to real property interests, to the recordation of a supplement to the Indenture describing such after-acquired property; the descriptions of all such properties and assets contained in the granting clauses of the Indenture are correct and adequate for the purposes of the Indenture; the Indenture has been duly recorded as a mortgage and deed of trust of real estate, and any required filings with respect to personal property and fixtures subject to the Lien of the Indenture have been duly made in each place in which such recording or filing is required to protect, preserve and perfect the Lien of the Indenture; and all taxes and recording and filing fees required to be paid with respect to the execution, recording or filing of the Indenture, the filing of financing statements related thereto and similar documents and the issuance of the Bonds have been paid.

Section 5.20. Filings. No action, including any filings, registration or notice, is necessary or advisable in Pennsylvania or any other jurisdictions to ensure the legality, validity and enforceability of the Financing Agreements, except such action as has been previously taken, which action remains in full force and effect. No action, including any filing, registration or notice, is necessary or advisable in Pennsylvania or any other jurisdiction to establish or protect for the benefit of the Trustee and the holders of Bonds, the security interest and Liens purported to be created under the Indenture and the priority and perfection therof and the other Financing Agreements, except such action as has been previously taken, which action remains in full force and effect.

 

SECTION  6. REPRESENTATIONS OF THE PURCHASERS.

Section 6.1. Purchase for Investment. Each Purchaser severally represents that it is purchasing the Bonds for its own account or for one or more separate accounts maintained by such Purchaser or for the account of one or more pension or trust funds and not with a view to the distribution thereof, provided that the disposition of such Purchaser’s or their property shall at all times be within such Purchaser’s or their control. Each Purchaser understands that the Bonds have not been registered under the Securities Act and may be resold only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, except under circumstances where neither such registration nor such an exemption is required by law, and that the Company is not required to register the Bonds.

 

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Section 6.2. Source of Funds. Each Purchaser severally represents that at least one of the following statements is an accurate representation as to each source of funds (a “Source”) to be used by such Purchaser to pay the purchase price of the Bonds to be purchased by such Purchaser hereunder:

(a) the Source is an “insurance company general account” (as the term is defined in the United States Department of Labor’s Prohibited Transaction Exemption (“PTE”) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any employee benefit plan together with the amount of the reserves and liabilities for the general account contract(s) held by or on behalf of any other employee benefit plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile; or

(b) the Source is a separate account that is maintained solely in connection with such Purchaser’s fixed contractual obligations under which the amounts payable, or credited, to any employee benefit plan (or its related trust) that has any interest in such separate account (or to any participant or beneficiary of such plan (including any annuitant)) are not affected in any manner by the investment performance of the separate account; or

(c) the Source is either (i) an “insurance company pooled separate account,” (within the meaning of PTE 90-1) or (ii) a “bank collective investment fund” (within the meaning of the PTE 91-38) and, except as disclosed by such Purchaser to the Company in writing pursuant to this clause (c), no employee benefit plan or group of plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or

(d) the Source constitutes assets of an “investment fund” (within the meaning of Part VI(b) of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI(a) of the QPAM Exemption); no employee benefit plan’s assets that are included in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an “affiliate” (within the meaning of Section VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, exceed 20% of the total client assets managed by such QPAM; the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied; neither the QPAM nor a person controlling or controlled by the QPAM (applying the definition of “control” in Section VI(e) of the QPAM Exemption) owns a 10% or more interest in the Company; and (i) the identity of such QPAM and (ii) the names of all employee benefit plans whose assets are included in such investment fund have been disclosed to the Company in writing pursuant to this clause (d); or

 

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(e) the Source constitutes assets of a “plan(s)” (within the meaning of Section IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption); the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied; neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Section IV(d) of the INHAM Exemption) owns a 10% or more interest in the Company and (i) the identity of such INHAM and (ii) the name(s) of the employee benefit plan(s) whose assets constitute the Source have been disclosed to the Company in writing pursuant to this clause (e); or

(f) the Source is a governmental plan; or

(g) the Source is one or more employee benefit plans, or a separate account or trust fund comprised of one or more employee benefit plans, each of which has been identified to the Company in writing pursuant to this clause (g); or

(h) the Source does not include “plan assets” of any employee benefit plan, other than a plan exempt from the coverage of Title I of ERISA.

As used in this Section 6.2, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.

 

SECTION  7. INFORMATION AS TO COMPANY.

Section 7.1. Financial and Business Information. The Company shall deliver to each holder of Bonds that is an Institutional Investor:

(a) Quarterly Statements — within 60 days after the end of each quarterly fiscal period in each fiscal year of the Company (other than the last quarterly fiscal period of each such fiscal year), duplicate copies of:

(i) a consolidated balance sheet of the Company and its Subsidiaries as at the end of such quarter, and

(ii) consolidated statements of income, changes in shareholders’ equity and cash flows of the Company and its Subsidiaries, for such quarter and (in the case of the second and third quarters) for the portion of the fiscal year ending with such quarter,

setting forth in each case in comparative form the figures for the corresponding periods in the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP applicable to quarterly financial statements generally, and certified by a Senior Financial Officer as fairly presenting, in all material respects, the financial position of the companies being reported on and their results of operations and cash flows, subject to changes resulting from year-end adjustments, provided that the delivery within the time period specified above of the Company’s said financial statements, prepared in accordance with the requirements therefor and filed with the Municipal Securities Rulemaking Board on the Electronic Municipal Market Access (“EMMA”) database shall be deemed to satisfy the requirements of this Section 7.1(a);

 

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(b) Annual Statements — within 120 days after the end of each fiscal year of the Company, duplicate copies of:

(i) a consolidated balance sheet of the Company and its Subsidiaries, as at the end of such year, and

(ii) consolidated statements of income, changes in shareholders’ equity and cash flows of the Company and its Subsidiaries for such year,

setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP, and accompanied by an opinion thereon of independent public accountants of recognized national standing, which opinion shall state that such financial statements present fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with GAAP, and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and that such audit provides a reasonable basis for such opinion in the circumstances, provided that the delivery within the time period specified above of the Company’s said financial statements, prepared in accordance with the requirements therefor and filed with the Municipal Securities Rulemaking Board on the EMMA database shall be deemed to satisfy the requirements of this Section 7.1(b);

(c) SEC and Other Reports — promptly upon their becoming available, one copy of (i) each financial statement, report, notice or proxy statement sent by the Company or any Subsidiary to its public securities holders generally, and (ii) each regular or periodic report, each registration statement that shall have become effective (without exhibits except as expressly requested by such holder), and each final prospectus and all amendments thereto filed by the Company or any Subsidiary with the SEC, provided that the delivery within the time period specified above of the Company’s said financial statements, prepared in accordance with the requirements therefor and filed with the Municipal Securities Rulemaking Board on the EMMA database shall be deemed to satisfy the requirements of this Section 7.1(c);

(d) Notice of Default or Event of Default — promptly, and in any event within five days after a Responsible Officer becomes aware of the existence of any Default or Event of Default, a written notice specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto;

 

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(e) ERISA Matters — promptly, and in any event within five days after a Responsible Officer becomes aware of any of the following, a written notice setting forth the nature thereof and the action, if any, that the Company or an ERISA Affiliate proposes to take with respect thereto:

(i) with respect to any Plan (other than any Multiemployer Plan) that is subject to Title IV of ERISA, any reportable event, as defined in section 4043(c) of ERISA and the regulations thereunder, for which notice thereof has not been waived pursuant to such regulations as in effect on the date hereof and on the date of the Closing; or

(ii) the taking by the PBGC of steps to institute, or the threatening by the PBGC of the institution of, proceedings under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such Plan, or the receipt by the Company or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer Plan; or

(iii) any event, transaction or condition that could result in the incurrence of any liability by the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, or in the imposition of any Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax provisions, if such liability or Lien, taken together with any other such liabilities or Liens then existing, would reasonably be expected to have a Material Adverse Effect;

(f) Notices from Governmental Authority — promptly, and in any event within 30 days of receipt thereof, copies of any notice to the Company or any Subsidiary from any federal or state Governmental Authority relating to any order, ruling, statute or other law or regulation that could reasonably be expected to have a Material Adverse Effect;

(g) Requested Information — with reasonable promptness, following the receipt by the Company of a written request by such holder of Bonds, the names and contact information of holders of the outstanding bonds issued under the Indenture (i.e. the bonds in which the Company or a trustee is required to keep in a register and that are not publicly traded) of which the Company has knowledge and the principal amount of the outstanding bonds issued under the Indenture owed to each holder (unless disclosure of such names, contact information or holdings is prohibited by law), and such data and information relating to the business, operations, affairs, financial condition, assets or properties of the Company or any of its Subsidiaries or relating to the ability of the Company to perform its obligations under any Financing Agreement as from time to time may be reasonably requested by such holder of Bonds; and

 

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(h) Deliveries to Trustee — promptly, and in any event within five days after delivery to the Trustee, a copy of any deliveries to by made by the Company to the Trustee, including without limitation the annual report delivered to the Trustee pursuant to Article VIII, Section 12 of the Indenture.

Section 7.2 Officer’s Certificate. Each set of financial statements delivered to a holder of Bonds pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a certificate of a Senior Financial Officer (which, in the case of financial statements filed with the Municipal Securities Rulemaking Board on the EMMA database, shall be by separate concurrent delivery of such certificate to each holder of Bonds) setting forth a statement that such Senior Financial Officer has reviewed the relevant terms hereof and of the Indenture and has made, or caused to be made, under his or her supervision, a review of the transactions and conditions of the Company and its Subsidiaries from the beginning of the quarterly or annual period covered by the statements then being furnished to the date of the certificate and that such review shall not have disclosed the existence during such period of any condition or event that constitutes a Default or an Event of Default or, if any such condition or event existed or exists (including, without limitation, any such event or condition resulting from the failure of the Company or any Subsidiary to comply with any Environmental Law), specifying the nature and period of existence thereof and what action the Company shall have taken or proposes to take with respect thereto.

Section 7.3. Visitation. The Company shall permit the representatives of each holder of Bonds that is an Institutional Investor:

(a) No Default — if no Default or Event of Default then exists, at the expense of such holder and upon reasonable prior notice to the Company, to visit the principal executive office of the Company, to discuss the affairs, finances and accounts of the Company and its Subsidiaries with the Company’s officers, and, with the consent of the Company (which consent will not be unreasonably withheld), to visit the other offices and properties of the Company and each Subsidiary, all at such reasonable times during normal business hours and as often as may be reasonably requested in writing; and

(b) Default — if a Default or Event of Default then exists, at the expense of the Company to visit and inspect any of the offices or properties of the Company or any Subsidiary, to examine all their respective books of account, records, reports and other papers, to make copies and extracts therefrom, and to discuss their respective affairs, finances and accounts with their respective officers and independent public accountants (and by this provision the Company authorizes said accountants to discuss the affairs, finances and accounts of the Company and its Subsidiaries), all at such reasonable times and as often as may be requested.

 

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SECTION  8. PURCHASE OF BONDS

The Company will not and will not permit any Affiliate to purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of the outstanding Bonds except (a) upon the payment or prepayment of the Bonds in accordance with the terms of this Agreement and the Bonds or (b) pursuant to a written offer to purchase any outstanding Bonds made by the Company or an Affiliate pro rata to the holders of the Bonds upon the same terms and conditions. Any such offer shall provide each holder with sufficient information to enable it to make an informed decision with respect to such offer, and shall remain open for at least 15 Business Days. If the holders of more than 10% of the principal amount of the Bonds then outstanding accept such offer, the Company shall promptly notify the remaining holders of such fact and the expiration date for the acceptance by holders of Bonds of such offer shall be extended by the number of days necessary to give each such remaining holder at least 10 Business Days from its receipt of such notice to accept such offer.The Company will promptly cancel all Bonds acquired by it or any Affiliate pursuant to any payment, prepayment or purchase of Bonds pursuant to any provision of this Agreement and no Bonds may be issued in substitution or exchange for any such Bonds.

 

SECTION  9. AFFIRMATIVE COVENANTS.

The Company covenants that so long as any of the Bonds are outstanding:

Section 9.1. Compliance with Law. Without limiting Section 10.4, the Company will, and will cause each of its Subsidiaries to, comply with all laws, ordinances or governmental rules or regulations to which each of them is subject, including, without limitation, ERISA, Environmental Laws, the USA Patriot Act and the other laws and regulations that are referred to in Section 5.16, and will obtain and maintain in effect all licenses, certificates, permits, franchises and other governmental authorizations necessary to the ownership of their respective properties or to the conduct of their respective businesses, in each case to the extent necessary to ensure that non-compliance with such laws, ordinances or governmental rules or regulations or failures to obtain or maintain in effect such licenses, certificates, permits, franchises and other governmental authorizations could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 9.2. Insurance. The Company will cause each of its Subsidiaries to maintain, with financially sound and reputable insurers, insurance with respect to their respective properties and businesses against such casualties and contingencies, of such types, on such terms and in such amounts (including deductibles, co-insurance and self-insurance, if adequate reserves are maintained with respect thereto) as is customary in the case of entities of established reputations engaged in the same or a similar business and similarly situated.

Section 9.3. Maintenance of Properties. The Company will cause each of its Subsidiaries to maintain and keep, or cause to be maintained and kept, their respective properties in good repair, working order and condition (other than ordinary wear and tear), so that the business carried on in connection therewith may be properly conducted at all times, provided that this Section shall not prevent any Subsidiary from discontinuing the operation and the maintenance of any of its properties if such discontinuance is desirable in the conduct of its business and the Company and such Subsidiary has concluded that such discontinuance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

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Section 9.4. Payment of Taxes. The Company will cause each of its Subsidiaries to file all income tax or similar tax returns required to be filed in any jurisdiction and to pay and discharge all taxes shown to be due and payable on such returns and all other taxes, assessments, governmental charges, or levies payable by any of them, to the extent the same have become due and payable and before they have become delinquent, provided that any Subsidiary does not need to pay any such tax, assessment, charge or levy if (a) the amount, applicability or validity thereof is contested by the Company or such Subsidiary on a timely basis in good faith and in appropriate proceedings, and the Subsidiary has established adequate reserves therefor in accordance with GAAP on the books of such Subsidiary or (b) the nonpayment of all such taxes, assessments, charges and levies in the aggregate would not reasonably be expected to have a Material Adverse Effect.

Section 9.5. Corporate Existence, Etc. The Company will at all times preserve and keep in full force and effect the corporate existence of each of its Subsidiaries (unless merged into the Company or a wholly-owned Subsidiary) and all rights and franchises of its Subsidiaries unless, in the good faith judgment of the Company or such Subsidiary, the termination of or failure to preserve and keep in full force and effect such corporate existence, right or franchise would not, individually or in the aggregate, have a Material Adverse Effect.

Section 9.6. Books and Records. The Company will, and will cause each of its Subsidiaries to, maintain proper books of record and account in conformity with GAAP and all applicable requirements of any Governmental Authority having legal or regulatory jurisdiction over the Company or such Subsidiary.

 

SECTION 10. NEGATIVE COVENANTS.

The Company covenants that so long as any of the Bonds are outstanding:

Section 10.1. Transactions with Affiliates. The Company will not and will not permit any Subsidiary to enter into directly or indirectly any Material transaction or Material group of related transactions (including without limitation the purchase, lease, sale or exchange of properties of any kind or the rendering of any service) with any Affiliate (other than the Company or another Subsidiary), except pursuant to the reasonable requirements of the Company’s or such Subsidiary’s business.

Section 10.2. Merger, Consolidation, Etc. The Company will not consolidate with or merge with any other Person or convey, transfer or lease all or substantially all of its assets in a single transaction or series of transactions to any Person unless:

 

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(a) the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer or lease all or substantially all of the assets of the Company as an entirety, as the case may be, shall be a solvent corporation or limited liability company organized and existing under the laws of the United States or any State thereof (including the District of Columbia), and, if the Company is not such corporation or limited liability company, such corporation or limited liability company shall have executed and delivered to each holder of any Bonds its assumption of the due and punctual performance and observance of each covenant and condition of the Financing Agreements (pursuant to such agreements and instruments as shall be reasonably satisfactory to the Required Holders), and the Company shall have caused to be delivered to each holder of Bonds an opinion of nationally recognized independent counsel, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof; and

(b) immediately before and immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing.

No such conveyance, transfer or lease of substantially all of the assets of the Company shall have the effect of releasing the Company or any successor corporation or limited liability company that shall theretofore have become such in the manner prescribed in this Section 10.2 from its liability under the Financing Agreements.

Section 10.3. Line of Business. The Company will not engage in any business if, as a result, the general nature of the business in which the Company and its Subsidiaries, taken as a whole, would then be engaged would be substantially changed from the general nature of the business in which the Company and its Subsidiaries, taken as whole, is engaged on the date of this Agreement.

Section 10.4. Terrorism Sanctions Regulations. The Company will not and will not permit any Controlled Entity to (a) become a Blocked Person or (b) have any investments in or engage in any dealings or transactions with any Blocked Person except in accordance with applicable law and in a manner where such investments, transactions or dealings would not cause the purchase, holding or receipt of any payment or exercise of any rights in respect of any Bond by the holder thereof to be in violation of any laws or regulations administered by OFAC.

 

SECTION 11. PAYMENTS ON BONDS.

Section 11.1. Home Office Payment. So long as any Purchaser or its nominee shall be the holder of any Bond, and notwithstanding anything contained in the Indenture or in such Bond to the contrary, the Company will pay all sums becoming due on such Bond for principal, Make-Whole Amount or premium, if any, and interest by the method and at the address specified for such purpose below such Purchaser’s name in Schedule A, or by such other method or at such other address as such Purchaser shall have from time to time specified to the Company in writing for such purpose, without the presentation or surrender of such Bond or the making of any notation thereon, except that upon written request of the Company made concurrently with or reasonably promptly after payment or prepayment in full of any Bond, such Purchaser shall surrender such Bond for cancellation, reasonably promptly after any such request, to the Company at its principal executive office or at the place of payment most recently designated by the Company pursuant to Article II of the Indenture. Prior to any sale or other disposition of any Bond held by a Purchaser or its nominee, such Purchaser will, at its election, either endorse thereon the amount of principal paid thereon and the last date to which interest has been paid thereon or surrender such Bond to the Company in exchange for a new Bond or Bonds pursuant to Article II of the Indenture. The Company will afford the benefits of this Section 11.1 to any Institutional Investor that is the direct or indirect transferee of any Bond purchased by a Purchaser under this Agreement and that has made the same agreement relating to such Bond as the Purchasers have made in this Section 11.1.

 

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SECTION 12. REGISTRATION; EXCHANGE; EXPENSES, ETC.

Section 12.1. Registration of Bonds. The Company shall cause the Trustee to keep a register for the registration and registration of transfers of Bonds in accordance with Article XIII, Section 9 of the Indenture.

Section 12.2. Transaction Expenses. Whether or not the transactions contemplated hereby are consummated, the Company will pay all reasonable costs and expenses (including reasonable attorneys’ fees of a special counsel and, if reasonably required by the Required Holders, local or other counsel) incurred by the Purchasers and each other holder of a Bond in connection with such transactions and in connection with any amendments, waivers or consents under or in respect of any Financing Agreement (whether or not such amendment, waiver or consent becomes effective), including, without limitation: (a) the costs and expenses incurred in enforcing or defending (or determining whether or how to enforce or defend) any rights under any Financing Agreement or in responding to any subpoena or other legal process or informal investigative demand issued in connection with any Financing Agreement, or by reason of being a holder of any Bond, (b) the costs and expenses, including financial advisors’ fees, incurred in connection with the insolvency or bankruptcy of the Company or any Subsidiary or in connection with any work-out or restructuring of the transactions contemplated by any Financing Agreement and (c) the costs and expenses incurred in connection with the initial filing of any Financing Agreement and all related documents and financial information with the SVO, provided that such costs and expenses under this clause (c) shall not exceed $5,000 for the Bonds. The Company will pay, and will save each Purchaser and each other holder of a Bond harmless from, all claims in respect of any fees, costs or expenses if any, of brokers and finders (other than those, if any, retained by a Purchaser or other holder in connection with its purchase of the Bonds).

Section 12.3. Survival. The obligations of the Company under this Section 12 will survive the payment or transfer of any Bond, the enforcement, amendment or waiver of any provision of any Financing Agreement, and the termination of any Financing Agreement.

 

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SECTION 13. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.

All representations and warranties contained herein shall survive the execution and delivery of this Agreement, the purchase or transfer by any Purchaser of any Bond or portion thereof or interest therein and the payment of any Bond, and may be relied upon by any subsequent holder of a Bond, regardless of any investigation made at any time by or on behalf of such Purchaser or any other holder of a Bond. All statements contained in any certificate or other instrument delivered by or on behalf of the Company pursuant to this Agreement shall be deemed representations and warranties of the Company under this Agreement. Subject to the preceding sentence, the Financing Agreements embody the entire agreement and understanding between each Purchaser and the Company and supersede all prior agreements and understandings relating to the subject matter hereof.

 

SECTION 14. AMENDMENT AND WAIVER.

Section 14.1. Requirements. This Agreement and the Bonds may be amended, and the observance of any term hereof or of the Bonds may be waived (either retroactively or prospectively), with (and only with) the written consent of the Company and the Required Holders, except that (i) no amendment or waiver of any of the provisions of Section 1, 2, 3, 4, 5, 6 or 19 hereof, or any defined term, will be effective as to any holder of Bonds unless consented to by such holder of Bonds in writing, and (ii) no such amendment or waiver may, without the written consent of all of the holders of Bonds at the time outstanding affected thereby, (A) subject to the provisions of the Indenture relating to acceleration, change the amount or time of any prepayment or payment of principal of, or reduce the rate or change the time of payment or method of computation of interest (if such change results in a decrease in the interest rate) or of the Make-Whole Amount on, the Bonds, (B) change the percentage of the principal amount of the Bonds the holders of which are required to consent to any such amendment or waiver, or (C) amend any of Sections 8, 14 or 18.

Section 14.2. Solicitation of Holders of Bonds.

(a) Solicitation. The Company will provide each holder of the Bonds (irrespective of the amount of Bonds then owned by it) with sufficient information, sufficiently far in advance of the date a decision is required, to enable such holder to make an informed and considered decision with respect to any proposed amendment, waiver or consent in respect of any of the provisions hereof or of the Bonds. The Company will deliver executed or true and correct copies of each amendment, waiver or consent effected pursuant to the provisions of this Section 14 to each holder of outstanding Bonds promptly following the date on which it is executed and delivered by, or receives the consent or approval of, the requisite holders of Bonds.

 

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(b) Payment. The Company will not directly or indirectly pay or cause to be paid any remuneration, whether by way of supplemental or additional interest, fee or otherwise (other than legal fees or other related expenses), or grant any security or provide other credit support, to any holder of Bonds as consideration for or as an inducement to the entering into by any holder of Bonds or any waiver or amendment of any of the terms and provisions hereof unless such remuneration is concurrently paid, or security is concurrently granted or other credit support concurrently provided, on the same terms, ratably to each holder of Bonds then outstanding even if such holder did not consent to such waiver or amendment.

(c) Consent in Contemplation of Transfer. Any consent made pursuant to this Section 14 by the holder of any Bond that has transferred or has agreed to transfer such Bond to the Company, any Subsidiary or any Affiliate of the Company and has provided or has agreed to provide such written consent as a condition to such transfer shall be void and of no force or effect except solely as to such holder, and any amendments effected or waivers granted or to be effected or granted that would not have been or would not be so effected or granted but for such consent (and the consents of all other holders of Bonds that were acquired under the same or similar conditions) shall be void and of no force or effect except solely as to such transferring holder.

Section 14.3. Binding Effect, Etc. Any amendment or waiver consented to as provided in this Section 14 applies equally to all holders of Bonds and is binding upon them and upon each future holder of any Bond and upon the Company without regard to whether such Bond has been marked to indicate such amendment or waiver. No such amendment or waiver will extend to or affect any obligation, covenant, agreement, Default or Event of Default not expressly amended or waived or impair any right consequent thereon. No course of dealing between the Company and the holder of any Bond nor any delay in exercising any rights hereunder or under any Bond shall operate as a waiver of any rights of any holder of such Bond. As used herein, the term “this Agreement” and references thereto shall mean this Agreement as it may from time to time be amended or supplemented.

Section 14.4. Bonds Held by Company, Etc. Solely for the purpose of determining whether the holders of the requisite percentage of the aggregate principal amount of Bonds then outstanding approved or consented to any amendment, waiver or consent to be given under this Agreement or the Bonds, or have directed the taking of any action provided herein or in the Bonds to be taken upon the direction of the holders of a specified percentage of the aggregate principal amount of Bonds then outstanding, Bonds directly or indirectly owned by the Company or any of its Affiliates shall be deemed not to be outstanding.

 

SECTION 15. NOTICES.

All notices and communications provided for hereunder shall be in writing and sent (a) by telecopy if the sender on the same day sends a confirming copy of such notice by a recognized overnight delivery service (charges prepaid), or (b) by registered or certified mail with return receipt requested (postage prepaid), or (c) by a recognized overnight delivery service (with charges prepaid). Any such notice must be sent:

(i) if to any Purchaser or its nominee, to such Purchaser or nominee at the address specified for such communications in Schedule A, or at such other address as such Purchaser or nominee shall have specified to the Company in writing,

 

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(ii) if to any other holder of any Bond, to such holder at such address as such other holder shall have specified to the Company in writing, or

(iii) if to the Company, to the Company at its address set forth at the beginning hereof to the attention of 762 West Lancaster Avenue, Bryn Mawr, Pennsylvania 19010-3489, or at such other address as the Company shall have specified to the holder of each Bond in writing, or

(iv) if to the Trustee, to The Bank of New York Mellon Trust Company, N.A., as Trustee, 1735 Market Street, 6th Floor, AIM No.: 193-0650, Philadelphia, PA 19103, or at such other address as the Trustee shall have specified to the Company and each other party hereto in writing.

Notices under this Section 15 will be deemed given only when actually received.

 

SECTION 16. INDEMNIFICATION.

The Company hereby agrees to indemnify and hold the Purchasers harmless from, against and in respect of any and all loss, liability and expense (including reasonable attorneys’ fees) arising from any misrepresentation or nonfulfillment of any undertaking on the part of the Company under this Agreement. The indemnification obligations of the Company under this Section 16 shall survive the execution and delivery of this Agreement, the delivery of the Bonds to the Purchasers and the consummation of the transactions contemplated herein.

 

SECTION 17. REPRODUCTION OF DOCUMENTS.

This Agreement and all documents relating thereto, including, without limitation, (a) consents, waivers and modifications that may hereafter be executed, (b) documents received by any Purchaser at the Closing (except the Bonds themselves), and (c) financial statements, certificates and other information previously or hereafter furnished to any Purchaser, may be reproduced by such Purchaser by any photographic, photostatic, electronic, digital, or other similar process and such Purchaser may destroy any original document so reproduced. The Company agrees and stipulates that, to the extent permitted by applicable law, any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made by such Purchaser in the regular course of business) and any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence. This Section 17 shall not prohibit the Company or any other holder of Bonds from contesting any such reproduction to the same extent that it could contest the original, or from introducing evidence to demonstrate the inaccuracy of any such reproduction.

 

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SECTION 18. CONFIDENTIAL INFORMATION.

For the purposes of this Section 18, “Confidential Information” means information delivered to any Purchaser by or on behalf of the Company or any Subsidiary in connection with the transactions contemplated by or otherwise pursuant to this Agreement that is proprietary in nature and that was clearly marked or labeled or otherwise adequately identified when received by such Purchaser as being confidential information of the Company or such Subsidiary, provided that such term does not include information that (a) was publicly known or otherwise known to such Purchaser prior to the time of such disclosure, (b) subsequently becomes publicly known through no act or omission by such Purchaser or any person acting on such Purchaser’s behalf, (c) otherwise becomes known to such Purchaser other than through disclosure by the Company or any Subsidiary or (d) constitutes financial statements delivered to such Purchaser under Section 7.1 of this Agreement or under the Indenture that are otherwise publicly available. Each Purchaser will maintain the confidentiality of such Confidential Information in accordance with procedures adopted by such Purchaser in good faith to protect confidential information of third parties delivered to such Purchaser, provided that such Purchaser may deliver or disclose Confidential Information to (i) its directors, trustees, officers, employees, agents, attorneys and affiliates (to the extent such disclosure reasonably relates to the administration of the investment represented by Bonds), (ii) its financial advisors and other professional advisors who agree to hold confidential the Confidential Information substantially in accordance with the terms of this Section 18, (iii) any other holder of any Bond, (iv) any Institutional Investor to which it sells or offers to sell such Bond or any part thereof or any participation therein (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by the provisions of this Section 18), (v) any Person from which it offers to purchase any security of the Company (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by the provisions of this Section 18), (vi) any federal or state or provincial regulatory authority having jurisdiction over such Purchaser, (vii) the NAIC or the SVO or, in each case, any similar organization, or any nationally recognized rating agency that requires access to information about such Purchaser’s investment portfolio, or (viii) any other Person to which such delivery or disclosure may be necessary or appropriate (w) to effect compliance with any law, rule, regulation or order applicable to such Purchaser, (x) in response to any subpoena or other legal process, (y) in connection with any litigation to which such Purchaser is a party or (z) if an Event of Default has occurred and is continuing, to the extent such Purchaser may reasonably determine such delivery and disclosure to be necessary or appropriate in the enforcement or for the protection of the rights and remedies under any Financing Agreement. Each holder of a Bond, by its acceptance of a Bond, will be deemed to have agreed to be bound by and to be entitled to the benefits of this Section 18 as though it were a party to this Agreement. On reasonable request by the Company in connection with the delivery to any holder of a Bond of information required to be delivered to such holder under this Agreement or requested by such holder (other than a holder that is a party to this Agreement or its nominee), such holder will enter into an agreement with the Company embodying the provisions of this Section 18.

 

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In the event that as a condition to receiving access to information relating to the Company or its Subsidiaries in connection with the transactions contemplated by or otherwise pursuant to this Agreement, any Purchaser or holder of a Bond is required to agree to a confidentiality undertaking (whether through EMMA, another secure website, a secure virtual workspace or otherwise) which is different from this Section 18, this Section 18 shall not be amended thereby and, as between such Purchaser or such holder and the Company, this Section 18 shall supersede any such other confidentiality undertaking.

 

SECTION 19. MISCELLANEOUS.

Section 19.1. Successors and Assigns. All covenants and other agreements contained in this Agreement by or on behalf of any of the parties hereto bind and inure to the benefit of their respective successors and assigns (including, without limitation, any subsequent holder of a Bond) whether so expressed or not.

Section 19.2. Accounting Terms. All accounting terms used herein which are not expressly defined in this Agreement have the meanings respectively given to them in accordance with GAAP. Except as otherwise specifically provided herein, (a) all computations made pursuant to this Agreement shall be made in accordance with GAAP, and (b) all financial statements shall be prepared in accordance with GAAP. For purposes of determining compliance with the financial covenants contained in the Financing Agreements, if any, any election by the Company to measure Debt using fair value (as permitted by Financial Accounting Standards Board Accounting Standards Codification Topic No. 825-10-25 – Fair Value Option, International Accounting Standard 39 –Financial Instruments: Recognition and Measurement or any similar accounting standard) shall be disregarded and such determination shall be made as if such election had not been made and such Debt shall be valued at not less than 100% of the principal amount thereof.

Section 19.3. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.

Section 19.4. Construction, Etc. Each covenant contained herein shall be construed (absent express provision to the contrary) as being independent of each other covenant contained herein, so that compliance with any one covenant shall not (absent such an express contrary provision) be deemed to excuse compliance with any other covenant. Where any provision herein refers to action to be taken by any Person, or which such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such Person.

For the avoidance of doubt, all Schedules and Exhibits attached to this Agreement shall be deemed to be a part hereof.

 

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Section 19.5. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto.

Section 19.6. Governing Law. This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the Commonwealth of Pennsylvania excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.

Section 19.7. Jurisdiction and Process; Waiver of Jury Trial.

(a) The Company irrevocably submits to the non-exclusive jurisdiction of any Pennsylvania State or federal court sitting in Philadelphia, Pennsylvania, over any suit, action or proceeding arising out of or relating to this Agreement or the Bonds. To the fullest extent permitted by applicable law, the Company irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

(b) The Company consents to process being served by or on behalf of any holder of Bonds in any suit, action or proceeding of the nature referred to in Section 19.7(a) by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, return receipt requested, to it at its address specified in Section 15 or at such other address of which such holder shall then have been notified pursuant to said Section. The Company agrees that such service upon receipt (i) shall be deemed in every respect effective service of process upon it in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by applicable law, be taken and held to be valid personal service upon and personal delivery to it. Notices hereunder shall be conclusively presumed received as evidenced by a delivery receipt furnished by the United States Postal Service or any reputable commercial delivery service.

(c) Nothing in this Section 19.7 shall affect the right of any holder of a Bond to serve process in any manner permitted by law, or limit any right that the holders of any of the Bonds may have to bring proceedings against the Company in the courts of any appropriate jurisdiction or to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.

(d) The parties hereto hereby waive trial by jury in any action brought on or with respect to this Agreement, the Bonds or any other document executed in connection herewith or therewith.

 

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Section 19.8. Payments Due on Non-Business Days. Anything in this Agreement or the Bonds to the contrary notwithstanding (but without limiting the requirement in Section 8.4 that the notice of any optional prepayment specify a Business Day as the date fixed for such prepayment), any payment of principal of or Make-Whole Amount or interest on any Bond that is due on a date other than a Business Day shall be made on the next succeeding Business Day without including the additional days elapsed in the computation of the interest payable on such next succeeding Business Day; provided that if the maturity date of any Bond is a date other than a Business Day, the payment otherwise due on such maturity date shall be made on the next succeeding Business Day and shall include the additional days elapsed in the computation of interest payable on such next succeeding Business Day.

*    *    *    *    *

 

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If you are in agreement with the foregoing, please sign the form of agreement on a counterpart of this Bond Purchase Agreement and return it to the Company, whereupon this Agreement shall become a binding agreement between you and the Company.

 

Very truly yours,
AQUA PENNSYLVANIA, INC.
By  

David P. Smeltzer

Name:   David P. Smeltzer
Its:   Executive Vice President,
  Chief Financial Officer

 

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Accepted as of the date first written above.

 

TEACHERS INSURANCE AND ANNUITY ASSOCIATION
OF AMERICA
By  

Joseph R. Cantey Jr.

Name:   Josep R. Cantey Jr.
Title:   Director

 

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Accepted as of the date first written above.

 

JOHN HANCOCK LIFE INSURANCE COMPANY
(U.S.A.)
By  

Pradeep Killamsetty

Name:   Pradeep Killamsetty
Title:   Director
JOHN HANCOCK LIFE INSURANCE COMPANY OF
NEW YORK
By  

Pradeep Killamsetty

Name:   Pradeep Killamsetty
Title:   Director
JOHN HANCOCK LIFE & HEALTH INSURANCE COMPANY
By  

Pradeep Killamsetty

Name:   Pradeep Killamsetty
Title:   Director

 

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Accepted as of the date first written above.

 

THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
By:   Delaware Investment Advisers, a series of Delaware Management Business Trust, Attorney in Fact
By  

Bradley S. Ritter

Name:   Bradley S. Ritter
Title:   Senior Vice President
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
By:   Delaware Investment Advisers, a series of Delaware Management Business Trust, Attorney in Fact
By  

Bradley S. Ritter

Name:   Bradley S. Ritter
Title:   Senior Vice President

 

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Accepted as of the date first written above.

 

NEW YORK LIFE INSURANCE COMPANY

By  

Jessica L. Maizel

Name:   Jessica L. Maizel
Title:   Corporate Vice President
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
By:   New York Life Investment Management LLC, Its Investment Manager
By  

Jessica L. Maizel

Name:   Jessica L. Maizel
Title:   Directory

 

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Accepted as of the date first written above.

 

MINNESOTA LIFE INSURANCE COMPANY
UNITEDHEALTHCARE INSURANCE COMPANY
AMERICAN REPUBLIC INSURANCE COMPANY
WESTERN FRATERNAL LIFE ASSOCIATION
By:   Advantus Capital Management, Inc.
By  

James F. Geiger

Name:   James F. Geiger
Title:   Vice President

 

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INFORMATION RELATING TO PURCHASERS

 

NAME OF AND ADDRESS

OF PURCHASER

   SERIESOF
BONDS
   PRINCIPAL AMOUNT
OF BONDS TO BE
PURCHASED
 

TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA

8500 Andrew Carnegie Boulevard

Charlotte, North Carolina 28262

   A
B
    
 

$17,000,000
$  6,000,000

  
  

Payments

All payments on or in respect of the Bonds shall be made in immediately available funds on the due date by electronic funds transfer, through the Automated Clearing House System, to:

JPMorgan Chase Bank, N.A.

ABA # 021-000-021

Account Number: 900-9-000200

Account Name: TIAA

For Further Credit to the Account Number: G07040

Reference (Series A Bonds): PPN: 03842* AE6/Aqua Pennsylvania, Inc.

Maturity Date: December 1, 2041/Interest Rate: 3.79%/P&I Breakdown

Reference: (Series B Bonds): PPN: 03842* AF3/Aqua Pennsylvania, Inc.

Maturity Date: December 1, 2042/Interest Rate: 3.80%/P&I Breakdown

Payment Notices

All notices with respect to payments and prepayments of the Bonds shall be sent to:

Teachers Insurance and Annuity Association of America

730 Third Avenue

New York, New York 10017

Attention: Securities Accounting Division

Phone: (212) 916-5504

Email: [email protected] or [email protected]

With a copy to:

JPMorgan Chase Bank, N.A.

P.O. Box 35308

Newark, New Jersey 07101

SCHEDULE A

(to Bond Purchase Agreement)

 


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And to:

Teachers Insurance and Annuity Association of America

8500 Andrew Carnegie Boulevard

Charlotte, North Carolina 28262

Attention: Global Private Markets

  Telephone:    (704) 988-4349 (Ho Young Lee)
     (704) 988-1000 (General Number)
  Facsimile:    (704) 988-4916
  Email:    [email protected]

Contemporaneous written confirmation of any electronic funds transfer shall be sent to the above addresses setting forth (1) the full name, private placement number, interest rate and maturity date of the Bonds, (2) allocation of payment between principal, interest, Make-Whole Amount, other premium or any special payment and (3) the name and address of the bank from which such electronic funds transfer was sent.

Other Notices and Communications

All other notices and communications shall be delivered or mailed to:

Teachers Insurance and Annuity Association of America

8500 Andrew Carnegie Boulevard

Charlotte, North Carolina 28262

  Attention: Global Private Markets
  Telephone:    (704) 988-4349 (Ho Young Lee)
     (704) 988-1000 (General Number)
  Facsimile:    (704) 988-4916
  Email:    [email protected]

Physical Delivery of Bonds

JPMorgan Chase Bank, N.A.

4 Chase Metrotech Center

3rd Floor

Brooklyn, New York 11245-0001

Attention: Physical Receive Department

For TIAA A/C #G07040

Name of Nominee in which Bonds are to be issued: None

Taxpayer I.D. Number: 13-1624203

 

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NAME OF AND ADDRESS

OF PURCHASER

   SERIES

OF BONDS

   PRINCIPAL AMOUNT

OF BONDS TO BE

PURCHASED

JOHN HANCOCK LIFE INSURANCE COMPANY (U.S.A.)    A    $    12,000,000

c/o John Hancock Financial Services

197 Clarendon Street

Boston, Massachusetts 02116

   B    $      6,000,000

Payments

All payments to be by bank wire transfer of immediately available funds to:

 

  Bank Name:    Bank of New York Mellon
  ABA Number:    011001234
  Account Number:    JPPF1001002
  Account Name:    US PP Collector F008
  For Further Credit to:    DDA Number 000048771
  On Order of:    Aqua Pennsylvania, Inc.

Notices

All notices with respect to payments, prepayments (scheduled and unscheduled, whether partial or in full) and maturity shall be sent to:

 

  John Hancock Financial Services   and      John Hancock Financial Services
  197 Clarendon Street        197 Clarendon Street
  Boston, MA 02116       

Boston, MA 02116

  Attention: US Securities Operations, C-4       

Attention: Investment Administration, C-4

  Fax Number: (617) 572-0628       

Fax Number: (617) 572-5495

  Email: [email protected]       

Email: [email protected]

All notices and communication with respect to compliance reporting, financial statements and related certifications shall be sent to:

John Hancock Financial Services

197 Clarendon Street

Boston, MA 02116

Attention: Bond and Corporate Finance, C-2

Fax Number: (617) 572-0040

Email: [email protected]

 

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All other notices shall be sent to:

 

  John Hancock Financial Services   and      John Hancock Financial Services
  197 Clarendon Street        197 Clarendon Street
  Boston, MA 02116        Boston, MA 02116
  Attention: Investment Law, C-3        Attention: Bond and Corporate Finance, C-2
  Fax Number: (617) 572-9269        Fax Number: (617) 572-0040

Registered Name of Securities: John Hancock Life Insurance Company (U.S.A.)

Taxpayer I.D. Number: 01-0233346

 

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NAME OF AND ADDRESS

OF PURCHASER

   SERIES
OF BONDS
   PRINCIPAL AMOUNT
OF BONDS TO BE
PURCHASED
 

JOHN HANCOCK LIFE INSURANCE COMPANY OF NEW YORK

c/o John Hancock Financial Services

197 Clarendon Street

Boston, Massachusetts 02116

   A    $ 3,000,000   

Payments

All payments to be by bank wire transfer of immediately available funds to:

 

Bank Name:    Bank of New York Mellon
ABA Number:    011001234
Account Number:    JPPF1001002
Account Name:    US PP Collector F008
For Further Credit to:    DDA Number 000048771
On Order of:    Aqua Pennsylvania, Inc.

Notices

All notices with respect to payments, prepayments (scheduled and unscheduled, whether partial or in full) and maturity shall be sent to:

 

John Hancock Financial Services    and    John Hancock Financial Services
197 Clarendon Street       197 Clarendon Street
Boston, MA 02116       Boston, MA 02116
Attention: US Securities Operations, C-4       Attention: Investment Administration, C-4
Fax Number: (617) 572-0628       Fax Number: (617) 572-5495
Email: [email protected]       Email: [email protected]

All notices and communication with respect to compliance reporting, financial statements and related certifications shall be sent to:

John Hancock Financial Services

197 Clarendon Street

Boston, MA 02116

Attention: Bond and Corporate Finance, C-2

Fax Number: (617) 572-0040

Email: [email protected]

 

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All other notices shall be sent to:

 

John Hancock Financial Services    and    John Hancock Financial Services
197 Clarendon Street       197 Clarendon Street
Boston, MA 02116       Boston, MA 02116
Attention: Investment Law, C-3       Attention: Bond and Corporate Finance, C-2
Fax Number: (617) 572-9269       Fax Number: (617) 572-0040

Registered Name of Securities: John Hancock Life Insurance Company of New York

Taxpayer I.D. Number: 13-3646501

 

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NAME OF AND ADDRESS

OF PURCHASER

   SERIES
OF BONDS
   PRINCIPAL AMOUNT
OF BONDS TO BE
PURCHASED
 

JOHN HANCOCK LIFE & HEALTH INSURANCE COMPANY

c/o John Hancock Financial Services

197 Clarendon Street

Boston, Massachusetts 02116

   A    $ 2,000,000   

Payments

All payments to be by bank wire transfer of immediately available funds to:

 

Bank Name:    Bank of New York Mellon
ABA Number:    011001234
Account Number:    JPPF1001002
Account Name:    US PP Collector F008
For Further Credit to:    DDA Number 000048771
On Order of:    Aqua Pennsylvania, Inc.

Notices

All notices with respect to payments, prepayments (scheduled and unscheduled, whether partial or in full) and maturity shall be sent to:

 

John Hancock Financial Services    and    John Hancock Financial Services
197 Clarendon Street       197 Clarendon Street
Boston, MA 02116       Boston, MA 02116
Attention: US Securities Operations, C-4       Attention: Investment Administration, C-4
Fax Number: (617) 572-0628       Fax Number: (617) 572-5495
Email: [email protected]       Email: [email protected]

All notices and communication with respect to compliance reporting, financial statements and related certifications shall be sent to:

John Hancock Financial Services

197 Clarendon Street

Boston, MA 02116

Attention: Bond and Corporate Finance, C-2

Fax Number: (617) 572-0040

Email: [email protected]

 

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All other notices shall be sent to:

 

John Hancock Financial Services

  and    John Hancock Financial Services

197 Clarendon Street

     197 Clarendon Street

Boston, MA 02116

     Boston, MA 02116

Attention: Investment Law, C-3

     Attention: Bond and Corporate Finance, C-2

Fax Number: (617) 572-9269

     Fax Number: (617) 572-0040

Registered Name of Securities: John Hancock Life & Health Insurance Company

Taxpayer I.D. Number: 13-3072894

 

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NAME OF AND ADDRESS

OF PURCHASER

   SERIES
OF BONDS
        PRINCIPAL AMOUNT
OF BONDS TO BE
PURCHASED
 

THE LINCOLN NATIONAL LIFE INSURANCE COMPANY

   C
      $
7,000,000
  

c/o Delaware Investment Advisers

2005 Market Street, Mail Stop 41-104

Philadelphia, Pennsylvania 19103

Attention: Fixed Income Private Placements

Private Placement Fax: (215) 255-1654

   C       $ 5,000,000   

Payments

All principal and interest payments on or in respect of the Bonds shall be made in immediately available funds via Fed Wire to:

The Bank of New York Mellon

One Wall Street, New York, New York 10286

ABA #021000018

BNF Account #: IOC566

Attention: Private Placement P & I Dept.

Further Credit: The Lincoln National Life Insurance Company

FFC Account #: (insert The Bank of New York Mellon acct # listed below)

REF: PPN #03842* AG1 / SECURITY DESC / PAYT REASON

For Further Credit Account Numbers Listed Below:

 

BOND
AMOUNT
   SERIES      LINCOLN ACCOUNT NAME    CUSTODY
NUMBER
$5,000,000    C      Lincoln Nat’l Life Ins Co Seg 16    216625
$7,000,000    C      Lincoln Nat’l Life Ins Co Seg 10    215714

Notices

All notices of payments on or in respect of the Bonds and written confirmation of each such payment to be addressed to:

Delaware Investment Advisers

2005 Market Street, Mail Stop 41-104

Philadelphia, Pennsylvania 19103

Attention: Fixed Income Private Placements

Private Placement Fax: (215) 255-1654

 

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With notices of PAYMENT ONLY:

Lincoln Financial Group

1300 South Clinton Street, 5C-00

Fort Wayne, Indiana 46802

Attention: K. Estep — Investment Accounting

Investment Accounting Fax: (260) 455-2622

and

The Bank of New York Mellon

P. O. Box 19266

Newark, New Jersey 07195

Attention: Private Placement P&I Department

Reference: Acct Name/PPN #03842* AG1

All other notices and communications to be addressed as first provided above.

Physical Delivery

The Bank of New York Mellon

Attn: Free Receive Department

Contact Person: Anthony Saviano, Dept. Manager (Telephone 212-635-6764)

One Wall Street, 3rd Floor

New York, NY 10286

(in cover letter reference note amt, acct name, and bank acct #)

Please fax copy of cover letter to:

Karen Costa – The Bank of New York Mellon - Fax #: (315) 414-5017

 

With a copy to:   Deborah Hayes
  Lincoln Financial Group
  100 North Greene Street
  Greensboro, NC 27401
  [email protected]

Name of Nominee in which Bonds are to be issued: None

Taxpayer I.D. Number: 35-0472300

 

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NAME OF AND ADDRESS

OF PURCHASER

   SERIES
OF BONDS
        PRINCIPAL AMOUNT
OF BONDS TO BE
PURCHASED
 

LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK

   C       $ 3,000,000   

c/o Delaware Investment Advisers

2005 Market Street, Mail Stop 41-104

Philadelphia, Pennsylvania 19103

Attention: Fixed Income Private Placements

Private Placement Fax: (215) 255-1654

        

Payments

All principal and interest payments on or in respect of the Bonds shall be made in immediately available funds via Fed Wire to:

NORTHERN CHGO/Trust

801 South Canal St., Chicago, IL 60607

ABA #: 071000152

Credit Wire Account #: 5186041000

Attention: Income / Dividend

For further credit to Custody Account #: 26-24503

For: Lincoln Life & Annuity Company of New York

Ref: Aqua Pennsylvania, Inc.; PPN 03842* AG1, Rate, Maturity, P=$, I=$

For Further Credit Account Numbers Listed Below:

 

BOND
AMOUNT
   SERIES      LINCOLN ACCOUNT NAME    CUSTODY
NUMBER
 
$3,000,000    C      Lincoln Life & Annuity Company of New York Seg 11      26-24503   

Notices

All notices of payments on or in respect of the Bonds and written confirmation of each such payment to be addressed to:

Delaware Investment Advisers

2005 Market Street, Mail Stop 41-104

Philadelphia, Pennsylvania 19103

Attention: Fixed Income Private Placements

Private Placement Fax: (215) 255-1654

 

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With notices of PAYMENT ONLY:

Lincoln Financial Group

1300 South Clinton Street, 5C-00

Fort Wayne, Indiana 46802

Attention: K. Estep — Investment Accounting

Investment Accounting Fax: (260) 455-2622

and

The Northern Trust Company

801 South Canal Street

Income Collections C-4S

Attention: Viola Nash / Oscell Owens

Chicago, IL 60607

Fax: 312-630-8179

REF Account: 26-24503 & Lincoln Life & Annuity Co of New York & PPN #03842* AG1

All other notices and communications to be addressed as first provided above.

Physical Delivery

The Northern Trust Company of New York

Attn: Wanda Leshone Ross (Telephone 312-557-9507)

Trade Securities Processing, C1N

801 South Canal Street

Chicago, IL 60607

Ref: Acct #26-24503 & Lincoln Life & Annuity Co of New York

(in cover letter reference Bond amount, acct name, and custody acct #)

 

With a copy to:   Deborah Hayes
  Lincoln Financial Group
  100 North Greene Street
  Greensboro, NC 27401
  [email protected]

Name of Nominee in which Bonds are to be issued: None

Taxpayer I.D. Number: 22-0832760

 

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NAME OF AND ADDRESS

OF PURCHASER

  

SERIES

OF BONDS

          PRINCIPAL AMOUNT
OF BONDS TO BE
PURCHASED
 

NEW YORK LIFE INSURANCE COMPANY

    
B
  
      $
4,800,000
  

c/o New York Life Investment Management LLC

51 Madison Avenue

2nd Floor, Room 208

New York, New York 10010

Attention: Fixed Income Investors Group,

   Private Finance, 2nd Floor

   Fax Number: (212) 447-4122

    
C
  
      $
3,000,000
  

Payments

All payments by wire or intrabank transfer of immediately available funds to:

JPMorgan Chase Bank

New York, New York 10019

ABA #021-000-021

Credit: New York Life Insurance Company

General Account No. 008-9-00687

With sufficient information (including issuer, PPN number, interest rate, maturity and whether payment is of principal, premium, or interest) to identify the source and application of such funds.

Notices

All notices of payments, written confirmations of such wire transfers and any audit confirmation:

New York Life Insurance Company

c/o New York Life Investment Management LLC

51 Madison Avenue

2nd Floor, Room 208

New York, New York 10010-1603

Attention: Securities Operations, Private Group, 2nd Floor

Fax Number: (908) 840-3385

with a copy sent electronically to:

[email protected]

[email protected]

 

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Any changes in the foregoing payment instructions shall be confirmed by e-mail to [email protected] prior to becoming effective.

All other notices and communications to be addressed as first provided above, with a copy sent electronically to: [email protected] and [email protected], and with a copy of any notices regarding defaults or Events of Default under the operative documents to: Attention: Office of the General Counsel, Investment Section, Room 1016, Fax Number: (212) 576-8340.

Physical Delivery

New York Life Investment Management LLC

51 Madison Avenue, 10th Floor

New York, NY 10010

Attn: Matthew DelRosso, Vice President and Assistant General Counsel

Phone: (212) 576-7976

Name of Nominee in which Bonds are to be issued: None

Taxpayer I.D. Number: 13-5582869

 

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NAME OF AND ADDRESS

OF PURCHASER

  

SERIES

OF BONDS

  

PRINCIPAL AMOUNT

OF BONDS TO BE

PURCHASED

NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION

  

B

C

  

$3,200,000

$2,000,000

c/o New York Life Investment Management LLC

51 Madison Avenue

2nd Floor, Room 208

New York, New York 10010-1603

     

Attention:

 

Fixed Income Investors Group,

Private Finance, 2nd Floor

Fax Number: (212) 447-4122

     

Payments

All payments by wire or intrabank transfer of immediately available funds to:

JPMorgan Chase Bank

New York, New York

ABA #021-000-021

Credit: New York Life Insurance and Annuity Corporation

General Account No. 323-8-47382

With sufficient information (including issuer, PPN number, interest rate, maturity and whether payment is of principal, premium, or interest) to identify the source and application of such funds.

Notices

All notices of payments, written confirmations of such wire transfers and any audit confirmation:

New York Life Insurance and Annuity Corporation

c/o New York Life Investment Management LLC

51 Madison Avenue

2nd Floor, Room 208

New York, New York 10010-1603

Attention: Securities Operation, Private Group, 2nd Floor

Fax Number: (908) 840-3385

with a copy sent electronically to:

[email protected]

[email protected]

 

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Any changes in the foregoing payment instructions shall be confirmed by e-mail to [email protected] prior to becoming effective.

All other notices and communications to be addressed as first provided above, with a copy sent electronically to: [email protected] and [email protected], and with a copy of any notices regarding defaults or Events of Default under the operative documents to: Attention: Office of the General Counsel, Investment Section, Room 1016, Fax Number: (212) 576-8340.

Physical Delivery

New York Life Investment Management LLC

51 Madison Avenue, Room 1016M

New York, NY 10010

Attn: Rebecca Strutton, Director and Associate General Counsel

Phone: (212) 576-4825

Name of Nominee in which Bonds are to be issued: None

Taxpayer I.D. Number: 13-3044743

 

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NAME OF AND ADDRESS

OF PURCHASER

  

SERIES

OF BONDS

  

PRINCIPAL AMOUNT

OF BONDS TO BE

PURCHASED

UNITEDHEALTHCARE INSURANCE COMPANY

   A    $2,000,000

c/o Advantus Capital Management Inc.

400 Robert Street North

St. Paul, Minnesota 55101

     

Payments

Private Placement payments and all other payments shall be made by wire transfer of immediately available funds pursuant to instructions to be delivered to the Company prior to Closing.

Notices

All notices and statements should be sent electronically via Email to:

[email protected]

If Email is unavailable or if the Email is returned for any reason (including receipt of a message that the Email is undeliverable), such notice and statements should be sent to the following address:

UnitedHealthcare Insurance Company

c/o Advantus Capital Management, Inc.

400 Robert Street North

St. Paul, Minnesota 55101

Attn: Client Administrator

Physical Delivery

The Bonds should be delivered in accordance with instructions furnished to lender counsel, Chapman and Cutler LLP.

Name of Nominee in which Bonds are to be issued: ELL & Co.

Taxpayer I.D. Number: 36-2739571

 

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NAME OF AND ADDRESS

OF PURCHASER

  

SERIES

OF BONDS

  

PRINCIPAL AMOUNT

OF BONDS TO BE

PURCHASED

MINNESOTA LIFE INSURANCE COMPANY

   A    $1,500,000

c/o Advantus Capital Management Inc.

400 Robert Street North

St. Paul, Minnesota 55101

     

Payments

Private Placement payments and all other payments shall be made by wire transfer of immediately available funds pursuant to instructions to be delivered to the Company prior to Closing.

Notices

All notices and statements should be sent electronically via Email to:

[email protected]

If Email is unavailable or if the Email is returned for any reason (including receipt of a message that the Email is undeliverable), such notice and statements should be sent to the following address:

Minnesota Life Insurance Company

c/o Advantus Capital Management, Inc.

400 Robert Street North

St. Paul, Minnesota 55101

Attn: Client Administrator

Physical Delivery

Advantus Capital Management, Inc.

Attention: Kathleen Posus

400 Robert Street North

St. Paul, Mnnesota 55101

Name of Nominee in which Bonds are to be issued: None

Taxpayer I.D. Number: 41-0417830

 

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NAME OF AND ADDRESS

OF PURCHASER

  

SERIES

OF BONDS

  

PRINCIPAL AMOUNT

OF BONDS TO BE

PURCHASED

AMERICAN REPUBLIC INSURANCE COMPANY

   A    $1,000,000

c/o Advantus Capital Management Inc.

400 Robert Street North

St. Paul, Minnesota 55101

     

Payments

Private Placement payments and all other payments shall be made by wire transfer of immediately available funds pursuant to instructions to be delivered to the Company prior to Closing.

Notices

All notices and statements should be sent electronically via Email to:

[email protected]

If Email is unavailable or if the Email is returned for any reason (including receipt of a message that the Email is undeliverable), such notice and statements should be sent to the following address:

American Republic Insurance Company

c/o Advantus Capital Management, Inc.

400 Robert Street North

St. Paul, Minnesota 55101

Attn: Client Administrator

Physical Delivery

The Bonds should be delivered in accordance with instructions furnished to lender counsel, Chapman and Cutler LLP.

 

Name of Nominee in which Bonds are to be issued:   

Wells Fargo Bank N.A. FBO American

Republic Insurance Company

Taxpayer I.D. Number: 42-0113630

 

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NAME OF AND ADDRESS

OF PURCHASER

  

SERIES

OF BONDS

  

PRINCIPAL AMOUNT

OF BONDS TO BE

PURCHASED

CATHOLIC UNITED FINANCIAL

   A    $1,000,000

c/o Advantus Capital Management Inc.

400 Robert Street North

St. Paul, Minnesota 55101

     

Payments

Private Placement payments and all other payments shall be made by wire transfer of immediately available funds pursuant to instructions to be delivered to the Company prior to Closing.

Notices

All notices and statements should be sent electronically via Email to:

[email protected]

If Email is unavailable or if the Email is returned for any reason (including receipt of a message that the Email is undeliverable), such notice and statements should be sent to the following address:

Catholic United Financial

c/o Advantus Capital Management, Inc.

400 Robert Street North

St. Paul, Minnesota 55101

Attn: Client Administrator

Physical Delivery

The Bonds should be delivered in accordance with instructions furnished to lender counsel, Chapman and Cutler LLP.

 

Name of Nominee in which Bonds are to be issued:   

Wells Fargo Bank N.A. FBO Catholic

United Financial

Taxpayer I.D. Number: 41-0182070

 

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NAME OF AND ADDRESS

OF PURCHASER

  

SERIES

OF BONDS

  

PRINCIPAL AMOUNT

OF BONDS TO BE

PURCHASED

WESTERN FRATERNAL LIFE ASSOCIATION

   A    $500,000

c/o Advantus Capital Management Inc.

400 Robert Street North

St. Paul, Minnesota 55101

     

Payments

Private Placement payments and all other payments shall be made by wire transfer of immediately available funds pursuant to instructions to be delivered to the Company prior to Closing.

Notices

All notices and statements should be sent electronically via Email to:

[email protected]

If Email is unavailable or if the Email is returned for any reason (including receipt of a message that the Email is undeliverable), such notice and statements should be sent to the following address:

Western Fraternal Life Association

c/o Advantus Capital Management, Inc.

400 Robert Street North

St. Paul, Minnesota 55101

Attn: Client Administrator

Physical Delivery

The Bonds should be delivered in accordance with instructions furnished to lender counsel, Chapman and Cutler LLP.

Name of Nominee in which Bonds are to be issued: Hubb & Co.

Taxpayer I.D. Number: 42-0594470

 

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DEFINED TERMS

As used herein, the following terms have the respective meanings set forth below or set forth in the Section hereof following such term:

“Affiliate” means, at any time, and with respect to any Person, any other Person that at such time directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is under common Control with, such first Person. As used in this definition, “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. Unless the context otherwise clearly requires, any reference to an “Affiliate” is a reference to an Affiliate of the Company.

Anti-Money Laundering Laws” is defined in Section 5.16(c).

“Blocked Person” is defined in Section 5.16(a).

“Bonds” is defined in Section 1.

“Business Day” means for the purposes of any provision of this Agreement, any day other than a Saturday, a Sunday or a day on which commercial banks in New York, New York or Philadelphia, Pennsylvania are required or authorized to be closed.

“Capital Lease” means, at any time, a lease with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the incurrence of a liability in accordance with GAAP.

“Capital Lease Obligation” means, with respect to any Person and a Capital Lease, the amount of the obligation of such Person as the lessee under such Capital Lease which would, in accordance with GAAP, appear as a liability on a balance sheet of such Person.

CISADA” means the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010, United States Public Law 111195, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

“Closing” is defined in Section 3.

“Closing Date” is the date of the Closing.

“Code” means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated thereunder from time to time.

“Company” means Aqua Pennsylvania, Inc., a corporation existing under the laws of the Commonwealth of Pennsylvania.

 

SCHEDULE B

(to Bond Purchase Agreement)


Table of Contents

Controlled Entity” means any of the Subsidiaries of the Company and any of their or the Company’s respective Controlled Affiliates. As used in this definition, “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

“Debt” means, with respect to any Person, without duplication,

(a) its liabilities for borrowed money;

(b) its liabilities for the deferred purchase price of property acquired by such Person (excluding accounts payable and other accrued liabilities arising in the ordinary course of business but including, without limitation, all liabilities created or arising under any conditional sale or other title retention agreement with respect to any such property);

(c) its Capital Lease Obligations;

(d) all liabilities for borrowed money secured by any Lien with respect to any property owned by such Person (whether or not it has assumed or otherwise become liable for such liabilities);

(e) all non-contingent liabilities in respect of reimbursement agreements or similar agreements in respect of letters of credit or instruments serving a similar function issued or accepted for its account by banks and other financial institutions;

(f) Swaps of such Person; and

(g) Guaranties of such Person with respect to liabilities of a type described in any of clauses (a) through (f) hereof.

Debt of any Person shall include all obligations of such Person of the character described in clauses (a) through (g) to the extent such Person remains legally liable in respect thereof notwithstanding that any such obligation is deemed to be extinguished under GAAP.

“Default” means an event or condition the occurrence or existence of which would, with the lapse of time or the giving of notice or both, become an Event of Default.

EMMA” is defined in Section 7.1(a).

“Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including but not limited to those related to Hazardous Materials.

 

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“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

“ERISA Affiliate” means any trade or business (whether or not incorporated) that is treated as a single employer together with the Company under section 414 of the Code.

“Event of Default” is defined in the Indenture.

“Financing Agreements” means this Agreement, the Indenture (including without limitation the Supplement), and the Bonds.

GAAP” means generally accepted accounting principles as in effect from time to time in the United States of America.

“Governmental Authority” means:

(a) the government of

(i) the United States of America or any State or other political subdivision thereof, or

(ii) any other jurisdiction in which the Company or any Subsidiary conducts all or any part of its business, or which asserts jurisdiction over any properties of the Company or any Subsidiary, or

(b) any entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any such government.

“Guaranty” means, with respect to any Person, any obligation (except the endorsement in the ordinary course of business of negotiable instruments for deposit or collection) of such Person guaranteeing or in effect guaranteeing any Debt, dividend or other obligation of any other Person in any manner, whether directly or indirectly, including (without limitation) obligations incurred through an agreement, contingent or otherwise, by such Person:

(a) to purchase such Debt or obligation or any property constituting security therefor primarily for the purpose of assuring the owner of such Debt or obligation of the ability of any other Person to make payment of the Debt or obligation;

(b) to advance or supply funds (i) for the purchase or payment of such Debt or obligation, or (ii) to maintain any working capital or other balance sheet condition or any income statement condition of any other Person or otherwise to advance or make available funds for the purchase or payment of such Debt or obligation;

 

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(c) to lease properties or to purchase properties or services primarily for the purpose of assuring the owner of such Debt or obligation of the ability of any other Person to make payment of the Debt or obligation; or

(d) otherwise to assure the owner of such Debt or obligation against loss in respect thereof.

In any computation of the Debt or other liabilities of the obligor under any Guaranty, the Debt or other obligations that are the subject of such Guaranty shall be assumed to be direct obligations of such obligor, provided that the amount of such Debt outstanding for purposes of this Agreement shall not exceed the maximum amount of Debt that is the subject of such Guaranty.

“Hazardous Material” means any and all pollutants, toxic or hazardous wastes or other substances that might pose a hazard to health and safety, the removal of which may be required or the generation, manufacture, refining, production, processing, treatment, storage, handling, transportation, transfer, use, disposal, release, discharge, spillage, seepage or filtration of which is or shall be restricted, prohibited or penalized by any applicable law including, but not limited to, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum, petroleum products, lead based paint, radon gas or similar restricted, prohibited or penalized substances.

“holder” is defined in the Indenture.

“Indenture” is defined in Section 1.

“Institutional Investor” means (a) any Purchaser of a Bond, (b) any holder of a Bond holding (together with one or more of its affiliates) more than 5% of the aggregate principal amount of the Bonds then outstanding, (c) any bank, trust company, savings and loan association or other financial institution, any pension plan, any investment company, any insurance company, any broker or dealer, or any other similar financial institution or entity, regardless of legal form, and (d) any Related Fund of any holder of any Bond.

“Lien” means, with respect to any Person, any mortgage, lien, pledge, charge, security interest or other encumbrance, or any interest or title of any vendor, lessor, lender or other secured party to or of such Person under any conditional sale or other title retention agreement or Capital Lease, upon or with respect to any property or asset of such Person (including in the case of stock, stockholder agreements, voting trust agreements and all similar arrangements).

“Make-Whole Amount” is defined in the Supplement.

“Material” means material in relation to the business, operations, affairs, financial condition, assets or properties of the Company and its Subsidiaries taken as a whole.

“Material Adverse Effect” means a material adverse effect on (a) the business, operations, affairs, financial condition, assets or properties of the Company and its Subsidiaries taken as a whole, (b) the ability of the Company to perform its obligations under this Agreement, the Bonds or the Indenture or (c) the validity or enforceability of any Financing Agreement.

 

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“Multiemployer Plan” means any Plan that is a “multiemployer plan” (as such term is defined in section 4001(a)(3) of ERISA).

“NAIC” means the National Association of Insurance Commissioners or any successor thereto.

OFAC” is defined in Section 5.16(a).

OFAC Listed Person” is defined in Section 5.16(a).

OFAC Sanctions Program” means all laws, regulations, Executive Orders and any economic or trade sanction that OFAC is responsible for administering and enforcing, including, without limitation 31 CFR Subtitle B, Chapter V, as amended, along with any enabling legislation; the Bank Secrecy Act; Trading with the Enemy Act; and any similar laws, regulations or orders adopted by any State within the United States. A list of economic and trade sanctions administered by OFAC may be found at http://www.ustreas.gov/offices/enforcement/ofac/programs/.

“Officer’s Certificate” means a certificate of a Senior Financial Officer or of any other officer of the Company whose responsibilities extend to the subject matter of such certificate.

“Original Indenture” is defined in Section 1.

“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA or any successor thereto.

“Permitted Liens” shall have the meaning assigned to such term in the Indenture.

“Person” means an individual, partnership, corporation, limited liability company, association, trust, unincorporated organization, business entity or Governmental Authority.

“Plan” means an “employee benefit plan” (as defined in section 3(2) of ERISA) subject to Title I of ERISA that is or, within the preceding five years, has been established or maintained, or to which contributions are or, within the preceding five years, have been made or required to be made, by the Company or any ERISA Affiliate or with respect to which the Company or any ERISA Affiliate may have any liability.

“property” or “properties” means, unless otherwise specifically limited, real or personal property of any kind, tangible or intangible, choate or inchoate.

“PTE” is defined in Section 6.2(a).

“Purchaser” is defined in the first paragraph of this Agreement.

 

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“Related Fund” means, with respect to any holder of any Bond, any fund or entity that (i) invests in Securities or bank loans, and (ii) is advised or managed by such holder, the same investment advisor as such holder or by an affiliate of such holder or such investment advisor.

“Required Holders” means, at any time, the holders of at least 51% in principal amount of the Bonds at the time outstanding (exclusive of Bonds then owned by the Company or any of its Affiliates).

“Responsible Officer” means any Senior Financial Officer and any other officer of the Company with responsibility for the administration of the relevant portion of this Agreement.

“SEC” means the Securities and Exchange Commission of the United States, or any successor thereto.

“Securities” or “Security” shall have the meaning specified in Section 2(1) of the Securities Act.

“Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

“Senior Financial Officer” means the chief financial officer, principal accounting officer, treasurer or comptroller of the Company.

“Source” is defined in Section 6.2.

“Subsidiary” means, as to any Person, any other Person in which such first Person or one or more of its Subsidiaries or such first Person and one or more of its Subsidiaries owns sufficient equity or voting interests to enable it or them (as a group) ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such second Person, and any partnership or joint venture if more than a 50% interest in the profits or capital thereof is owned by such first Person or one or more of its Subsidiaries or such first Person and one or more of its Subsidiaries (unless such partnership or joint venture can and does ordinarily take major business actions without the prior approval of such Person or one or more of its Subsidiaries. Unless the context otherwise clearly requires, any reference to a “Subsidiary” is a reference to a Subsidiary of the Company.

“Supplement” is defined in Section 1.

“SVO” means the Securities Valuation Office of the NAIC or any successor to such Office.

 

B-6-


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“Swaps” means, with respect to any Person, payment obligations with respect to interest rate swaps, currency swaps and similar obligations obligating such Person to make payments, whether periodically or upon the happening of a contingency. For the purposes of this Agreement, the amount of the obligation under any Swap shall be the amount determined in respect thereof as of the end of the then most recently ended fiscal quarter of such Person, based on the assumption that such Swap had terminated at the end of such fiscal quarter, and in making such determination, if any agreement relating to such Swap provides for the netting of amounts payable by and to such Person thereunder or if any such agreement provides for the simultaneous payment of amounts by and to such Person, then in each such case, the amount of such obligation shall be the net amount so determined.

“Trust Estate” is defined in Section 1.

“Trustee” is defined in the Indenture.

“UCC” means, the Uniform Commercial Code as enacted and in effect from time to time in the state whose laws are treated as applying to the Trust Estate.

“USA Patriot Act” means United States Public Law 107-56, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

 

B-7-


Table of Contents

AQUA PENNSYLVANIA, INC.

SUBSIDIARIES OF THE COMPANY,

OWNERSHIP OF SUBSIDIARY STOCK

 

Company Name

   State of
Incorporation
     % of Ownership
(Direct & Indirect)
 

Aqua Pennsylvania, Inc.

     Pennsylvania         100

1. Little Washington Wastewater Company

     Pennsylvania         100

2. The Hawley Water Company*

     Pennsylvania         90

3. Honesdale Consolidated Water Company

     Pennsylvania         100

 

* Partially owned by minority shareholders

 

SCHEDULE 5.4

(to Bond Purchase Agreement)


Table of Contents

FINANCIAL STATEMENTS

 

1. Aqua Pennsylvania, Inc. Consolidated Financial Statements as of and for the year ended Dec 31, (2008, 2009, 2010, 2011) (audited)

 

2. Aqua Pennsylvania, Inc. Report for Quarter Ended September 30, 2012 (June 30, 2012 and March 31, 2012)

 

SCHEDULE 5.5

(to Bond Purchase Agreement)


Table of Contents

SCHEDULE 5.15(A)

EXISTING DEBT

AQUA PENNSYLVANIA, INC. AND SUBSIDIARIES

EXISTING DEBT AS OF SEPTEMBER 30, 2012

 

           Outstanding Balance  

Unsecured Note

     5.50   $ 2,132,180   

Unsecured Note

     5.64     4,584,000   

Unsecured Note

     5.64     4,489,000   

Unsecured Note

     5.64     5,466,000   

Unsecured Note

     5.64     5,461,000   

Unsecured Note

     5.66     40,000,000   

Unsecured Note

     5.95     10,000,000   

Unsecured Note

     5.95     10,000,000   

Unsecured Note

     5.95     10,000,000   

Unsecured Note

     5.95     10,000,000   

Note

     9.00     346,934   

Total Unsecured

       102,479,114   
    

 

 

 

Tax Exempt

     5.35     30,000,000   

Tax Exempt

     5.55     25,000,000   

Tax Exempt

     5.05     14,000,000   

Tax Exempt

     5.15     25,000,000   

Tax Exempt

     5.00     21,770,000   

Tax Exempt

     5.00     24,165,000   

Tax Exempt

     5.00     25,375,000   

Tax Exempt

       532,273   

Tax Exempt

     5.00     24,675,000   

Tax Exempt

       247,737   

Tax Exempt

     5.00     23,915,000   

Tax Exempt

     5.00     23,915,000   

Tax Exempt

       1,800,265   

Tax Exempt

     5.25     24,830,000   

Tax Exempt

     5.25     24,830,000   

Tax Exempt

       292,197   

Tax Exempt

     6.25     9,000,000   

Tax Exempt

     6.75     13,000,000   

 

SCHEDULE 5.15(a)

(to Bond Purchase Agreement)


Table of Contents
           Outstanding Balance  

Tax Exempt

       (102,000

Tax Exempt

     5.00     58,000,000   

Tax Exempt

       (1,807,863

Tax Exempt

     5.00     62,165,000   

Tax Exempt

       552,917   

Tax Exempt

     4.75     12,520,000   

Tax Exempt

       (270,606

Tax Exempt

     5.00     25,910,000   

Tax Exempt

     5.00     19,270,000   

Tax Exempt

       (123,286

Tax Exempt

     4.50     15,000,000   

Tax Exempt

       (578,400

Tax Exempt

     5.00     81,205,000   

Tax Exempt

       2,439,426   

Total Tax Exempt

       586,527,660   
    

 

 

 

Pennvest - Aqua PA

     1.372     674,598   

Pennvest - Aqua PA

     1.274     1,141,126   

Pennvest - Aqua PA

     1.274     414,173   

Pennvest - Aqua PA

     1.559     892,831   

Pennvest - Aqua PA

     1.274     1,011,622   

Pennvest - Aqua PA

     1.274     335,855   

Pennvest - Aqua PA

     1.000     2,745,105   

Pennvest - Aqua PA

     1.000     1,165,812   

Pennvest - Aqua PA

     4.047     407,310   

Pennvest - Aqua PA

     3.631     84,963   

Pennvest - Aqua PA

     4.047     197,445   

Pennvest - Aqua PA

     1.000     86,678   

Pennvest - Aqua PA

     3.550     2,688,639   

Pennvest - Aqua PA

     1.350     223,518   

Pennvest - Aqua PA

     3.631     221,216   

Pennvest - Aqua PA

     4.050     624,508   

Pennvest - Aqua PA

     3.030     685,296   

 

SCHEDULE 5.15(a)

(to Bond Purchase Agreement)


Table of Contents
           Outstanding Balance  

Pennvest - Aqua PA

     3.46     5,773,898   

Pennvest - Aqua PA

     2.77     481,909   

Pennvest - Aqua PA

     1.39     2,005,080   

Pennvest - Aqua PA

     4.05     359,202   

Pennvest - Aqua PA

     3.79     1,264,201   

Pennvest - Aqua PA

     3.81     723,034   

Pennvest - Aqua PA

     3.43     867,167   

Pennvest - Aqua PA

     2.77     1,129,700   

Pennvest - Aqua PA

     3.47     4,159,574   

Pennvest - Aqua PA

     3.43     238,274   

Pennvest - Aqua PA

     2.56     1,762,192   

Pennvest - Aqua PA

     1.28     942,031   

Pennvest - Aqua PA

     1.28     1,117,561   

Pennvest - Aqua PA

     1.27     394,193   

Pennvest - Aqua PA

     2.27     1,250,833   

Pennvest - Aqua PA

     1.27     1,281,563   

Pennvest - Aqua PA

     1.27     947,997   

Pennvest - Aqua PA

     1.27     735,332   

Pennvest - Aqua PA

     2.46     1,563,102   

Pennvest - Aqua PA

     1.27     164,554   

Pennvest - Aqua PA

     1.00     6,731,642   

Pennvest - Aqua PA

     3.33     430,865   

Pennvest - Aqua PA

     2.73     3,394,743   

Pennvest - Aqua PA

     1.36     1,550,734   

Pennvest - Aqua PA

     1.27     983,514   

Pennvest - Aqua PA

     1.00     410,835   

Pennvest - Aqua PA

     1.39     227,080   

Pennvest - Aqua PA

     1.39     211,079   

Pennvest - Aqua PA

     1.94     785,735   

Pennvest - Aqua PA

     3.47     5,699,846   

Pennvest - Aqua PA

     1.39     1,399,041   

Pennvest - Aqua PA

     1.00     434,430   

Pennvest - Aqua PA

     1.39     1,531,269   

Pennvest - Aqua PA

     2.57     1,831,417   

 

SCHEDULE 5.15(a)

(to Bond Purchase Agreement)


Table of Contents
           Outstanding Balance  

Pennvest - Aqua PA

     1.27     1,535,782   

Total Pennvest - Aqua PA

       67,920,103   
    

 

 

 

FMB

     5.08     20,000,000   

FMB

     5.17     7,000,000   

FMB

     5.75     15,000,000   

FMB

     5.75     5,000,000   

FMB

     5.98     3,000,000   

FMB

     6.06     15,000,000   

FMB

     6.06     5,000,000   

FMB

     6.89     12,000,000   

FMB

     7.72     15,000,000   

FMB

     8.14     4,000,000   

FMB

     8.26     1,500,000   

FMB

     8.32     3,500,000   

FMB

     9.17     3,600,000   

FMB

     9.29     12,000,000   

FMB

     9.93     5,000,000   

FMB

     9.97     5,000,000   

Total FMB

       131,600,000   
    

 

 

 

Pennvest - LWW

     1.00     1,227,188   

Pennvest - LWW

     1.00     263,278   

Pennvest - LWW

     1.00     678,282   

Pennvest - LWW

     1.00     351,037   

Pennvest - LWW

     1.35     165,106   

Pennvest - LWW

     2.77     288,397   

Pennvest - LWW

     3.34     20,021   

Pennvest - LWW

     1.00     902,322   

Total Pennvest - LWW*

       3,895,631   
    

 

 

 

 

* Little Washington Wastewater Company

 

SCHEDULE 5.15(a)

(to Bond Purchase Agreement)


Table of Contents
     Outstanding Balance  

PNC Revolver

     85,209,274   

Total Short Term Debt

     85,209,274   
  

 

 

 

Total Aqua Pennsylvania, Inc. Debt

   $ 977,631,782   

 

SCHEDULE 5.15(a)

(to Bond Purchase Agreement)


Table of Contents

SCHEDULE 5.15(b)

AQUA PENNSYLVANIA, INC. AND SUBSIDIARIES

DEBT ISSUANCE LIMITATIONS

Indenture of Mortgage dated as of January 1, 1941 of Aqua Pennsylvania, Inc. as Supplemented and Amended

$100 million Revolving Credit Agreement among Aqua Pennsylvania, Inc. and PNC Bank,

National Association as Agent as Amended and Dated as of November 28, 2011

Aqua Pennsylvania, Inc. $40,000,000 5.95% Senior Notes dated March 31, 2006

Aqua Pennsylvania, Inc. $20,000,000 5.64% Senior Notes dated September 29, 2006

Aqua Pennsylvania, Inc. $2,132,180 5.50% Senior Notes dated May 1, 2007

Aqua Pennsylvania, Inc. $40,000,000 5.66% Senior Notes dated December 28, 2007

 

SCHEDULE 5.15(b)

(to Bond Purchase Agreement)


Table of Contents

[FORM OF SUPPLEMENT]

[SEE ATTACHED]

 

EXHIBIT A

(to Bond Purchase Agreement)


Table of Contents

FORM OF OPINION OF SPECIAL COUNSEL

TO THE COMPANY

[SEE ATTACHED]

 

EXHIBIT 4.4(a)(i)

(to Bond Purchase Agreement)


Table of Contents

FORM OF OPINION OF GENERAL COUNSEL

TO THE COMPANY

[SEE ATTACHED]

 

EXHIBIT 4.4(a)(ii)

(to Bond Purchase Agreement)


Table of Contents

FORM OF OPINION OF SPECIAL COUNSEL

TO THE PURCHASERS

[DELIVERED TO PURCHASERS ONLY]

 

EXHIBIT 4.4(b)

(to Bond Purchase Agreement)