HomeMy WebLinkAboutUndertaking to Provide Notices of Events UNDERTAKING TO PROVIDE NOTICES OF EVENTS
Section 1. Definitions '
"EMMA" shall mean the Electronic Municipal Market Access System
implemented by the MSRB.
"Financial Obligation" shall mean "financial obligation" as such term is defined
in the Rule.
"GAAP" shall mean generally accepted accounting principles as in effect from
time to time in the United States.
"Holder" shall mean any registered owner of the Securities and any beneficial
owner of Securities within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934.
"Issuer" shall mean the Town of Southold, in the County of Suffolk, a municipal
corporation of the State of New York.
"MSRB" shall mean the Municipal Securities Rulemaking Board established in
accordance with the provisions of Section 1513(b)(1) of the Securities Exchange Act of 1934.
"Purchaser" shall mean the financial institution referred to in the Certificate of
Determination, executed by the Town Supervisor as of September 24, 2019.
"Rule 15c2-12" shall mean Rule 15c2-12 under the Securities Exchange Act of
1934, as amended through the date of this Undertaking, including any official interpretations
thereof.
"Securities" shall mean the Issuer's $9,279,117 Bond Anticipation Note-2019,
dated September 24, 2019, maturing September 24, 2020, and delivered on the date hereof.
Section 2. Obligation to Provide Notices of Events. (a) The Issuer hereby
undertakes, for the benefit of Holders of the Securities, to provide or cause to be provided either
directly or through Munistat Services, Inc., 12 Roosevelt Avenue, Port Jefferson Station, New
York 11776 to the Electronic Municipal Market Access ("EMMA") System implemented by the
Municipal Securities Rulemaking Board established pursuant to Section 1513(b)(1) of the
Securities Exchange Act of 1934, or any successor thereto or to the functions of such Board
contemplated by the Undertaking, in a timely manner, not in excess of ten (10) business days
after the occurrence of any such event, notice of any of the following events with respect to the
Securities:
(1) principal and interest payment delinquencies;
(2) non-payment related defaults, if material;
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(3) unscheduled draws on debt service reserves reflecting financial
difficulties;
(4) unscheduled draws on credit enhancements reflecting financial
difficulties;
(5) substitution of credit or liquidity providers;-or their failure to perform;
(6) adverse tax opinions, the issuance by the Internal Revenue Service of
proposed or final determinations of taxability, Notices of Proposed
Issue (IRS Form 5701-TEB) or other material notices of
determinations with respect to the tax status of the Securities, or other
material events affecting the tax status of the Securities;
(7) modifications to rights of Securities holders, if material;
(8) Bond calls, if material, and tender offers;
(9) defeasances;
(10) release, substitution, or sale of property securing repayment of the
Securities, if material;
(11) rating changes;
(12) bankruptcy, insolvency, receivership or similar event of the Issuer;
Note to clause (12): For the purposes of the event identified in clause
(12) above, the event is considered to occur when any of the following
occur: the appointment of a receiver, fiscal agent or similar officer for
the Issuer in a proceeding under the U.S. Bankruptcy Code or in any
other proceeding under state or federal law in which a court or
government authority has assumed jurisdiction over substantially all of
the assets or business of the Issuer, or if such jurisdiction has been
assumed by leaving the existing governing body and officials or
officers in possession but subject to the supervision and orders of a
court or governmental authority, or the entry of an order confirming a
plan of reorganization, arrangement or liquidation by a court or
governmental authority having supervision or jurisdiction over
substantially all of the assets or business of the Issuer;
(13) the consummation of a merger, consolidation, or acquisition involving
the Issuer or the sale of all or substantially all of the assets of the
Issuer, other than in the ordinary course of business, the entry into a
definitive agreement to undertake such an action or the termination of
a definitive agreement relating to any such actions, other than pursuant
to its terms, if material;
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(14) appointment of a successor or additional trustee or the change of name
of a trustee, if material;
(15) incurrence of a Financial Obligation of the Issuer, if material, or
agreement to covenants, events of default, remedies, priority rights, or
other similar terms of a Financial Obligation of the Issuer, any of
which affect security holders, if material; and
(16) default, event of acceleration, termination event, modification of
terms, or other similar events under the terms of a Financial Obligation
of the Issuer, any of which reflect financial difficulties.
(b) Nothing herein shall be deemed to prevent the Issuer from disseminating
any other information in addition to that required hereby in the manner set forth herein or in any
other manner. If the Issuer disseminates any such additional information, the Issuer shall have
no obligation to update such information or include it in any future materials disseminated
hereunder.
(c) Nothing herein shall be deemed to prevent the Issuer from providing notice
of the occurrence of certain other events, in addition to those listed above, if the Issuer
determines that any such other event is material with respect to the Securities; but the Issuer does
not undertake to commit to provide any such notice of the occurrence of any event except those
events listed above.
Section 3. Remedies. If the Issuer shall fail to comply with any provision of this
Undertaking, then any Holder of Securities may enforce, for the equal benefit and protection of
all Holders similarly situated, by mandamus or other suit or proceeding at law or in equity, this
Undertaking against the Issuer and any of the officers, agents and employees of the Issuer, and
may compel the Issuer or any such officers, agents or employees to perform and carry out their
duties under this Undertaking; provided that the sole and exclusive remedy for breach of this
Undertaking shall be an action to compel specific performance of the obligations of the Issuer
hereunder and no person or entity shall be entitled to recover monetary damages hereunder under
any circumstances. Failure to comply with any provision of this Undertaking shall not constitute
an event of default on the Securities.
Section 4. Parties in Interest. This Undertaking is executed to assist the
Purchaser to comply with (b)(5) of the Rule and is delivered for the benefit of the Holders. No
other person shall have any right to enforce the provisions hereof or any other rights hereunder.
Section 5. Amendments. Without the consent of any holders of Securities, the
Issuer at any time and from time to time may enter into any amendments or changes to this
Undertaking for any of the following purposes:
(a) to comply with or conform to any changes in Rule 15c2-12 (whether
required or optional);
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(b) to add a dissemination agent for the information required to be provided
hereby and to make any necessary or desirable provisions with respect
thereto;
(c) to evidence the succession of another person to the Issuer and the
assumption of any such successor of the duties of the Issuer hereunder;
(d) to add to the duties of the Issuer for the benefit of the Holders, or to
surrender any right or power herein conferred upon the Issuer;
(e) to cure any ambiguity, to correct or supplement any provision hereof
which may be inconsistent with any other provision hereof, or to make any
other provisions with respect to matters or questions arising under this
Undertaking which, in each case, comply with Rule 15c2-12 or Rule 15c2-
12 as in effect at the time of such amendment or change;
provide d that no such action pursuant to this Section 5 shall adversely affect the interests of the
Holders in any material respect. In making such determination, the Issuer shall rely upon an
opinion of nationally recognized bond counsel.
Section 6. Termination. This Undertaking shall remain in full force and effect
until such time as all principal, redemption premiums, if any, and interest on the Securities shall
have been paid in full or the Securities shall have otherwise been paid or legally defeased in
accordance with their terms. Upon any such legal defeasance, the Issuer shall provide notice of
such defeasance to the EMMA System. Such notice shall state whether the Securities have been
defeased to maturity or to redemption and the timing of such maturity or redemption.
Section 7. Undertaking to Constitute Written Agreement or Contract. This
Undertaking shall constitute the written agreement or contract for the benefit of Holders of
Securities, as contemplated under Rule 15c2-12.
Section 8. Governing Law. This Undertaking shall be governed by the laws of
the State of New York determined without regard to principles of conflict of law.
IN WITNESS WHEREOF, the undersigned has duly authorized, executed and
delivered this Undertaking as of September 24,2019.
TOWN OF SOUTHOLD
By e
Supervisor and Chief Fisca icer
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