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HomeMy WebLinkAboutState Water Pollution Control Revolving Fund Revenue BondsRESOLUTION 2011-63 ADOPTED DOC ID: 6505 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2011-63 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON JANUARY 4, 2011: RESOLVED that the Town Board of the Town of Southold hereby authorizes and directs Supervisor Scott A. Russell to execute the Closing Certificate and Supplemental Agreement between the Town of Southold and the New York State Environmental Facilities Corporation in connection with the State Water Pollution Control Revolving Fund Revenue Bonds, subject to the approval of the Town Attorney. Elizabeth A. Neville Southold Town Clerk RESULT: ADOPTED AS AMENDED [UNANIMOUS] MOVER: Christopher Talbot, Councilman SECONDER: Louisa P. Evans, Justice AYES: Ruland, Orlando, Talbot, Krupski Jr., Evans, Russell New York State ENVIRONMENTAL FACILITIES CORPORATION MATTHEW J. DRISCOLL, President and CEO Scott A. Russell Supervisor Town of Southold 53095 Route 25 Southold, NY 11971 DEC 8 010 Re: New York State Environmental Facilities Corporation (EFC) Clean Water and Drinking Water State Revolving Funds, Series 1996A Principal Balance for Bonds Outstanding as of 3/16/2011:$75,000.00 Final Maturity: December 15, 2014 Dear Supervisor Russell: EFC is undertaking a refmancing initiative on behalf of the municipalities that have funded projects through the State Clean Water and Drinking Water Revolving Funds (SRF) as part of thirteen series - 1996 A, 1996 B, 1996 C, 1997 A, 1997 B, 1997 C, 1998 A, 1998 B, 1998 E, 1998 G, 2000 A, 2000 B, and 2001 A. The De-Leveraging Closing Certificate and Supplemental Agreement that we sent to you on December 20, 2010 contained an error. We have enclosed two new original certificates for your execution. Please execute and return the two enclosed originals of the Closing Certificate and Supplemental Agreement by January 7, 2011 in order to complete the transaction development for a bond pricing scheduled for February 15th. Your action is needed to realize any savings for your municipality. If you haven't returned the certificates we sent last week, please dispose of them and replace them with these certificates. If you have already sent them back to EFC we will dispose of them. Your timely execution and return of these certificates is required for EFC to issue refunding bonds and offer you the associated debt service savings. Therefore, for your convenience, I have enclosed a self-addressed return UPS envelope. We expect to close on this bond refunding in mid-March 2011. If you have any questions, please contact me at (518) 402-7085. Sincerely, X~ohn McDonald ~Finance Coordination Manager JM/mf Enos. 625 Broadway, Albany, New York 1220%2997 518,402.6924 · 800.882,9721 www.nysefc.org STATE WATER POLLUTION CONTROL REVOLVING FUND TOWN OF SOUTHOLD, (the "Recipient") and NEW YORK STATE ENVIRONMENTAL FACILITIES cORPORATION CLOSING CERTIFICATE AND SUPPLEMENTAL AGREEMENT Regarding New York State Environmental Facilities Corporation State Water Pollution Control Revolving Fund Revenue Bonds (DE-LEVERAGING) STATE CLEAN WATER REVOLVING FUND PROJECT NO.: C1-5110-02-00 Dated as of February 11,2011 2011 De-Leveraging Refunding Cert CLOSING CERTIFICATE AND SUPPLEMENTAL AGREEMENT I, the undersigned officer of the Recipient, a municipal corporation, public benefit corporation or public authority duly organized and existing under the laws of the State of New York, as set forth on the cover page of this Closing Certificate and Supplemental Agreement (hereinafter, this "Certificate"), HEREBY CERTIFY AND AGREE on behalf of the Recipient as set forth below with respect to the Recipient Bonds, as defined in Exhibit A hereto, delivered by the Recipient to the New York State Environmental Facilities Corporation, 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") to evidence the obligation of the Recipient to repay the Leveraged Financing (as defined in Exhibit A hereto) made available from the proceeds of Prior Corporation Bonds (as defined in Exhibit A). I. GENERAL MATTERS 1.1 Authority to Execute Certificate. I am an officer of the Recipient and am acting for and on behalf of the Recipient in signing this Certificate. 1.2. Definitions. Any capitalized terms used but not defined in this Certificate shall have the meanings set forth in the Existing Tax Certificate and the Existing Agreement (each as defined in Exhibit A). on and after the issuance of the Corporation Bonds, all capitalized terms defined in Exhibit A hereto and used in the Existing Agreement as amended and supplemented hei'eby shall have the meaning set forth in Exhibit A hereto rather than the meaning set forth in the Existing Agreement. 1.3. The Refinancing Transaction. The Recipient acknowledges that: (a) the Corporation is refinancing a portion of the Prior Corporation Bonds; and Co) the Corporation will be altering the soume of the funding for the Recipient Bonds in accordance with Section 2.2 hereof. II. AMENDMENT OF EXISTING AGREEMENT 2.1 Amendment of Existing Agreement. The Recipient hereby agrees that the first two paragraphs of Section 3.1(C) of the Existing Agreement are hereby amended and restated as follows: The Corporation hereby covenants and agrees that it will on or before each interest payment date on the Recipient Bonds credit the Subsidy Credit relating to such interest payment date to the Recipient Bonds. Monies applied as the Subsidy Credit will be derived from (a) amounts representing Earnings on Reserve Allocation, if applicable, (b) amounts representing earnings from the investment of prepayments of the Leveraged Financing deposited in accordance with Section 3.6 hereof and (c) any other funds within the Revolving Fund so designated from time to time by the Corporation. Subject to the next succeeding sentence, the amount payable by the Recipient as interest on the Recipient Bonds will be reduced by the Subsidy Credit available to be deposited by the Corporation and credited to the Recipient Bonds. Notwithstanding the foregoing, in the event there are not monies available to deposit and credit such Subsidy Credit on or before any interest payment date, the Recipient shall be obligated to pay interest on the Recipient Bonds at the rates set forth thereon and the Recipient's sole remedy shall be to bring an action against the Corporation seeking to (i) compel the Corporation to credit such Subsidy Credit, or (ii) in the event that the Recipient shall have paid interest on the Recipient Bonds at the interest rates set forth thereon, obtain reimbursement from the Corporation for the additional interest so paid. In the event the Recipient fails to pay when due any sum owing to the Corporation pursuant to Section 3.2 of the Existing Agreement, the Corporation may, in addition to all rights and remedies provided in or permitted by Section 6.1 of the Existing Agreement, deduct such sum from any Subsidy Credit otherwise available to the Recipient pursuant to Section 3.1 of the Existing Agreement, 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 the portion of the Subsidy Credit Previously deducted due to Recipient's default 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 Subsidy Credit 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, incurred as a result of the Recipient's failure to make any payment on the Recipient Bonds when due. In addition, in the event a breach of this Project Financing and Loan Agreement occurs and such breach continues for a period of more than thirty (30) days following written notice from the Corporation to the Recipient, the Corporation may cease providing Subsidy Credit to the Recipient after such thirty (30) day period has expired, and until such breach is cured or corrected provided, that if the nature of the breach is such that it cannot reasonably be cured or corrected within such thirty (30) day period, the Corporation shall continue to provide Subsidy Credit to the Recipient if the Recipient commences cure or correction within such thirty (30) day period and thereafter diligently completes such cure or correction within a further thirty (30) day period. On and after the Effective Date, all references in the Existing Agreement to Earnings on Reserve Allocation shall be deemed to refer to the Subsidy Credit made available by the Corporation from time to time in accordance with the Project Financing and Loan Agreement. 2.2. Conversion of Financing. The Recipient agrees that the Corporation is altering the source of the funding for the Recipient Bonds. The principal of the Recipient Bonds shall be due on the same dates as it 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 taking into account certain additional credits projected to be available as offsets to such interest. Such effective interest rate shall be Specified to the Recipient in a Notice of Terms to be delivered by the Corporation. The Recipient agrees at the request of the Corporation to execute any additional agreements and amendments to the Existing Agreement and this Certificate as may become necessary to effectuate the foregoing. In no event shall any debt service payment, after taking into account the projected additional credits, be greater than the amount that would have been due for the same period (maturity) under the Existing Agreement. 2.3. Administrative Fee Payment Dates. The Recipient shall pay the Corporation's annual administrative fee payable in accordance with Section 3.2(A) of the Existing Agreement, on the dates and in the amounts set forth in the Notice of Terms. The fee due in the year 2012 shall be prorated from the last payment date, based on a 30/360 day count. 2.4. Completion of Project. The Recipient hereby represents that it has completed the Project and that the Project is in operation. III. MISCELLANEOUS 3.1. Use of Prior Bond Proceeds and Grants. The Recipient executed an Arbitrage and Use of Proceeds Certificate in connection with the issuance of the Recipient Bonds (the "Existing Tax Certificate"). The Recipient has spent all proceeds and amounts treated as proceeds of the Recipient Bonds (other than amounts periodically deposited in a debt service fund) for the purposes set forth in the Existing Tax Certificate and all grant moneys received, if any, with respect to the Project, all as set forth in Schedule A hereto. All moneys remaining in such funds, excluding any amounts held in escrow for the purpose of refunding Existing Indebtedness (as defined in the Existing Agreement) and such amount required to be held in the Local Debt Service Fund, if any, by the Recipient's bond documents have been or will be applied to the redemption of the Recipient Bonds on or prior to the Effective Date. To the extent that such moneys are held by the Corporation or the Depository Bank, the Recipient hereby authorizes the Corporation to direct the application of such moneys to the redemption of the Recipient Bonds. To the extent such moneys are not held by the Corporation or the Depository Bank, the Recipient shall transfer such moneys to the Corporation ten (10) business days prior to the Effective Date. 3.2. Limitations on Private Use of the Project. The Project has been and is owned by the Recipient. The Project has not and will not be sold, leased or otherwise disposed of, in whole or in part, to any person who is not a state or local governmental unit prior to the last maturity date of the Recipient Bonds. Except as provided in the Existing Tax Certificate, the Recipient has not entered and will not enter any contract or arrangement or cause or permit any contract or arrangement to be entered (to the extent of its reasonable control) with persons or entities that are not state or local governmental units if that contract or arrangement would confer on such persons or entities any fight to use the Project on a basis different from the right of members of the general public. Except as provided in the Existing Tax Certificate, the Recipient will not permit any of the proceeds of the Recipient Bonds to be used by any person who is not a state or local government that is unrelated or disproportionate to the govemmental purpose of the Recipient Bonds or to make any private loan(s). 3.3. Existing Agreement. The Recipient further acknowledges, agrees and represents that (i) the Existing Agreement, except as amended and supplemented hereby, remains in full force and effect; (ii) the Recipient Bonds delivered thereunder remain in full force and effect; (iii) the Recipient is not in default under the Existing Agreement or the Recipient Bonds; (iv) the representations and warranties of the Recipient made in the Existing Agreement, as amended and supplemented hereby, are true and correct as of the Effective Date as if made on and as of the Effective Date and taking into account the amendments and supplements affected by this Certificate; and (v) the Recipient has complied with and performed 3 and will continue to comply with and perform all of its covenants and agreements in the Existing Agreement, as amended and supplemented hereby. 3.4. No Right of Redemption of Recipient Bonds. In consideration of the benefits derived from the refinancing of the Recipient Bonds in accordance with this Certificate, the Recipient agrees that the Recipient Bonds may not be redeemed prior to maturity and the Recipient hereby irrevocably waives any right to so redeem the Recipient Bonds prior to their maturity. 3.5. Consent to Pledge and Assignment. The Recipient acknowledges that the Corporation may, in its sole discretion, pledge and assign the Recipient Bonds and/or any right to receive payments thereunder for the benefit of the New Corporation Bonds, and hereby consents to any such pledge and assignment. The Corporation may also hold all or any or any portion of the Recipient Bonds for its own account or sell the same to any third party. 3.6. Joint Investment of Prepayments. Notwithstanding anything to the contrary in the Existing Agreement, the Recipient hereby authorizes the Corporation and Manufacturers and Traders Trust Company as the Depository Bank to invest and hold, for the benefit of the Recipient, any prepayments of the Leveraged Financing, together with any other moneys of the Corporation held within the State Water Pollution Control Revolving Fund and any other moneys constituting the proceeds or prepayments of the bonds of other recipients of financing from the Corporation deposited with the Depository Bank or the Corporation, in investments authorized by the Corporation. Any such joint investment shall be held, made and administered in accordance with the Corporation's investment guidelines, as in effect from time to time, with earnings allocable to the investment of any such prepayment being applied in accordance with Section 2.1 hereof. 3.7. Effective Date. This Certificate shall be effective as of the date of issuance of the New Corporation Bonds. 4 1N WITNESS WHEREOF, on behalf of the Recipient, I have hereunto set my hand as of the date set forth on the cover page of this Certificate. TOWN OF SOUT/~OLD Title: Supervisor Email Address: NEW YORK STATE ENVIRONMENTAL FACILITIES CORPORATION By: Name: Matthew J. Driscoll Title: President EXHIBIT A Definitions: Earnings on Reserve Allocation means net earnings derived from investment of a Reserve Allocation, if any, relating to the Recipient Bonds, and credited as a part of the Subsidy Credit, as and when such earnings are received, all as determined by the Corporation. Effective Bate means the date of issuance of the New Corporation Bonds Existing Agreement means the Project Financing and Leveraged Financing Agreement entered into between the Recipient and the Corporation dated February 1, 1996 in relation to the Leveraged Financing. Existing Tax Certificate means the Arbitrage and Use of Proceeds Certificate that the Recipient delivered in connection with the Leveraged Financing dated the date of delivery of the Prior Corporation Bonds. Leveraged Financing means the financial assistance made available to the Recipient from the proceeds of the Prior Corporation Bonds pursuant to the Existing Agreement. New Corporation Bonds means any Corporation bonds or notes issued and other Corporation financing made available to refund the Prior Corporation Bonds. Notice of Terms means a notice setting forth and confirming the definitive principal, interest and subsidy 'amounts, maturity dates and interest rates of the Recipient Bonds and certain other terms of the Leveraged Financing and credits, giving effect to the additional credits projected to be available by reason of the refinancing. Prior Corporation Bonds means the series of bonds of the Corporation issued to finance the Leveraged Financing, being Series 1996A. Recipient Bonds means the bonds or notes issued and delivered by the Recipient to or upon the order of the Corporation in accordance with the Existing Agreement, in order to evidence the Recipient's obligation to repay the Leveraged Financing. Reserve Allocation means the amount of monies, if any, allocated from the Revolving Fund and deposited in a debt service reserve fund, the interest earnings on which are to provide financial assistance to reduce a Recipient's total financing costs for the Project. Subsidy Credit means funds applied as a credit to the Recipient's debt service payments due to the Corporation immediately prior to each debt service payment date set forth on the Recipient Bonds. The Subsidy Credit with respect to each debt service payment date on the Recipient Bonds will be as set forth on the Notice of Terms delivered pursuant to Section 2.2. 6 Schedule A Unspent Proceeds and Deemed Proceeds of Prior Bonds and Project-associated Grant Moneys TOTAL ESTIMATED UNSPENT* $ Unspent Prior $ Unspent Grant Fund Bond Proceeds Moneys Construction Fund $0.00 $0.00 Debt Service Fund $0.00 $0.00 Escrow Fund $0.00 $0.00 Local Debt Service .Reserve Fund $0.00 $0.00 Other Funds (L!st) $0.00 $0.00 *Actual Unspent Proceeds as determined as of February 1st, 2011 will be applied as set forth in Section 3.2 7