Exhibit 10.47


 


FINANCING AGREEMENT


 


BETWEEN


 


TIDEWATER UTILITIES, INC.


 


AND


 


DELAWARE DRINKING WATER STATE REVOLVING FUND,


ACTING BY AND THROUGH THE


DELAWARE DEPARTMENT OF HEALTH AND SOCIAL SERVICES,


DIVISION OF PUBLIC HEALTH


 


Loan No. 22000027


 




     


     


    

 


TABLE OF CONTENTS


 


	 	 	PAGE
	 	 	 
	ARTICLE I DEFINITIONS	 	1
	 	 	 
	Section 1.1. Definitions.	 	1
	Section 1.2. Rules of Construction.	 	3
	 	 	 
	ARTICLE II REPRESENTATIONS	 	3
	 	 	 
	Section 2.1. Representations by Borrower.	 	3
	 	 	 
	ARTICLE III ADVANCE AND USE OF LOAN PROCEEDS; CONSTRUCTION OF PROJECT	 	4
	 	 	 
	Section 3.1. Advance of Loan Proceeds.	 	4
	Section 3.2. Application of Loan Proceeds.	 	5
	Section 3.3. Agreement to Draw Loan Proceeds and Penalty for Delay.	 	6
	Section 3.4. Agreement to Accomplish Project.	 	7
	Section 3.5. Permits.	 	7
	Section 3.6. Construction Contractors.	 	7
	Section 3.7. Engineering Services.	 	8
	Section 3.8. Borrower Required to Complete Project.	 	8
	Section 3.9. Inclusion of Eligible Project Reimbursement Costs Within The Loan.	 	8
	 	 	 
	ARTICLE IV REPAYMENT OF LOAN; GENERAL OBLIGATION	 	9
	 	 	 
	Section 4.1. Repayment of Loan.	 	9
	Section 4.2. General Obligation.	 	9
	Section 4.3. [RESERVED]	 	9
	 	 	 
	ARTICLE V PREPAYMENTS	 	9
	 	 	 
	Section 5.1. Prepayments of Loan.	 	9
	 	 	 
	ARTICLE VI OPERATION AND USE OF SYSTEM	 	9
	 	 	 
	Section 6.1. Inspection of System and Borrower’s Books and Records.	 	9
	Section 6.2. Performance Certification.	 	9
	Section 6.3. Operation, Maintenance and Use of System.	 	10
	 	 	 
	ARTICLE VII INSURANCE, DAMAGE AND DESTRUCTION	 	10
	 	 	 
	Section 7.1. Insurance.	 	10
	 	 	 
	ARTICLE VIII SPECIAL COVENANTS	 	10
	 	 	 
	Section 8.1. Maintenance of Existence.	 	10
	Section 8.2. Financial Records and Statements.	 	10
	Section 8.3. Certificate as to No Default.	 	11
	Section 8.4. Further Assurances.	 	11
	Section 8.5. Other Indebtedness.	 	11
	Section 8.6. Assignment by Borrower.	 	11
	 	 	 
	ARTICLE IX DEFAULTS AND REMEDIES	 	12
	 	 	 
	Section 9.1. Events of Default.	 	12
	Section 9.2. Notice of Default.	 	12
	Section 9.3. Remedies on Default.	 	12
	Section 9.4. Delay and Waiver.	 	13
	Section 9.5. Right to Cure Default.	 	13



 






    i 


    


    

 


	ARTICLE X MISCELLANEOUS	 	13
	 	 	 
	Section 10.1. Successors and Assigns.	 	13
	Section 10.2. Amendments.	 	13
	Section 10.3. Limitation of Liability of Borrower’s Officers.	 	14
	Section 10.4. Applicable Law.	 	14
	Section 10.5. Severability.	 	14
	Section 10.6. Notice.	 	14
	Section 10.7. Headings.	 	15
	Section 10.8. Terms of Agreement.	 	15
	Section 10.9. Counterparts.	 	15



 


	EXHIBIT A	 	PROJECT DESCRIPTION
	EXHIBIT B	 	PROJECT BUDGET
	EXHIBIT C	 	FORM OF REQUISITION
	EXHIBIT D	 	SCHEDULE OF DISBURSEMENTS
	EXHIBIT E	 	FORM OF CHANGE ORDER
	EXHIBIT F	 	PROJECTED DRAWDOWN CERTIFICATE



 




    ii 


    


    

 


FINANCING AGREEMENT


 


THIS FINANCING AGREEMENT (this
“Agreement”) is made as of this 16th day of December, 2021, between the DELAWARE DRINKING WATER STATE REVOLVING FUND, acting
by and through the DELAWARE DEPARTMENT OF HEALTH & SOCIAL SERVICES, DIVISION OF PUBLIC HEALTH, a public agency of The State of
Delaware (the “Department”) and TIDEWATER UTILITIES, INC., a corporation organized under the laws of The State of Delaware
(the “Borrower”).


 


Pursuant to Title 29 Delaware
Code Section 7903 (the “Act”), the General Assembly established a permanent and perpetual fund known as the “Delaware
Drinking Water State Revolving Fund” (the “Fund”) and empowered the Secretary of the Department of Health & Social
Services to administer such Fund. From the Fund, the Department from time to time makes loans to and acquires obligations of eligible
persons in Delaware to finance the costs of drinking water facilities in accordance with the Federal Safe Drinking Water Act.


 


The Borrower requested a loan
(the “Loan”) from the Fund and will evidence its obligation to repay the Loan by the signing of this Agreement and by the
delivery of its General Obligation Bond (South Rehoboth District Elevated Storage Tank Project), Series 2021-SRF (the “Bond”).
The Borrower will use the Loan Proceeds from the Fund to: (i) finance the engineering and construction of a 1,000,000 gallon elevated
drinking water storage tank in the South District of Rehoboth Beach, Delaware, as more fully described in Exhibit A and
(ii) if desired, pay certain administrative costs and costs of issuing the Bond (collectively, the “Project”).


 


ARTICLE
I

DEFINITIONS


 


Section 1.1. Definitions.


 


The capitalized terms contained
in this Agreement shall have the meanings set forth below unless the context requires otherwise and any capitalized terms not otherwise
defined herein shall have the meaning assigned to such terms in the Act:


 


“Agreement” means
this Financing Agreement between the Department and the Borrower, together with any amendments or supplements hereto.


 


“Authorized Representative”
means the President, Vice President, Chairman, Treasurer, and Secretary of the Borrower or any employee of the Borrower authorized by
resolution or certificate of the Borrower to perform the act or sign the document in question.


 


“Business Day” means
a day of the year which is not a Saturday or Sunday or a day on which banking institutions located in New York or Delaware are required
or authorized to remain closed or on which the New York Stock Exchange is closed.


 






    1


     


    

 


“Closing Date” means
the date this Agreement is executed and delivered by the Borrower and the Department.


 


“Commitment Letter”
shall mean the commitment letter from the Department to the Borrower dated September 20, 2021 and all extensions and amendments thereto.


 


“Consulting Engineer”
means any firm of independent consulting engineers of recognized standing and experienced in the field of environmental engineering and
registered to do business in Delaware. Any such firm shall be subject to the reasonable approval of the Department.


 


“Department” means
the Department of Health and Social Services, Division of Public Health.


 


“Event of Default”
shall have the meaning set forth in Section 9.1.


 


“Fiscal Year” means
the period of twelve months established by the Borrower as its annual accounting period.


 


“Loan” means the
loan from the Department to the Borrower pursuant to this Agreement.


 


“Loan Proceeds”
means the funds applied to make the loan to the Borrower pursuant to this Agreement.


 


“Notice to Proceed”
means a written notice given by the Borrower and signed by an Authorized Representative issued to each construction contractor fixing
the date on which construction, equipping, acquisition, expansion or renovation of the Project as described in Exhibit A
will commence, a copy of which must be furnished to the Department by the Borrower within one year of the Closing Date.


 


“Penalty” shall
have the meaning set forth in Section 3.3.


 


“Project” means,
collectively, the various improvements and upgrades to the System of the Borrower, as more fully described in Exhibit A,
the costs of the construction, acquisition or equipping of which are to be financed in whole or in part with the Loan Proceeds.


 


“Project Budget”
means the budget for the financing of the Project, a copy of which is attached to this Agreement as Exhibit B. 


 


“Project Costs”
means the costs of the construction, acquisition or equipping of the Project, as further described in the Project Budget, and such other
costs as may be approved in writing by the Department, provided such costs are permitted by the Act.


 


“System” means all
plants, systems, facilities, equipment or property, of which the Project constitutes the whole or a part, owned, operated or maintained
by the Borrower and used in connection with the drinking water services for the systems which comprise the Project, all as described in
Exhibit A.


 






    2


     


    

 


Section 1.2. Rules of Construction.


 


The following rules shall apply
to the construction of this Agreement unless the context requires otherwise:


 


(a) Singular
words shall connote the plural number as well as the singular and vice versa.


 


(b) All
references in this Agreement to particular Sections or Exhibits are references to Sections or Exhibits of this Agreement unless otherwise
indicated.


 


(c) The
headings and table of contents as used in this Agreement are solely for convenience of reference and shall not constitute a part of this
Agreement nor shall they affect its meaning, construction or effect.


 


ARTICLE
II

REPRESENTATIONS


 


Section 2.1. Representations
by Borrower.


 


The Borrower makes the following
representations as the basis for its undertakings under this Agreement:


 


(a) The
Borrower is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware.


 


(b) The
Borrower has full right, power and authority to (i) execute this Agreement and the other documents related thereto, (ii) own and operate
the System, (iii) construct, acquire or equip the Project and finance the Project Costs by borrowing money for such purpose pursuant
to this Agreement, and (iv) carry out and consummate all of the transactions contemplated by this Agreement.


 


(c) All
permits, licenses, registrations, certificates, authorizations and approvals required to have been obtained as of the date of signing
of this Agreement have been obtained for (i) the execution by the Borrower of this Agreement, (ii) the performance and enforcement of
the obligations of the Borrower thereunder, (iii) the acquisition, construction, equipping, occupation, operation and use of the Project,
and (iv) the operation and use of the System. The Borrower knows of no reason why any other necessary permits or approvals cannot be obtained
as required.


 


(d) This
Agreement has been executed by a duly authorized officer of the Borrower and constitutes the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with the terms of this Agreement.


 


(e) There
are not pending nor, to the best of the knowledge of the undersigned officer of the Borrower, threatened, any actions, suits, proceedings
or investigations of a legal, equitable, regulatory, administrative or legislative nature, in which a judgment, order or resolution may
have a material adverse effect on the Borrower, or its business, assets, condition (financial or otherwise), operations or prospects or
in its ability to perform its obligations under this Agreement.


 






    3


     


    

 


(f) There
have been no material defaults by any contractor or subcontractor under any contract made in connection with the construction or equipping
of the Project.


 


(g) No
material adverse change has occurred in the financial condition of the Borrower from that indicated in the financial statements, application
and other information furnished to the Department in connection with this Agreement.


 


(h) No
Event of Default has occurred and is continuing.


 


(i) Except
as may otherwise be approved by the Department or permitted by the terms hereof, the Project and the System at all times will be owned
by the Borrower and will not be operated or controlled by any other entity or person.


 


(j) The
Project will be a part of the System.


 


(k) The
Loan Proceeds and funds available from the other sources specified in the Project Budget will be sufficient to pay the estimated Project
Costs.


 


(l) The
Borrower has received or has commitments to obtain all funds and other financing for the Project as contemplated in the Project Budget.


 


(m) 
As of the date hereof, the Borrower acknowledges that the construction contract was signed in September of 2021, with construction beginning
after that. The Borrower expects to complete the acquisition, construction and
equipping of the Project on or before the projected date of December 31, 2023. The Borrower expects to adhere to the estimated
drawdown schedule attached hereto as Exhibit D and certified to in the “Certificate of the Borrower and Projected Drawdown
Schedule of the Project” attached hereto as Exhibit F and made a part hereof. This projected date of completion is subject
to an extension if such extension is mutually agreed upon by the Department and the Borrower. Noncompliance with this Section 2.1(m) may
cause loan funds to become de-obligated and reallocated to other drinking water projects at the discretion of the Department.


 


ARTICLE
III

ADVANCE AND USE OF LOAN PROCEEDS; CONSTRUCTION OF PROJECT


 


Section 3.1. Advance of Loan
Proceeds.


 


The Department agrees to advance
to the Borrower pursuant to this Agreement up to Five Million Five Thousand Eight Hundred Thirty Dollars ($5,005,830) to pay Project Costs
in accordance with the Project Budget.


 






    4


     


    

 


Section 3.2. Application
of Loan Proceeds.


 


(a) The
Borrower agrees to apply the Loan Proceeds solely and exclusively to the payment, or the reimbursement of the Borrower for the payment,
of Project Costs and further agrees, upon the request of the Department, to exhibit to the Department, vouchers, statements, bills of
sale or other evidence of the actual payment of such Project Costs. The Department shall disburse the Loan Proceeds to or for the account
of the Borrower upon execution of this Agreement and upon receipt by the Department of the following:


 


(1) A
requisition (upon which the Department shall be entitled to rely) signed by an Authorized Representative and containing all information
called for by, and otherwise being in the form of, Exhibit C attached hereto.


 


(2) If
such requisition includes an item for payment for labor or to contractors, builders or materialmen (i) a certificate, signed by an Authorized
Representative, stating that such work was actually performed or such materials, supplies or equipment were actually furnished or installed
in or about the construction of the Project; and (ii) a certificate signed by an Authorized Representative stating either that such
materials, supplies or equipment are not subject to any lien or security interest or that such lien or security interest will be released
or discharged upon payment of the requisition.


 


Upon receipt of each such
requisition and accompanying certificate or certificates, the Department shall disburse Loan Proceeds hereunder to or for the account
of the Borrower in accordance with such requisition in an amount and to the extent approved by the Department. The Borrower expects to
adhere to the estimated drawdown schedule attached hereto as Exhibit D. The Department shall have no obligation to disburse any
such Loan Proceeds if the Borrower is in default hereunder, nor shall the Department have any obligation to approve any requisition if
the Borrower is not in compliance with the terms of this Agreement.


 


(b) The
Borrower shall comply with all applicable State of Delaware and federal laws. Except as may otherwise be approved by the Department, disbursements
shall be held at ninety-five percent (95%) of the maximum amount authorized hereunder to ensure satisfactory completion of the Project.
Upon receipt from the Borrower of the certificate specified in Section 3.4 and a final requisition detailing all retainages to which the
Borrower is then entitled, the Department, to the extent approved by the Department and subject to the provisions of this Section and
Section 3.4, will disburse Loan Proceeds to or for the account of the Borrower to the extent of such approval.


 


(c) The
Department may apply Loan Proceeds to pay any Penalty assessed pursuant to Section 3.3.


 


(d) The
Department shall have no obligation to disburse Loan Proceeds in excess of the amount necessary to pay for approved Project Costs.


 


(e) The
Borrower shall comply in all respects with all applicable federal laws, regulations and other requirements related to or arising out of
or in connection with the Project and the funding thereto by the Fund. The Borrower shall also comply in all respects with the Federal
Single Audit Act and OMB Circular A-133, 2 CFR 200 Subpart F, as a sub-recipient of Federal funds.


 






    5


     


    

 


(f) The
Borrower shall comply with the Delaware Drinking Water State Revolving Fund’s Davis-Bacon Wage Rate Act Requirement as set forth in the
closing documents. The Borrower agrees that all contractors or subcontractors utilized by the Borrower in the Project will complete and
file the U.S. Department of Labor’s payroll form WH-347.


 


(g) As
a recipient of Fund assistance, the Borrower shall comply with the Prohibition on Certain Telecommunication and Video Surveillance Services
or Equipment located in 2 CFR 200.216, as such regulation relates to the Project. The Borrower agrees that none of the Loan Proceeds shall
be used to procure, enter into, extend or renew contracts or obtain equipment, services or systems that use “covered telecommunications
equipment or services,” as identified in the regulation, as a substantial or essential component of any system, or as critical technology
as part of any system.


 


(h) As
a recipient of Fund assistance, the Borrower agrees that none of the Loan Proceeds made available to the Borrower shall be used for the
Project for the construction, alteration, maintenance, or repair of the System unless all of the iron and steel products used in the Project
are produced in the United States (“American Iron and Steel Requirement”), unless: (i) the Borrower has requested and obtained
a waiver from the Environmental Protection Agency pertaining to the Project or (ii) the Department has otherwise advised the Borrower
in writing that the American Iron and Steel Requirement is not applicable to the Project.


 


In this section 3.2(h), the
term “iron and steel products’’ means the following products made primarily of iron or steel-lined or unlined
pipes and fittings, manhole covers and other municipal castings, hydrants, tanks, flanges, pipe clamps and restraints, valves, structural
steel, reinforced precast concrete, and construction materials.


 


Section 3.3. Agreement to
Draw Loan Proceeds and Penalty for Delay.


 


The Borrower agrees after the
Closing Date to commence work in earnest on the Project and make draws on the Loan Proceeds of at least ten percent (10%) of the Project
Costs within one year of the Closing Date. The Borrower further agrees to provide a Notice to Proceed within one year of the Closing Date.


 


If by December 16, 2022, which
is one year from the Closing Date, (i) the Borrower has not submitted requisition(s), in the manner required by Section 3.2, for more
than ten percent (10%) of the Project Costs, and (ii) the Department has not received a Notice to Proceed, the Department may in its discretion
assess a penalty equal to one percent (1%) of the Loan Proceeds (the “Penalty”). Such Penalty may be drawn by the Department
from the Loan Proceeds. It is within the Department’s complete discretion whether to impose the Penalty based upon its review of
affirmative steps taken by the Borrower to commence and complete the Project and the totality of the circumstances surrounding any such
delay in requesting disbursement of Loan Proceeds.


 






    6


     


    

 


Section 3.4. Agreement to
Accomplish Project.


 


The Borrower will cause the
Project to be acquired, constructed, expanded, renovated or equipped as described in Exhibit A and in accordance with the
Project Budget and the plans, specifications and designs prepared by the Consulting Engineer and approved by the Department. The Borrower
will complete the Project by the date set forth in Section 2.1(m). All plans, specifications and designs have been approved by all applicable
regulatory agencies. The Borrower agrees to maintain complete and accurate books and records of the Project Costs and permit the Department
through its duly authorized representatives to inspect such books and records at any reasonable time. The Borrower and the Department
may amend the description of the Project set forth in Exhibit A.


 


The Borrower will deliver to
the Department a certificate signed by an Authorized Representative of the Borrower and by the Consulting Engineer stating (i) that the
Project has been completed substantially in accordance with this Section, the plans and specifications as amended from time to time, as
approved by the Department, and in substantial compliance with all material applicable laws, ordinances, rules and regulations, (ii) the
date of such completion, (iii) that all certificates of occupancy or other material permits necessary for the Project’s use, occupancy
and operation have been issued or obtained, and (iv) the amount, if any, to be reserved for payment of Project Costs.


 


Section 3.5. Permits.


 


The Borrower, at its sole cost
and expense, shall comply with, and shall obtain all permits, consents and approvals required by local, state or federal laws, ordinances,
rules, regulations or requirements in connection with the acquisition, construction, equipping, occupation, operation or use of the Project.
The Borrower shall, upon request, promptly furnish to the Department copies of all such permits, consents and approvals. The Borrower
shall also comply with all lawful program or procedural guidelines or requirements duly promulgated and amended as of the date hereof
by the Department in connection with the acquisition, construction, equipping, occupation, operation or use of projects financed by the
Fund under the Act. The Borrower shall also comply in all respects with all applicable State of Delaware and federal laws, regulations
and other requirements relating to or arising out of or in connection with the Project and the funding thereof by the Fund.


 


Section 3.6. Construction
Contractors.


 


Each construction contractor
employed in the accomplishment of the Project shall be required in the construction contract to furnish a performance bond and a payment
bond, each in an amount equal to one hundred percent (100%) of the particular contract price. Such bonds shall list the Borrower as beneficiary.
Each contractor shall be required to maintain, during the construction period covered by the particular construction contract, builder’s
risk insurance, workers compensation insurance, public liability insurance, property damage insurance and vehicle liability insurance
in amounts and on terms customarily maintained on such projects. Upon request of the Department, the Borrower shall cause each contractor
to furnish evidence of such bonds and insurance to the Department. In addition to the foregoing,


 


(a) Each
construction contractor employed in the accomplishment of the Project is required to comply with the Anti-Kickback Act (and is required
to insert similar requirements in all subcontracts) and all other applicable federal laws and regulations.


 






    7


     


    

 


(b) All
construction contracts and contractors’ estimate forms will be prepared so that materials and equipment may be readily itemized
and identified as to eligible and noneligible costs.


 


(c) Any
change in a construction contract that will alter the contract price or completion time or will substantially modify the proposed use
of the Project must be submitted to the Department for prior approval via a change order in the form of the change order attached hereto
as Exhibit E.


 


(d) The
construction of the Project facilities will conform to applicable federal, state and local laws, ordinances and regulations.


 


(e) The
Borrower will proceed expeditiously and complete the Project facilities in accordance with the approved application, project schedule,
surveys, plans, profiles, cross-sections, specifications and amendments approved by the Department.


 


Recipients and sub-recipients
of Fund assistance, including the Borrower, shall not make any award or permit any award (sub-grant or contract) at any tier to any party
which is debarred or suspended or is otherwise excluded from or ineligible for participation in Federal assistance programs under Executive
Order 12549, “Debarment and Suspension.” Grantees and sub-grantees, including the Borrower, shall refer to the “List
of Parties Excluded From Federal Procurement and Non-Procurement Programs” to insure that the contractor or subcontracts are not
on this list. A search for exclusion records can be made at the official US government System for Award Management website at https://www.sam.gov.
For assistance visit the Federal Service Desk online at www.fsd.gov or by calling (866) 606-8220.


 


Section 3.7. Engineering
Services.


 


The Borrower has retained or
employed the Consulting Engineer to provide engineering services covering planning and design, operation of the System, and the supervision
and inspection of the construction of the Project. The Consulting Engineer will provide to the Department the certificate required by
Section 3.4.


 


Section 3.8. Borrower Required
to Complete Project.


 


Subject to the provisions of
Section 8.5 hereof, if the Loan Proceeds are not sufficient to pay in full the cost of the Project, the Borrower will complete the Project
at its own expense and shall not be entitled to any reimbursement therefor from the Department or the Fund or to any abatement, diminution
or postponement of the Borrower’s repayments under this Agreement.


 


Section 3.9. Inclusion of
Eligible Project Reimbursement Costs Within The Loan.


 


Project Costs incurred prior
to the initiation of construction and after approval of the Project by the Department are eligible for reimbursement from Loan Proceeds
provided that the Project continues to meet all the criteria and requirements set forth by the Department. Notwithstanding anything to
the contrary herein, costs incurred and associated with the initial stages of the Project, such as planning and design, are eligible for
reimbursement regardless of when such costs were incurred.


 






    8


     


    

 


ARTICLE
IV

REPAYMENT OF LOAN; GENERAL OBLIGATION


 


Section 4.1. Repayment of
Loan.


 


The Borrower shall repay the
Loan pursuant to the terms of the Bond issued to the Department.


 


Section 4.2. General Obligation.


 


The Borrower’s repayment
obligation constitutes a general obligation of the Borrower, secured by a pledge of its full faith, revenue and credit.


 


Section 4.3. [RESERVED]


 


ARTICLE
V

PREPAYMENTS


 


Section 5.1. Prepayments
of Loan.


 


At its option and upon providing
prior written notice to the Department, the Borrower may prepay the Loan, in whole or in part, without penalty, at any time. Such prior
written notice shall specify the date on which the Borrower will make such prepayment and whether the Loan will be prepaid in full or
in part, and if in part, the principal amount to be prepaid. Any such prepayment shall be applied against Loan principal installments
then outstanding as shall be directed by the Borrower.


 


ARTICLE
VI

OPERATION AND USE OF SYSTEM


 


Section 6.1. Inspection of
System and Borrower’s Books and Records.


 


The Department and its duly
authorized representatives and agents shall have such reasonable rights of access to the System as may be necessary to determine whether
the Borrower is in compliance with the requirements of this Agreement and shall have the right at all reasonable times and upon reasonable
prior notice to the Borrower to examine and copy the books and records of the Borrower insofar as such books and records relate to the
System.


 


Section 6.2. Performance
Certification.


 


The Borrower will notify the
Department when the Project is completed and operation commenced on or before the date set out in Section 2.1(m).


 






    9


     


    

 


Section 6.3. Operation, Maintenance
and Use of System.


 


At its own cost and expense,
the Borrower shall operate the System in a proper, sound and economical manner and in compliance with all legal requirements, shall maintain
the System in good repair and operating condition and from time to time shall make all necessary repairs, renewals and replacements.


 


ARTICLE
VII

INSURANCE, DAMAGE AND DESTRUCTION


 


Section 7.1. Insurance.


 


Unless the Department otherwise
agrees in writing, the Borrower shall maintain or cause to be maintained insurance against such risks as are customarily insured against
by owners of systems similar in size and character to the System.


 


ARTICLE
VIII

SPECIAL COVENANTS


 


Section 8.1. Maintenance
of Existence.


 


The Borrower shall maintain
its existence as a “Person” (as defined in the Federal Safe Drinking Water Act) and, without consent of the Department, which
consent shall not be unreasonably withheld, shall not dissolve or otherwise dispose of all or substantially all of its assets or consolidate
or merge with or into another entity. Notwithstanding the foregoing, the Borrower may consolidate or merge with or into, or sell or otherwise
transfer all or substantially all of its assets to a political subdivision of The State of Delaware, and the Borrower thereafter may dissolve,
if the surviving, resulting or transferee political subdivision, if other than the Borrower, assumes, in written form acceptable to the
Department, all of the obligations of the Borrower contained in this Agreement, and there is furnished to the Department an Opinion of
Counsel acceptable to the Department subject to customary exceptions and qualifications, to the effect that such assumption constitutes
the legal, valid and binding obligations of the surviving, resulting or transferee entity in accordance with its terms.


 


Section 8.2. Financial Records
and Statements.


 


The Borrower shall maintain
proper books of record and account in which proper entries shall be made in accordance with generally accepted accounting principles,
consistently applied, of all its business and affairs related to the System. The Borrower shall have an annual audit made by an independent
certified public accountant within one hundred twenty (120) days after the end of each Fiscal Year. Such
report shall include either (a) disclosure language confirming the Borrower’s continued compliance with its loan and mortgage covenants
and restrictions or (b) a certificate of the accountants to the effect that, during the course of such accountant’s regular examination
of the Borrower’s financial condition, nothing came to such accountant’s attention that would constitute an Event of Default hereunder.
A copy of the audited annual report shall be forwarded to the Department when completed.


 






    10


     


    

 


Section 8.3. Certificate
as to No Default.


 


The Borrower shall deliver to
the Department, within one hundred twenty (120) days after the close of each Fiscal Year, a certificate signed by an Authorized Representative
stating that, during such year and as of the date of such certificate, no event or condition has happened or existed, or is happening
or existing, which constitutes an Event of Default, or if such an event or condition has happened or existed, or is happening or existing,
specifying the nature and period of such event or condition and what action the Borrower has taken, is taking or proposes to take to rectify
it.


 


Section 8.4. Further Assurances.


 


The Borrower shall to the fullest
extent permitted by law pass, make, do, execute, acknowledge and deliver such further resolutions, acts, deeds, conveyances, assignments,
transfers and assurances as may be necessary or desirable for the better assuring, conveying, granting, assigning and confirming the rights
of the Department under this Agreement, or as may be required to carry out the purpose of this Agreement. The Borrower shall at all times,
to the fullest extent permitted by law, defend, preserve and protect all rights of the Department under this Agreement against all claims
and demands of all persons.


 


Section 8.5. Other Indebtedness.


 


In the event that the Borrower
is required to borrow additional funds in order to complete the Project, the Borrower agrees to consult with the Department before borrowing
any such additional funds. The Borrower agrees to pay when due all amounts required by any other bonded indebtedness and to perform all
of its obligations in connection therewith.


 


Section 8.6. Assignment by
Borrower.


 


The Borrower may not assign
its rights under this Agreement without the prior written consent of the Department, which consent shall not be unreasonably withheld.
If the Borrower desires to assign its rights under this Agreement to another “Person” (as defined in the Federal Safe Drinking
Water Act), the Borrower shall give notice of such fact to the Department. If the Department consents to the proposed assignment, the
Borrower may proceed with the proposed assignment, but such assignment shall not become effective until the Department is furnished: (i) an
assumption agreement in form and substance satisfactory to the Department by which the assignee agrees to assume all of the Borrower’s
obligations under this Agreement, and (ii) an Opinion of Counsel to the assignee, subject to customary exceptions and qualifications,
that the assumption agreement and this Agreement constitute legal, valid and binding obligations of the assignee enforceable against the
assignee in accordance with their terms and that the assignment and assumption comply in all respects with the provisions of this Agreement.
Notwithstanding the foregoing, the assignment of the rights of the Borrower under this Agreement or the assumption of the obligations
thereunder by the assignee shall in no way be construed as releasing the Borrower’s obligations unless specifically agreed to by
the Department.


 






    11


     


    

 


ARTICLE
IX

DEFAULTS AND REMEDIES


 


Section 9.1. Events of Default.


 


Each of the following events
shall be an “Event of Default” hereunder:


 


(a) The
failure to pay any payment of principal, interest and/or any administrative fee when due hereunder or under the Bond;


 


(b) The
Borrower’s failure to perform or observe any of the other covenants, agreements or conditions of this Agreement and the continuation
of such failure for a period of thirty (30) days after the Department gives the Borrower written notice specifying such failure and requesting
that it be cured, unless the Department shall agree in writing to an extension of such time prior to its expiration; provided, however,
if the failure stated in the notice is correctable but cannot be corrected within the applicable period, the Department will not unreasonably
withhold its consent to an extension of such time if corrective action is instituted by the Borrower within the applicable period and
diligently pursued until the default is corrected;


 


(c) Any
warranty, representation or other statement by or on behalf of Borrower contained in this Agreement or in any instrument furnished in
compliance with or in reference to this Agreement is false or misleading in any material respect;


 


(d) An
order or decree shall be entered, with the Borrower’s consent or acquiescence, appointing a receiver or receivers of the System
or any part thereof or of the income thereof, or if such order or decree, having been entered without the Borrower’s consent or
acquiescence, shall not be vacated, discharged or stayed on appeal within ninety (90) days after the entry thereof;


 


(e) Any
proceeding shall be instituted, with the Borrower’s consent or acquiescence, for the purpose of effecting a composition between
the Borrower and its creditors, pursuant to any federal or state statute now or hereafter enacted, if the claims of such creditors are
under any circumstances payable from the revenues of the System; or


 


(f) Any
bankruptcy, insolvency or other similar proceeding shall be instituted by or against the Borrower under any federal or state bankruptcy
or insolvency law now or hereinafter in effect and, if instituted against the Borrower, is not dismissed within ninety (90) days after
filing.


 


Section 9.2. Notice of Default.


 


The Borrower agrees to give
the Department prompt written notice if any order, decree or proceeding referred to in Sections 9.1(d) through (f), inclusive, is entered
or instituted against the Borrower or of the occurrence of any other event or condition which constitutes an Event of Default immediately
upon becoming aware of the existence thereof.


 


Section 9.3. Remedies on
Default.


 


Whenever any Event of Default
referred to in Section 9.1 shall have happened and be continuing, the Department shall, in addition to any other remedies provided herein
or by law, have the right, at its option without any further demand or notice, to take one or both of the following remedial steps:


 


(a) Discontinue
advances of Loan Proceeds hereunder;


 


(b) Declare
immediately due and payable all payments due or to become due under this Agreement or under the Bond, and upon notice to the Borrower,
the same shall become immediately due and payable by the Borrower without further notice or demand; and


 






    12


     


    

 


(c) Take
whatever other action at law or in equity may appear necessary or desirable to collect the payments then due and thereafter to become
due under this Agreement or to enforce any other of the Department’s rights under this Agreement or to enforce performance by the
Borrower of its covenants, agreements or undertakings contained herein.


 


Section 9.4. Delay and Waiver.


 


No delay or omission to exercise
any right or power accruing upon any Event of Default shall impair any such right or power or shall be construed to be a waiver of any
such Event of Default or acquiescence therein, and every such right and power may be exercised from time to time and as often as may be
deemed expedient. No waiver of any Event of Default under this Agreement shall extend to or shall affect any subsequent Event of Default
or shall impair any rights or remedies consequent thereto.


 


Section 9.5. Right to Cure
Default.


 


If the Borrower shall fail to
make any payment or to perform any act required by it under this Agreement, the Department without prior notice to or demand upon the
Borrower and without waiving or releasing any obligation or default, may (but shall be under no obligation to) make such payment or perform
such act. All amounts so paid by the Department and all costs, fees and expenses so incurred shall be payable by the Borrower as an additional
obligation under this Agreement, together with interest thereon at the rate of interest of five percent (5%) per annum until paid. The
Borrower’s obligation under this Section shall survive the repayment of the Bond.


 


ARTICLE
X

MISCELLANEOUS


 


Section 10.1. Successors
and Assigns.


 


This Agreement shall be binding
upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.


 


Section 10.2. Amendments.


 


The Department and the Borrower
shall have the right to amend from time to time any of the terms and conditions of this Agreement, provided that all amendments
shall be in writing and shall be signed by or on behalf of the Department and the Borrower.


 






    13


     


    

 


Section 10.3. Limitation
of Liability of Borrower’s Officers.


 


No present or future director,
official, officer, employee or agent of the Borrower shall be liable personally in respect of this Agreement or for any other action taken
by such individual pursuant to or in connection with the financing provided for in this Agreement.


 


Section 10.4. Applicable
Law.


 


This Agreement shall be governed
by the applicable laws of The State of Delaware.


 


Section 10.5. Severability.


 


If any clause, provision, or
section of this Agreement shall be held illegal or invalid by any court, the illegality or invalidity of such clause, provision or Section
shall not affect the remainder of this Agreement which shall be construed and enforced as if such illegal or invalid clause, provision
or section had not been contained in this Agreement. If any agreement or obligation contained in this Agreement is held to be in violation
of law, then such agreement or obligation shall be deemed to be the agreement or obligation of the Department and the Borrower, as the
case may be, only to the extent permitted by law.


 


Section 10.6. Notice.


 


Unless otherwise provided for
herein, all demands, notices, approvals, consents, requests, opinions and other communications under this Agreement shall be in writing
and shall be deemed to have been given when delivered in person or mailed by first class registered or certified mail, postage prepaid,
addressed as follows:


 


		Department:	Delaware Department of Health and Social Services



Division of Public Health


Office of Drinking Water


Jesse Cooper Building


417 Federal Street –
Room 226


Dover, DE 19901


Attention: DWSRF Program
Director


 


With a copy to:


 


Delaware Department of Natural
Resources


& Environmental Control, on behalf of the Delaware Department


of Health and Social Services


Office Of The Secretary, Environmental
Finance


97 Commerce Way, Suite 106


Dover, DE 19904


Attention: Chief of Administration


 


and


 






    14


     


    

 


		Borrower:	Tidewater Utilities, Inc.



1100 South Little Creek Road


Dover, DE 19901


Attention: Mr. A. Bruce O’Connor,
President


 


With a copy to:


 


Middlesex Water Company


485C Route One South, Suite
400


Iselin, NJ 08830


Attn: Jay L. Kooper, Vice President,
General Counsel & Secretary


 


The Department, and the Borrower may designate,
by notice given hereunder, any further or different addresses to which subsequent demands, notices, approvals, consents, requests, opinion
or other communications shall be sent or persons to whose attention the same shall be directed.


 


Section 10.7. Headings.


 


The headings of the several
articles and sections of this Agreement are inserted for convenience only and do not comprise a part of this Agreement.


 


Section 10.8. Terms of Agreement.


 


This Agreement shall be effective
upon its execution and delivery by the Borrower and the Department. Except as otherwise specified, the Borrower’s obligations under
this Agreement shall expire upon payment in full of the Bond and all other amounts payable by the Borrower under this Agreement.


 


Section 10.9. Counterparts.


 


This Agreement may be executed
in any number of counterparts, each of which shall be an original and all of which together shall constitute but one and the same instrument.


 




    15


     


    

 


WITNESS the following signatures,
all duly authorized.


 


	 	FOR THE DELAWARE DRINKING
WATER STATE REVOLVING FUND, ACTING BY AND THROUGH THE DELAWARE DEPARTMENT OF HEALTH AND SOCIAL SERVICES, DIVISION OF PUBLIC HEALTH
	 	 	 
		By:	/s/
                                            Laura Robbins
		 	Laura Robbins
		 	DNREC, Chief of Administration 

Delaware Department of Natural Resources and Environmental
                                            Control, on behalf of the 

Delaware Department of Health and Social Services



 


		TIDEWATER UTILITIES, INC.
	 	 
		By:	/s/ A. Bruce O’Connor
		Name: 	A. Bruce O’Connor
		Title:	President



(SEAL)


 


Attest:


 


	By:	/s/ Jay L. Kooper	 



		Jay L. Kooper	 



		Secretary	 



 




    16


     


    

 


EXHIBIT A


 


Project Description


 


The engineering and construction
of a 1,000,000-gallon elevated drinking water storage tank in the South District of Rehoboth Beach, Delaware. This project would bring
the water system into compliance with storage requirements and ease the strain on the existing wells during high flow time periods.


 




    17


     


    

 


EXHIBIT B


 


Project Budget


 


	Project
Budget:
	 	Total
                                            Cost
	 
	Administrative	 	$	5,000.00	 
	Engineering	 	$	152,000.00	 
	Construction	 	$	4,808,830.00	 
	 	 	 	 	 
	Total Budget	 	$	5,005,830.00	 
	 	 	 	 	 
	Source of Funds:	 	 	 	 
	DWSRF Loan	 	$	 5,005,830.00	 



 




    18


     


    

 


EXHIBIT C


 


Form of Requisition


 





	PROJECT NAME:___________________________	FUNDING RECIPIENT:___________________________



 


E. I. #____________________


 





	UNITED STATES	AND/	STATE OF DELAWARE	 REQUISITION NO:________
	DEPARTMENT OF AGRICULTURE	OR	DHSS	 
	RURAL DEVELOPMENT	 	 	 DATE:__________________
	 	 	 	 
	USDA LOAN NO._______________	 	 	 STATE LOAN NO.________
	 	 	 	 
	USDA
GRANT NO._____________
	SEPARATELY  OR 	 STATE GRANT NO._______
	JOINTLY FUNDED PROJECT	 	 



 


ACCOUNT SUMMARY AND REQUEST
FOR LOAN/GRANT DISBURSEMENT


 


	
    DISBURSEMENT ITEMS
	
    AMOUNT

BUDGETED
	
    PREVIOUS

DISBURSEMENTS
	
    THIS

PERIOD
	
    TOTAL

TO DATE
	
    REMAINING

FUNDS

	
    CONSTRUCTION
	
     
	 	 	 	 
	
    CONTRACT

    NAME OR #
	 	 	 	 	 
	
    CONTRACT

    NAME OR #
	 	 	 	 	 
	
    CONTRACT

    NAME OR #
	 	 	 	 	 
	
     

    LAND AND R.O.W.
	 	 	 	 	 
	
     

    LEGAL AND ADMIN
	 	 	 	 	 
	
     

    ENGINEERING FEES
	 	 	 	 	 
	
     

    INTEREST
	 	 	 	 	 
	
     

    CONTINGENCIES
	 	 	 	 	 
	
     

    INITIAL O & M
	 	 	 	 	 
	
    OTHER

    (describe)
	 	 	 	 	 
	
    DISBURSEMENT

    TOTALS
	 	 	 	 	 
	
     

    SOURCES OF FUNDING
	 	 	 	 	 
	
     

    USDA LOAN
	 	 	 	 	 
	
     

    USDA GRANT
	 	 	 	 	 
	
     

    STATE LOAN
	 	 	 	 	 
	
     

    STATE GRANT
	 	 	 	 	 
	
    OTHER

    (describe)
	 	 	 	 	 
	
    OTHER

    (describe)
	 	 	 	 	 
	
    OTHER

    (describe)
	 	 	 	 	 
	
    SOURCE TOTALS (must

    equal disbursement totals above)
	 	 	 	 	 


See Notes on Page 2 (other
side)


 






    19


     


    

 


Page 2


LOAN/GRANT DISBURSEMENT FORM


Requisition No._________


 


	 	 	 	 	 
	PREPARED BY (BORROWER/GRANTEE)	DATE	 	APPROVED BY (DHSS/ODW) 	DATE
	 	 	 	 	 
		 	 	 	 
	APPROVED BY (ARCHITECT/ENGINEER)	DATE	 	APPROVED BY(USDA/RD)	DATE



 



	Borrower/Grantee’s Certification	 	 	Consulting  Engineer’s  Certification
	 	 	 	 
	The undersigned certifies that (1) the amounts requested by this requisition will be applied solely and exclusively to the payment, or the reimbursement of the recipient for the payment, of Project Costs, and (2) any materials, supplies or equipment covered by this requisition are not subject to any lien or security interest or such lien or security interest will be released upon payment of this requisition.	 	 	The undersigned Consulting Engineer for the Recipient hereby Certifies that insofar as the amounts covered by this Requisition include payment for labor or to contractors, builders or materialmen, such work was actually performed or such materials, supplies or equipment were actually furnished to or installed in the Project.
	 	 	 	 
	 	 	 	 
	Recipient’s Authorized Representative      Name, Title (PRINTED)	 	 	Title and Company Name (PRINTED)
	 	 	 	 
	 	 	 	 
	Recipient’s Authorized Representative Signature         Date	 	 	Consulting Engineer’s Name (PRINTED)
	 	 	 	 
	 	 	 	Authorized Consulting Engineer Signature                Date



 


		NOTES:	1.Include copies of all invoices or other acceptable documentation
to support above request. Provide one (1) set for each funding agency.



 


		2. On jointly funded projects, disbursements will not be processed until this document is approved
                                                                                  by authorized representatives of both the U. S. Department of Agriculture and the State of Delaware, Department of Health and Social
                                                                                  Services.



 


	Forms-Jointly Funded-Disbursement.doc	This form provides all information
required by USDA Form RD 440-11



 




    20


     


    

 


EXHIBIT D


 


Schedule of Disbursements


 


 


	Date	 	Amount ($)	 
	Dec-21	 	 	960,000	 
	Mar-22	 	 	790,000	 
	May-22	 	 	450,000	 
	Sep-22	 	 	850,000	 
	Oct-22	 	 	950,000	 
	Dec-22	 	 	195,000	 
	Jan-23	 	 	230,000	 
	Mar-23	 	 	300,000	 
	Jun-23	 	 	225,000	 
	Jul-23	 	 	55,830	 



 




    21


     


    

 


EXHIBIT E


 


Form of Change Order


 


	UNITED STATES	AND	STATE OF DELAWARE               	ORDER NO:________
	DEPARTMENT OF AGRICULTURE	OR	DHSS OR DNREC	 
	RURAL DEVELOPMENT	 	 	DATE:__________________



 


STATE:_____________


SEPARATELY OR JOINTLY FUNDED
PROJECT


COUNTY:___________


CONTRACT CHANGE ORDER


 


CONTRACT FOR:________________________________


 




OWNER:___________________________________________________________________________________________


 





 


To:________________________________________________________________________________________________


(Contractor)


 


You are hereby requested to comply with the following
changes from the contract plans and specifications:


	
    Description of Changes (Supplemental Plans and
    Specifications Attached)

     
	
    DECREASE

    in Contract Price
	
    INCREASE

    In Contract Price

	
     

     

     
	$	$
	
     

    TOTALS
	$	$
	
     

    NET CHANGE IN CONTRACT PRICE
	$	$


 


JUSTIFICATION: Explain (Differing Site Conditions)
(Errors or Omissions in Drawings or Specifications) (Changes in Regulatory Requirements) (Design Changes) (Over run or Under run in Quantities)
(Factors Affecting Time of Completion) (Other: Describe below)


 


___________________________________________________________________________________________________



___________________________________________________________________________________________________


 


The original amount of the Contract:_____________________________________________________________________


 


__________________________________________________________________Dollars
($________________________)


 


The amount of the Contract as adjusted by all
previously approved Change Orders:________________________________


 


__________________________________________________________________Dollars
($________________________)


 


The amount of the Contract will be (Decreased)
(Increased) through this Change Order by the sum of:_________________


 


__________________________________________________________________Dollars
($________________________)


 


The Contract Total including this and all previous
Change Orders will be:_______________________________________


 


__________________________________________________________________Dollars
($________________________)


 


The Contract Period provided for completion will
be (Increased) (Decreased) (Unchanged) by:___________ Calendar Days


 






    22


     


    

 


Page 2


CONTRACT CHANGE ORDER FORM


CHANGE ORDER NO.____________


 


This document will become a supplement to the
contract and all provisions will apply hereto.


 


Requested:______________________________________________________________________
________________


(Owner)                                                                                                              (Date)


 


Recommended:___________________________________________________________________
________________


(Owner’s Architect/Engineer)                                                                                                                       (Date)


 


Accepted:______________________________________________________________________
_________________


(Contractor)                                                                                                       (Date)


 


Approved by State of Delaware:_____________________________________________________
_________________


                                                                                                                                                                       (Date)


 


Approved by U. S. Department of Agriculture:__________________________________________
_________________


                                                                                                                                                                       (Date)


 


After all five (5) copies of the Change Order
have been signed and dated by authorized representatives of all the applicable parties in the spaces provided above, transmit one (1)
copy to each party as listed below.


 


(  ) U. S. Department of Agriculture’s Copy


 


(  ) State of Delaware’s Copy


 


(  ) Contractor’s Copy


 


(  ) Borrower/Grantee’s Copy


 


(  ) Architect/Engineer’s Copy


 


Forms- Jointly Funded-Change Order.doc     This
form provides all information required by USDA Form RD 1924 (Rev. 2-97)


 




    23


     


    

 


EXHIBIT “F”


 


CERTIFICATE OF THE BORROWER AND


PROJECTED DRAWDOWN SCHEDULE OF THE


PROJECT


 


The undersigned, as representatives
of Tidewater Utilities, Inc. (the “Borrower”) in connection with the issuance of its $5,005,830 General Obligation Bond (South
Rehoboth District Elevated Storage Tank Project), Series 2021-SRF, have reviewed the estimated drawdown schedule prepared by the Borrower,
as attached hereto as Exhibit D and made a part hereof.


 


We hereby certify that the
estimated drawdown schedule attached hereto as Exhibit D and statements made under Section 2.1(m) “Representations by Borrower”
in the foregoing Financing Agreement between the Borrower and the Delaware Drinking Water State Revolving Fund, acting by and through
the Delaware Department of Health and Social Services, Division of Public Health, are to the best of our knowledge true and correct
as of the date hereof.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 




    24


     


    

 


	Date: December 16, 2021
	 	 	 	 
	 	 	 	TIDEWATER UTILITIES, INC.
	 	 	 	 	 
	 	 	 	By:	/s/ A. Bruce O’Connor
	 	 	 	 	A. Bruce O’Connor
	 	 	 	 	President
	 	 	 	 	 
	Attest:	 	 	 
	 	 	 	 	 
	By:	/s/ Jay L. Kooper	 	 	 
	 	Jay L. Kooper	 	 	 
	 	Secretary	 	 	 
	 	 	 	 	 



 


 


25