HomeMy WebLinkAboutNYSEFCJoshua Y. Horton
Supervisor
Town of Southold
P. O. Box 1179
Southold, NY 11971
New York State
ENVIRONMENTAL }c{C[LII[E5 CORPORATION
Thomas J. Kell¢ President D~
.. ,~ ~, ?~,~ ~-
Re:
New York State Environmental Facilities Corporation (NYSEFC)
Clean Water State Revolving Fund (CWSRF)
Project No.: C1-5110-01-00
Toxin of Southold
Dear Supervisor Horton:
I am pleased to forward to you the following documents for the subject water
quality improvement project:
· An executed copy of the Project Finance Agreement
· A copy of the final financing structure schedules
The Estimated Net Debt Service Schedule found in the financing structure
schedules sets out the actual debt service on the bonds and then factors in the NYSEFC
subsidy as well as the administration fee to arrive at the net debt service due on the bonds.
The Debt Service Schedule assumes that construction draws are made according to your
community's projected draw schedule_ Any change in the construction draw schedule
will affect the timing of deposits to the subsidy account and as a result your actual
payments may be higher or lower than those sho~m on the Debt Service Schedule_
Additionally, proceeds deposited to a construction fund at the time of closing will be
invested in accordance with Section 3.4 of the Project Finance Agreemgnt until they are
dravrn upon. Interest accrued on these deposits will also be credited to your debt service
payments.
625 Broadx~a}, 3_lbans; New '~ork 12207 2997
518.402.6924 · 800.882.9721
We want to thank you and your staff for your participation in our recent pooled
financing and for the help we received in bringing this transaction to a successful closing.
We invite any comments that you may have regarding the SRF Program.
If you have any questions, please call me at the above 800 number.
Sincerely,
Victoria L. Storrs
A~ssociate Financial Analyst
VLS :mr
Eric.
cc w/eric_:
Gerard Femandez Jr., Esq.
Patricia Finnegon
Robert F. Sikora
New York State Environmental Facilities Corporation
State Clean Water and Drinking Water Revolving Funds Revenue Bonds Series 2004 D
Recipient Name: Town of Southold
CWSRF Number: C1-5110-Ol-O0
Sources & Uses
Dated 07~22~2004 I Delivered 07/22/2004
SOURCES
Par Amount of Bonds
Federal Grants and State Match Funds Available (50 00% of Financing)
Transferred Proceeds from Prior BAN
$3,789,098.00
1,894,549.00
32,500.00
Total Sources $5,716,147.00
USES
Deposit to Project Construction Fund
Deposits for Refinancing
Deposit for BAN Refinancing
Deposit to Construction Fund from Unspent Proceeds
Totat Deposit for Refinancing
EFC Reserve (50.00% of Financing)
Costs of Issuance
Underwriter's Discount (0.591%)
Direct Expense
State Bond Issuance Fee
Total Costs of issuance
3,701,214.00
32,500.00
22,404.00
22,400.00
10,560.00
Total Uses
321500.00
$3,733,714.00
1,894,549.00
55,384.00
$5,7t6,147.00
LOAN SUMMARY STATISTICS
Bond Recipient Bond Yield
True Interest Cost
Ail-In Yield
Effective All-in Yield
Reserve Yield
Dated Date
Delivery Date
First Interest Payment Date
First Matudty
Final Matudty
Project Completion Date
Fiscal Year Ends
Debt Structure
Debt Btructure Compliance
Average Life (Years)
SRF Project Number
3.972872%
4.067496%
4.208291%
2.107929%
4.638000%
7/22/2004
7/22J2004
2/15/2005
2/15/2005
2/15/2018
11/2003
12/31
50% Rule
Yes
7.533 Years
C1-5110-01-00
New York State EFC
Finance - VS Page 1
New York State Environmental Facilities Corporation
State Clean Water and Drinking Water Revolving Funds Revenue Bonds Series 2004 D
Recipient Name: Town of Southold
CWSRF Number: C1-5110-01-00
Debt Service Schedule *
Annual Debt
Semi-Annual Service-Fiscal
Date Coupon Principal Interest Debt Service Year (12/31)
07/22/2004
08/15~2004
02/15/2005 1.201 % 220,000.00 75,490.53 295,490.53
0811512005 65,616.32 65,616.32 361,106.85
02/15/2006 1.991% 225,000.00 65,616.32 290,616.32
06/15/2006 63,376.44 63,376.44 353,992.76
02/15/2007 2.481% 234,095.00 63,376.44 297,474.44
08/15/2007 60,472.45 60,472.45 357,946.89
02/15/2006 2.841% 245,000.00 60,472.45 305,472.45
08/15/2009 56,992.23 56,992.23 362,464.68
02/1512009 3.111% 250,000.00 56,992.23 306,992.23
08115/2009 53,103.48 53,103.48 360,095.71
02/15/2010 3.351% 260,000.00 53,103 48 313,103.48
08/15/2010 48,747.18 48,747.18 361,850.66
02/15/2011 3.561% 270,000.00 48,747.18 318,747.18
08/15/2011 43,939.83 43,939.83 362,667.01
02/15/2012 3 751% 275,000.00 43,939.83 318,939.83
08/15/2012 38,782.20 38,782.20 357,722.03
02115/2013 3.901% 285,000.00 38,782.20 323,782.20
08/15/2013 33,223.28 33,223.28 357,005.48
02./15/2014 4.061% 290,000.00 33,223.28 323,223.28
08/15/2014 27,334.83 27,334.83 350,558.11
02115/2015 4.251% 295,000.00 27.,334.83 322,3~4.83
08/.1512015 21,064.60 21,064.60 343,399.43
02/15/2016 4.361% 305,000.00 21,064.60 326,064.60
06/15/2016 14,414.08 14,414.08 340,475.68
02/1512017 4.493% 315,000.00 14,414.08 329,414.08
08L15/2017 7,337.60 7,337.60 336,751.68
02/15/2018 4.586% 320,000.00 7,337.60 327,337.60
08/75/2018 327,337.60
Total $3,789,098.00 $1,144,299.57 $4,933,397.57 $4,933,397.57
(*) Recipients are required to prepay the debt service above on February 1 and August 1. EFC will then make
the required payment [o the bondhoJdere on February 15 and August 15.
New York State ~cFC
F/nance - [/S Page 2
New York State Environmental Facilities Corporation
State Clean Water and Drinking Water Revolving Funds Revenue Bonds Series 2004 D
Recipient Name: Town of Southold
CWSRF Number: C1-5110-01~O0
Estimated Net Debt Service Schedule *
Debt Service Net Debt Service
Total PHncipal + Less: Subsidy Administrative Annual, F[scel
Date Principal Interest Interest Earnings Fee (1) Semi-Annual Year (12/31)
07/22/2004
08/15/2004
92/15/2005 220,000.00 75,490.53 295,490.53 49,500.29 245,990.24
08115/2005 55,516.32 85,616.32 41,383.68 6,171 00 30,403.64 276,393.88
02/15/2006 225,000.00 65,616.32 290,616.32 41,383.66 249,232.64
08/15/2006 63,37644 63,376.44 38,774.82 8,360.00 32,961.62 282,194.26
02115/2007 234,098.00 53,376.44 297,474.44 38,774.82 258,699.62
08/15/2007 80,472.45 60,472.45 36,060.45 7,775.00 32,187.00 290,886.62
02/15/2008 245,000.00 60,472.45 305,472.45 36,060.45 269,412 0g
08/15/2008 56,992.23 56,992.23. 33,219.68 7,162.00 30,934.55 300,346.55
02/15/2009 250,000.00 56,992 23 306,992.23 33,219.68 273,772.55
08115/2009 53,103.48 53,103.48 30,320.93 6,537.00 29,319.55 303,092.10
02/15/2010 260,000_00 53,103.48 313,103.48 30,320.93 282,782.55
08/I5/201g 48,747.18 48,747.18 27,;~06.23 5,887.00 27,327.95 318,110.56
g2/15/2011 270,000.00 48,747.18 318,747.18 27,306.23 291,440.95
08/15/2011 43,939.83 43,939.83 24,175.58 5,212.00 24,976.25 316,417.20
02/15/2012 275,000.00 43,939.83 318,939.83 24,175.58 294,764.25
08/15/2012 38,782,20 38,782.20 20=986 95 4,525.00 22,320.25 317,084.50
02/15/2013 285,000.00 38,782.20 323,762.20 20,g86.95 302,785.25
08/15/2013 33,223.28 33,223.28 17,682.38 3,812.00 19,352.90 322,145.15
02/15/2014 290,000.00 33,223.28 323,223.28 17,682.38 305,540.90
08/15/2014 27,334.83 27,334.83 14,319.83 3,087.00 16,102.00 321,642.90
02/15/2015 295,000.00 27,334.83 322,334.83 14,319.83 308,015.00
.08/1.5/2015 21;064.60 21,064.60 10,899.30 2,350.00 12,515.30 320,530.30
02/15/2016 305,000.00 21,064.60 326,064.60 10,899 30 315,165.30
08/15/2016 14,414.08 14,414.08 7,362.83 1,587.00 8,638.25 323,803.55
02/15/2017 315,000.00 14,414.08 329,414.08 7,362.83 322,051.25
g8115/2017 7,337.60 7,337.60 3,710.40 800.00 4,427.20 326,478.45
02/15/2018 320,000.00 7,337.60 327,337.60 3,710.40 323,627.20
08115/2018 323,627.20
Total $3,789,095.00 $1,144,299.57 $4,933,397.57 $661,906.41 $63,265.g0 $4,334,756.16 $4,334,756.16
(1) The annual administrative fee o[ 0.25% is due on April I of each year. For Semi-Annual Net Debt Service the fee is
included on August 15. For Annual Net Debt Service the fee is included in the Fiscal Year in which it is paid.
(') Recipients are required to prepay the debt service above on February I and August 1. EFC will then make
the required payment to the bondholders on February 15 and August 15.
New York State EFC
Finance - V$ Page 3
New York State Environmental Facilities Corporation
State Clean Water and Drinking Water Revolving Funds Revenue Bonds Series 2004 D
Recipient Name: Town of Southold
CWSRF Numbe~. Cl-5110-01-00
Construction Period Draw/Earnings Schedule @ 1.0000000%
B Consbuc~ion
Beginning Capital[zed A+B Total Ending Earnings Balance of
Consl~uction A CbnstrucUon Interest Projec~ Construction Capitalized Cam/ Applied to Accrued
Date Fund Balance Draws Draws Draws Fund Balance Con.-trucfion interest Forward (1) Deb[ Service Earnings
I;)7/23/2004 32,500.00 32,500.90
0911512004 32,500.00 32,500.00 3:~,500.00 19.86 19.96
09/15/2004 19.96
10/15/2004 19.66
11115/2004 19.86
12/15/2004 19.96
01/15/2005 19.96
02/'i5/2005 19.86 0.0o
0311512005 0.00
0411912005 0.00
(1) Consb'uct~on In[ere. st earnings that accrue dudng the 45 days before an interest payment date on the bonds will be carded ~orward b3 the next payment date.
New York State EFC
New York State Environmental Facilities Corporation
State Clean Water and Drinking Water Revolving Funds Revenue Bonds Series 2004 D
Recipient Name: Town of Southold
CWSRF Number: C1-5110-01-00
Reserve Allocation and Interest Earnings
Reserve as a Percentage of Bonds: 50.00000%
Reserve Beginning
Date Requirement Balance
Reserve Investment Rate: 4.63800%
Reserve Free- Subsidy Ending
Deposit (1) Up Earnings I~alance
07/23/2004 1,894,649.00 1,878,299.00 1,878,299.00
08/15t2004 1,894,549.00 1,878,299.00 16,250.00 1,894,549.00
02/15/2005 1,894,549.00 1,894,549.00 110,000.00 49,500.29 1,784,549.00
08/15/2005 1,784,549.00 1,784,549.00 41,383.68 1,784,.549.00
02/15/2006 1,784,549.00 1,784,549.00 112,500.00 41,:~53.68 1,672,049.00
08/15/2006 1,672,049.00 1,672,049.00 38,774.82 1,672,049.00
02/15/2007 1,672,049.00 1,672,049.00 117,049.00
08115/2007 1,555,000.00 1,555,000.00
02/15/2008 1,555,000.00 1,555,000.00 122,500.00
08115/2008 1,432,500.00 1,432;500.00
02/1512009 1,432,500.00 1,432,500.00 125,000.00
08/1512009 1,307,500.00 1,307,500.00
02/15/2010 1,307,500.00 1,307,500.00
08115/2010 1,177,500_00 1,177,500.00
02/15/2011 1,177,500.00 1,177,500.00
08/15/2011 1,042,500.00 1,042,500.00
02115/2012 1,042,500.00 1,042,500.00
08/15/2012 905,000.00 905,000.00
0211512013 905,000.00 905,000.00
08f;tS12013 76Z,500.00 762,500.00
02/15/2014 762,500.00 762,500.00
08/1512014 ' 617',500.00 617,500.00
02I{I 512015 6t 7,500.00 617,500.00
08/~] 5/2015 470,000.00 470,000.00
130,000.00
135,000.00
137,500.00
142,500.00
145,000.00
147,500.00
38,774.82 1,555,000.00
36,060.45 1,555,000.00
36,060.45 1,432,500.00
33,219.68 1,432,500.00
33,219.68 1,307,500.00
30,320.93 1,307,500.00
30,320.93 1,177,500.00
27,306.23 1,177,500.00
27,306.23 1,042,500.00
24,175.58 1,042,500.00
24,175.58 905,000.00
20,986.95 905,000.00
20,986.95 762,500.00
17,682.38 762,500.00
17,682.38 617,500,00
14,319.83 617,500.00
14,319.83 470,000.00
10,899.30 47p,000~00
02/15/2016 · 470,000.00 470~000.00 152,500.00 10,899.30 317,500;00
08ti 5/2016 317,500.00 317;500.00 7,362.83 317,500.00
02/i5/2017 317,500.00 317,500.00 157,500.00 7,362_83 I60,000.00
08/~ 5/2017 160,000.00 160,000.00 3,710.40. 160.000.00
02115/2018 160,000.00 160,000.00 t 60,000.00 3,710.40
Total $32,091,643.00 $1,894,849.00 $1,894,549.00 $661,906~41
(1) See the previous page for details on deposits.
New York State EFC
Finance - t/$ Page 6
New York State Environmental Facilities Corporation
State Clean Water and Drinking Water Revolving Funds Revenue Bonds Series 2004 D
Recipient Name: Town of Southold
CWSRF Nun~ber: C1-5110-01-00
Annual Administrative Fee
Balance of
Principal Administrative Administrative
Date Principal Outstanding . Fee (1) Fee Due Date
07/22./2004 3,789,098.00
08/15/2004 3,789,095.00
02/1512005 220,000.00 3,789,098.00
08/1512005 3,569,098.00
02/1512006 225,000.00 3,569,098.00
08/1512006 3,344,098.00
02/15/2007 234,098.00
08/15/2007
02./15/2008 245,000.00
08/15/2008
02/15/2009 250,000.00
08/1512009
02/15/2010 260,000.00
08/15/2010
02/15/2011 270,000.00
08/15/2011
02/15/2012 275,000.00
08115/2012
02/15/2013 285,000.00
08/15/2013
02/15/2014 290,000.00
08/15/2014
02/1512015 295,000.00
08/'~ 5/2015
3,344,098.80
3,110,000.90
3,110,000.00
2,865,000.00
2,665,000.00
2,615,000.00
2,615,000.00
2,355,000.00
2,355,000.00
2,085,000.00
2,085,000.00
1,810,000.00
1,810,000~00
1,525,000.00
1,525,000.00
1,235;000,00
1,235,000.00
940~000.00
6,171.00 04/01/2005
8,360.00 04/01/2006
7,775.00
7,162.00
6,537.00
· 5,887.09
5,212.00
4,525.00
3,812.00
3,087.00
2,350.00
04/01/2007
04/01/2008
04/01/2009
04/01/2010
04/01/2011
04/01/2012
04~01/2013
04/01/2014
04/01/2015
02/15/2016 305,000.0Q 940,000;00
08/15/2016 635,000.00 1,587.00 04/01/2016
02/15/2017 315,000 00 635,000.00
08115/2017 320,000J00 800.00 04/01/2017
02/15/2018 320,000.00 320,000.00
Total $3,789,098.00 $63,265.00
(1) The annual administrative fee is 0.25% of the principal outstanding on Apnl 1 o[ each year.
New York State EFC
F/nance- VS Page 7
New York State Environmental Facilities Corporation
State Clean Water and Drinking Water Revolving Funds Revenue Bonds Series 2004 D
Recipient Name: Town of Southold
CWSRF Number: Cl-5110-01-00
Yield Calculations
True Interest All-in Bond Effective All-in
Arbib'age Yield Cost Yield Net Debt Yield
Date Debt Service '3.972672% '4.067496% '4.208291% Service '2.107929%
7/22/2004
2/15/2005 295,490.53 286,007.84 286.656.71 288,632.11 ' 245,990.24 243,098.74
8115/2005 65,6t 6.32 62,926.76 62,864.71 62,772.52 24,232.64 23,698.03
2115/2006 290.6t 6.32 273,275.83 272,879.69 272,291.65 249,2_32.64 241,192.06
8/15/2g06 63,376.44 58,434.14 58,322.38 56,156.57 24,601 62 23,559.63
2/15/2007 297,474.44 268.934.21 266,295.36 267,348.18 258,696.62 245,158.64
611512007 60,472.45 53,605.77 53.453.64 53,226.20 24.412.00 22.592.63
2/15/2006 305,472.45 265,511.67 264,635.36 263,337.60 269,4t2.00 250,012.45
8/15/2006 56,992.23 46,571.87 43,389.11 48,118.61 23,772.55 21,830.67
2/15/2606 306,992.23 256,539,42 255,455.66 253,652.51 273.772.55 248,787.12
6/15/2009 53,103.48 43,6I 1.33 43,307.92 43,006.46 22.762.55 20.467.41
2/15/2010 313,163.4g 251,553.17 250,256.24 246,344.86 282,762.55 251.642.44
g/1~5/2010 48.747.15 38,401.57 38,186.17 37,668.09 21,440.95 18,680.87 '
2/15/2011 318,747.18 246,208.72 244.714.20 242,508.47 291,440.96 253,965.74
8/15/2011 43,539.63 33,279.21 33,061.87 32,741.27 19,764.25 17,04322
2/15/2012 316,939.83 236.8'54.15 235,195.15 232,756.91 294.764.25 251,531.66
8/15/2012 38,782.20 26,239.84 25,029.40 27,719.34 17,795.25 15,026.67
2/45/2013 323.76Z 26 231.174.74 229,345.61 226,652.25 302,765.25 253.023.12
6/15/2O13 33,223.28 23,258.81 23,064.08 22,777.51 15,540.90 12.85g.91
2/~5/2014 323,223.28 221,873.39 216,913.77 217.031.59 305.540.90 250,019.45
6/15/2014 27,334.63 18,396.25 16,227.30 17,g76.01 13,015.00 10,536.90
2/15/2015 322,334.83 212,726.16 210.653.82 207,606.43 305,015.00 246.813;69
6/15/2(316 21 .~364.60 131631.03 13,491.65 13,287.50 10,165 30 8,060.55
2/15/2016 326.064.60 206,886.61 204,681.26 201.442.20 315,165.~0 247.303,01
$/15/2016 14,414.08 8,967.62 8,867.83 8.721.4g 7,051.25 5.475.25
2/15/20t7 329,414.08 200,951.04 198,622.71 195.210.07 322,051.25 247,462.44
8/'15/2017 7,337.60 4,388.94 4.336.08 4,258.64 3,627.20 2,758.05
Z/15/2018 327.337.60 191,981.40 189,56t 07 186,066.93 323,627.20 243.513.26
4/1/2005 6.171.00 6,062.14
4/1/20p6 8,360.00 8,068.65
4/1/2007
4/1/2008
4/1/2009
4/1/2016
Total:
4.933.397.57
3.789,096.00 3,766,694.00
7,775.00 7,34g.32
7,162.00 6,628.50
6,537 00 5,924;52
5,857.00 5,224.70
5.212.00 4,529.66
4,625.00 3,850_9g
2,350.00 1,678.03
1,587.00 1.241.95
800.00 613.07
3,733714.00 4,334,756.16 3,733,714.00
Bonds
Accrued Interest
Rebtfedng Premium
Bond Insurance
Unde~vri[e¢s Discount
Cos[s of Issuance
Target Price for Yield
3,759,098.00 3,789,098.00 3.789,098.00
3,769,058.00
(22,404.00) (22,404.00)
(32,980.00)
3,766,694.00 3,733,714.00
3.769,098.00
(22,404.00)
(32,980.00)
3,733,714.00
New York State EFC
F/nance- V$ Page B
New York State Environmental Facilities Corporation
'State Clean Water and Drinking Water Revolving Funds Revenue Bonds Series 2004 D
Recipient Name: Town of Southold
CWSRF Number; C1-5~10-01-00
Principal Amorizafion: 50% Rule
Structural Compliance Necessary: Yes
Compliance with FJ$caJ Year Level Debt Service Requirement (1) Compliance with 50% Rule Principal Requirement (2)
Gross D/S
Fiscal Year % Increase Increase Non Max[mum Non
DiS if Maximum from over Compliance Principal Compliance
Principal Remaining Current Current with Level DIS Matudng Maturing in a % Increase with 50%
Date Payment Annual DiS Years DIS Year Requirement Principal Later Year in Principal Rule
07/22/2004
12/31/2005 361,106.85 362,687.01 0.438% 1,580.16 220,000.00 320,000.00 45.455%
12/31/2006 353,992.76 362,687.01 2.455% 8,694.25 225,000.00 320,000.00 42.222%
12/31/2007 357,946.89 362,687.01 1.324.% 4,740.12 234,098.00 320,000.00 36.695%
12/31/2008 362,464.68 362,687.01 0.061% 222.33 245,000.00 320,000.00 30.612%
12/31/2009 360,095.71 362~687.01 0.720% 2,591.30 250,000.00 320,000.00 28.000%
12/31/2010 361,850.55 362,687.01 0.231% 836.35
12_/31/2011 362,687.01 357,722_03
12/31/2012 357,722.03 357,005.48
12/31/2013 357,005.48 350,558.11
12/31/2014 350,558.11 343,399.43
12/31/2015 343,399.43 340,478.68
12/31/2016 340,478.68 336,751.68
12/31/2017 336,751.65 327,337.60
12/31/2018 327,337.60
Total
260,000.00 320,000_00 23.077%
270,000.00 320,000.00 18.519%
275,000.00 320,000.00 15.364%
285,000.00 320,000.00 12.261%
290,000.00 320,000.00 10.345%
295,000.00 320,000.00 8.475%
305,000.00 320,000.00 4.918%
315,000.00 320,000.00 1.587%
320,000.00
(1) Debt Service in any year may not exceed debt service in any preceding year by more than the greater o[ 5.00% or $10,000.
(2) Principal maturing in any year may not exceed principal maturing in any preceding year by more than 50%.
New York State EFC
Finance - KS Page 9
New York State Environmental Facilities Corporation
State Clean Water and Drinking Water Revolving Funds Revenue Bonds Series 2004 D
Recipient Name: Town of Southold
CWSRF Number: C1-5~ 10-0~-00
NOTICE OF TERMS: SCHEDULE A (*)
Annual Debt
Semi-Annual Sen/ica-Fiscal
Date Coupon Principal Interest Debt Sen/ica. Year (12131)
07/22/2004
08/15/2004
02/15/2005 1 `201%
0811512005
0211512006 1.991%
08/15/2006
02/15~2007 2.48t%
08/15/2007
02/1512008 2.841%
08/1512008
02/1512009 3.111%
08/15/20'09
02/1612010 3.351%
08/15/2010'
02/15/2011 3.561%
08/15/2011
02/15/2012 3.751%
08/1512012
220,000.00 75,498.53 295,490.53
65,616.32 65,616.32
225,000.00 65,616.32 290,616.32
63,376.44 63,376.44
361,106.85
353,992.76
234,098.00
245,000.00
250,000.00
63,376.44 297,474.44
60,472.45 60,472.45 357,946.89
60,472.45 305,472.45
56,992.23 56,992.23 362,464.66
56,992.23 306,992.23
53,103.48 53,103.48 360,095.71
53,103.48 313,103.48
46,747.18 48,747.18 361,850.66
46,747.18 318,747.18
43,939.83 43,939.83 362,687.01
43,939.83 318,936.83
38,782`20 38,782_20 357,722.03
260,000.00
270,000.00
275,000.00
02/15/2013 3.901% 285,000.00 38,782.20 323,782.20
08/15/2013 33,223.28 33,223.28 357,005.48
02/15/2014 4.061% 290,000_00 33,223.28 323,223.28
08/15/2014 27,334.83 27,334.63 350,558.11
02/15/2015 4.251% 295,000.00 27,334.93 322,334 83
08/15/~0'J5 21,064.60 21,064.60 343,399.43
02/15/2016 4.361% 305,000.00 21,064.60 326,064.60
08/15/2011~ 14,414.08 14,414.08 340,478.68
02/1'5/2017 4.493% 315,000.00 14,414.08 329,414.08
08/15/2017 7,337.60 7,337.60 336,751.68
02/15/2016 4.586% 320,000.00 71337.60 327,337.60
08/1,5/2018 327,337.60
T~3ta[ $3,789,098.00 $t,144,299.57 $4,933,397.57 $4,933,397.57
AMOUNT PAYABLE PURSUANT TO PARAGRAPH 4 OF NOTICE OF TERMS: $55,384.00
(*) Pursuant to Section 3.1 (B) of the PFA, Debt Service is due on February 1 and August 1 of each year.
New York State EFC
Financ~- YE Page
STATE WATER POLLUTION CONTROL REVOLVING FUND
TOWN OF SOUTHOLD
and
NEW YORK STATE ENVIRONMENTAL
FACILITIES CORPORATION
PROJECT FINANCE AGREEIvlENT
(LEVER_AGED FINANCING PROGRAM)
STATE CLEAN WATER REVOLVING FUND PROJECT NO.: C1-5110-01-00
Dated as of June 1, 2004
TABLE OF CONTENTS
?d~TICLE I
DEFINITIONS
Page
Section 1. I.
Section 1.2.
Section 1.3.
Definitions ............................................................................................................. 2
Rules of Construction ............................................................................................. 6
ExNNts and Appendices Incorporated .................................................................. 7
Section 2.1.
Section 2.2.
ARTICLE ]I
REPRESENTATIONS
Representations of the Recipient ............................................................................ 7
Representations of the Corporation ..................................................................... 10
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
3.1.
3.2.
3.3.
3.4.
3.5.
3.6.
3.7.
3.8.
3.9.
3.10.
ARTICLE m
PURCHASE OF RECIPIENT BONDS
Purchase of Recipient Bonds ............................................................................... i 1
Other Amotmts Payable ....................................................................................... i3
Redemption of Recipient Bonds ......................................................................... 14
Deposit of Proceeds fi.om the Sale of'Recipient Bonds ....................................... 14
Disbursement of Proceeds from the Sale of Recipient
Bonds ................................................................................................................... I4
Reimbursement of Revolving Fund .................................................................... l 5
Effective Date and Term ...................................................................................... 16
Execution and Delivery of Recipient Bonds and Other
Documents ........................................................................................................... 16
Depository Bank; Investment of Leveraged Financing
Proceeds and Recipient Bonds Prepayments ....................................................... 17
Commitment to Proceed; Agreement to Pay
Proportionate Share of Certain Expenses ............................................................. 18
ARTICLE IV
GENERAL PROJECT CONDITIONS, COVENANTS .~ql) REPRESENTATIONS
Section 4.1.
Section 4.2.
Section 4.3.
Section 4.4.
Section 4.5.
Section 4.6.
Section 4.7.
Compliance with Laws and Agreements ............................................................. 19
Plans and Specifications ..................................................................................... 20
Construction of Project .' ....................................................................................... 21
Ownership, Operation and Maintenance .............................................................. 22
Accounting and Records ...................................................................................... 23
Payment of Additional Project Costs .................................................................. 23
Remediation ..................................................................................................... 23
ARTICLE V
COVENANTS
Section 5.1_
Section 5.2_
Section 5.3.
Application 6f Proceeds ............................................................................ :..:;......23
Tax Covenant ....................................................................................................... 23
Pa~xnent of Recipient Bonds ................................................................................ 24
ARTICLE VI
REMEDIES
Section 6.1.
Remedies .............................................................................................................. 24
ARTICLE VII
MISCELLANEOUS
Section 7.1.
Section 7.2.
Section 7.3.
Section 7.4.
Section 7.5.
Section 7.6.
Section 7.7.
Section 7.8.
Section 7.9.
Section 7.10.
Section 7.11.
Sectmn 7.12.
Section 7.13.
Section 7.14.
Section 7.15.
Notices .................................................................................................................. 25
Bhndmg Effect ................................................................................................... 26
Severability ...................................................................................................... 26
Amendments, Supplements and Modifications .................................................... 26
Execution in Counterparts .................................................................................... 26
Applicable Law ................................................................................................... 26
Captions ................................................................................................................ 26
Benefit of Project Finance Agreement ................................................................. 26
Further Assurances; Disclosure of Financial Information,
Operating Data and Other Information .............................................................. 26
Assi~mnment of Project Finance Agreement or Recipient
Bonds ................................................................................................................... 27
Covenant Against Discrimination ........................................................................ 27
Agreements of the Corporation ........................................................................... 28
Project Finance Agreement Supersedes Prior
Agreements ........................................................................................................... 28
Conversion of Financing ..................................................................................... 28
Signs ..................................................................................................................... 28
EXIIlBITS
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit E
Exhibit G
ExhiNt tt
Exhibit I
Exhibit J
Exhibit K
Exhibit I_
Project Description
Description of Previously Issued Iiadebtedness Used to Finance the
Project; Pa3q'nent Insmactions
Estimated Project Costs; Reserve Allocation
Estimated Construction Schedule
Schedule of AdditionaI Provisions
Anticipated Principal Payment Schedule
Form of Recipient Bonds
Form of Opinion of Nationally Recognized Bond Counsel
Form of Opinion of Local Counsel
Form of Recipient Closing Certificate
Requisition Procedures
Form of Notice of Terms
iii ="':' ~'"
'l~his PROJECT FINANCE AGREEMENT, dated as of the date set forth on the cover
page hereof, between the municipal corporation set forth on the cover page of this Project Finance
Agreement, a mumcipal corporation duly organized and existing under the laws Of the State of New York
:(the "Recipiefit"), and the New York Stare Environmental Facilities C~rporation, a body corporate and
politic, constituting a public benefit corporation, established and existing under and by virtue of the laws
of the State of New York (the "Corporation"),
WITNES SETH:
· '-; .' · ' 'WHEREAS: the United States of Amer/ea, pursuant to the federal Water Pollution
Control Act (as such has been and may be amended from time to time, the "Clean Water Act") requires
each State to establish a water pollution control revolving fund to be administered by an inslzumentality of
the SSmte as a condition to rece/pt of capitalization grants under the Clean Water Act; and
WHEREAS, the State of New York (the "State") has, pursuant to Chapter 565 of the Laws
of Nexv York of 1999, as amended (the "Stare'Act"); established a water pollution con~-ol revolving fund
(the Revolxdng Fund'.') to ,be used for purposes of the Clean Water Act; and
WHEREAS, the Corporation has the responsibility, together with the New York State
Department of Environmental Conservation ("DEC"), to adm/nister the Revolving Fund and to provide
financial assistanqe from ..the Revok4ng Fund .to recipients for the .construction of eligible projects, as
provided in.the S~ate Act; and
WHEREAS, the Corporation and DEC are responsible under the Clean Water Act and the
State Act for determining the eligibility of projects for financial assistance from the Revolving Fund,
determining a reasonable schedule for financing and construction of projects, and for ensuring compliance
with the Clean Water Act and the terms and conditions of an applicable Project Finance Agreement; and
WHEREAS, the Recipient has submitted to the Corporation an application for financial
assistance from the Revolving Fun& for the purpose of financing or refinancing the Project described
below, and the Corporation has reviewed and approved said application; and
WHEREAS, on the basis of such application and the representations and warranties set
forth herein, the Corporation proposes to finance through the purchase of a local governmental obligation
pursuant to Article m h~reof (as hereinafter defined, the "Recipient Bonds") from the Recipient to
finance, or to reimburse the Recipient for costs incurred in cormect~on with, the planning, design,
acquisitmn, construction and installation of the project or projects described in Exhibit A hereto (such
projects being herein collectively referred to as the "Project"), and/or to refund outstanding bonds or notes
of the Recipient, if any, issged to finance the Project (such outstanding bonds or notes, if any, being
described in Exhibit B .hereto and hereinafter referred to as the "Existing Indebtedness"), and the
Recipient desires tO sell ~,such Recipient Bonds to the Corporation upon the terms and conditions as
hereinafter set tbrth in this Project Finance Agreement; and
WHEREAS, any approval of engineering or facilities plans or reports required as of this
date with ~espect to, ,the Project has been obtained by the Recipient from DEC, or from the Corporation on
its behalf., subjec~ to the p[ovisions of applicable State environmental standards s.et forth in law, rules and
regulations; and ,I
WHEREAS, the Corporation has authorized the issuance of its bonds pursuant to the
Indenture (as hereinafter defined), a portion of the proceeds of which are to be applied for purposes cf
purchasing the Recipient Bonds from the Recipient; and
WHEREAS, such bonds shall be special obligations of the Corporation payable solely
fiom the revenues or other receipts, funds or moneys to be derived by the Corporation under or pursuant to
this Project Finance Agreement and from other revenues pledged and available therefore under ~e
Indenture and under the Master Trust Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual representations,
covenants and agreements herein set forth (including but not limited to the Corporation's a~eement,
subject to the conditions herein set forth, to purchase the Recipient Bonds), the Corporation and the
Recipient, each binding itself; its successors and assigns, do mutually promise, covenant and agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. Unless another meaning is specified in Exhibit E hereto, each
capitalized term as used in this Project Finance Agreement (including the Exhibits hereto) shall have the
following mearFmgs:
"Act" means the New York State Environmental Facilities Corporation Act, constituting
Title 12 of Article 5 of the Public Authorities Law and Chapter 43-A of the Consolidated Laws of the
State of New York, as it may be from time to time amended and supplemented.
"Application" means the respective applications for financing ass/stance for the Project
from the Revolving Fund submitted by the Recipient to the Corporation, as such may be amended from
time to time.
",5xbitrage and Use of Proceeds Certificate" means the certificate of the Recipient to be
delivered pursuant to Section 3.8(B)(ii) hereof and to be dated the date of delivery of the Corporation
Bonds.
"Authorized Investments" shall mean: (a) obligations of the State or the United States of
America; (b) obligations, the principal and interest of which are guaranteed by the State or the United
· States of America; (c) deposits with banks or trust companies, provided that such bank or trust company
deposit shall be continuously and fully secured by direct obligations of the State or the United States of
America or by obligations of any municipality, school dismct or district corporation of the State of a
market value equal at all times to an amount no less than the amount of the deposit; (d) inveslment
agreements (including repurchase agreements) continuously secured by obligations w-ith any insurance er
reinsurance company or corporate affiliate thereof rated by a nationally recognized rating agency in one of
its two highest categories, any bank, trust company or broker or dealer, as defined by the securities
exchange act of 1934, which is a dealer in government bonds, which reports to, trades with and is
recognized as a primary dealer by a federal rese~'e bank and is a member of the securities investors
protectmn corporation, if, such investment agreements are continuously secured by obhgations of the
State or the United States of America; or obligations the principal and interest of which are guaranteed by
the State or the United States of America; or (e) obligations the interest on which is excludable from gross
income under section one hundred three of the internal revenue code, provided that such obligations are
rated by a nationally recognized rating agency in one of its two highest rating categories. To the extent
that amounts held for the Recipient are held and invested separate and apart fi-om any other moneys held
by the Corporation or the Depository Bank Authorized Investments shall also include "Eli~ble Sectcrities"
as defined in ,Section 10 of the General lVInndcipal Law., In connection with proceeds of the Recipient
Bonds described in Section 3.9 herein, authorized investments shall include, any investments permitted by
the apphcable proxdsions of the General Municipal Law or the Local Finance Law governing the
investment of municipal funds.
"Business Day~' means.any day on which State offices are open to conduct business.
"Clean Water Act" means the federal Water Pollution Control Act, as amendedi'
"Code" means the Internal Revenue Code of 1986, as amended and any successor
provisions and the ;regulations. of the U.S. Department of the Treasury promulgated thereunder.
"Commencement of Construction" means, with respect to the PrOject, the date thati (i) a
notice to prgceed is issued b3~. the l~ecipient to the contractor follodv~ng the, exeeufion%.of the construction
contract between the cOntracting..parfies,~or (ii), in. the event that ~the Project will .be binlt by municipal
employees (force ~ccoun~) in lieu of a contractor, the first day that a work crew occupies the Project, or
(iii), in the event 'ghat ,the Project is a ~pntract to purchase .supplies, materigl or equipment, a binding
purchase agreement, is, e:~e'cuted between,.,.~!the contracting parties ,prnxdded ..however~ that,~e Recipient
shall have provided evidetice ~afisfa~tury ~o the Corporation of such Commencement of Construction.
"Commissioner" means the Comrrfissioner of DEC.
"Corporation" means the New York State Environmental Facilities Corporation
established under the A~t, and any entity which may succeed to its rights and duties respecting the
Revol~dng Fund.
"Corporation Bonds" means the series of bonds of the Corporation issued to finance the
purchase of Recipient Bonds made hereunder, together with any bonds of the Corporation issued to
refinance such bonds.
"DEC" means the New York State Depathnent of Environmental Conservation and any
entity which may succeed to its rights and duties respecting the Revolx'ing Fund.
"Depositor3, Bank" means the same institution appointed to act as Depository Bank by the
Recipient pursuant to Section 3.9 hereof.
"Earnings on Reserve Allocation" means net earnings derived from investment of the
Reserve Allocation on deposit in any payment fund established under the Indenture or in the Enhanced
Subsidy Fund relating to the Recipient Bonds, as and when such earnings are received. If an im?estment is
purchased at a premium above par, net earnings on such investment shall be deemed to be reduced by the
straight-line amortization of such premium over the remaining term of such investment. If an investment
is purchased at a discount, net earnings are deemed to include the amount paid in excess of the discounted
purchase price upon maturity or redemption of such investment at the time such principal amount is
received. The term "net earning" means aggregate earnings less aggregate losses from investments
during the applicable period, less any transaction fees incurred in purchasing or selling investments.
"Eligible Project" means a Water Pollution Control Project including (i) any devices and
systems used in the storage, treatment, recycling, and reclamation of mnnicspal sewage or industrial
wastes of a liquid harm-e, or any devices and systems necessary to recycle or reuse water at the most
econom/cal cost over the estimated life of the works, including intercepting sewers, outfall sewers, sewage
collection systems, pumping, power, and other equipment, and their appurtenances; extensions.
improxrements, remodeling, additions, and alterations thereof; elements essential to pro'~dde a reliable
recycled supply such as standby treatment units and clear well facilities; and any xvorks, including site
acquisition of the land that will be an integral part of the treatment process (including land used for the
storage of treated wastewater in land treatment systems prior to land application) or used for ultimate
disposal of residues resulting from such treatment; (ii) any other method or system for preventing, abating,
reducing, storing, treating, separating, or disposing of municipal waste, including storm water runoff, or
industrial waste, including waste in combined storm water and sanitm'y sewer systems; or (/ii) any devl. ee,
system, program, facility, equipment or method constructed or installed m connection ,~th a landfill
closure program for the purpose of controlling pollution from nonpoint sources to the navigable waters
within the State or for the purpose of protecting the quality of grmmdwater within the State.
"Entranced Subsidy Fund" means, with respect to the purchase of the Recipient Bonds, the
fund designated as such and established within the related Subaccount pursuant to Section 401-B of the
Master Trust Agreement in order to hold, on or prior to Commencement of Consmaction of the Project,
any Reserve Allocation in excess of 1/3 of the outstanding principal amount of the Recipient Bonds.
"EPA" means the United States Environmental Protection Agency or any entity that may
succeed to the administration of the program established by Section 212 of the Water Quality Act.
"EPA-ASAP" means the Automated Standard Application for Pa)~rnents system established
by EPA to make capitalization grant pa~wnents to the State under the Water Quality Act, which payments
are allocated by the Corporation as a source of Reserve Allocation for any financing made from the
proceeds of the Corporation Bonds.
"Estimated Project Costs" means the Recipient's projected costs that are eli~ble for
financing by the Corporation under the State Act, that are allowable costs under the Regulations and that
are reasonable, necessary and allocable by the Recipient to the Project under generally acc~ted
government accounting standards, as set forth in the Application, which projections are set forth in
Exhibit C hereto. Such Estimated Project costs may include costs of refunding outstanding bonds or
notes issued by the Recipient to finance Project Costs, wh/ch Project Costs meet the requirements of the
preceding sentence; provided, however, that in no event shall the principal amount of any Recipient Bonds
exceed the total Project Costs financed by the sale of the Recipient Bonds or by the outstanding bonds or
notes refunded by such sale, as applicable.
"Existing Indebtedness" means the bonds or notes of the Recipient, if any, desmfbed in
Exhibit B hereto, which bonds or notes have financed the Project.and which are robe retinaneed with
proceeds of the sale of the Recipient Bonds.
"Indenture" means the Financing Indenture of Trust between the Corporation and the
Trustee pursuant to which the Corporation Bonds are to be issued, as the same may be amended and
supplemented from time to time.
"Intended Use Plan" shall have the meaning set forth in the Regulations.
"Levemged Financing" means a financing made pursuant to this agreement from monies
deposited in the New York State Water Pollution Control Re~,olxSng Fund created by the State Act that is
made available through the issuance of bonds or notes of the Corporation.
"Master Trust Agreement" means a Master Trust Agreement between the Corporation and
a trustee and a custodian theretmder, relating to establishment of certain lands and accounts and
procedures relating to administration of the Revolving Fund with respect to a series of bonds, as such
agreement has been and may be amended and supplemented from time to time.
hereto.
"Maximum Rate" means the interest rate per annum identified as such in Exhibit E
"Minimum NPV", x~qth respect to Refunded Bonds, means NPV expressed as a percentage
of the principal amount of the Refunded Bonds, which percentage shall not be less than 3%; except that, if
(i) the Recipient so elects on the signature page of this Project Finance Agreement or (ii) the purchase of
the Recipient Bonds hereunder ~41l replace a long-term direct loan or financing from the Revolving Fund
for the Project, the Minimum NPV for purposes of Section 3:1 hereof shall be one dollar.
"Notice of Terms" means a notice substantially in the form of Exhibit L hereto, setting
forth and confirm/ng the definit/ve principal amounts, maturity dates and interest rates of the Recipient
Bonds and certain other terms of the Leveraged Financing which, to the extent such terms shall be
inconsistent with the parameters set forth in this 'Project Finance Agreement, shall be subject to the
approval of the Recipient.
"NPV" or "net present value" means, with respect to Refunded Bonds, the excess of the
present x~alue of debt ser,,-ice payments remaining on the Refunded Bonds (as calculated pursuant to
Section 90. I 0 of'the Local Finance Law) over the present value of debt servi~e payments on the Recipient
Bonds net of earnin~ on applicable reserve allocation.
"Principal Amount" means the original aggregate principal amount of the Leveraged
Financing which shall be an amount equal to the total principal amount shown as payable in Exhibit F
hereto; provided that, in the case of any Leveraged Financing made. for the purpose of refunding
outstanding bonds of the Recipient, such Leveraged Financing amotmt may be revised to an amount not
greater than the maximum amount shown in Exhibit tr by the Corporation c~elivering a Notice of Terms to
the Recipient to reflect the final sizing of the escrow to be established to provide for the payment of the
bonds to be refunded.
"Project" means the Project being financed ,xfth the Corporation Bonds and described in
Exhibit A hereto as such exhibit may be amended in accordance herewith.
"Project Costs" means the incurred costs of the Rempient wh/ch are eligible for financial
assistance from the Revolving Fund under the State Act, which are allowable costs as defined under the
Regulations and which are reasonable, necessary and allocable by the Recipient to the Project under
generally accepted governme, nt accounting standards. Such Project Costs may include costs of refunffmg
Existing Indebtedness, if any, provided that such costs meet the requirements of the preceding sentence;
pro~Sded, however, that in no event shall the principal amount of the Leveraged Financing exceed the total
Project Costs £manced hereunder or by the outstanding bonds or notes refunded w/th such Recipient
Bonds, as applicable. ·
"Project Finance Agreement" means this Project Finance A~eement.
"Proportionate Share" means the proportion that the outstanding principal amount of the
Recipient Bonds bears to the outstanding principal amount of ail recipient bonds financed with the
Corporation Bonds.
"Recipient" means the entity identified on the cover page of this Project Finance
Agreement.
"Recipient Bonds" means the bonds or notes issued and delivered by the Recipient in a
principal amount equal to the Prinmpal Amount and, purchased by the Corporation, the form of wkich is
set forth as Exhibit G hereto.
"Refunded Bonds" means bonds pre~fously msued by the Recipient and described in
Exhibit B which are to be advance refunded out of the proceeds of the Corporation Bonds.
"Regulations" means the regulations of DEC or the Corporation, promulgated pursuant to
the State Act, as either of such may be amended from time to time.
"Rescue Allocation" means the amount from the Revolving Fund allocated to prox4de
financial assistance to reduce a Recipient's total financing costs for one or more eligible projects.
"Reserve Allocation Certificate" means the certificate of the Corporation delivered
pursuant to Section 202(a) of the Master Trust Agreement with respect to the purchase of the Recipient
Bonds.
"Resolution" means, collectively, the orcVmances and resolutions of the Recipient
authorizing the execution and delivery of this Project Finance Agreement and the sale of the Recipient
Bonds to the Corporation.
"Revolving Fund" means the New York State Water Pollution Control Revolving Fund
established pursuant to the State Act.
"Sexver Use Ordinance" has the meaning set forth in the Regulations.
"State" means the State of New York.
"State Act" means Chapter 565 of the Laws of New York of 1989, as amended.
"State Approvals" means the approvals (i) by the State Public Authorities Control Board
of the issuance of Corporation Bonds and the execution of this Project Finance Agreement and (ii) by the
State Comptroller of the terms of sale of Corporation Bonds, if required.
"State Matching Share" means State funds in an amount equal to twenty percent (20%) of
amounts appropriated and allotted to the State by the federal government for deposit in the Revolving
Fund.
"Trustee" means Manufacturers and Traders Trust Company, in its capacity as Trustee
under the Indenture, and any successor-trustee in such capacity.
"User Charge System" means a charge levied on users of treatment works, or that portion
of the ad valorem taxes paid by a user, for the user's proportionate share of the cost of the operation and
maintenance (inclucVmg replacement) of such works.
"User Fees" means sewer district ad valorem taxes lexfed or to be levied or fees charged
or to be charged to users of the Project or the system of which the Project is a part pursuant to a User
Charge System or otherwise.
"Water Quality Act" means the federal Water Quality Act of 1987, as amended.
Capitalized terms used but not otherwise defined herein shall have the meaning set forth
in the Regulations.
Section 1.2. Rules of Construction Unless the context clearly indicates to the contrary, the
following rules shall apply to the construction of the Project Finance Agreement:
(A) Number. Words importing the singuI~ number shall include the plural number
and vice versa.
(B) Gender. Words importing the feminine, masculine and neuter genders shall each
include correlauve words of the other genders.
iC) Approvals and Consents. Ail-approvals, consents and acceptances required to be
· given or made by any person or party hereunder shall be at the sole discretion of the person or party, whose
approval, consent or acceptance is reqtfn:ed.
'(D) References. All references herein to particglar articles, sections or exhibits
~5thout reference to a specific document are references to articles or sections of or exhibits to tiffs Project
Finance Agreement
CE) HeacFmgs. ~he captions and heaWmgs and ruble of contents hereto are solely for
convenience of_reference and shall not constitute part of the Project F_inance Agreement, nor shall they
affect its meaning, construction or effect.
. (F) i . Terms. The terms "hereby", "hereof', "hereto", "herein", "heretmder" and any
sim/lar~terms,-, as used in this. Project Finance Agreement, refer to thc Project Finance Agreement in its
entirety and not the particular article or section of the Project Finance Agreement in which they appear,
and the term "hereafter" means after, and the term "heretofore" means before, the date set forth on the
cover page of the. Project ]?inanee Agreement.
Section t.3. Exhibits~ and'. Appendices Incorporated. All exhiNts and appendices to this
Project Finance Agreement; inclucFmg any amendments and supplements hereto, are hereby incorporated
herein and made ~ part of tbis Project Finance Agreement.
ARTICLE II
REPRESENTATIONS
Section 2.1.
follows:
Representations of the Recipient. The Recipient represents and warrants as
(A) Existence and Authority: Legal Power· The Recipient is a municipal corporation
duly created and existing under the laws of the State and has full legal right, power and authority to (i)
conduct its business and own its properties, (ii) enter into this Project Finance Agreement, (iii) adopt the
Resolution, (iv) issue and deliver the Recipient Bonds .to the Corporation as provided herein, and (v) carry
out and consummate all other transactions contemplated by each of the aforesaid documents.
(B) Compliance. With respect to the issuance of the Recipiem Bonds, the Recipient
has complied and will comply with the Resolution and with all applicable laws of the State.
(C) Authorization. The Recipient has, or will have at the time of the closing of the
purchase and sale of the Recipient Bonds, duly approved the execution and delivery of this Project
Finance Agreement, the Arbitrage and Use of Proceeds Certificate and the issuance and delivery of the
Recipient Bonds in the Principal Amount and has authorized the talcing of an5' and ail action as may be
reqff~red on the part of the Recipient to carry out, ~ve effect to and consummate the transactions
contemplated by each of the foregoing.
(D) Binding Obligation. This Project Finance Agreement has been duly authorized,
executed and delivered by the Recipient and, assurmng due authorization and execution by the
Corporation, constitutes a legal, valid and binding obligation of the Recipient enforceable in accordance
with its terms, and, upon issuance and deliver5, thereof, the Recipient Bonds each will have been duly
executed and delivered and will constitute legal, valid and b~ndmg obligations of the Recipient. The
Recipient aclcnowledges and agrees that the defense of sovereign immunity is not available to the
Recipient in any proceedings by the Corporation or the Trustee to enforce any of the obhgations cf the
Recipient under this Project Finance Agreement or the Recipient Bonds and, to the fa/lest extent permitted
by law, the Recipient consents to the initiation of any such proceedings in any court of competent
jurisdiction and agrees not to assert the defense of sovereign immunity an any such proceedings. The
enforceability (but not the validity) of rights or remedies with respect to the Project Finance A~eement or
the Recipient Bonds may be limited by bankruptcy, insolvency or other laws affecting creditors' rights or
remedies heretofore or hereafter enacted.
(E) No Litigation. There is no action, suit, proceeding, inquu-y or investigation, at
law or in equity, before or by any court, public board or body, pending or, to the knowledge of the
Recipient, threatened against the Recipient, nor is there any basis therefor, (i) affecting the creation,
organization or existence of the Recipient or the title of its officers tu their respective offices, (ii) seeking
to prohibit, restrain or enjoin the execution of this Project Finance Ageement, the Arbitrage and Use of
Proceeds Certificate or the issuance or delivery of the Recipient Bonds, (iii) in any way contesting or
affecting the validity or enforceability of the Resolution, the Recipient Bonds, this Project Finance
Agreement or any agreement or instrument relating to any of the foregoing or used or contenaplated for
use in the consummation of the transactions contemplated by any of the foregoing.
(F) No Violation_. The Recipient is not in any material respect in breach of or in
default under any applicable law or administrative regnlation of the State or the United States of America
or any applicable judgment or decree or any agreement or other instrument to which the Recipient is a
party or by which it or any of its properties is bound, and no event has occun-ed which with the passage of
time, the giving of notice or both would constitute such a breach or default; and the execution and delivery
of this Project Finance Agreement and the issuance and delivery of the Recipient Bonds and the adoption
of the Resolution and compliance with the respective provisions thereof will not conflict with or constitute
a breach of or default under any applicable law, adrmnistrative regulation or executix'e order of the State or
the United States of America or any applicable judgment or decree or any agreement or other instrument
to which the Recipient is a party or by which it or any of its property is bound.
(G) Recipient Bonds. When issued and delivered, the Recipient Bonds xvill constitute
validly issued, legally binding general obligations of the Recipient secured by a pledge of the faith and
credit of the Recipient, and all the real property within the Recipient which is subject to taxation by the
Recipient is subject to the lex~y of ad valorem taxes (xxfithout lirmtation as to rate or amount) to pay the
principal of and interest on the Recipient Bonds; provided, however, that the enforceability (but not the
validity) of the Recipient Bonds may be limited by banlomptcy, insolvency, or other laws affecting
creditors' rights or remedies heretofore or hereafter enacted.
(H) Resolution. The Resolution has been duly adopted by the Recipient and remains
in full force and effect as of the date of execution hereof.
(I) Authori~ to Act. The Recipient has full legal right and anthor/ty and all
necessary licenses and permits required as of the date hereof to own the Project, to carry on its actixSties
relating thereto, to undertake and complete the Project. to refund the Existing Indebtedness, if any, and to
carry out and consummate all transactions comemplated by this Project Finance Agreement.
(J) Proiect. The description of the Project set forth in Exlaibit A is an accurate
desgriptien of the Project. Each of the facilities comprising a part of the Project constitutes an Eligible
Project. The Recipient intends to contmue to use the Project as an Eligible Project during the term of tl'ds
Project Finance Agreement
(K) Project Costs. The estimated or actual costs of the Project as shown in Exhibit C
are equal to or in excess of the amount of the principal~amount of the Leveraged Financing and represent a
reasonable estimate of the costs actually incurred or expected to be incurred for the Project or Existing
Indebtedness_
iL) Project Compliance and Completion. The Project is in compliance with all
applicable federal, State and local laws and orc~mances (including rules and regulations) relating without
limitation to zoning, building, safety and environmental qualiD'. To the extent that the Project is not yet
complete, the Recipient intends to proceed with due diligence to complete the Project pursuant to Section
4.1 hereof. The Recipient has complied with and completed ali requirements of the State Environmental
Quality Review Act and of the State En-,4ronmental Review Process approved by EPA for Revolving Fund
projects necessary'to commence consUmetion of, the Project.
(M) Proie~t Use. The'Recipient has not leased and does not intend to lease the Project
or enter into a contract for operation of the Project except as previously disclosed m the Corporation.
ON) Proceeds Compliance. The Recipient will not take or omit to :take any action
x~ch action or om/ssion will in any way cause the proceeds o£the Corporation Bonds used to purchase
the Recipient Bonds to be apt~lied in a rammer contrary to that provided in the Indenture and the Arbitrage
and Use of Proceeds Certificate as each are in force from time to time.
(O) Tax. Compliance. The Recipient has not taken and will not take any action, and
knows of no action that any other person, firm or corporation has taken or intends to mice, which would
cause interest on the Recipient Bonds or the Corporation Bonds to be includable in the gross income of
o~xmers thereof for federal income tax purposes.
(P) No Default_ The Recipient is not in default under any finance agreement, note,
bond, mortgage or other instrument evidencing or securing indebtedness.
iQ) Refunding. Except as specified at Exhibit B hereto, the Existing Indebtedness, if
any, may be refunded without payment of any premium or penalty.
iR) Refunding Approvals. All consents, authorizations and approvals of any third
party with respect to the refunding of the Existing Indebtedness, if any, have been duly obtained except for
any approval of the State Comptroller reqtftred pursuant to Section 90.10 of the Local Finance Law,
· which, if required, will be obtained pursuant to the provisions of such Section 90.10.
iS) Existing Indebtedness. Except as otherwise pro*Sded in Exhibit E hereto, as of
the date of delivery of this Project Finance Agreement to the Corporation, the Recipient has applied the
full amount of the proceeds of Ex/sting Indebtedness, if any, to the costs of the Projects, as reflected in
Exhibit C hereto.
iT) External Financing. Except for any Existing Indebtedness and for any grants
described in Exhibit E hereto, no grants or other source of external fmancmg of the Project Costs
expected to be financed with the Leveraged Financing as described herein have been applied for or are
expected to be received by the Recipient.
CU) Representations Complete. Except as the Recipient other~xqse notifies the
Corporation in ~x/thag, all representations made herein by the Recipient axe tree, complete and accurate as
of the execution date of this Project Finance Aomeement and will be ~rue, complete and accurate as of the
date of the Levmaged Financing hereunder.
(V) Procurement and Suspension Debarment The Recipiem shall ensure frmt no
subaward, contract or agreement for purchases of goods or serxfces shall be made with any deban'ed or
suspended pan3, under Executive Order 12549 purstmtu to the requirements of the Office of Managerc, e~t
and Budget compliance supplement number A-l_a3 as revised from time to time.
Section 2.2.
follows:
Representations of the Corporation. The Corporation represents and warrants as
(A) Existence and Authority. The Corporation is a body corporate and politic,
constituting a public benefit corporation, established and existing under the laws of the State, inciudmg
the Act. The Corporation is authorized to issue the Corporation Bonds in accordance xvith the Act and to
use the proceeds thereof to prov/de funds for the purchase of the Recipient Bonds the proceeds of which
are to be used to undertake and complete the Project and~or to refund the Existing Indebtedness.
03) Legal Poxver. The Corporation has complied w/th the provisions of the Act and
has full power and authority to execute and deliver this Project Finance Agreement and, subject to the
receipt of the State Approvals, to consummate the transactions contemplated hereby and to perform its
obligations hereunder.
(C) No Default. The Corporation is not in default under any of the provisions of the
laws of the State that would affect its existence or ~ts powers referred to in the precedh~g paragi-aph (B).
(D) Approvals. By resolution duly adopted by the Corporation and still in full force
and effect, the Corporation has authorized the execution, delivery and due performance of the ProJect
Finance Agreement, the Corporation Bonds, and the Indenture, and the taking of any and all action as may
be required on the part of the Corporation to carry out, give effect to and consummate the transactions
contemplated by each of the foregoing, and the Corporation will take all actions witl'fm its reasonable
control to obtain all approvals necessary in connection with the foregoing that have not been obtained as
of the date hereof.
(E) Binding Obligation. This Project Finance Agreement has been duly authorized,
executed and delivered by the Corporation and, assuming due authorization, exeantmn and delivery by the
Recipient, constitutes a legal, valid and bmding special obligation of the Corporation. The Corporation
Bonds, when duly executed, issued and dehvered, will constitute legal, valid and binding special
obligations of the Corporation and will be payable solely from revenues or other receipts, funds or moneys
pledged therefor under the Indenture and under the Master Trust Agreement and from any amoums
otherwise available under the Indenture, and will be entitled to the benefit of the Indenture and the Master
Trust Agreement. The State is not obligated to pay the Corporation Bonds or the interest thereon. Neither
the faith and credit nor the taxing power of the State is pledged .for the payment of the principal and
premium, if any, of and interest on the Corporation Bonds.
(F) No Violation. The execution and delivery by the Corporation of this Project
Finance Agreement, the Corporation Bonds, and the Indenture and the consummation of the transactior~s
contemplated in each of the foregoing will not violate any indenture, mortgage, deed of Ixust, note,
financing agreement or other contract or instrument to which the Corporation m a party or by which 5t is
bound or,- to the best of the Corporation's lmowledge, any judgment, decree, order, statute, rule or
regulation applicable to the Corporation, and the Corporation will take all actions within its reasona'¢le
control to obtain all consents, approvals, authorizations and orders of governmental or regulatory
author/ties which are required for the consummation of the transactions contemplated thereby tha't have
not been obtained as of the date hereof.
(G) Application of Proceeds. The Corporation will apply the proceeds of the
Corporation Bonds in accordance with the Indenture and the Project Finance Agreement.
(H) No Litigation. There is no .action, suit, proceeding or investigation at law or in
equiD' before or by any court, public board or body pending or threatened against or affecting the
Corporation, or to the best knowledge of the Corporation, any basis therefor, wherein an unfavorable
decision, ruling, or finding would adversely affect the ~ansactions contemplated hereby or by the
Indenture or the Corporation Bonds or which, in any way, would adversely affect the validity of this
Project Finance A~eement,: the Corporation Bonds, the Indenture or any agreement or instrument to
wh/ch the Corporario~ is a.~party.a[~t wh/ch i~ used or ~contemplai~d for .u~e in consummation of the
Ixansact~ons contempla ed by; each ot the foregoing.
(I) Eligibility_ . The Project is included in the Intended Use Plan and the
Commissioner Ms dete, rrmp.,e,d that the Project, subject to final re'~Ziew ~f the Project plans and
~pecifications by;DEC 0r bytthe Corporation on its behalf, and subject,to any. special conditions included
m Exhibii E, is e!igible.fo~ fmancial assistance from the Revolving Fun[t,ig an amount e~lual .to the
l~rineip~l. _~nount" ,-.
..... , . (,J) Investment. Notwithstanding the pro~dsiuns of any 9ther general !aw, special ~aw
o~: local law inconsistent with the pro~visiuns of tl'fis Project Finance Agreement, the Corporation shall
mves~::procceds o£ the Corporation s Bonds, mcludmg proceeds of bonds of,.,the Recipient as provtded m
the Slate Act and Adt, '~u&i right..sha, ll 'include the right to ifivest such moneys;;togethet wfth any other
moneys held bY the Corporat~un pursuant to the provmxuns of the Pubhc Authormes Law, of the State.
ARTICLE Ili
PURCHASE OF RECI~I]~NT BONDS:
Section 3. I. Purchase of Recipient Bonds.
(A) Purchase of Recipient Bonds. Subject to the conditions and in accordance w/th
the terms of this Project Finance Agreement, the Corporation hereby agrees to purchase the Recipient
Bonds in the Principal Amount from the Recipient and the Recipient hereby agrees to sell such Recipient
Bonds and accept the proceeds of such purchase and pay the principal of and interest on the Recipient
Bonds, such interest or rote.of return on such princzpal amount not to exceed the Maximum Rate (such
stated Maximum'Rate is exclusive of an3' financial assistance in the form of an interest subsidy proxdded
to the Recipient) and, if ~pplicable, such sale shall result in a net present value, savings on Refunded
Bonds not less than the Minimum NPV (inclusive of any such financial assistance). Pursuant to Section
3.8, the Recipient hereby agrees to sell to or upon the order of the Corporation~ and to deliver to or upon
the order of the Corporation, its Recipient Bonds in an aggregate principal amount of up to the Principal
Amount, bearing interest at rates not exceeding the Maximum Rate and expected to mature at the times
and inthe amounts set forth in Exhibit F hereto. The purchase price of the Recipient Bonds shall be the
Principal Amount as set forth in Exhibit C. Subject to the prox,isions of this Article I]I, the definitive
terms of the purchase contemplated hereby and the Recipient Bond~ shall be as set forth in the Notice of
Terms (a form of which is attached hereto as Exhibit L) delivered by the Corporation to the Recipient.
(B) Payment with Depository Bank. The Recipient on or before the fifteenth (15th)
day next preceding each payment date for the Recipient Bonds shall deposit or cause to be deposited the
full amount of the return~ of the principal amount due on such payment date with the Depository Bank.
The Recipient hereby irrevocably instructs the Depository Bank to hold such amounts on behalf of the
Recipient as part of the payment fund established under the Indenture until the respective payment dates
of the Recipient Bonds and on such payment dates the amounts so held shall be applied to the return on
the Corporation's investment then due on the Recipient Bonds on such payment dates Thereupon, such
amounts shall be applied by ire Trustee in accordance with the Indenture. Amounts so deposited by the
Recipient prior to the pa3maent date for the Recipient Bonds shall be invested by the Depository Bank at
the direction of the Corporation. Investment earnings on such amounts shall accrue to the benefit of the
Recipient and shall be credited against future Recipient Bonds payments at the direction o5 the
Corporation in accordance with the Indenture.
(C) Reserve Allocation. The Corporation shall establish a Reserve Allocation for the
Recipient Bonds in an amount equal to the applicable portion of the principal amount of the Recipient
Bonds outstanding at any time, w~ch portion shall be determined by the Corporation and set forth as the
applicable Reserve Allocation ~n Exhibit C hereto, to the extent reasonably practicable and subject to
such deviation as may be necessary in connection with the administration and investment of moneys in the
Revolving Fund. The Reserve Allocation for the Recipient Bonds shall be, from time to time, funded in
the amounts and from the sources more fully set forth in the Reserve Allocation Certificate of the
Corporation delivered to the Trustee upon original issuance of the Corporation Bonds. As funds
represented by the EPA-ASAP and allocable as Reserve Allocation for the Recipient Bonds become
available to be drawn on for the benefit of the Revolving Fund, the Corporation shall cause DEC to
request the State to draw on the EPA-ASAP and deposit such funds allocable to the Recipient Bonds in an
account designated as being for the benefit of the Recipient Bonds at the times and in the amounts
specified in the Reserve Allocation Certificate relating to the Corporation Bonds until the total amounts of
such funds so drawn and deposited equals the amounts allocated to the purchase of the Recipient Bonds
by the Corporation as set forth in Exhibit C hereto. As the State Matching Share allocable as Reser~'e
Allocation becomes available for deposit in the Revolving Fund and allocation to the Recipient Bonds, the
Corporation shall take all action w/thin its reasonable control as may be required to cause DEC to request
the State to deposit such funds in an acconnt designated as being for the benefit of the Recipient Bonds
nntil the total amount of such funds so deposited equals the amounts allocated to the Recipiem Bonds by
the Corporation as set forth in Exhibit C hereto. The Recipient aclmowledges that the Reserve Allocation
estabhshed for the Recipient Bonds W/ll be reduced by any unreimbursed portion of Reserve Allocation
used to make payments on Corporation Bonds due to a Recipient payment default and that the Corporation
has no obligation to replemsh the Reserve Allocation in such event. The Recipient further acknowledges,
in accordance with Section 3.9 hereof, that the Corporatmn shall not be liable or responsible for any loss,
direct or indirect, resulting from any investment of such Resen~e Allocation made in accordance w/th ?ne
Indenture.
02)) Investment and Payment. Any portions of the Reserve Allocation for the
Recipient Bonds on deposit in the account relating to the Recipient Bonds in any pavement fund
established under the indenture and in the Enhanced Subsidy Fund shall be invested at the direction of the
Corporation and, subject to applicable tax law, this paragraph and Section 3.6 hereof. Earr/mgs on
Reserve Allocation so deposited and invested shall be applied as a credit against interest payments due or
to become due under the Recipient Bonds, as and when such Earnings on Reserve Allocafion are received.
In the event the Recipient fails to pay when due any sum o~ving to the Corporation pursuant to Section 3.2
hereof, the Corporation may, in addition to all rights and remedies proxfded in or permitted by Section 6.1
hereof, deduct such sum from any Earnings on Reserve Allocation othemfse payable to the Recipient
pursuant to Section 3.1, until such sum has been paid in full to the Corporation. In the event that the
Recipient fails to make any payment on the Recipient Bonds when due but thereafter the Recipient pays in
full all amounts then due or past due and the Corporation waives such payment default, then Eamings on
Reser~'e Allocation shall be credited to the Recipient on the Business Day next succeeding such payment-
in-full or as soon thereafter as shall be practicable; provided, however, that such Earnings on Reserve
Allocation shall be reduced in the amount of any Corporation expenses (including but not limited to any
investment losses and the reasonable fees and expenses of the Corporation, the Trustee, the o~'mers of
Corporation Bonds and attorneys representing any of the foregoing) incurred as a result of the Recipient's
failure to make any pa3~ment on the Recipient Bonds when due.
(E) No Obligation of State. The Corporation Bonds and any other obligation of the
Corporation herein contained shall not be an obligation, debt or liability of the State and the State shall not
be liable on the Corporation Bonds or on any other obligation of the Corporation herein contained, but any
such obligation shall be payable solely out of the revenues or other receipts, funds or moneys m be
derived by the Corporation under or pursuant to this Project Finance Agreement, and from other revenues
pledged and available therefore under the Indenture and under the Master Trust Agreement.
Section 3.2. Other Amounts Pa/able.
(A) The R_ecipi~nt hereby expressly farther agrees to pay to the Corporation:
(i) Upon the issuance and sale of the Corporation Bonds~ (i) the
Corporation's initial financing fee and (ii) the Recipient's Proportionate Share of the State
· Bond Issuance charge, as specified in the Notice of Terms. The initiaI financing fee shall
include: (a) the Recipient's Proportionate Share of the direct.costs.and expenses of the
Corporation and (b) the program adnfmistrative expenses of the Corporation and DEC, in
the preparation, ~le and delivery of the Corpomtiun Bonds,~thq 'preparation and delivery
of ahy legal :instruments and docum~ats necessary in -Connection ~hefewitbr.and;therexv/,th
anritheir ~[fling and recording, if.required, and all taxes,aud charges'pa,'able, in cormectiun
· s-ith any,~)f the foregoing. Such costs shall be payable from:the~souraes identified'Sn
Exhibit'.E heret6;'and shall be in ~he amount specifie'd~in. the Nr/fice 6f T~rms .subject to
the limit get ~fo~d5 in Exhil/it E; '
": (ii) ' The Corporation's annual administrative fee in the amount and on the
d~fes'spbcifiid in the N&ice of Terms and in Exhibit E hereto; and
~ ;(iii) As~such expenses are incurred, the amount of any Corporation expenses
(including but not lirdted to invesmaent losses and the reasonable fees and expenses of
the Corporation, the Trustee, the o~mers of Corporation Bonds, and attorneys representing
any of [he foregoing) incurred as a result of the Recipient's failure to make any payment
on the Recipient Bonds when due or failure to otherw/se comply with the terms of this
Project Finance Agreement or the Recipient Bonds.
(B) Palunent of Corporation Bonds. The Recipient acknowledges that payment of the
Corporation Bonds by the Corporation in accordance with the terms of the Indenture, including but not
hmited to paymenX from moneys drawn under the EPA-ASAP, from State Matching Share or from the
related Leveraged Financing subaccount, the deficiency reserve subaccount, the general reserve fu~d or
the related account of the debt service reserve fund (as such terms are defined in the Indenture), will not
constitute payment of the amounts due under ti'tis Project'Finance Agreement of the Recipient Bonds.
(C) Indemnification. To the extent perm/tted by iaw, the Recipient agrees to
indemnify, defend and hold harmless the Corporation against any loss or liability ariging out of any claim
or action brought against the Corporation for death, injury or damage to persons or property occurring in
connection with the construction, ~peratiun or maintenance of the Project. Such obligation of the
Recipient shall in each case be conditioned upon (i) prompt xwitten notice, by the Corporation to the
Recipient, of the institution of any such claim or action, and (ii) the assignment, by the Corporation to the
Recipient, of the right to conduct the defense of any such claim or action, provided that such defense shall
be undertaken by counsel reasonably satisfactory to the Corpora'non, and provided further that no
settlement, compromise or other voluntary resolution may be entered into, which would impose any
liability or obligation on the Corporation, without the Corporation's prior wa-itten consent. To the fullest
extent perm/Red by law, the Recipient agrees to pay and discharge any judgment or award entered or made
against the Corporation with respect to any such claim or action, and any settlement, compromise or other
voluntary resolution.
Section 3.3. Redemption of Recipient Bonds.
(A) Redemption Provisions. The Recipient Bonds sold to the Corporation shall be
subject to redemption prior to mattm~, in accordance with Exhibit E hereto and the Notice of Terms. The
Recipient shall not, without the prior wr/tten consent of the Corporation, redeem prior to maturity any of
the Recipient Bonds prior to the date on which any corresponding outstanding Corporation Bonds are
redeemable.
The Recipient shall give notice of redemption of any Recipient Bonds to the Corporation
and the Trustee at least sixty (60) days and not more than seventy-five (75) days prior to the date fixed for
redemption of the Recapient Bonds.
(B) Applicat/on of Excess Proceeds. If the amount of the Leveraged Financing
exceeds the actual Project Costs, excess proceeds shall be applied to the payment or prepayment of ~he
principal amount of, andJor interest due the Corporation on, the Recipient Bonds, in accordance with the
instructions of the Corporation. Within six (6) months following the scheduled completion date of the
Project (as set forth in the estimated construction schedule most recently pro,~'ided by the Recipient and
approved by the Corporation), the Recipient shall apply Leveraged Financing proceeds not actually
required for Project Costs to a payment or prepayment of principal of,. and/or interest on, the Recipient
Bonds, in accordance with the instructions of the Corporation. (Such construction schedule as of the date
of this Project Finance Agreement is appended hereto as Exhibit D). This Project Finance Agreement
may be amended with the ~x~tten consent of the Corporation in accordance with the terms hereof to permit
application of excess Leveraged Financing funds to finance additional projects of the Recipient included
in an Intended Use Plan or to finance other portions of the Project.
(C) Costs. The Recipient shall pay all costs and expenses of the Corporation in
effecting the redemption of an), Corporation Bonds prior to maturity that are so redeemed due to the
redemption prior to maturity of any Recipient Bonds.
Section 3.4. Deposit of Proceeds From the Sale of Recipient Bonds.
(A) To the extent the proceeds of the Leveraged Financing are to be used to finance
the acquisition, construction and installation of any portion of the Project not yet completed or to pay
costs of issuance of Corporation Bonds or Recipient Bonds or arty amounts payable to the Corporation
under this Project Finance Agreement, the Corporation shall deposit the portion of the proceeds to be so
used with the Depository Bank for the account of the Recipient. Amounts so deposited shall be invested
in accordance with Section 3.9, prior to disbursement. Such portion of the proceeds shall be disbursed in
accordance with Section 3.5(A), to the Recipient for Project Costs or to the Corporation, all as set forth in
this Project Finance Agreement.
(B) To the extent the proceeds of the Leveraged Financing are to be used to refund
Existing Indebtedness, the Corporation shall deposit the portion of the proceeds to be so used with the
Depository Bank or with an escrow holder approved by the Corporation, as appropriate, from which
disbursements shall be made in accordance wath Section 3.5(B), to refund such Existing Indebtedness.
Section 3.5. Disbursement of Proceeds From the Sale of the Recipient Bonds.
(A) Disbursements fi-om the proceeds of the Leveraged Financing shall be used to
finance the acquisition, construction and installation of any portion of the Project not yet completed and
shall be made pursuant to requisitions submitted by the Recipient to, and approved by, the Corporation
pursuant to the prox'islons of Exhibit K to this Project Finance Agreement. Notwithstanding the
foregoing, the Depository Bank is hereby authorized and directed to pay amounts payable to the
Corporation pursuant to this Project Finance Agreement upon requisition by the Corporation. The
Recipient hereby directs the Depository Bank (and authorizes the Depository Bank to accept tiffs Section
3.5 as the Recipient's direction) to make pa?nents of Le','eraged Financing proceeds to the Recipient
solely in accordance with the terms mad procisions of Exhibit K hereto.
03) Disbursements of Leveraged Financing proceeds to refund Existing Indebtedness
shall be made as follows:.
.(i) Where the subject refunding constitutes an "advance refunding" of bonds of the
Recipient prior to their ntaturity pursuant to Section 90.10 of the Local Finance Law of the State,
such proceeds will be disbursed to the escrow holder on thei date of deliver2' of the Corporation
Bonds~ or such other date as may- be specified in the Arbitrage and Use of Proceeds Certificate,
and such:proceeds shall be disbursed by the escrow holder ~o refund such notes or bonds at the
..... Recipient and.;the escrow
nines and m the ~manner specified m an eserow agreement b~tween the
holder,:.sugh..agreemant to be.exequted at or prior to the issuance of the Corporation's Bonds and to
be'in' £oma and'substance 5atisfactory to the Corporation. W~th respect to any amounts disbursed
or to~ be t~isbursed"by;the eserow holder to pay expenses~ .the R.ec/pient Shall .pro~-ide to the
Corpofari'6~. copies 'of the related professional services agreement and havoi~es.
(ii) Where the subject refunding constitutes a refunding of notes or bonds of the
Recipient other than an "advance refunding" pursuant to Section 90.10. of the Local Finance Law,
such proceeds will be disbursed by the Depositor3' Bank to .refund suck notes or bonds upon
direction of the Corporation.
(/ii) Except as othenvise provided in Exhibit E hereto, with respect to any refunding
of Existing Indebtedness, the Recipient expressly acknoMedges and agrees that (a) the
Corporation will not disburse Leveraged Financing proceeds to refund Existing Indebtedness in
excess of the amount of Existing Indebtedness identified in E,'Ofibit B hereto, or such lesser
amount as has been reviewed and approved by DEC, or by the Corporation on its behalf, as
eh~ble costs of an Eligible Prqject; (b) if, on the maturity or prepayment date of Existing
Indebtedness, the amount of the Leveraged Financing proceeds to be: disbursed by the
Corporation, pursuant to clause (a), is less than the full principal: and interest payment necessary.
to pay off and discharge on such date any series of bonds or notes of which the Existing
Indebtedness constitutes a part, the Recipient shall be obligated to (and hereby agrees) to pay the
difference in its own funds on such date so as to fully pay off and discharge such bonds or notes to
the extent that the difference is due on such date; and (c) any Leveraged Financing proceeds
remaining after all transfers to pay off and discharge Existing Indebtedness shall remain on
deposit with the'Depository Bank for disbursement pursuant to Section 3~5(A) hereof.
(ix9 The Recipient expressly acknowledges and agrees that, ~vith respect to any
refunding of Existing Indebtedness, it w/ll, prior to closing, on or before the date specified by the
Corporation transfer the remaining unspent proceeds of such Existing Indebtedness to the
Depository Bank prior to the closing on or before the date specified for such transfer by the
Corporation. Such unspent proceeds shall be held by the Depository Bank for the account of the
Recipient and disbursed pursuant to Section 3.5(A) hereof.
Section 3.6. Reimbursement of Revol~4ng Fund. If the Corporation determines that lands
disbursed pursuant to this Project Finance Agreement have been expended by the Recipient for costs that
are not permissible Project Costs, the Recipient shall promptly reimburse the account from which such
mounts were disbursed in an amount equal to the amount of those funds improperly applied, together
with interest on such amounts for the period during which such anxouats were improperly applied, at a rate
equal to the interest rate oft, he Leveraged Financing as set forth in the Notice of Terms. The Corporation
shall apply the credit granted to the Recipient pursuant to Section 3.1(C) hereof to reimburse the
Revolving Fund or shall reduce such credit until the Revolving Fund is reimbursed for amounts
misapplied as set forth in this paragraph.
Section 3.7. Effective Date and Term. The date of this Project Finance Agreement is for
reference purposes only, and this Project Finance Agreement shall become effective upon the date of
execution and delivery_ hereof by the parties hereto, shall remain in full force and effect from such date
and shall expire on such date as all Corporation Bonds shall be discharged a.nd satisfied m a6cordance
with the provisions thereof and all obligations of the Recipient to the Corporatmn hereunder are satisfied.
Section 3.8. Execution and Delivery of Recipient Bonds and Other Doanmenrs.
(A) Execution and Delivery of Recipient Bonds. Concurrently with the authentication
by the Trustee and delivery of Corporation Bonds and in order to exfdence the obligation of the Recipient
m pay the Corporation for the Recipient Bonds purchased w~th proceeds of the Corporation Bonds, the
Corporation and the Recipient agree that the Recipient will execute and deliver to the Trustee its
Recipient Bonds. Such Recipient Bonds shall be substmatially in the form of Exhibit G hereto, with such
changes, deletions and additions as are necessary to conform with the terms of the Corooration Bonds and
as have been agreed to by the Corporation, and shall:
(i) provide for payments of principal, premium, if may, and interest sufficient in the
aggregate to make all payments of principal, prermum, if any, and interest on the related portion of
the Corporation Bonds due on any date;
(ii) contain redemption provisions, mclucVmg pren'fium, if any, or pro~Ssions with
respect to amortization of principal, together with premium, if any, consistent with the prox'isions
contained in Exhibit E and the Notice of Terms and prox~ided that the Recipient Bonds may
contain redemption provisions that are more restrictive than Corporation Bond redemption
prox4sions; and
(iii) require that all payments of principal of or premium, if any, and interest on the
Recipient Bonds be made to the Trustee in such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payment of public and private debts, and
that each payment be made in funds available on or before the due date for the corresponding
payment on the related Corporation Bonds.
(B) Execution and Delivery of (;losing Documents. The Recipient further agrees to
deliver to the Corporation, concurrently w/th the sale and purchase of such Recipient Bonds:
(i) an unqualified opinion of nationally recognized bond counsel to the Recipient,
substantially to the effect of Exhibit H hereto and addressed as provided in Exhibit ICI, or
accompanied by a reliance letter or letters addressed as pro'~'ided th Exhibit H hereto;
(ii) an A.rbilrage and Use of Proceeds Certificate in a form acceptable to the
Corporation and its bond counsel;
(iii) if the Recipient Bonds are authenticated, a certificate as to authentication of the
Rempient Bonds (authenticated Recipient Bonds are not required by the Corporation unless the
Resolution or local law requires authentication);
(iv) a closing certificate substantially to the effect of Exhibit J hereof as to
confirmation of certain matters set forth in this Project Finance Agreement, signatures and
incumbency of authorized signatories, deliver)' and payment under the Recipient Bonds and
certain other matters:
(v) . ifLeveraged Financing proceeds are to be used to refmunce Existing Indebtedness
in a manner constituting an "advance refunding" under Section 90.10 of the Local Finance Law of
the Slate:
(a) a certificate of the chief fiscal officer pursuant to Section 90.10(g)
of the Local Finance Law of the State; and
(b) State Comptroller approval required pursuant to Section 90.10 of the
Local Finance Law; and
(vi) such additional certificates, documents and opimons as may be reasonably
requested by the Corporation.
The obligation of the Corporation to issue, deliver and sell the Corporation Bonds and to make the
Leveraged Financing are:~:onditioned upon the delivery of the opinions, certificates and documents
required by this Section 3.8, in form and substance satisfactory Fo the Corpo[ation, concurrently with the
Corporatianrs performance. With respect, to such opirdons, certificates and dobumer~ts the forms of which
are appended hereto, the Reeipie~t he, reby acknowledges that ~t and it~ pond counsel have reviewed such
forms and the Recipient hereby agrees to deliver or cause to be delivered such items in substantially the
forms appendedahereto ~exeept for the insertion of the appropriate names mad titles). .
lC} Corporation's Obligation to Purchase the R4c/pient Bonds. The Recipient
acknowledges that.the C0rpqrafionls cun~fitmant to'purchase the,Recipient Bonds w~ll be sole!y fi.om the
proceeds of: the Corporation Bonds. In accordance therewith, the obligation of the Corporation to
purchase the Rgcipient Bonds. is subject to purchase of the Corporation Bonds (i) in .the case of a
negotiated sale, by ~he Under~xiters,(hereinafier defined) pursuant ~o a bond purchase agreement between
the Corporation and certain underwriters identified therein (the "Unde~witers) and (ii) in the case of a
competitive sale, pursuant to a notice of sale and the winning hiql submiged pursuant thereto by the
purchasers identified in such Winrdng bid (also the "Underwriters"), In, the e.Kent that the Uhderxm-iters do
not purchase .the ~Corporafion Bonds, then upon ~tten notice delivered to the Recipient by the
Corporation, the Corporation may terminate both its obligation to purchase t~he Recipient Bgnds and the
obligation of the Recipient to sell and deliver the Recipient Bonds upon the terms set forth in this Project
Finance Agreement; provi4ed that the Recipient's obligation to pay its Proportionate Share of costs and
expenses relate4 ~ pi-eparation of ihe prelirhinary and/or final official ~tatement(s} relating to the
Corporation Bonds?shall survi,,~e any.sqch termination.
(I))i, Executionl and Delivery of Documents with Project Finance Agreement. The
Corporation mad the Recipient hereby ackmowledge that the Recipient has delivered or caused to be
delivered to the Corporation on the date of delivery of this Project Finance Agreement, an opinion of local
counsel to the Recipient, substantially to the effect of Exhibit I hereto.
Section 3.9. Depository Ban/~; Investment of Leveraged Financing Proceeds and Recipient
Bonds Prepawnents. The Recipient hereby (i) appoints the institution sermng as Trustee as the
Depository Bani~ with which Leveraged Financing proceeds will be deposited and to wh/ch prepayments
pursuant to Section 3.1(B) hereof shall be made, (ii) directs the Depository Bank to hold the Leveraged
Financing proceeds for the account of the Recipient in accordance with Section 5.06 of the Indenture, (iii)
irrevocably directs the Depository Bank to release such sale proceeds solely in accordance with Section
3.5 hereof, (iv): authorizes the Depositor)' Bank to invest, in accordance w/th inslructions of.an Authorized
Corporation Representative, amounts on.deposit as prepayments made in accordance with Section 3.1(B)
hereof and any Leveraged Financing proceeds that are held by the Depository Bank for the account of the
Recipient in accordance with the pro,,jsions of Article V1/ of the Indenture, and (v) authorizes the
Depositor)' Bank to make transfers pursuant to Sections 5.06(e) and 5.06(f) of the Indenture. The
Recipient hereby aclmowledges that (a) seeking disbursements in advance of the an~cipated construction
schedule provided to the Corporation prior to the making of investments may result in investment losses,
and (b) the Corporation, the Trustee and the Depositor3' Bank shall not be liable or responsible for any
loss, direct or indirect, resulting fi-om any investment authorized by the Indenture and this Project Finance
Agreement or fi-om the redemption, sale or maturity of any such investment as therein authorized or fi-om
any depreciation in value of any such im. estmem.
Withom limiting the generality of the foregoing, the Recipient hereby authorizes the Depository
Bank and the Corporation to invest the sale proceeds of the Recipient Bonds deposited with the
Depository Bank and any prepa3anents of the Recipient Bonds, together with any other moneys of the
Corporation held within the State Water Pollution Control Revolt'lng Fund and any other moneys
constituting the proceeds or prepayments of the bonds of other recipients deposited with the Depositow
Bank or the Corporation, in Authorized Investments. All investments hereunder shall be held on behalf of
any recipients and the Corporation (each an "Im,esting Participant") by the Corporation or by the
Depository Bank, or another bank or trust company designated by the Corporation following notice to the
Recipient. The institution holding any joint investment is hereinafter referred as the "Designated
Institution." Each Investing Participant shall have an undivided interest in any moneys or investments
jointly made in the proportion that the total amount of contributions made by such investing participant
bears to the total amount of contributions made by all investing participants.
The Rempient aclmowledges that the Corporation and the Designated Institution may incur fees to
brokers, dealers, financial ad~'isors, custodians, attorneys, auditors or others in connection with an)'
investment made for the benefit of the Investing Participants. Any expenses incurred by the Designated
Institution and by the Corporation in connection with any investment of moneys pursuant to this Section
shall, to the extent determined by the Corporation to be practicable, be netted against investment earnings
on amounts inYested. To the extent that it shall be determined to be ~mpractical to do, such expenses shall
be billed to the im~esting participants during the applicable time period.
Any joint investment hereunder shall be made and administered in accordance with the
Corporation's investment guidelines, as in effect from time to time. Copies of such guidelines and reports
with respect to the market value of amounts held for the benefit of the Recipient will be available to the
Recipient upon *a~ritten request.
Section3.10. Cornmitmem to Proceed~ A~eement to Pay Proportionate Share of Certain
Expenses. The Recipient hereby confirms its commitment to participate in the Leveraged Financing and
shall receive the proceeds of the sale of such Recipient Bonds to the Corporation, which proceeds shall be
raised flora the sale of the Corporation Bonds. The terms of the Recipient Bonds issued, sold and
dehvered to the Corporation by the Recipient are to be as set forth in this Project Finance Agreement and
in the Notice of Terms.
In order to induce the Corporation to include the Recipient in the group of recipients
expected to sell Recipient Bonds to the Corporation and receive the proceeds of the Corporation Bonds,
the Recipient hereby:
(1) represents that (i) ~t has proxfded the information concerning the Recipient
contained in the Apphcation for financing from the Revolving Fund submitted to the Corporation,
including any supplemental information provided to the Corporation on or before the date of tkis Project
Finance Agreement, (ii) such intbrmation was Uae and complete in ali materml respects as of its date, (iii)
there have been no material adverse changes in such inforrnafion, and (iv) this information may be relied
upon by the Corporation and its tmderwriters in connection with the issuance of the Corporation Bonds.
(2) agrees that it will accept the £mancing hereunder in accordance w/th the terms to
be specified by the Corporation m the Notice of Terms; proxqded that such Notice of Terms shall include
terms to the following effect:
(i) except to the extent that the Recipient otherwise agrees (as exadenced by its
acceptance of a Notice of Terms containing different maturity dates and principal mounts),
maturity dates and principal amounts as set forth in Exhibit F to the Project Finance Agreement
with only such changes, if any, as are reqr~xred to attain compliance with amortization provisions
of the Local Finance Law land, in the case of any portion of a Leveraged Financing made for the
purpose of refunding Outstanding obligations, as may be required to reflect the final size of any
required escrow);
(ii) a net interest cost not to exceed the Maximum Rate;
(iii) thc amount of the initial financing fee, wtfich shall not exceed the amount set
forth in Exhibit E hereto;
(iv) redemption provisions for the Recipient Bonds consistent with the terms
described_in Exhibit E hereto; and
no'term that would require the delivery of Recipient Bonds that are in conflict
w/th the laws of the State.
(3) agrees that, notwithstancfmg any other circumstance, the Recipient will pa)' an
amount equal to what would have 'been such Recipient's Proportionate Share (had .it delivered the
Recipient Bonds) of the costs of preparing the Preliminary Official Statement and the Official Statement
and any supplements thereto,
.(4) agrees .that it will pay an amount equal to the payment that would have been its
Proportionate Share (had it delivered the Recipient Bonds) of the costs and expenses incurred by the
Corporation in connection with the proposed Corporation Bonds, inclucYmg without limitation the
preparation and dehvery of any legal instruments and documents necessary in connection therewith and
their filing and recording, if required, and all taxes and charges payable in connection with any of the
foregoing; provided, however, that the Recipient shall not be obligated to pay any such amounts other than
pursuant to paragraph (3) of this Section if the pricing of the Corporation Bonds does not result in terms
of th/s Leveraged Financing meeting the requirements of paragraph (2) of th/s Section.
ARTICLE 1V
GENERAL PROJECT CONDITIONS, COVENANTS AND REPRESENTATIONS
Section 4.1. Compliance with Laws and Agreements.
(A) Compliance. The Recipient agrees that the Project will at all times during the
term of any financing be in compliance .with applicable federal and State laws and regulations. The
Recipient will at ail times construct and operate (or cause to be constructed and operated) the Project, in
compliance with all applicable federal, State and local laws (including, without limitation, the Act, the
State Act, the Water Quality Act and Sections 204(d)(2) and 513 of the Clean Water Act), ordinances,
rules, regulations, Executive Orders and this Project Finance Agreement, and with all other applicable
laws and regulations to the extent necessary to ensure the availability of the Project for its intended
purposes and to ensure the safety of the public. The Recipient agrees to ensure that the Project shall
ef£ectively protect water quality, employ good management practices and fulfill all federal and State
requirements, all requirements of the Project Finance Agreement and all applicable instructions issued by
the Commissioner to ensure that these requirements are met.
The Recipient further a~ees that if its Project ~s determined to be an equivalency project (a Tier !
project under the State Environmental Review Process), then it will comply with the federal audit
requirements of the Single Audit Act of 1984 (31 USC 7501 et seq.) and all laws and regulations
implementing same including without limitation 40 CFR Part 31, all as amended from time to time.
(B) Capacity. The Remplent certifies that it has the legal, institutional, managerial,
technical, contractual and financial capabihry to ensure adequate and timely construction, operation, and
maintenance of the Project.
(C) Enforcement. The Recipient agrees that acceptance by DEC or the Corporation of
a certification by the Recipient that a Project requirement has been met shall not prevent DEC or the
Corporation from performing any actions necessary to ensure the accuracy of such certification.
(D) SEQRA/SERP. The Recipient certifies w/th respect to the Project that it has
comphed, and agrees to continue to comply, with all requirements of the State Environmental Quality
Review Act ("SEQRA") and the State Environmental Review Process ("SfiRP"), and if fne Commissioner
determines that, in addition to all such requirements of SEQRA and SERP, there are additional
requirements associated with a National Emiromnental Protection Act ("IX~PA") environmental rexfew,
to comply with those additional requirements. The Recipient agrees to proxnde all environmental
documents as may be required by DEC and the Corporation and the Recipient certifies that it has notified,
and agrees that it shall continue to notify, DEC of all actions proposed for complying with the
envtromnental rev/ew requirements imposed by SERP approved by EPA for Revolving Fund projects.
(E) S/MAVBE/AA. The Recipient agrees that it, its authorized representatives and all
contractors and subcontractors providing services for the Project shall comply with all federal and State
laws (including Article 15-A of the Executive Law), regulations, and executive orders applicable to 'the
Project regarding affirmative action, equal employment opportunity, and small, minority and womeffs
business enterprises.
(F) Prevailing Wage Requirements. The Recipient agrees to comply, in all applicable
respects, w'ith the prevailing wage requirements under Article 8 of the Labor Law.
(G) Clean Water Act. The Recipient certifies that the Project is consistent with any
plans developed under Sections 205(j), 208, 303(e), 319 or 320 of the Clean Water Act, to the extent
applicable.
(H) _Special Project Conditions. The Recipient agrees to comply with any special
Project conditions set forth in Exhibit E.
Section 4.2. Plans and Specifications.
(A) Design and Construction. The Recipient has caused or x,~511 cause the Project to
be designed and constructed in accordance with plans and specifications delivered to the Corporation and
DEC and consistent with Exhibit A hereto, and has proceeded or will proceed with the acquisition a.nd
consUmction of the Project in conformity with law, with the Pro3ect Finance Agreement and with all
applicable requirements of governmental authorities haxfng jurisdiction with respect thereto, subject to
such modifications of plans and specifications as may be approved by the Corporation and DEC as
necessary or adxfisable to effectuate the purposes of the Act and the State Act.
(B) No Warrant,/Regarding Condition. Suitabili~' or Cost of Project. Neither the
Corporation nor DEC makes any warranty, either express or implied, as to the Project or its condition or
that it will be suitable for the Rec~pient's purposes or needs, or that the proceeds from the purchase of the
Recipient Bonds will be sufficiem to pay the costs of the Project. Review or approval of engineering
reports, facilities plans, design drawings and specifications or other documems or the inspection of Project
Construction by DEC or the Corporation does not reheve the Recipient of its responsibility to properly
plan, design, build and effectively operate and maintain ~he Project as required by laws, regulations,
permits and good management practices. The Recipient acknowledges and agrees that DEC and the
Corporation or their representatives are not responsible for increased costs resulting from defects in the
plans, design draxs"ings and specifications or 9ther Project documents. NothSng in this section prohibits
the Recipient from requiring more assurances, guarantees, or indemnity or .other con~-acmal requirements
from .any party performing Project work;
· .(C) Performance Standards. The Recipient agrees to tal~e corrective fiction necessary
to bring'the Project into compliance with the Project performance standards contained in the approved
Engineering Report or Facilities Plan for the Project. The Corporation agrees to consider additional
Revol~'ing Fund assistance to finance the costs of such corrective action.
Section 4.3. Conslruction of Project.
(A) Construction. To the extent, if any, that the Project is not yet complete, the
Recipient agrees to ensure that the Project will be constructed expeditiously and in accordance with the
construction schedule most recently proxSded by the Recipient and approved by the Corporation. (Such
construction schedule as of the date of this Project Finance Agreement is appended hereto as Exhibit D).
(B) Contracts and Security Bonds. The Recipient agrees to the right of DEC and the
Corporation. to review all contracts for ser~Sces and construction funded pursuant to the Project Finance
Agreement in order to determine eligibility for financing hereunder and to determine compliance with all
relevant plans and terms of the.Project Finance Agreement. Whenever a security bond is posted by a
successful bidder for the fairtfful perforn~mee of a contract funded pursuant hereto, the name and address
of the bonding company or person isstfmg the security bond, the ntunber of such bond, .and such other
information as may be required by DEC and/or the Corporation, shall be transmitted to the requesting
party, where it stiall be rev/ewed to determine its authenticity prior to award of such contract. The
original of such,fond shall xemaih in the office of.the Recipient. ~
(C) Inspection. The Recipient agrees to promde competent and adequate inspection
of all Project construction tinder the direction of a professional engineer licensed in the State. The
Recipient shall direct such engineer to inspect work necessary for the construction of the Project and to
determine whether the construction conforms to the approved plans and ~ecifications. The engineer shall
be required to certify to the Recipient, DEC, and the Corporation at the completion of construction that
the conslruction is in accordance with the approved plans mad specifications or approved amendments
thereto. Any work not in accordance with approved plans and specifications shall be remedied, unless
such noncompliance is waived in waiting by the Corporation and DEC.
(12)) Change Orders. The Recipient agrees to subm/t all change orders to the
Corporation within thirty (30) days following the date they are ordered. The Recipient agrees that
changes that in 'the :opinion of DEC and the Corporation, xxsll significantly alter any treatment process
incorporated in the Project Mil, not be carried out w/thout prior approCal by DEC or the Corporation. The
Recipient agrees that, if Revolving Fund assistance is to be requested for such increase, changes that will
increase the estimated cost of the Project sho~m in Exhibit C hereto shall require approval by the
Corporation and lbrmal amendment to the Project Finance Agreement. Revolving Fund assistance for
Project Cost increases is subject to the availability of Re¥ol~Ting Fond moneys in accordance x~qth the
Intended Use Plan.
(E) Completion Certificate. To the extent, if an)', that the Project is not yet complete,
the Recipient shall deliver to the Corporation a certificate of the super~4sing engineer stating that the
Project has been completed in accordance with this Project Finance Agreement within seven (7) Business
Days following such completion.
(F) Required Approvals and perrmts. The Recipient has obtained or shall obtain all
necessary approvals from any and all governmental agencies requisite to the completion of the Project and
compliance with all federal, State and local laws, ordinances and regulations applicable thereto. Upon
completion of the Project, the Recipient has obtained or shall obtain all required permits and
authorizations from appropriate authorities, if required, for operation and use of the Project as
contemplated by the Project Finance Agreement.
Section 4.4. Ownership, Operation and M~fmtenance.
(A) Notice of Beginning Operation. The Recipient agrees to notify DEC and the
Corporation in ,a~ting within thirty (30) days following the actual date of initiatmn of operation of the
Project.
(B) Operation and Maintenance. The Recipient agrees to ensure proper and efficient
operation and maintenance of the Project satisfactory to DEC including, but not limited to, retaining a
sufficient number of qualified staff and insuring performance of requfl-ed tests and requirements. After
completion of the Project, the Recipient shall at all times operate the Project or otherwise cause the
Project to be operated properly and in a sound and economical manner and shall maintain, preserve and
keep the Project or cause the Project to be maintained, preserved and kept, in good repair, working order
and condition, and shall from time to time make, or cause to be made, all necessary and proper repairs,
replacements and renewals so that at all times the operation of the Project may be properly conducted in a
manner that is consistent with the project performance standards cont~med in the Engineering Report or
Facilities Plan (each as defined in the Regulations) for the Project, with the Project Finance Agreement
and with the requirements of any related State Pollutant D~scharge Elimination System Permit.
(C) Continued Owmership and Operation. The Recipient agrees to own, operate and
maintain the Project unless authorized to cease operation or dispose of the Project according to the
proxSsions of Section 17-1909(4)(g)(ii) and (,hi) of the En,hronmental Conservation Law. The Recipient
shall not discontinue operation of or sell or othe~vise dispose of the Project, except for portions of the
Project sold or otherwise disposed of in ihe course of ordinary repah- and replacement of obsolete or worn
out parts, without the advance written approval of the Commissioner so long as the Leveraged Financing
is outstanding.
CD) Access to Proiect mad Work. The Recipient will permit representatives of DEC,
the Comptroller of the State and the Corpuration to have access to the Project at all reasonable times, and
all contracts of the Recipient for construction or operation of all or a portion of the Project will contain
provisions that permit such access to the Project or xvork relating to the Project, wherever it is in
preparation or progress, and that the contractor will provide proper facilities for such access and
inspection and will permit extracts and copies of Project records to be made by '[he foregoing persons.
(E) User Fee Covenant. The Recipient will, from time to time, revise and charge
User Fees with respect to the Project in accordance with the State Act and in amounts such that revenues
of the Recipient with respect to the Project shall be sufficient, together with other funds available to the
Recipient for such purposes, to pay all costs of operating and maintair/mg the Project.
(1:) Title. The Recipient certifies that it:has or will obtain such title, estate or interest
in the site of the Project, including necessary easements and rights-of-way, to ensure undisturbed use and
possession for the purposes of construction and operation for the estimated life of the Project.
Section 4.5. Accountin~ and Records.
(A) Establishment of Project Accounts. The Recipient agrees to maintain Project
accounts in accordance with generally accepted government accounting standards and any instructions
issued by the Commissioner or the Corporation.
(B) Access to Records. ,- The Recipient agrees: (i) to pernut 'DEC, the State
Comptroller, or ithe Corporation, Or their authorized representatives to re,Aew or audit all records relative
to the Pmj.ect; (i/) ~to produce 'or cause to.he-produced all records relating to a3y work performed under the
.terms of the Project l~manee Agreement for ?xaafination at such times as may ~e designated by any .of
them or ~heff authorjzed.~epres.er/:,mtiyes;:(iii).to l~ermit extracts an~_copies ~o~ Project records to be made
by them or their authorized repres .efitati¥'es; and (iv) to prompfly.fulfill inform~ation requests by any of
them or their authorized representatives.
~ : ~:..(C) Record Retentiom, The Recipient agrees to retain al!:~Ies arid records relating to
the construcrioh~ of the Project. for at;t,l,east six (6) years after Project comp!etion andto retain ali other
Projqct files and records tmtil the}fm~llpayment of debt sermce on the fmancing descn~oed ;fin the Project
Fthance:Agreem~ent lass :b~,en made to..the Corporation. As-built plans: and specifications for the Project
shalllbe~r~ta/~d~for~the~useful life· ot~,I, he Projeft. The Recipient farther agrees to make available to the
Admiri/slrator'i~:£,:[the ;united gtates Environmental Protection Agency or representatives of the
Administra'~or &6,y~,~les or ie_cords hece'ssary to determine compliance with the Clean Water Act.
· :.~ Section ~./;, ~: . iPayment of Additional Pmiect:Cos~ts. In the event that the Leveraged Financing
proceeds are not.sufficient'to pay ~he costs of the Project in full, the Recipient shall nonetheless complete
the Project and pay that port/on of the Project Costs as may be in excess of such available sale proceeds,
and shall not be ~ntitled to any reimbursement therefor fi-om the Corporation.
Section 4.7. Remediation. The Recipient agrees to rectify promptly any breach of flfis Article
IV with or without notice from the Corporation.
ARTICLE V
COVENANTS
Section 5.1. Application of Proceeds. The Recipient shall apply the Leveraged Financing
proceeds solely for Project Costs and to refund the Existing Indebtedness, as the case may be.
Section 5.2. Tax Covenant. No~withstanding any other provision hereof, the Recipient
covenants and agrees that it will not take or authorize any action or perm/t any action withm its reasonable
control to be taken, or fail to take any action witk/n its reasonable control, with respect to the Project, or
the portion of the proceeds of ~he Corporation Bonds made available to it as part of the financing
contemplated hereby including any amounts treated as proceeds of the Corporation Bonds for any purpose
of Section 103 of the Code, which will result in the loss of the exclusion of interest on the Corporation
Bonds from gross income for federal income tax purposes under Section 103 of the Code. This provision
will control, in case of conflict or ambiguity xvith any other provision of this Project Finance Agreement.
Without limiting the generality of the foregoing, the Recipient will not take any action or omit to 'rake any
action within its reasonable control, which, assuming the Recipient Bonds were issued as bonds the
interest on which is excluded from gross income for federal income tax purposes under Section 103(a) of
the ·Code, would cause the Recipient Bonds to be "private actixSty bonds" or "arbitrage bonds" w~thin the
23 ~ **'~ ~
meaning of Sections 141(a) or 148 of the Code as in effect upon the issuance of the Recipient Bonds. ~
furtherance of such covenants and agreements, the Recipient a~ees to deliver on or prior to the date ¢f
delivery of the Corporation Bonds an Arbitrage and Use of Proceeds Certificate, in form and substance
satisfactory to bond counsel to the Corporation, and the Recipient hereby agrees to comply with the
provisions thereof.
Section 5.3. Pawnant of Recipient Bonds.
(A) The Recipient covenants and agrees that it shall duly and punctually pa3, or cause
to be paid the principal installments or redemption price of its Recipiem Bonds that have been sold to the
Corporation and the interest thereon, at the dates and places and in the manner stated in such Recipient
Bonds and in accordance with Section 3.1 hereof and that such obligation shall not be subject to any
defense (other than payment) or any rights of setoff, recoupment, abatement, counterclaim or deduction
and shall be without any rights of suspension, deferment, diminution or reduction (including but not
Iim~ted to any defenses or rights relating to Earnings on the Reserve Allocation) it might other~4se have
agaYmst the Corporation, DEC, the Trustee or the o~mer of any Corporation Bond.
(B) Without in any way limiting the general and unconcF~tional obligation of the
Recipient to make timely pa3a-nents of principal, redemption price and interest on the Recipient Bonds as
and '~hen due, as provided in paragraph (A) above, the Corporation a~ees that the amount of the interest
payment required to be made by the Recipient to the Corporation, on each interest payment date specified
in the Recipient Bonds, shall be reduced by the amount of Earnings on Reserve Allocation received and
available for crediting against such payment pursuant to, and in accordance with, Section 3.1(C) hereof,
subject only to use of such Earnings on Reserve Allocation to pay any pnncipal, premium or interest on
the Recipient Bonds, or any other sum owing to the Corporation under Section 3.2 hereof, not paid when
due, certain related expenses incurred by the Corporation, and reimbursement to the Revolving Fund for
Leveraged Financing proceeds improperly applied, all as more fully provided in Section 3.1(C) hereot;
Section 5.05 of the Indenture, and Section 3.6 hereof.
ARTICLE VI
REMEDIES
Section 6.1. Remedies.
(A) The Corporation shall have the right to reject, correct, adjust or withhold requests
for disbursements of the sale proceeds described in this Project Finance Agreement and take such actions
in the circumstances and in the manner set forth in Exhibit K hereto.
(B) If the Corporation or DEC determines that the Recipi~mt or any authorized
representative is not complying with federal or State laws, regulations or requirements or instructions of
the Corporation or DEC relating to the Project or terms of the Project Finance Agreement the Corporation
ma3,, and at the direction of the Commissioner shall, ~n addition to exercising any or all of the remedies
described herein, exercise any or all the remedies otherwise provided by federal or State law cr
regulations executed subsequent hereto, at law or in equity, including but not limited to rights to seek
injunct/ve relief or specific performance with respect to the obhgations hereunder.
(C) Noth/ng in the Project Finance Agreement affects the right of DEC or the
Corporation to take remedial action including but not limited to adrrfmistrative enforcement action and
actions tbr breach of contract if the Recipient fails to carry out its obligations under the Project Finance
A~eement or if ~y other x'iolation of this Project Finance Agreement occurs.
:(D) Pursuant to Section 1285-j(1.1) of'the Act, if the Recipient f~ils to make any
payment due the Corporation pursuant to the Project Finance Agreement or pursumat to any other
undertaking of the Recipient (including without lirrfitation the Recipient Bonds) issued as security for tins
Leveraged Financing, the Corporation shall certify to the New York State Comptroller, and notify the
Chmnnan of the Assembly Ways & Means Committee, the Chairman of the Senate Finance Committee,
the Director of the:Division of the Budget and the governing body.of the Recipient that the Recipient has
failed to make such payment. Such certificate shall speci~ the exact amomat of debt service and
surcharge, if applicable, required to satisfy the Recipient's unpaid obhgation. Any amounts received by
the Corporation from the State Comp~oller relating to such unpaid amounts shall be applied promptly by
the Corporation to the' payment 'of such unpaid amounts or to reimburse ~iny .fund 'used to make such
payments on behalf of {he Recipient or, if ali such.payments and reimbiarsements have::been made, such
amounts received from the State Comptroller may be applied to pay any fees then owed fo the Corporation
by'~he Re~ipienl:', ' ~ '
ARTICLE VII.
MISCELLANEOUS
Section 7.1. Notices. All notices, certificates or other communications hereunder shall be
sufficiently given, and shall be deemed given, when delivered in writing to the address or telecopier
number (if expressly permitted in the provision requiring such communication) of the identified party or
parties set forth below:
(A) Corporation:
New York State Environmental Facilities Corporation
625 Broadway
Albany, New York 12207-2997
Atm.: Chief Financial Officer
Telecopier No.: (518)402-7086
w/th a copy of such communication being delivered to the attention of the General
Counsel at the address set forth above.
(B) DEC: to the address specified in Exhibit E hereto.
(C) Trustee:
Manufacturers and Traders Trust Company
One M&T Plaza
Buffalo, New York 14203
Atm.: Corporate Trust Department
Telecopier No.: (716) 8424474
(D) Depository Bank:
Manufacturers and Traders Trust Company
One M&T Plaza
Buffalo, New York 14203
Atm.: Corporate Trust Depamnent
Telecopier No.: (716) 842-4474
(E) Recipient: to the address specified in Exhibit E hereto.
Any of the foregoing parties may designate any further or different addresses or telecopier
numbers to which subsequent notices, certificates or other communications shall be sent, by notice in
writing g/yen to the others.
Section 7.2. Bindin,o Effect. Upon execution and delivery by the Recipient and the
Corporation, this Project Finance Agreement shall inure to the benefit of and shall be binding upon the
Corporation and the Recipient and their respective successors and assigns.
Section 7.3. Severability. In the event that any provision of this Project Finance Agreement
shall be held illegal, im,alid or unenforceable by any court of competent jurisdiction, such holding shall
not invalidate, render unenforceable or otherwise affect any other pro¼sion hereof.
Section 7.4. Amendments, Supplements and Modifications. Tkis Project Finance Agreement
shall not be amended, supplemented or modified except by a written instrument executed by the
Corporation and the Recipient and, if such amendment occurs after the issuance of the Corporation Bonds,
upon compliance with the proxfisions of Sections 4.01 and 4.02 of the Indenture.
Section 7.5. Execution in Counterparts. This Project Finance Agreemenz ma), be executed in
several counterparts, each of which shall be an orig/nal and all of which shall constitute but one and the
same instrument.
Section 7.6. Applicable Law. This Project Finance Agreement shall be governed by and
construed in accordance with the laws of the State, including the Act and the State Act.
Section 7.7. Captions. Ibc captions or heacFmgs in this Project Finance Agreement are for
convenience only and shall not in an3, way define, limit or describe the scope or Intent of any pro'~4sions or
sections of tkis Project Finance Agreement.
Section 7.8. Benefit of Project Finance A~reement. This Project Finance Agreement is
executed, among other reasons, to induce the purchase of the Recipient Bonds by the Corporation and, to
the extent that the Corporation may so deterrmne from time to time m accordance w~th Section 7.10
heleof, to secure the Corporation Bonds Accordingly, those rights of the Corporation to enforce the
duties, covenants, obligations and agreements of the Recipient set forth in clause (i) of the £zrst sentence
of Section 7.10 hereof may at any time, in x~hole or in part, be assigned and pledged by the Corporation to
the Trustee for the benefit of the owners of the Corporation Bonds and thereafter such duties, covenants,
obligations and agreements so assigned and pledged shall be for the benefit of and enforceable by the
Trustee and the Corporation except that beneficial owners of bonds hereafter under the Indenture shall be
third-party beneficiaries.of Section 7.9(B) of tins Agreement.
Section 7.9.
Other Information.
Further Assurances; Disclosure of Financial Information, Operatint Data and
(A) The Recipient shall, at the request of the Corporation, authorize, execute,
acknowledge and deliver such further resolutions, conveyances, lxansfers, assurances, f'mancing
statements and other instruments as may be deemed necessary or desirable by the Corporation, in its sole
discretion, for better assuring, conveying, granting, assigning and confirming the fights, securiW interests
and agreements granted or intended to be granted by this Project Finance Agreement and the Recipient
Bonds. The Recipient also agrees to furnish to the Corporation such additional information concerning
the financial condition of the Recipient as the Corporation may from time to time reasonably request.
(B) Without lirrdting the generality of the foregoing, as and to the extent that the
Corporation shall determine that dmclosure of such information, is necessary 0) in order to comply with
an3' undertakings made by the Corporation pursuant to Rule 15c2'12 of the Securities and Exchange
Commission or with any other applicable legal requirements or (ii) in connection w/th the offering of its
26 ~' ~^ ~"
bonds to the public, the Recipient shall timely furnish to the Corporation and to such information
repositories or other persons as the Corporation shall specify such fmancial information, operating data
and other information relating to the Recipient (including, but not limited to, audited or unaudited
financial statements and notices of material events or other material changes in financial condition) as the
Corporation shall determine to be necessary for such purposes. The Corporation presently expects to
enter into. one. or more secondary market disclgsure .undertakings pursuant to such Rule 15c2-12 which
will require disclosure of financial and operating information relating to the Recipient. 9nly if the
aggregate outstanding principal amount of the loans or other financing made available by the Corporation
m :the Recipient with ~he Proceeds of bonds issued under the In.denture eqUals or exceeds twenty percent
(20%) of. the: aggregate ~outstandii~ig .principal amount of all such recipient bonds purchased or nther
financing made available:to all recipien[s, including the Recipient. In the event that ~he Corpqmtion shall
determine that disclosure of information relating to the Re(~pient is required pursuant to this paragraph,
the Coi-poration~ shall so :,advise~ the Recipient in writing and.shall specify in reasonabie_~detail-.~the
inform.atiqn!~eq,uiredi$o be ,funfished land the timetable for fum/shing-soch infom~ation, ~as. wetl~ z.s:~the
place~o~lac/e~ such ififormatiomi~,to;be fumish6d. · , - -,
~ .,(C): Ifsanrt so :?,ng: as the offering of the Corporatiian Bonds .cunfinue~ (a) the
ReqipSent~Witl~!furmsh suchS~orlxiz~ion'with respect to itself as the un~derWnters ofttie,Corpgrafiort\:Bonds
may from ,rune to nme reasonab!j' <equest and 00) ff any evem relating ~o :~he-Peee~nr shall,occur as a
result of Which ~t ~s nece.ssary, m the opm!on of Bund Counsel to the Co~ati0n~ :General C0unsel:of the
Corporation or counsel for. such underwriters, to amend or supplement the Official Statement of the
Corporation used, in .comae,Ct/on with the offering of the Corporation Bonds. in order~ t6. make such
informa, ti.on not misle~c~ing ~ngigl~t o~[the circumstances then existing, the. R~cipie~ will forth.with prepare
and furnish to the Corporatibn and the underwriters such information relating to:the Reoipi~e~.t as may be
necessary to permit the preparation of an amendment of or supplement to such Official S~atement (in form
and substance satisfactory to the Bond Counsel to the Corporation and counsel for the under~vriters)
which will amend or supplement such Official Statement so that it will not contain any untrue statement of
a material fact or omit to state a material fact necessary in order to make statements therein, in light of the
circumstance~ then existing, not misleading. Unless the Recipient shall have been notified to the contrary
in writing by the Corporation or the maderwriters, the Recipient shall be entitled to presume that the
offering by the Corporation and that its obligations under this paragraph shall have ceased twenty-five
(25) days afZer the date of delivery oftt/e Corporation Bonds_
Section 7.10. Assimarnent of Proiect Finance Agreement or Recipient Bonds. The Recipient
consents to the pledge and assignment at any time of(i) any portion of the Corporation's estate, right, title
and interest and claim in, to and under this Project Finance Agreement and the right to make ali related
waivers and agreements in the name and on behalf o £ the Corporation, as agent and attorney-in-fact, and to
perform all other related acts which are necessary and appropriate under this Project Finance Agreement,
if any, and (ii) the Corporation's estate, right, title and interest and claim in, to and under the Recipient
Bonds and payments under the Recipient Bonds, to the Trustee. The Indenture shall provide that, except
during the continuance of a default hereunder or an Event of Default under the Indenture, the Trustee shall
not sell, assign, transfer, convey o? otherwise dispose of its interest in this Project Finance Agreement, if
any, or in the Recipient Bonds during the term hereof without the express ~tten consent of the
Corporation and the Recipmnt. Except as provided in this Section 7.10, the Corporation shall not sell,
assign, transfer, convey or otherwise dispose of its interest in t}fis Project Finance Agreement during the
term hereof.
Section 7.11. Covenant Against Discrimination. The Recipient in the performance of this
Project Finance Agreement will not discriminate or permit discrimination against any person or group of
persons on the grounds of race, color, reli~on, national origin, age, sex, marital status, physical handicap,
political beliefs, mental retardation or history of mental disorder in any manner prohibited by the' laws of
the United States of America or of the State.
Section 7.12. Agreements of the Corporation. The Corporation shall make reimbursements for
the administrative and management costs of DEC and the Corporation in accordance x~4th subdi~,-isions 5
and 7 of Section 1285-j of the Act.
Section 7.I3. Project Finance A.,oreernent Supersedes Prior A~reements. This Project Finance
Agreement supersedes any other prior or contemporaneous agreements or understandings, 't,~Titteri or oral,
between the parties relating to this financing of the Project.
Section 7.14. Conversion of Financine. Notwithstanding any-thing herein to the con~'ary, Se
Corporation reserves the right, and the Recipient agrees that the Corporation may, but shail not be
obligated to. alter the source of th~ funding of the Recipient Bonds from the proceeds of the Corporation
Bonds to non-proceeds held within the Fund upon the occurrence, but not limited to, any situation that
might cause the Corporation Bonds to become taxable, or upon a payment default of the Recinievt. [n
such event, unless the Corporation and the Recipient other~fse agree, the principal of the Recipient Bonds
shall be due on the same dates as they would otherwise have been due and interest shall be payable at a
fixed rate of interest equal to the effective interest rate of the Recipient Bonds raking into account the
actual earnings on the Reserve Allocation theretofore set aside. Such effective interest rate shall be
specified to the Recipient by a x~qfitten notice of the Corporation. The Corporation and the Recipient agree
to enter into such further a~eements and amendments to this agreement as shall be necessary to effectuate
the foregoing.
Section 7.15. Simas. In recognition of the financing pro'Aded hereunder for the Project, the
Recipient agrees that any idenlifying signs that relate to this Project shall be in a form acceptable to the
Corporation and the DEC.
IN WITNESS WHEREOF, the Recipient and the Corporation have each caused this Project
Finance A~eement to be executed and delivered as of the date first above written.
TOWN OF SOUTHOLD
Name:,/Joshua Y.' I7Iortor~
Title~' Supervisor
NEW YORK STATE ENVIRONMENTAL
FACILITIES CORPORATION
Name: T~o. mas Jlt~elly [
Title: P~sident~ /
THIS PAGE INTENTIONAL..LY LEFT BLANK
EXHIBIT A
PROJECT DESCRIPTION
CWSRF Project No.: C1-5110-01-00
Recipient: Town of Southold
CounVy: Suffolk
This action consists of financing costs associated with the closure and construction of a landfill cover
system at the Togm of Southold's Cutchogue Landfill. The project is defined by the following three
documents: (1) a Closure Investigation Report dated December 1996 that was approved by the NYS DEC
on December 19, 1997, (2) a Conceptual Closure Plan dated December 1996 that was approved by the NYS
DEC on December 19, 1997, and (3) a Final Closure Plan dated December 1998 that was approved by the
NYS DEC in January 1999. The project is further defined by Construction Plans and Specifications dated
September 1999 and approved by the NYS DEC in December 1999. EFC prepared an eli~bility
determination on the Plans and Specifications on December 9, 2003. ,
A-1
THIS PAGE INTENTIONAL~bY LEFT BLANK
EXHIBIT B
2004D
Recipient: Town of South_old
County.: Suffolk
CWSRF Project No.: C 1-5110-01-00
DESCRIPTION OF PREVIOUSLY ISSUED INDEBTEDNESS
USED TO FINANCE THE PROJECT
Original Redemption Redemption Amount
Project Type of Issue Principal Maturi~, Amount Date to be
Numb~:_r Obligation Date Amount Date (if any) (if any) Refinanced
5110-01-00 EFC STF 7/I0/1998 5,641,175.00 (1) 6/25/200I $ 641,175.00 6/23./2000
$ 498,986.39 5/14/2001
$ 155,723.04 7/9/2001
BAN 1.0 10/4/200i 5,300,000.00 10/4/2002 $ 310,000.00 I0/4/2002
BAN 1.1 10/4/2002 4,990,000.00 10/3/2003 $ 310,000.00 10/3/2003
BAN 1.2 10/3/2003 4,680,000.00 (2) 10/1/2004 $ 310,000.00 7/23/2004
$ 3,733,714.00 (3)
(1) $ 1,295,884.43 was the total mount disbursed under the EFC Short-term loan and paid-off on 7/9/01.
Note: 7/10/98 is the first draw date of the EFC STF.
(2) This Note ma)' be redeemed prior to maturity, with at least five (5) days m:itten notice by the Town.
The Toxvn will provide EFC with a copy of this written notice.
(3) Total amount of BAN outstanding as of 7/24/2004 is $4,370,000 of which $636,286 is ineligible for SRF
financing and will be paid directly by the To~. EFC will refinance $3,733,714.
The recipient hereby directs the Corporation to transfer the amount to be refinanced
as listed .above on the date specified above in accordance with the I-ollowing pa3q'nent instructions.
Name of Bank: Fleet Bank
Municipal Ba~king Deparm~ent
300 Broadhollow Road
Melville NY 11747
Contact Person: Keziah McGuinness
Phone #: 631-54%7745
Azcount Nme: Money M~rket Suspense
Account#: 201436110432
Bank ABA #: 011500010
Borrower Federal Trax Il) #: 05-0341324
THIS PAGE INTENTIONAL..LY LEFT BLANK
EXHIBIT C
ESTIMATED PROJECT COSTS; RESERVE ALLOCATION
CWSRF Project No.: C1-8110-01-00
Recipient: Town of Southold
County: Suffolk
A. ESTIMATED PROJECT COSTS
AVAILABLE FOR DISBURSEMENT
Construction Costs
Terry Contracting & MaledaJs Inc. (Including Change Orders 1-14)
Engineering
Dvirka & Bartilucct Consulting Engineers (es§mates based on hourly rates)
OIher Costs
a. Bond Counsel (October 19, 2001 Agreement)
b. Technical Force Account (Approved at fime of disbursement)
c. Fiscal Services for Short-Term (December 23, 1997 Agreement)
d. Equipment (Approved by EFC Engineer on November 21,2003)
e. Screened Sand (Approved by EFC Engineer on November 21,2003)
f. Terry ContracUng (Borrow Pit Regrading)
g. Miscellaneous
h. Ftsca] Services for long-term (Supplemental Agreement 3/19/04)
INELIGIBLE COSTS FINANCED WITH MUNICIPAL CONTRIBUTION
Enq[neednq
Dvirka & Bartiiucci ineligible costs per SRF Program
Construction
Terry COhtracting Release
Pec~nic Well & Pump Inc. (fire well)
Hin~ Electrical Contractor Inc. (fire well)
Terry Con[racfing (wall construction and trees)
Other Costs
a. Easements & work related items
b. Bond Counsel - BAN financing
c. Miscellaneous Costs
TOTAL OF PROJECT COSTS
Less: Municipal Contribution
Less: October 4, 2002 Principal Payment
Less: October 3. 2003 Principal Payment
Les. s: July 23, 2004 Principal Payment
Less: New York State Dept. et Environmental Conservation, New York Stste Env[ronrnental Conservation Law, Article 54,
T~tle S Non-Hazardous Municipal Landfill Closure Projects and Article 56, ~tle 4 Solid Wasts Projects Grants:
Grant No.: 0300485
Gran~ No.: C300fi88
TOTAL OF PROJECT COSTS TO BE FINANCED
Costs of Issuance:
Direct Expenses 1.2%
Bond Issuance Fee .28%
SRF AMOUNT REQUESTED - LONG-TERM LEVERAGED FINANCING
B. RESERVE ALLOCATION PERCENTAGE: 50%
Includes the partial refinancing of a BAN issued on October 3, 2003. The amount to be refinanced equals $3,733,714.
The amount of Transferred Proceeds equals $32,500.00 as of April 29, 2004.
Long-Term
Financin~l
5,283,752.28
26,500.00
40,933.76
7,709.75
205,020.00
475.067.10
19,800.00
90,823.81
7,500.00
114,083.45
60.000.00
17,700.00
11,880.00
67,560.00
37,156.88
29.100.35
7,604,889.00
(941,175.00)
(310,000 00)
(310,000.00)
(310,000.00)
(867,500.00)
3,733,714.00
44,804.00
10,580.00
3,789,098.00
C-1
THIS PAGE INTENTIONAL..LY LEFT BLANK
E~H~RIT D
ESTIMATED CONSTRUCTION SCHEDULE
CWSRF Project No.: CI-5110-01-00
Recipient: Town of Southold
County: Suffolk
Work Description
Contract No. 2000
Southold Landfill Closur~
Construction
Start
April 1:2001
Construction
Complete
November 7, 2003
D-1
THIS PAGE INTENTIONALLY LEFT BLANK
EXHIBIT E
SCHEDULE OF ADDITION.A_L PROVISIONS
CWSRF Project No.: C1-5110-01-00
Recipient: Town of Southold
County: Suffolk
I. Definitions.
· Max,,nm :Rate" means the maximum interest rat~ per annum on the Leyeraged Financing
and the Recipient Bonds agreed to 16ursuant. to Section 3. I(A) of the Project Finance Agreement, which
Shall be 6.75% per annum_
1~. Other Amounts Payable.
The Recipient agrees to pay the following additional amounts in connection with the
Leveraged Financing:
(A) The initial £mancing fee payable by the Recipient to the Corporation pursuant to
Section 3.2(A), which shall not exceed (i) 1.2 % of Project Costs, plus (ii) the Recipient's share of
the State bond issuance charge calculated pursuant to Section 2976(2) of the Public Authorities
Law of the State. Such amounts shall be payable from the proceeds of the Recipient Bonds, or if
shown in Exhibit C to be paid by the Recipient, by wire transfer to the Corporation delivered prior
to delivery of the Recipient Bonds; and
03) The Corporation's annual administrative fee, payable pursuant to Section 3.2(A),
which shall be 0.25% of the outstanding principal amount of the Leveraged Financing and shall be
payable annually as set forth in the Notice of Terms_ In addition, the annual administration fee
shall be pro-rated for periods less than a full year upon reduction in or payment of the then
outstanding principal amount.
III. Notice Addresses.
1. For purposes of Section 7.1(B) of the Project Finance Agreement, the address of the
applicable DEC regional office shall be:
New York State Department of Environmental Conservation
Region 1 Office
SUNY Campus
Loop Road, Building 40
Stony Brook, New York 11790-2356
2. For purposes of Section 7.1(E) of the Project Finance Agreement, the address of the
Recipient shall be:
Town of Southold
53095 Route 25
Southold, Next, York 11971
E-1
IV. Additional Provisions re,,arding Grant, Loan or Other Funds.
The Recipient hereby (i) ackno~vledges that it has applied for or intends to apply for, but
has not yet received or been awarded, or that it ma3' apply for in the fiiture, a grant, loan or other funds
which, if received, would provide financing for a portion of the Project being financed by the
Corporation, (ii) agrees to keep the Corporation apprised of the stares of any such grant, loan or other
funds application and to immedimely notify the Corporation of any awarding of such a grant, loan or
other funds and the expected timing and amoum of any such assistance in the event of such an award,
(iii) authorizes the grantor to release any information respecting such assistance to the Corporation, and
(ix,) agrees that, except to the e~ent that the Corporation shall otherwise agree in writing, such pant,
loan or other funds shall be paid over to the Corporation immediately upon receipt to be applied to the
redemption of the Recipient Bonds in accordance with their terms.
V. Disbursement Requests.
The person or persons from time to time holding the offices or other positions set forth
below are each authorized to execute requests for disbursement of proceeds on behalf of the Recipient:
1. TITLE: SUPERVISOR
2. TITLE: DEPUTY SUPERVISOR
In addition to the foregoing, the Recipient may, by ~xitten notice given hereunder,
designate any further or different person or persons authorized to execute requests for disbursement of
proceeds.
VI. Redemption of Recipient Bonds.
The first optional redemption date (the "First Optional Redemption Date") shall be no
later than 10 years after the first principal payment date following the delivery of the Corporation
Bonds.1 At the option of the Recipient, the Recipient Bonds maturing after the Fixst Optional
Redemption Date shall be subject to redemption prior to maturity, in whole at any time or in part in
principal amounts of $5,000 or integral multiples thereof on any interest payment date, fi-om any moneys
available therefor, at a redemption price, in either case, equal to the principal amount of such Recipient
Bonds to be redeemed, together w~th (i) the Applicable Redemption Premium and (ii) the accrued and
unpaid interest on the principal amount to be redeemed to the date fixed for redemption. In the event that
the Corporation refunds the Corporation Bonds and the Recipient Bonds are assigned to such refunding
bonds, Recipient consents to the assignment of the Recipient Bonds and agrees that the First Optional
Redemption Date shall then be the redemption date as provided in such refunding bonds. In the event of
any partial redemptioo, the Recipient Bonds shall be redeemed in such order of maturities as shall be
determined by the Recipient. As used herein "Applicable Redemption Premium" with respect to an3'
maturity, of the Recipient Bonds to be redeemed means the redemption premium specified in the Notice
of Terms for such maturity' for such date, provided that such redemption premium shall not exceed 4% of
the principal amount of the Recipient Bonds proposed to be redeemed. Pursuant to Section 3.3(C) of the
Project Finance Agreement, the Recipient shall also pay all costs and expenses of the Corporation in
effecting xhe redemption or defeasance of any Corporation Bonds that are redeemed due to the
redemption of any Recipient Bonds.
1 The actual date of the First Optional Redemption Date shall be as detailed in the Notice of Terms.
E-2
Notwithstanding the foregoing, no Recipient Bond or portion of a Recipient Bond that is
not in an amount, x~hich is an integral multiple of $5,000 shall be subject to such redemption at the
option, of the Recipient without the express written consent of the Corporation.
Any such redemption, either as a whole or in part, shall be made upon at least sixty (60)
days and no more than seventy-five (75) days prior written notice to (i) the Corporation and to the
Trustee during any period when the Recipient Bonds are held by or for the benefit of the Corporation or
of holders of its bonds or (ii) any successor holders of the Recipient Bonds at any time thereafter.
The moneys necpssary for any redemption of. Recipient Bgnds ,shall be paid to or
deposited with. (i)'.~h¢:Tr~stee.during any'period when the Recipient, Boa. ds,are held for ~he benefit of the
holders of the ~0rp0rlifipn' BonOs anc~.(.ii) with. any ~fiscal. agent cfuring may..~,petioc[ when the:,Regipient
Bonds are otherwise 1/eld, in either case on or prior tO l~he redemption date_ Ail Recipiegt Bonds called
for redemption will .cease to bear interest on the specified redemption date, provided funds sufficient for
the redemption of such Recipient Bonds are on deposk With the Trustee or fiscal ~gent, .as appropriate. If
such moneys are not available on the redemption date, the Recipient Bonds or portions thereof will
continue to ,bear irtterest until~l~aid at.the same rate as they would have borne tiad they not-been called for
redemption.
VII. Existing Indebtedness Provision. (if applicable)
As of the date hereof, the Recipient has submitted documentation supporting, and the
Corporation has approved, the ~tmonnt as shown in Exhibit B as proceeds of Existing Indebtedness
expended for eligible costs of the Project. The Recipient may submit additional documentation to the
Corporation up to the tenth (10th) da3' preceding the maturity or prepayment date of an3' Existing
Indebtedness, as appropriate (the "Determination Date"), to support a claim of additional proceeds of
such Existing Indebl:edness as having been expended for eligible costs of the Project.
Notwithstanding anything herein to the contrary, while the Recipient has requested that
the Corporation approves the application of the amount shown in Exhibit B from the proceeds of the
financing to refund the Existing Indebtedness, the Recipient expressly ac ~knowledges and agrees that (a)
the Corporation will not advance financing proceeds to refund any Existing Indebtedness in excess of the
total amount of proceeds of such Existing Indebtedness approved by the Corporation, as of the
Determination Date, as having been expended for eligible costs of the Project; (b) if, on the maturity or
prepayment date of such Existing Indebtedness, the mount of financing proceeds to be disbursed by the
Corporation, pursuant to clause (a), is less than the full principal and interest payment necessary to pay
off and discharge such Existing Indebtedness on such date, the Recipient shall be obligated to (and
hereby agrees) to either (i) pay the difference in its oxxm funds on such date so as to fully pay off and
discharge such Existing Indebtedness, or (ii) arrange for that portion of the Existing Indebtedness which
is in excess of the financing proceeds to be disbursed by the Corporation to refund such Existing
Indebtedness, to be renewed or "rolled over"; and (c) the remaining financing proceeds other than (i)
those disbursed by the Corporation to refund such Existing Indebtedness, and (ii) the proceeds to be
applied towards the Corporation's financing fee and costs of issuance of the Bonds, shall remain on
deposit with the Depositor5' Bank in accordance with Section 3.5(A) of the Project Finance Agreement
and will be disbursed by the Corporation to the Recipient pursuant to such Section 3.5(A), as further
expenditures are incurred by tins Recipient in connection with the Project (i.e., all such proceeds shall be
treated as if they were originally intended to finance the acquisition, construction and installation of
portions of the Project not yet completed).
E-3
The Recipient shall be responsible for ensuring that it complies with Treasury
Regulation Section 1.150-2 in connection with any disbursement of fmancing proceeds pursuant to clause
(c) in the preceding sentence, to the extent required to preserve the tax-exempt status of the Corporation
Bonds.
VIII. Transferred Proceeds. (if applicable)
The Recipient agrees to transfer the balance of an3' unspent proceeds of the Existing
Indebtedness to the Depositor), Bank no later than the date specified by the Corporation, prior to the
deliver)' of the Corporation Bonds, to be held, together with Leveraged Financing proceeds, for the
account of the Recipient and further agrees to comply with applicable yield restrictions with respect to
any unspent proceeds of the Existing Indebtedness as further described in the Arbitrage and Use of
Proceeds Certificate.
IX. ProiectCompletion. (if applicable)
The Recipient hereby represents that it has completed the Project and that each Project is
in operation.
X. Reaffirmation of Representations, Warranties and Covenants. (as applicable)
The Recipient hereby reaffirms the representations and warranties, and hereby agrees to
the covenants contained in the prior agreement relating to the acquisition of land, specifically referred to
as the [Project Financing and Loan Agreement dated prior PFLA date] (including but not limited to those
provided in Exhibit K of said prior agreement). Such representations and warranties are tme, correct
and materially accurate as of the date of issuance of the Bonds and are by this reference incorporated h
this Project Finance Agreement as though fully set herein.
XI. Special Proiect Condkions
None.
E-4
New York State Environmental Facilities Corporation
State Clean Water and Drinking Water Revolving Funds Revenue Bonds Series 2004 D
Recipient Name: Town of Southold
CWSRF Number: C¢-Sl
Exhibit F
Anticipated Principal Repayment Schedule ('I)
Principal Paymer~t
Date Principal
February 15, 2005 220,000.00
February 15, 2006 225,000.00
February 15,'2007 234,098.00
February 15, 2008 245,000.00
February 15, 2009 25[~,g00.00
February 15, 2010 260,000.00
February 15,2011 270,000.00
February 15, 2012 275,000.00
February 15, 2013 255,000.00
February 15, 2014 290,000.00
February 15, 2015 295,000.00
February 15, 2016 305,000.00
February 15, 2017 315,000.00
February 15, 2018 320,000.00
· TOTAL $3,789,098.00
(1) Final interest rates (excluding subsidyh matudty dates and final principal amounts shall be as set forth in the Notice of Terms
(Form of Notice of Terms set forth in Exhibit L).
(2) The annual administrative fee of 0.25% is due on April 1 of each year. For Semi-Annual N~t Deb[ Service [he fee is
included on August 15
New York State EFC
Finance - VS F - 1
THIS PAGE INTENTIONA L.LY LEFT BLANK
REGISTERED
No. R-
EXHIBIT G
FORM OF RECIPIENT BONDS
UNITED STATES OF AIvIERICA
STATE OF NEW YORK
[NAME OF RECIPIENT]
[DESIGNATION OF BOND]
REGISTERED
$
MATUR/TY DATE
INTEREST RATE
DATE OF ORIGINAL ISSUE
REGISTERED OWNER: TICE & CO.
PRINCIPAL SUM:
DOLLARS AND NO CENTS
The [NAME OF RECIPIENT] (hereinafter sometimes called the "Recipient"), a
municipal corporation of the State of New York, hereby aclmowledges itself indebted and for value
received promises to pay to the REGISTERED OWNER nmned above, or registered assigns, on the
MATURITY DATE (stated above), the PRINCIPAL SUM (stated above) upon presentation and
surrender of this bond (i) for so long as this bond is held by or for the benefit of New York State
Environmental Facilities Corporation (the "Corporation") or of holders of ks bonds, at either of the
principal corporate ~rust office in Buffalo, New York or at the pasing agency office in New York, New
York of Manufacturers and Traders Trust Company as depositor), bank (herein called "Depository
Bank"), or at the principal corporate trust office of any successor thereto or (ii) at any time thereafter, at
the fiscal agent office designated by [NAME OF RECIPIENT] for such purpose, and to pay interest on
such principal sum from [date] or from the most recent interest pasanent date to which interest has been
paid, or unless interest on this bond shall be in default, in which event this bond shall bear interest from
the date to which interest has been paid in full, at the INTEREST RATE (stated above), payable on [date]
and semi-annually thereafter on [date] and [date] of each ),ear until maturity Interest hereon shall be
payable at said offices of the Depository Bank or at said fiscal agent office, as appropriate, on each
interest payment date. The principal of and interest on this bond are payable in any coin or currency of
the United States of America which at the date of payment is legal tender for the payment of public and
private debts.
The faith and credit of the Recipient are hereby irrevocably pledged to the punctual
payment of the principal of and interest on this bond according to its terms.
It is hereby certified and recited that all conditions, acts .and things required by the
Constitution and statutes of the State of New York to exist, to have happened and to have been performed
precedent to and in the issuance of this bond, exist, have happened and have been performed, and that the
issue of bonds of which this is one, together with all other indebtedness of the Recipient is within ever),
debt and other limit prescribed by the Constitution and laws of such Stale.
G-1
IN WITNESS WHEREOF, the Recipient has caused this bond to be executed in ~.ts name
by the manual or facsimile signature of its [authorized officer of Recipient and its corporate seal (or a
facsimile thereof) to be affixed, imprinted, engaved, or otherwise reproduced hereon and attested by the
manual or facsimile signature of its [authorized officer of Recipient].
[NAME OF RECW[ENT]
ATTEST:
BY:
[Title]
[Title]
G-2
[Recipient], New York
[Name of Bond]
This bond is one of an authorized issue, the principal amount of which is $ , the
bonds of which are of like tenor, ·except as. to number, .maturity, redemption privilege and denomination,
and is issued pursuant .to .the: provisions of the Local Finance Law, constituting Chapter 33-a of the
Consolidated Laws of the State· of New York (the "Law"), a bond resolution duly adopted by the [insert.
governing board of Recipient] .on [date], authorizing the .issuance of not to exceed $ - -serial bonds:
of the Recipient ~to provide funds required by the Recipient to [purpose of~issue] (the ."Resolution") and a
Certifiqate· of D,etermination executed by. [title..of officer] on [date] determining the terms, form. aud
details bf is~nmnc¢ of said.[rlame,, of bands] bonds~(the "l~eeipient Btnds".),and, provid~ng for thek priyate
sal~ (th~' "C~rtifieate of Determi~laficn'') .... ¢
This bond_is:transferable or exchangeable, solely in accordance ~vith the terms of the
Project Finance Agreement.dated as of June 1, 2004 between the Recipient and the New York State
Environmental Facilities :Corporation, only upon the books of the Recipient kept for that purpose, by the
registered owner hereof Jn l~erson, or by Iris attorney duly authorized in writing, upon the surrender of
this bond together with a written instrument of transfer or exchange satisfactory to the Recipient duly
executed by the registere~l oWner or his attorney duly authorized in writing, and thereupon a new bond or
bonds in the same aggregate principal amount and of the same maturity, shall be issued to the transferee
or the reglster~d owner m e~:change therefore as provided m the Certificate of Determination and upon
the payment of the charges, ~'any, therein prescribed.
On or after [February or August 15, 20~] (the "First Optional Redemption Date"), at the
option of the Recipient, the Recipient Bonds maturing after the First Optional Redemption Date shall be
subject to redemption prior to maturity, in whole at any time or in part in principal amotmts of $5,000 or
integral multiples thereof, on any interest payment date, from any moneys available therefor, at a
redemption price, in either ci~se, equal to the principal amount of such Recipient Bonds to be redeemed,
together with (i) flue Applicable Redemption Premium and (ii) the accrued and unpaid interest on the
principal amount to be redeemed to the date fixed for redemption. In the event that the Corporation
refunds the Corporation Bonds (as defined hereafter) and the Recipient Bonds are assigned to such
refunding bonds, Recipient consents to the assignment of the Recipient Bonds and agrees that the First
Optional Redemption Date sh~all then be the redemption date as provided in such refunding bonds· In the
event of any partial redemption, the Recipient Bonds shall be redeemed in such order of maturities as
shall be determined by ~e Recipient. As used herein, "Applicable Redemption Premium", with respect
to any maturity of the Recipient Bonds to be redeemed, means ibur percent (4%) of the principal amount
of the Recipient Bonds to.be redeemed or such lesser redemption premium as is specified in the Notice of
Terms (as defined in the Projleet Finance Agreement) for such maturity and redemption date. Pursuant to
Section 3.3(C) of the Project Finance Agreement, the Recipient shall also pay all costs and expenses of
the Corporation in effecting ihe redemption or defeasance of any Corporation Bonds that are redeemed
due to the redemption of any Recipient Bonds.
Notwithstanding the foregoing, no Recipient Bond or portion of a Recipient Bond that is
not in an amount, which is ma integral multiple of $5,000, shall be subject to such redemption at the
option of the Recipient xvithout the express written consent of the Corporation.
.~ny such redemption, either as a whole or in part, shall be made upon at least skxty (60)
days and no more than seventy-five (75) days prior written notice to (i) the Corporation and to the
G-3
Trustee for the Corporation's New York State Environmental Facilities Corporation State Clean Water
and Drinking Water Revolving Funds Revenue Bonds, Series 2004 D (the "Corporation Bonds") during
an3, period when the Rgcipient Bonds are held by or for the benefit of the Corporation or of holders of ks
bonds or (ii) an3' successor holders or'the Recipient Bonds at any time thereafter.
The moneys necessary for any redemption of Recipient Bonds shall be paid to or deposited
with (i) the Trustee during an), period when the Recipient Bonds are held for the benefit of the holders of
Corporation Bonds and (ii) with an3' fiscal agent designated by the Recipient during an3' period when the
Recipient Bonds are otherwise held, in either case on or prior to the redemption date. All Recipient
Bonds called for redemption will cease to bear interest on the specified redemption date, provided funds
sufficient for the redemption of such Recipient Bonds are on deposk with the Trustee or fiscal agent, as
appropriate. If such moneys are not available on the redemption date, the Recipient Bonds or portions
thereof will continue to bear interest until paid at the same rate, as they would have borne had the3' not
been called for redemption.
G-4
(FORM OF ASSIGNMENT)
FOR VALUE RECEIVED, the Undersigned hereby sells, assigns and transfers unto
(Please Insert Social Security or other identifying number of Assignee(s)):
the within bond and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within bond on the
books kept for registration thereof witb full power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the
face of the within bond in every particular,
without alteration or enlargement or an)' change
whatever.
G-5
EXHIBIT It
[FORM OF OPINION OF NATIONALLY RECOGNIZED BOND COUNSEL]
[Letterhead of Bond Counsel to
Recipient]
[Date of deliver2' of Corporation Bonds]
Town of Southold
53095 Route 25
Southold, Ne~v York 11971
New York State Environmental Facilities Corporation
625 Broadway
Albany, New York 12207-2997
Hawkins Delafield & Wood LLP
67 Wall Street
New York, Nexv York 10005
Manufacturers and Traders Trust Company
One M&T Plaza
Buffalo, New York 14203
[Underwriter]
acting on behalf of themselves and the
other underxvriters named in the Bond Purchase
Agreement relating to the Corporation Bonds
(del'meal here~n) between the New York State
Environmental Facilities Corporation and such under~vriters
Ladies and Gentlemen:
We have examined a record of proceedings relating to the sale and issuance of [$
identify the Bonds] (the "Recipient Bonds") of the [Name of Recipient] (the "Recipient").
The Recipient Bonds are issued pursuant to the provisions of the Local Finance Law,
constituting Chapter 33-a of the Consolidated Laws of the State of New York, and a bond resolution duly
adopted by the [Recipient's governing body]. The Recipient Bonds are delivered to evidence the obligation
of the Recipient with regards to the purchase and sale made pursuant to a project finance agreemem, dated
as of June 1, 2004 (the "Project Finance Agreement"), between the New York State Environmental Facilities
Corporation (the ~Corporatlon") and the Recipient. Terms used but not otherwise defined herein shall have
the respective meanings set forth in the Project Finance Agreement.
The Recipient Bonds are dated , mature on k__ and/or _] in the
principal amounts, on each of the following dates, and bear interest at the rates per annum payable on
~tnd and semi-annually thereafter on __ and in each year to maturity, as set forth in
the Notice of Terms relating to the Project Finance Agreement delivered to the Recipient by the
Corporation, a copy of which is attached hereto.
H-1
The Recipient Bonds are issued only in fully registered form without interest coupons, not
exceeding the aggregate principal amount of Recipient Bonds maturing in any year. The Recipient Bonds
are lettered R and numbered from one consecutively npward.
The Recipient Bonds are subject to redemption prior to maturity upon the terms set forth in
the Notice of Terms.
In our opinion, the Project Finance Agreement has been duly authorized, executed and
delivered by the Recipient; and, assuming the due authorization, execution and delivery thereof by the
Corporation, the Project Finance Agreement together with the Notice of Terms constitute a legal, valid and
binding obligation of the Recipient, enforceable in accordance with the terms thereof.
: In our.opinion, the Recipient Bonds (i) conform to the descriptions thereof in the project'
Finance Agreement and (ii) are valid and legally binding general obligations of the. Recipient,for which the!
Recipient has validly pledged its faith and credit; and, un[ess paid from other sottrces, all the ta~xable real
property ?i~hin toe Recipient is subject to thedev~, of ad :-valorem real estate taxes .to .pay the Recipient
Bonds and interest thereon withont limitation of rate or amount. The enforceability'of rights or remedies
~vith respect to the Project Finance Agreement or the Recipient Bonds may be limited by hankmptcy,
insglven~'y ol-oth~e? laws affecting creators' rights or remedies heretofore or hereafter enacted.
The: financial assistance being made available to the Recipient under the terms of the Project
Finance Agreemen,.t is b~eing made with a.portion of the proceeds of State Ciean Water and Drinking Water
Revolving Funds Revanue..Bonds, S~eries 2004 D being issued .byl the Corporation (the "Corporation
Bonds"), the in~.t?est on~hi~h ~s iintended to be and remai~ excluded fi'otu..gr'oss income pursuant to Section
103(a) of. the Iixtemal Revenue Code.of 1986, as amended (the Code")J In connection with~the delivery of
the Recipient Bonds, the Recipient has ~xecuted and delivered an Arbkr~ge. and Use of Proceeds Certificate.
Purs.nant fo ~u¢.h,Arbitrage agd Use of proceeds Certifieat_e.,and the Pr.oj~c~ Finance Agreemerg the Recipient
ha~ .certified and~greed:.~at the 'Rec.ipi6nt~vill comply with the provisions and proge/ttlrest.set forth in the
Arbitmge,and ~ge!ofPtTqceeds Certificate.,and that i( will not take any ai:tic~ia :or omi~ any,:~tion within its
reasonable cofitrol which, assurnigg th~ ~ecip(ent Bonds were issue&as l~ond~ the interdst on which is
excluded from gross income for federal income tax purposes under·SeCtion 103(a) of.the 'Code, would cause
the Recipient Bonds to be "private activity, bgnds" or "grbitrage bcr~ds!' wit/9~n th,e memai.ng of Sections
141(a) or 148 of the Code. Based on the foregoing and asstiming compliance xvith th~ Arbitrage and Use of
Proceeds Certificate and. with the~cove~ants .cotitained i~ Section 5 2 of:the Project Finance Am-ee~m
are or'the opimon that the apphcation. Of the proceeds of the Recinieilt ]3mlds to the oses conte
, .:_ '.. ~ ~ ...... , ~ . purp , m lated
t~y me t~roJect,~Finan, c¢ Arrccme,-,t~ ~, ill n.-,t cause the:*~e¢i~ient B0'; ~ ':(a~-2te, ~* ~*h~ ~
nusmess ~es~_ ',.t b~..t,.>,_, 14 ht.~ ..4 l~,~ ,_,..de ,:< 0~):rthe4[[p[j~ate
C0d,e. 9r (k) to ~c. armtra, ge ~onas".,..w!mm me-meaning.6~ SeCtion 148 '~f~elco~}} ' *.,
· . : ~, . :Further, m .our 0pncun4 .un,er exmttng statutes, intere~t~ o,n,~the,.R*gcini~nt Bonds is. exemnt
from ~ersonal mcome taxes of New ~c~rk State~ and B poht~cal sub~h~'~,kt0gs, ~tudhag:The City qf Neyv
York.
opimOn,
We have examined the executed first numbered Recipient Bond of said issue and, in our
the form of said Recipient Bond and its execution are regular and proper
Very truly 5'ours,
[Bond Counsel to Recipient]
H-2
EXHIBIT I
[FORM OF OPINION OF LOCAL COUNSEL]
OPINION OF LOCAL COUNSEL
TOWN OF SOUTHOLD
dated June l, 2004
I am an attorney admitted to practice in the State of New York and have acted as counsel to the
municipality or public benefit corporation referred to above (the "Recipient"), which has entered into a Project
Finance Agreement (as hereinafter defined) with the New York State Enviranmental Facilities Corporation (the
"Corporation"). Terms used but not otherwise defined herein shall have the respective meanings set forth in
such Project Finance Agreement.
I have examined originals, or copies certified or otherwise identified to my satisfaction, of the
following:
(A) the Project Finance Agreement, dated as of June 1, 2004 (the "Project Finance
A~eement"), by and bem'een the Corporation and the Recipient, in the form executed by the Recipieat; and
(B) proceedings of the governing members of the Recipient relating to the approval of the
Project Finance Agreement and the execution, issuance and delivery thereof and of the Recipient Bonds on
behalf of the Recipient, and the authorization of the undertaking and completion of the Project (as defined in
the Project Finance Agreement).
I have also examined and relied upon originals, or copies certified or otherwise authenticated to
my satisfaction, of such other records, documents, certificates and other instruments, and made such
investigation of law as in my judgment I have deemed necessary or appropriate to enable me to deliver this
opinion.
Based upon the foregoing, I hereby certify as follows:
1. There is no litigation of any nature pending or threatened to restra'm or enjoin the
issuance, sale, execution or delivery of the Project Finance Agreement, the Recipient Bonds or raty of ~rhe
proceedings taken with respect to the issuance and sale of the Recipient Bonds, the application of moneys to the
payment of the Recipient Bonds or in an3' manner questioning the proceedings and authority under which the
Recipient Bonds were authorized or affecting the validity of the Recipient Bonds, the existence or boundaries
of the Recipient or the title of officials of the Recipient who have acted with respect to the proceedings for the
issuance and sale of the Recipient Bonds to their respective offices, and no anthority or proceedings for the
issuance and sale of the Recipient Bonds have been repealed, revoked or rescinded.
2. The execution and delivery by the Recipient of the Project Finance Agreement, the
issuance, sale and deliver3, of the Recipient Bonds, the adoption of the bond resolution by the Recipient and
compliance with the provisions thereof will not conflict xvith or constitute a breach of or a defauix .under any
local law or administrative regulation, or any judgment, decree or any agreement or other instrument ~known to
me to which the Recipient is a part3' or otherwise subject.
IN WITNESS WHEREOF, I have hereunto set my hand as of the date first set forth above.
I-1
EXHIBIT J
[FORM OF RECIPH~NT CLOSING CERTIFICATE]
TOWN OF SOIYll-IOLI~.
CLOSING CERTIFICATE
dated July 22, 2004
as to (i) Confirmation of Certain Matters ~et forth in the Project Finance
Agreement, (ii) Signatures and Incumbency of Authorized Signatories,
(iii) Delivery and Pa3maent of Recipient Bonds, and
(iv) Certain Other Matters · ~ .
I, the officer identified below of the municipality or other government body named above
(the "Recipient"), hereby certify that:
1. This Certificate has been executed in connection with the issuance and sale by the
New York State Environmental Facilities Corporation (the "Corporation") of its $ principal
amount of [Insert designation of Corporation Bonds] (the "Corporation Bonds"). A portion of the
proceeds of said Corporation Bonds has been provided to the Recipient for the purchase of the
Recipient's bonds, which has issued its general obligation bonds (the "Recipient Bonds") to the
Corporation.
2. The representations and warranties relating to the Recipient set forth in the Project
Finance Agreement between the Corporation and the Recipient dated as of June I, 2004 are true and
correct as of the date hereof as if made on and as of the date hereof, the Project Finance Agreement
remains in full force and effect as of the date hereof., and the Recipient has complied with and performed
and will continue to domply with and perform all of its covenants and agreements in the Project Finance
Agreement.
3. The Recipient Bonds conform to the description thereof in the related Project
Finance Agreement as supplemented and amended by the related Notice of Terms delivered to the
Recipient, receipt of which is hereby ac~knowledged, and constitute validly issued and legally binding
general obligations of the Recipient.
4. On the date hereof, the Recipieut delivered or caused to be delivered to the
Corporation $[Financed Amount] principal amount of Recipient Bonds, each duly and completel5
executed by or on behalf of the Recipient and all as described in the Project Finance Agreement and as
set forth in Part I of Schedule A of the Notice of Terms, delivered by the Corporation to the Recipient in
connection xvith the Project Finance Agreement, and by this reference made a part hereof, and that at or
before the time of such deliver3, of said bonds, I received from said purchaser the amount of $
being full pa3maent for said bonds in accordance with the Project Finance Agreement and the Notice of
Terms.
5. The Recipient Bonds were duly and completely executed in the name and on
behalf of the Recipient by the imprinting thereon of the manual or facsimile signature of the undersigned
officer of the Recipient, who did and does hereby adopt such signature, and the impressing or imprintiag
thereon of the official seal of the Recipient, and that on the date hereof, I am the duly chosen, qualified
and acting officer of the Recipient holding the office indicated by the official title set opposite my
signatare hereto: for a term expiring on the date set opposite such title.
J-1
6. No litigation of an), nature is now pending or, to our ~knowledge, threatened (a) to
restrain or enjoin the issuance or delivery of the Recipient Bonds or the lex3, and collection of taxes or
assessments to pay the same, (b) in any manner questioning or affecting, directly or indirectly, the
validity of the Recipient Bonds or the proceedings or authority for the issuance thereof, or (c) contesting
the corporate existence or boundaries of the Recipient or the title of the undersigned officers to their
respective offices.
7. No authori~, or proceedings for the issuance of the Recipient Bonds has been
repealed, rex oked or rescinded, and compliance with the covenants contained in the Arbitrage and Use of
Proceeds Certificate of the Recipient executed the date hereof with respect to the Recipient Bonds is nor
prohibited by or vxolative of any provision of local or special law, regulation or resolution applicable to
the Recipient.
8. The seal (or facsimile thereof) xvhich has been imprimed or impressed upon each
of the Recipient Bonds is the legally adopted, proper and only official corporate seal of the Recipienz.
iN %rlTNE, SS WHEREOF, I have hereunto set my hand as of the date first written abvve.
SIGNATURE
NAME OF
OFFICER
OFFICIAL TITLE
TERM OF OFFICE
EXPIRES
(Print)
J-2
[PLEASE HAVE THE SIGNATURE ON THE PREVIOUS PAGE EITHER NOTARIZED OR
GUARANTEED BY A BANK OFFICER (BOTH FORMS ARE BELOW)]
I I-~KEBY CERTIFY that the signature of the officer of the above naxned Recipient which appears
above, is true and gentfine and that I know said officer and know said officer to hold the office set
opposite his or her signature.
( Signature) (Title) (Name of B auk)
OR
STATE OF NEW YORK
COUNTY OF
Before me personally came , to me known, who being by
me duly sworn, did depose and say that he or she is
of the Recipient described in and which executed the above instrument; and that he or she signed his or
her name thereto by authority of the duly constituted governing body of said Recipient.
· Notary. Public
J-3
EXltlBIT K
REQUISITION PROCEDURES
PART A
DISBURSEMENT REQUEST PROCEDURES
FOR RECIPIENTS
Part A of this Exhibit K sets out the procedures which the Recipient agrees to follow in
submitting disbursement requests (requisitions) for the disbursement of proceeds to finance the
acquisition, construction and installation of any portion of the Project not yet completed. Section 1 sets
out the manner in which disbursement requests are to be submitted and reviewed. Section 2 sets out the
documentation that must be submitted in support of the costs claimed in such requests.
Section 1. General Requirements. All requests by the Recipient for the disbursement of
proceeds shall be made by submission to the Corporation (Attention: Finance Loan Servicing Unit) of a
requisition, in form and substance satisfactory to the Corporation and in each case completed and
executed by a duly authorized representative of the Recipient, and accompanied by the documentation
required pursuant to Section 2 of this Part A captioned "Documentation Submission." The Recipient
shall use the tbrm of requisition attached as Appendix One to Exhibit K to the Project Finance
Agreement unless another form is required or approved by the Corporation. The Recipient shail
simultaneously snbmit copies of such forms, without the accompanying documentation, to the Depository
Bank.
The Corporation agrees to certify disbursement requests for proceeds to the Recipient up to the
difference betwveen (a) the amount of the actual allowable costs (including costs of issuance relating to
the Recipient Bonds or Corporation Bonds) incurred by the Recipient on or before the date of submission
of the disbursement request, and (b) any proceeds already disbursed (including any proceeds disbursed
according to the terms of this Project Finance Agreement to refund Existing Indebtedness). The
Corporation retains the right to refuse to certify disbursement requests in accordance with Part B of this
Exhibit K.
The Corporation agrees to promptly send to the Recipient and the Depositor3., Bank by hand
deliver)r, by telecopy, by first class mail, by electronic mail, or by overnight deliver), service (the choice
of method of deliver)' to be at the discretion of the Corporation), an acknowledgment of receipt of each
such disbursement request setting forth the date of receipt by the Corporation of such disbursement
request and setting forth the tenth Business Da3' and the eleventh Business Day next succeeding such
date of receipt. The date of receipt by the Corporation of a disbursement request shall be the date on
which the Corporation receives such request, if received by the Corporation at or before 12:00 noon on
that date, or, the Business Day next succeeding such date, if received by the Corporation after 12:00 noon
on that date. If the Corporation approves a disbursement request, the Corporation will notify the
Recipient and the Depositor5, Bank of such approval and the amount so approved, which notice may be
given by telefacsimile at the Corporation's election.
With respect to each disbursement request submitted by the Recipient in accordance with the
terms hereof, the Depository Bank shall be anthorized to disburse the amount requested therein as of 9
A.M. on the eleventh Business Da), next succeeding the date of the Corporation's receipt of the request if
the Depository Bank has not received an express denial of such request from the Corporation within ten
K-I
Business Days of receipt by the Corporation of such request. For purposes of this Exhibit K, the term
Business Da.',' shall mean any da3' on which New' York State offices are open to conduct business.
· Section 2. Documentation Submission.
(a) 'Unless othem, ise agreed to in writing by the Corporation or required pursuant to
the agreemeflt botween EPA and DEC,relating to the Revolving Fund, documentation evidencing Project
Costs claimed for disbursement, in form and substance satisfactory to the Corporation and in full
compliance xvkh the Regulations, must be submitted with each reimbursement request.
.... (b) . .All st~bmissions of documentation shall contain cross references by date and
amount xo the releyant disbursement reqnests,.so that~the documentation, and the~ am0tmts ~tated therein~.
carl be rec6ilciled:with such:disburseinent requests. · L
PART B :~ ....
WlTHI-IOLDING DISBURSEMENT
Part B of this Exhibit K sets out the circumstances in which the Corporation may reject, correct,
adjust, or withhold any disbursement request submitted loy the Recipient. The Recipient expressly agrees
to the terms hereof, and further agrees that (i) the rights of the Corporation contained herein, are in
addition to (and not in lieu of) any other rights or remedies available to DEC and the Corporation under
the Project Finance Agreement, and (ii) nothing contained herein shall be construed to limit the rights of
DEC orthe Corporation to take actions including, but not limited to, administrative enforcement action
and actions for breach 'of contract against the ·Recipient if it fails to carry out its obligations under the
Regulations, or under the Project Finance Agreement during the term thereof.
Section 1. Rejection. A disbursement reqaest ma3' be rejected by the Corporation if it is:
(a) submitted xvithout signature;
Co) submitted under signature of a person other than the Recipient's duly authorized
representative; or
(c) submitted after prior disbursement of all proceeds of a financing.
The Corporation will notify the Recipient and the Depositor), Bank of any disbursement request
so rejected, and the reasons therefore. Any disbursement request so rejected must be resubmitted in
proper form in order to be considered for approval. If a disbursement request exceeds the balance of the
proceeds remaining to be disbursed, the request will be treated as if submitted in the amount of the
balance so remaining, and the Corporation will so notify the Recipient.
Section 2. Correction. A disbursement request containing an apparent mathematical error
will be corrected bi}' the Corporation, after telephonic notification to the Recipient, and will thereafter be
treated as if submitted in the corrected amount. The Corporation will confirm correction of the error, to
the Recipient, in writing.
Section 3. Adjustment.
(a) If, upon review 9f a disbursement request, the Corporation determines that any portion of
the costs claimed:
K-2
(i) are ineligible under federal or State law to be financed by the Revolving Fund, or
(ii) do not constitute costs associated with the Project approved for f'mancing with
the proceeds of the subject financing, under the terms of the Project Finance A=oreemant, the Corporation
will notify the Recipient of its determination in writing. The Recipient shall, within thirty (30) days of
the date of receipt of such notice, submit additional documentation or evidence to the Corporation
substantiating the eligibility or approval of such costs.
(b) If, upon review of such additional documemation and evidence, the Corporation affirms
its original determination, the Corporation shall be entitled to make adjustments as provided in paragraph
(c) below. If, upon review of such additional documentation and evidence, the Corporation reverses its
determination with respect to any such costs, the Corporation shall (as applicable) either disburse the
appropriate additional sum to the Recipient (iL pursuant to paragraph (c), an adjustment was taken out of
the then-pending disbursement request), or revise (as required) the adjustment to be made to succeeding
disbursement requests (if, pursuant to paragraph (c), an adjustment was to be taken out of succeeding
disbursement requests).
(c) If the amount of the costs so determined to be ineligible, or unapproved, is less than the
balance of the undisbursed proceeds of the related financing (after deducting therefrom the full amount
of the pending disbursement request), the Corporation shall accept the pending disbursement and make
an adjustment in the amount of the ineligible/unapproved costs out of succeeding disbursements. If the
amount of the costs so determined to be ineligible, or unapproved, is greater than the balance of
undisbursed proceeds of the related financing (after deducting therefrom the full amount of the pending
disbursement request), the Corporation shall be entitled to make an immediate adjustment, and treat the
pending disbursement request as if submitted in the adjusted amount.
Section 4. Withholding.
(a) If the Recipient
(i) fails to pay an3' principal, premium, if an3', or interest on a financing when the
stone is due and payable; or
(ii) applies proceeds for purposes other than payment of, or reimbursement for,
Project Costs which have been the subject of an approved disbursement request hereunder; or
(iii) ~knowingly takes any action, or omits to take any action, amounting to fraud or
violation of any applicable federal, State or local criminal law, in connection with the transactions
contemplated hereby;
then the Corporation shall be entitled to immediately xvithhold approval on all pending and subsequent
requests for the disbursement of proceeds.
(b) If the Recipient
(i) fails to construct the Project in a manner consistent with plans, specifications,
Engineering Reports or Facilities Plans previously submitted to and approved by DEC and/or the
Corporation, or with good engineering practices, where such inconsistency prevents or materially knpairs
the Project from fulfilling its intended purpose, or prevents or materially impairs the ability, of DEC and
K-3
the Corporation to monitor compliance by the Recipient xvith applicable federal or State law pertaining to
the Project, or with the terms and conditions of the Project Finance Agreement;
(ii) falls to observe or cbmply with any applicable federal, State or local law, or any
term or condition of the Project Finance Agreement, concerning affirmative action, equal emplo3anent
opportunity, or small, minority and women's business enterprises;
(iii) fails to provide the level of construction inspection for the Project approved as
adequate by DEC and/or the Corporation in the review of the Recipient's engineering agreement or
subagreement for the Project; or
(iv) fails to deliver documentation evidencing Project costs claimed for disbursement
at the times and in the manner specified by the Project Finance Agreement;
and such failure continues for a period of more than thirty (30) days following written notice from the
Corporation to the Recipient, the Corporation shall be entitled to withhold, from any requests for the
disbursement of proceeds received after such thirty (30) day period has expired, and until such failure is
cured or corrected, an amount determined by the Corporation (in its sole discretion) as adequate for the
cure or correction of such failure, which amount sh011 be stated in such notice; provided, that if the nature
of the failure is such that lit ~a~n~t reasonably ~be cured dr corrected within such thirty (30) day period,
the Corporation shall not withhold any disbursement by reason of such failure if the Recipient
commences cure or correction within such thirty (30) day period and thereafter diligently completes such
cure or correction within a further reasonable time period.
The foregoing notwithstanding, if, as of the date of such notice from the Corporation, the balance
of the proceeds remaining to be disbursed is less than the amount determined by the Corporation to be
adequate for the cure or correction of such failure, the Corporation may immediately withhold all further
disbursement of proceeds until such failure is cured or corrected xvithin the time period specified by the
preceding paragraph.
(c) Any determination, action or failure to act by the Corporation with respect to this Section
4, including but not limited to the withholding of a disbursement, shall be at the Corporation's sole
discretion, and in no event shall the Corporation be responsible for or liable to the Recipient for an),
and/or all consequences which are the result thereof.
Section 5. Special Provisions. Nomdthstanding the foregoing, the disbursement of
proceeds shall be subject to any special provisions set forth at Exhibit E.
K-4
THIS PAGE INTENTIONAL..LY LEFT BLANK
APPENDIX ONE TO EXHIBIT K
FORM OF REQUISITION
New York State Environmental Facilities Corporation
625 Broadway
Albany, Ne~v York 12207-2997
Attention: Finance Loan Servicing Unit
Manufacturers and Traders Trust Company
One M&T Plaza
Buffalo, New York 14203
CWSRF Project No.: C 1-5110-01-00
Town of Southold
Series 2004 D
Ladies and Gentlemen:
Pursuant to Section 3.5 of the Project Finance Agreement dated as of June 1, 2004, between the New
York State Environmental Facilities Corporation and the Town of Southold (the "Project Finance
Agreement"), the undersigned on behalf of the Recipient hereby requests disbursement in the amount of
$ for Project Costs. Capitalized terms used but not de£med herein have the meaning set forth in
the Project Finance Agreement. In connection xvith this requisition the undersigned does hereby represent and
certify the following:
1. This requisition is requisition number
Payments aggregating $ .have been incurred by the Recipient for Project Costs
constituting an "eligible project" under the State Act as shoxxm on the attached Disbursement Request.
Such costs have not previously been paid with the proceeds of any grant, loan or other funds, except as
specifically described herein:
The amount of this requisition, together xvith all prior requisitions, does not exceed the amount of the
financing.
A copy of this requisition has been delivered to each of the above named addressees.
All amounts requisitioned hereunder are for eligible Project Costs, which have not been included in
an3' previous disbursement from proceeds..
All Minority/Women Business Enterprise and Equal Emplo3~rnent Opportunity issues have been
satisfied or are being effectively addressed to resolve outstanding issues.
K-5
TI-l-IS PAGE INTENTIONALLY LEFT BLANK
The Recipient hereby represents and ~arrants that it has not made any axvard, conh'act or agreement
for purchases of goods or services with any debarred or suspended party under Executi~,e Order 12549
pursuant to the requirements of the Office of Management and Budget compliance supplement
number A-133 as revised from time to time.
9. The undersigned is duly authorized to execute and deliver this requisition on behalf of the Recipient.
Date:
Signature and Title of Authorized Representative for
Recipient
K-6
THIS PAGE INTENTIONALLY LEFT BLANK
THIS PAGE INTENTIONALLY LEFT BLANK
EXIIlBIT L
[FORM OF NOTICE oF TERMS]
NOTICE OF TERMS
delivered by the Ne;v York State Elivironmental Facilities Corporation
relating to
Project Finance Agreement
dated as of June 1, 2004, between
New York State Environmental Facilities Corporation
and
TOWN OF SOUTHOLD
l. This Notice of Terms is being delivered pursnant to the Project Finance Agreement referred
to above (the "Project Finance Agreement"). All capitalized terms used but not defined herein shall have the
respective meanings set forth in the Project Finance Agreement.
2. The terms of the Leveraged Ffinancing, in addition to those set forth in the Project Finance
Agreement, are as set forth below (including Schedule A attached hereto). In accordance with the Project
Finance Agreement, the Recipient Bonds shall be in conformity with such terms. The maturity date(s),
principal amount(s), interest rate(s) and aggregate debt service on the Leveraged Financing are as set forth in
Schedule A.
3. The Recipient Bonds shall be subject to optional redemption prior to maturity, pursuant to
paragraph VI of Exhibit E to the Project Finance Agreement, as follows:
On or after [February or August 15, 20 ] (the "First Optional Redemption Date"), at the
option of the Recipient, the Recipient Bonds maturing after the First Optional Redemption Date shall be
subject to redemption prior to maturity, in whole at any time or in part in principal amounts of $5,000 or
integral multiples thereof on any interest payment date, fi-om any moneys available therefor, at a redemption
price, in either case, equal to the principal amount of such Recipient Bonds to be redeemed, together with (i)
the Applicable Redemption Premium and (ii) the accrued and unpaid interest on the principal amount to be
redeemed to the date fixed for redemption. In the event that the Corporation refunds the Corporation Bonds
and the Recipient Bonds are assigned to such refunding bonds, Recipient consents to the assignment of the
Recipient Bonds and agrees that the First Optional Redemption Date shall then be the redemption date as
provided in such refunding bonds. In the event of any partial redemption, the Recipient Bonds shall be
redeemed in such order of maturities as shall be determined by the Recipient. The term "Applicable
Redemption Premium" as used in Part VI of Exhibit E of the Project Finance Agreement with respect to any
maturity- of the Recipient Bonds to be redeemed shall be the redemption premium specified in Schedule B for
such maturity for suc.h date.
Pursuant to Section 3.3(C) of the Project Finance Agreement the Recipient shall pay all costs
and expenses of the Corporation in effecting the redemption or defeasance of any Corporation Bonds that are
redeemed due to the redemption of any Recipient Bonds.
4. The Recipient's Proportionate Share of costs and expeoses specified in Section 3.2(A) of the
Project Finance Agreement, shall be in the amount set forth in Schedule A hereto.
5. The Recipient's Annual Administrative Fee shall be due annually on April 1, commencing
April 1, 2005.
L-1
Maturity
Date
Principal
Amount
TOWiN OF SOUTItOLD
Schedule A
Terms of the Levera~ed Financing and Recipient Bond(s)
Annual Debt
Interest Semi-Annual Service-Fiscal
Rate htterest Debt Service Year ( )
TOTAL
Amount payable pursuant to paragraph 4 of the Notice of Terms.
L-2