2006 Massachusetts Code - Chapter 23G — Section 1. Definitions

Section 1. As used in this chapter, the following words shall have the following meanings, unless the context clearly requires otherwise:

“Agency”, the Massachusetts Development Finance Agency established pursuant to section 2.

“Authority”, an industrial development financing board.

“Construction”, means and includes both construction and acquisition and the term “to contract” means and includes both to construct and acquire.

“Board”, the board of directors of the Massachusetts Development Finance Agency.

“Bonds”, when used in reference to the Agency, any bonds, notes, debentures, interim certificates, or other financial undertakings for the purpose of raising capital, including, but not limited to, lines of credit, forward purchase agreements, investment agreements and other banking or financial arrangements, issued by or entered into by the Agency pursuant to section 8. “Bonds”, when used in reference to a public body, any bonds, notes or other evidences of indebtedness issued by such public body pursuant to any provision of general or special law heretofore or hereafter enacted authorizing the public body to incur debt.

“Cost of the project” and “Costs”, the cost of construction, the cost of acquisition of all lands, structures, rights of way, franchises, easements and other property rights and interests and related riparian or water rights, the cost of demolishing, removing or relocating any buildings, structures or utilities on any lands to which such buildings, structures or utilities may be moved or relocated, the cost of all labor, materials, machinery and equipment, financing charges, interest on all bonds prior to and during the carrying out of a project and for a period not exceeding one year after completion thereof, the cost of engineering, financial and legal services, plans, specifications, studies, surveys, estimates of cost and of revenues, other expenses necessary or incidental to determining the feasibility or practicability of projects, administrative expenses, reimbursement to the municipality of advances to the authority under section 19, and for planning costs and other preliminary expenses made for the benefit of but prior to the formation of the authority, and such other expenses as may be necessary or incidental to the projects, the financing thereof, placing of the same in operation and the issuance of bonds under this chapter, including but not limited to the establishment and funding of reserves to secure such bonds.

“Current expenses”, the amount of reasonable and necessary current expenses in connection with any project as the same may be more fully defined in the trust agreement relating to a project, and shall in any event include the fees and expenses of the trustee under the trust agreement securing bonds issued to finance such project.

“Economic development project”, a project providing public benefits through the establishment, expansion, securing, financing or operating of an industrial, recreational, research and development, commercial or service enterprise or facility, or any parts or combinations thereof, located within or partially within the commonwealth and including, but not limited to, all facilities necessary or desirable in connection therewith or incidental thereto, including provision for working capital.

“Federal Agency”, the United States of America, the President of the United States of America, and any department of or corporation, Agency or instrumentality heretofore or hereafter created, designated or established by the United States of America.

“Financing document”, an instrument entered into by the Agency with one or more other persons pertaining to the issue or securing of bonds or the application to the purposes of the Agency of proceeds of bonds or other funds of the Agency. A financing document may include, but need not be limited to, a lease, installment sale agreement, conditional sale agreement, mortgage, loan agreement, trust agreement, security agreement, letter of credit, reimbursement agreement, or currency or interest rate swap agreement. A financing document may also be an agreement between the Agency and a lending institution which has agreed to make a loan to a user to finance a project.

“Governing body”, in a city having a Plan D or Plan E charter the city manager and the city council and in any other city the mayor and city council, and in towns the board of selectmen.

“Improvement”, includes reconstruction, remodeling, rehabilitation, extension, enlargement and “to improve” includes to reconstruct, to remodel, to rehabilitate, to extend, to enlarge and to improve.

“Industrial development facilities” or “facilities”, facilities used in connection with any industrial, or research and development enterprise or any part thereof, located within or partially within the municipality creating an authority, including any or all buildings, docks, wharves, ships, improvements, additions, extensions, replacements, appurtenances, land, rights in land, riparian rights, water rights, franchises, machinery, equipment, furnishings, landscaping, utilities, approaches, roadways, energy conservation facilities, facilities designed to reduce consumption of petroleum products and other facilities necessary or desirable in connection therewith or incidental thereto, such as, but not limited to, office, warehouse, terminal, transportation and back-up power generating facilities, which facilities need not merely be in connection with or incidental to other facilities if the operation of such facilities themselves is an industrial enterprise.

“Industrial enterprise”, an enterprise engaged in applying skill and labor to the giving of new shapes, new qualities or new combinations to matter as material products or to the assembly, processing, preservation, storage, handling or transportation of manufactured or natural products, or to stationary facilities and equipment necessary or useful in connection with railroad operations, including railroad rights of way and all associated tracks and facilities or to the making of works of art by self-employed artists or to the construction, renovation and equipment of a medical diagnostic imaging facility which has been granted a certificate of need in accordance with the provisions of section 25C of chapter 111 or to the construction and renovation of a nursing or convalescent home licensed under the provisions of section 71 of said chapter 111, including renovations for energy conservation purposes or to the operating of a continuing care facility. Industrial enterprise shall also include the operation of a day care center or a school age child care program, as those terms are defined in section 9 of chapter 28A. Industrial enterprise shall also include an enterprise primarily or incidentally engaged in cogeneration by means of cogeneration facilities or in production of electric energy by means of small power production facilities. In any city or in a town subject to the provisions of clause (k) of subsection (2) of section 12 of chapter 40D, industrial enterprise shall also include commercial enterprise, which shall mean the conduct of a trade or business. Facilities for the use of governmental and nonprofit entities shall be considered facilities to be used in a commercial enterprise, and bonds may be issued under this chapter to finance costs of such facilities, including such costs paid prior to the authorization of such bonds as the board of directors of the Massachusetts Development Finance Agency, referred to in this chapter as the board, shall approve in connection with the provision of such facilities; and for this purpose the term commercial enterprise shall be read to include the operation of such facilities, but the requirements of clause (e) of subsection (2) of said section 12 of said chapter 40A shall not apply if the board determines that the issuance of the bonds will result in a public benefit; provided, however, that the words “industrial enterprise” shall also include an institution. For the purposes of this chapter and of said chapter 40D, as applied to the Agency, an institution shall not be deemed to constitute a commercial enterprise. The board shall not be required with respect to an institution to make the findings set forth in clauses (e) and (k) of said subsection (2) of said section 12 of said chapter 40D if the board finds that the issuance of the bonds will result in a public benefit.

“Development Finance Insurance Fund”, the fund established pursuant to section 4.

“Institution”, a nonprofit corporation organized to operate a facility or facilities that provide cultural or educational services, but not including (i) a nonprofit hospital within the commonwealth licensed by the department of public health, (ii) a nonprofit health maintenance organization within the commonwealth licensed by the commissioner of insurance, and (iii) a nonprofit nursing home within the commonwealth licensed by the department of public health; provided, however, that any such hospital, health maintenance organization, or nursing home shall be considered to be an institution for the purposes of financing any project approved by the board on or before September 1, 1989; provided, further, that any such hospital, health maintenance organization, or nursing home shall be considered to be an institution for the subsequent refinancing or refunding of any project approved by the board on or before September 1, 1989; and provided, further, that nothing in this definition shall be construed to limit the power or authority of the Agency to provide financing to any person which is otherwise authorized by this chapter or any other provision of law.

“Lending Institution”, any bank or trust company; Federal National Mortgage Association; approved mortgage banker; savings bank; credit union; national banking association; insurance company; financial institution or governmental Agency approved by the Agency to participate in the financing of a project.

“Loan”, shall include, but not be limited to, industrial mortgage loans, and may include bonds issued under the provisions of section 8 and under chapter 40D.

“Massachusetts Export Finance Fund”, the fund established by section 6.

“Massachusetts export finance program” or “export finance program”, the program established by section 7.

“Municipality”, a city or town or, where the context requires, two or more cities or towns joining together to form an authority to carry out industrial development.

“Person”, any natural or corporate person, including bodies politic and corporate, public departments, offices, agencies, authorities and political subdivisions of the commonwealth, corporations, trusts, societies, associations, and partnerships and subordinate instrumentalities of any one or more political subdivisions of the commonwealth.

“Pollution control facilities”, facilities for the prevention, avoidance, reduction, control, abatement, elimination or monitoring of pollution of air or of waters by any means by industrial enterprises, public utilities or others, including, but not limited to, any air pollution control facility, noise abatement facility, water management facility, thermal pollution control facility, waste water collection system, waste water treatment works, sewage treatment works, sewage treatment system or site, and including any or all property, rights, franchises and facilities necessary or desirable in connection therewith or incidental thereto.

“Primary employment”, work which pays at least one and one-half times the minimum wage, as defined in chapter 151 or as established by federal law, whichever is higher, offers adequate fringe benefits including health insurance, and is not seasonal or part-time.

“Project”, shall have the meaning set forth in section 1 of chapter 40D and, when used in reference to a financing pursuant to subsection (b) of section 8 of this chapter, shall also include any economic development project, and, when used in reference to a financing pursuant to subsection (c) of said section 8, shall also include any activity for which a public body is authorized to expend funds and shall also include the issuance of tax- exempt debt instruments for working capital and fuel, supplies, or other items, the cost of which are customarily deemed to result in a current operating charge, for any hospital, health maintenance organization, and nursing home which is considered to be an institution according to the definition of “institution” and for any nursing home for which the Agency is otherwise authorized by law to provide financing.

“Public body”, the commonwealth, and any body politic and corporate of the commonwealth, including any political subdivision or instrumentality thereof, which is empowered to issue bonds secured by a pledge of revenues or other special funds or assets, including any municipality or district for which the issuance of debt is governed or limited by the provisions of chapter 44.

“Revenues”, any receipts, fees, rentals or other payments or income received or to be received on account of obligations to the Agency under a financing document including, without limitation, income on account of the leasing, mortgaging, sale or other disposition of a project or proceeds of a loan made by the Agency in connection with any project and also including amounts in reserves or held in other funds or accounts established in connection with the issuance of bonds and the proceeds of any investments thereof, proceeds of foreclosure and any other fees, charges or other income received or receivable by the Agency other than the industrial mortgage established pursuant to section 4 with respect to a project or the financing thereof.

“Solid waste disposal facilities”, facilities for the disposal of refuse, garbage and waste or any of the foregoing, by incineration or other means, including any or all property, rights, franchises and facilities necessary or desirable in connection therewith or incidental thereto. Solid waste disposal facilities may include facilities for the manufacture of electricity or steam primarily from solid waste and facilities for the manufacture of electricity from steam produced primarily from solid waste, in either case with pipes, wires, boilers, generators and other equipment incidental thereto. For the purpose of this clause the word “primarily” shall be deemed to mean not less than 90 per cent net thermal units in normal operation. Solid waste disposal facilities may also include additions and modifications to boiler facilities in existence on January 1, 1978, owned or operated by a public utility, which additions or modifications are necessary or desirable to permit any such boiler facility to burn solid waste or a mix of solid waste and other fuel.

“Sponsor”, any person endeavoring to secure the assistance of the Agency or of a local authority in financing a project.

“Trust agreement”, an agreement or indenture securing one or more series of bonds of an authority and complying with the provisions hereof.

“User”, one or more persons, other than a public body, a municipality, a public district or a lending institution, acting as lessee, purchaser, mortgagor or borrower who has obtained or is seeking to obtain financing for a project, either from the Agency or from a lending institution which has obtained or is seeking to obtain funds from the Agency to finance a project and may include a party who transfers the right of use and occupancy to another party by lease, sublease or otherwise.