HomeMy Public PortalAbout11874O R D I N A N C E NO. 11874 AN ORDINANCE, authorizing the execution and delivery of certain
documents by and on behalf of The Metropolitan St. Louis Sewer District (the
“District”) in connection with the financing of sewer improvements for Subdistrict
No. 99048 (West Watson Road- Nanell Lane) (the “Project”) through a loan from the
Missouri Department of Natural Resources (the “MDNR”), and authorizing certain
other actions pursuant thereto; and repealing Ordinance No. 11666.
WHEREAS, the District was created pursuant to a Plan (the “Plan”)
adopted by the voters of the City of St. Louis, Missouri and of St. Louis County,
Missouri, at a special election held on February 9, 1954, and the governing plan was
amended on November 7, 2000, all as provided and authorized by Sections 30(a) and
(b) of Article VI of the Constitution of the State of Missouri; and
WHEREAS, pursuant to Article 9 of the Plan, the District is
authorized to make sewer improvements in special benefit subdistricts, to be paid
for by the levying of special benefit assessments against the real property benefited
by the construction of such improvements; and
WHEREAS, Subdistrict No. 99048 (West Watson Road - Nanell Lane)
(the “Subdistrict”) was formed by Ordinance No. 10973, adopted on June 14, 2001,
following submission of a petition from interested property owners in September
1998; and
WHEREAS, the District has undertaken the planning, acquisition,
construction, improvement, repair, rehabilitation and extension of sewer
improvements within Subdistrict No. 99048 (West Watson Road - Nanell Lane)
including related appurtenances and facilities and extensions, improvements,
additions and enlargements made or acquired by the District (the “Project”), and
has applied for a loan from the MDNR in the principal amount not to exceed Five
Hundred Thirty-Five Thousand Six Hundred Dollars ($535,600.00) (the “Loan”) to
finance a portion of the costs of the Project; and
WHEREAS, on March 8, 2001, the District adopted Ordinance No.
10928 providing procedures for the levying of special benefit assessments against
real property benefited by the construction of sewer improvements to be paid by
such special benefit assessments; and
WHEREAS, on September 13, 2001, the District adopted Resolution
No. 2422 declaring the necessity of an improvement consisting of the construction of
lateral sanitary sewers in an area designated Subdistrict No. 99048 (West Watson
Road - Nanell Lane), and provided that the cost of such improvement shall be paid
for by Special Tax Bills or other evidence of special benefit assessments levied on all
land benefited by such construction, whether public or private, exclusive or streets,
roads and alleys within such Subdistrict; and
WHEREAS, on October 11, 2001, the District adopted Resolution No.
2423 declaring the Project to be in the public interest and directed the Subdistrict to
proceed to construction at the expense of the Subdistrict; and
WHEREAS, final construction drawings and specifications have been
prepared, and the District awarded the construction contract on July 8, 2004, by
Ordinance No. 11777; and
WHEREAS, it is the desire and intent of the District to authorize the
execution and delivery of certain agreements and other documents necessary to
evidence the Loan from MDNR to finance a portion of the cost of the Project; and
WHEREAS, prior to the award of the construction contract, the
District previously approved Ordinance No. 11666 on January 8, 2004, authorizing
a loan for the Project and the execution of certain documents in substantially the
form attached thereto, however, the form of said documents has been modified, and
the District wishes to repeal said Ordinance No. 11666 in its entirety and to
approve the Loan and the form of documents attached hereto pursuant to this
Ordinance;
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF
TRUSTEES OF THE METROPOLITAN ST. LOUIS SEWER DISTRICT:
Section One. The District does hereby authorize and approve the
execution and delivery of all documents necessary or desirable in connection with
evidencing the Loan from MDNR in connection with the Project, including but not
necessarily limited to, the following:
a. Financing Agreement dated as of the first day of the month in which the Loan is closed (the “Dated Date”), between the District and MDNR in substantially the form attached hereto as Exhibit A with such changes therein not inconsistent with the provisions of this Ordinance and which are approved by the officers of the District executing the Financing Agreement, such
officers’ signatures thereon being conclusive evidence of their approval thereof.
b. Escrow Trust Agreement dated as of the Dated Date, between the District and the Escrow Agent appointed in Section 5, in substantially the form attached hereto as Exhibit B with such changes therein not inconsistent with the provisions of this Ordinance and which are approved by the officers of the District executing the Escrow Trust Agreement, such officers’ signatures thereon being conclusive evidence of their approval thereof.
Section Two. The Loan shall bear interest at an annual rate equal to
30% of the Twenty-five Revenue Bond Index as published in the Bond Buyer,
immediately prior to the closing of the Loan, rounded to the nearest 0.1% (computed
on the basis of a 360-day year of twelve 30-day months) and shall be payable in
installments as more fully described in the Financing Agreement. The Loan shall
not constitute an indebtedness of the District, the City of St. Louis, Missouri, St.
Louis County, Missouri, or the State of Missouri within the meaning of any
constitutional, statutory or charter debt limitation or restriction. The obligation of
the District to make payments under the Financing Agreement is subject to annual
appropriation as provided therein.
Section Three. The Executive Director of the District is hereby
authorized to execute and deliver, for and on behalf of and as the act and deed of the
District, the Financing Agreement and the Escrow Trust Agreement and to execute
such other documents, certificates and instruments as may be necessary or
desirable to carry out and comply with the intent of this Ordinance. The Secretary-
Treasurer of the District is hereby authorized to attest to the execution of, and to
affix the District’s official seal to, the Financing Agreement, the Escrow Trust
Agreement and any other documents, certificates and instruments as may be
necessary or desirable to carry out and comply with the intent of this Ordinance.
Section Four. The District shall, and the Executive Director and the
Secretary-Treasurer are hereby authorized to, take such further actions and execute
such other documents as may be necessary or desirable to carry out and comply
with the intent of this Ordinance, and to carry out, comply with and perform the
duties of the District with respect to the Financing Agreement, the Escrow Trust
Agreement and all other documents, certificates and instruments in connection with
the Loan.
Section Five. The District hereby appoints the Hardwick Law Firm,
L.L.C. and Gilmore & Bell, P.C. as special co-counsel in connection with this
financing; and appoints Commerce Bank, N.A., as the Escrow Agent to administer
funds under the Escrow Trust Agreement.
Section Six. Ordinance No. 11666 is hereby repealed in its entirety.
The foregoing Ordinance was adopted October 14, 2004.
(EXHIBIT A)
===============================================
FINANCING AGREEMENT
Dated as of November 1, 2004
between
MISSOURI DEPARTMENT OF NATURAL RESOURCES
and
THE METROPOLITAN ST. LOUIS SEWER DISTRICT
relating to
Subdistrict No. 99048
(West Watson Road – Nanell Lane)
===============================================
(i)
FINANCING AGREEMENT
Table of Contents
Page
Parties ........................................................................................................................... 1
Recitals ......................................................................................................................... 1
ARTICLE I
DEFINITIONS
Section 1.1. Definitions .................................................................................................................. 2
Section 1.2. Rules of Interpretation .............................................................................................. 6
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.1. Representations, Warranties and Covenants of the District ................................. 7
Section 2.2. Representations by MDNR .................................................................................... 10
ARTICLE III
EXECUTION OF AGREEMENT; DISBURSEMENTS
Section 3.1. Execution and Delivery of Agreement ................................................................. 11
Section 3.2. Maximum Amount of Loan .................................................................................... 11
Section 3.3. Disbursements .......................................................................................................... 12
Section 3.4. Completion of Project and Initiation of Operations ............................................ 12
Section 3.5. Completion of Disbursements ................................................................................ 12
ARTICLE IV
LOAN PROVISIONS
Section 4.1. The Loan; Loan Term; Loan Payments; Prepayment ......................................... 13
Section 4.2. Termination of Loan Term ..................................................................................... 14
Section 4.3. Continuation of Loan Term .................................................................................... 14
Section 4.4. Non-Appropriation .................................................................................................. 14
Section 4.5. Loan Payments and Additional Payments Are Current Expenses ..................... 15
Section 4.6. Establishment of Funds and Accounts with Paying Agent. .................................
Section 4.7. Disposition of Loan Proceeds and Other Moneys ............................................... 15
Section 4.8. Application of Moneys in the Project Loan Fund ............................................... 15
Section 4.9. Loan Payments and Additional Payments ............................................................ 15
Section 4.10. Debt Service Reserve Fund .................................................................................... 16
Section 4.11. Investment of Moneys ............................................................................................. 16
Section 4.12. Disposition of Remaining Moneys ........................................................................ 16
(ii)
ARTICLE V
ASSIGNMENT
Section 5.1. Assignment of Tax Bills. ........................................................................................ 17
ARTICLE VI
EVENTS OF DEFAULTS AND REMEDIES
Section 6.1. Events of Default ..................................................................................................... 17
Section 6.2. Notice of Default ..................................................................................................... 18
Section 6.3. Remedies on Default ............................................................................................... 18
Section 6.4. Attorneys’ Fees and Other Expenses .................................................................... 19
Section 6.5. Application of Moneys ........................................................................................... 19
Section 6.6. No Remedy Exclusive; Waiver; Notice ................................................................ 19
ARTICLE VII
MISCELLANEOUS
Section 7.1. Effect of Breach ....................................................................................................... 19
Section 7.2. Termination of Agreement ..................................................................................... 19
Section 7.3. Notices ....................................................................................................................... 19
Section 7.4. Exculpatory Provision ............................................................................................. 20
Section 7.5. Amendment .............................................................................................................. 21
Section 7.6. Severability of Invalid Provisions ......................................................................... 21
Section 7.7. Execution in Counterparts ...................................................................................... 21
Section 7.8. Applicable Law ........................................................................................................ 21
Section 7.9. Binding Effect .......................................................................................................... 21
Execution S-1
Schedule 1 Loan Payment Schedule
Exhibit A Form of Requisition (SRF-01)
Exhibit B Applicable Federal Requirements
Exhibit C Closing Certificate of District
Exhibit D Opinion of Special Counsel to District
Financing Agreement dated as of November 1, 2004.
FINANCING AGREEMENT
THIS FINANCING AGREEMENT (this “Financing Agreement” or “Agreement”), dated
as of November 1, 2004, between the MISSOURI DEPARTMENT OF NATURAL
RESOURCES, a department of the State of Missouri (“MDNR”), and THE METROPOLITAN
ST. LOUIS SEWER DISTRICT (the “District”), a body corporate, a municipal corporation and a
political subdivision duly organized and existing under the Constitution and laws of the State of
Missouri and the District’s Plan approved by the voters for its government.
RECITALS
1. The Federal Water Quality Act of 1987, 33 U.S.C. Section 1381 et seq. (the
“Federal Act”), authorizes the Administrator of the United States Environmental Protection
Agency, including its Region VII office located in the City of Kansas City, Kansas (the “EPA”),
to make capitalization grants to states for deposit in state water pollution control revolving funds to
provide assistance for constructing publicly owned wastewater treatment works and for certain
other purposes.
2. Section 644.122, Revised Statutes of Missouri, as amended (“RSMo”), establishes
“The Water and Wastewater Loan Fund” in the Treasury of the State of Missouri and requires
that all moneys received from the EPA capitalization grant program and state matching funds be
deposited in The Water and Wastewater Loan Fund.
3. The Federal Act and regulatory requirements of EPA provide that The Water and
Wastewater Loan Fund be operated in a manner which preserves The Water and Wastewater Loan
Fund in perpetuity for the designated purposes thereof and thereby provide necessary and ongoing
assistance to communities to attain and maintain compliance with the Federal Act.
4. In furtherance of the requirements to preserve The Water and Wastewater Loan
Fund in perpetuity MDNR has entered into the Operating Agreement dated June 15, 1989, as
amended (the “Operating Agreement”) with EPA under which MDNR and its management of The
Water and Wastewater Loan Fund are required to meet certain operational requirements and are
subject to annual oversight reviews by EPA.
5. Pursuant to 10 CSR 20-4.040 through 10 CSR 20-4.050 of the Code of State
Regulations, MDNR, in cooperation with the Clean Water Commission of the State of Missouri
(the “Clean Water Commission”), has developed and implemented the Missouri Direct Loan State
Water Pollution Control Revolving Fund Program (the “SRF Direct Loan Program”) and has stated
its intent to make loans to political subdivisions of the State of Missouri.
6. The Clean Water Commission has approved a loan to the District from The Water
and Wastewater Loan Fund to be made by MDNR pursuant to this Agreement.
2
Financing Agreement dated as of November 1, 2004.
7. The Loan will be made to the District to finance the Project described below.
8. MDNR and the District have determined to enter into this Agreement for the
purposes of financing the Project and setting forth their covenants and agreements respecting the
application of the proceeds of the Loan to finance the Project, in satisfaction of the obligations of
MDNR under the Federal Act and EPA guidance to preserve The Water and Wastewater Loan
Fund in perpetuity.
AGREEMENT
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. In addition to words and terms defined elsewhere in this
Agreement, the following words and terms as used in this Agreement shall have the following
meanings, unless a different meaning clearly appears from the context:
“Account” means any of the accounts established by Section 4 of the Escrow Agreement.
“Actual Reimbursement Amount” means the amount of a Requisition approved for
payment in accordance with Section 3.3(b).
“Additional Interest” means additional interest on the Loan prior to the Completion of
Disbursements in an amount equal to investment earnings on moneys in the Project Loan Fund in
excess of investment earnings thereon calculated at the interest rate on the Loan, computed by the
Paying Agent on a semiannual basis, commencing May 1, 2005. All references in this Agreement
to the payment of interest on the Loan shall include any Additional Interest then due and payable.
“Additional Payments” means the Administrative Fee, the Paying Agent’s fees and
expenses and the extraordinary fees and expenses of the Paying Agent, if any.
“Administrative Expense Fund” means the fund so designated and established by Section 4
of the Escrow Agreement, which Administrative Expense Fund shall not constitute part of the SRF
Direct Loan Program.
“Administrative Fee” means the administrative fee of MDNR in an amount equal to 0.50%
per annum of the aggregate amount of the Loan outstanding as of each Administrative Fee
Calculation Date for so long as the Loan is outstanding (including the maturity date thereof),
payable to the Paying Agent no later than the 15th day after each Administrative Fee Calculation
Date for deposit to the Administrative Expense Fund and subsequent transfer to MDNR as
described in Section 8 of the Escrow Agreement.
“Administrative Fee Calculation Date” means the Business Day preceding each November
1, commencing on the Business Day preceding November 1, 2005.
3
Financing Agreement dated as of November 1, 2004.
“Business Day” means any day other than a Saturday, a Sunday or any other day on which
banking institutions in the State are authorized or required not to be open for the transaction of
regular banking business.
“Closing Date” means November 1, 2004.
“Completion of Disbursements” means the date, established by the District, that no further
disbursements from the Project Loan Fund will be requested, as evidenced by a written certificate
executed by the District and filed with MDNR and the Paying Agent.
“Consulting Engineer” means each independent engineer or engineering firm or
corporation of reputation for skill and experience with respect to the design and construction of
wastewater treatment, sanitary sewerage or water pollution control facilities as may from time to
time be retained by the District.
“Debt Service Fund” means the fund so designated and established by Section 4 of the
Escrow Agreement.
“Debt Service Reserve Fund” means the fund so designated and established by Section 4 of
the Escrow Agreement.
“Debt Service Reserve Requirement” means the amount of $53,560, subject to reduction to
an amount equal to 10% of the principal amount of the Loan outstanding upon the prepayment of
the Loan in part pursuant to Section 4.1(c), (d) or (e).
“Disbursement” means any amount advanced from the Project Loan Fund to the District by
the Paying Agent under this Agreement and Section 6 of the Escrow Agreement to pay Eligible
Costs and Financing Costs.
“District Representative” means the Secretary-Treasurer of the District or any other person
designated in writing by a certificate executed by the Secretary-Treasurer of the District and filed
with the Paying Agent and MDNR.
“Eligible Costs” means Project Costs determined by MDNR to be eligible under 10 CSR
20-4.040 of the Regulations and any amendments thereto.
“Escrow Agreement” means the Escrow Trust Agreement dated as of November 1, 2004,
between the District and the Paying Agent, as supplemented, modified or amended in accordance
with the provisions hereof and thereof.
“Event of Default” means an “Event of Default” as defined in Article VI.
“Excess Debt Service Reserve Amount” means the amount of the reduction in the Debt
Service Reserve Requirement which results from the prepayment of the Loan in part pursuant to
Section 4.1.
4
Financing Agreement dated as of November 1, 2004.
“Executive Director” means the current Executive Director or Acting Executive Director of
the District as appointed by the Board of Trustees.
“Financing Agreement” or “Agreement” means this Financing Agreement, as
supplemented or amended in accordance with the provisions hereof.
“Financing Costs” means the costs related to the making of the Loan as certified by the
District on the Closing Date and approved by MDNR.
“Fiscal Year” means the fiscal year of the District as may be established from time to time
and of which the District gives written notice to MDNR and the Paying Agent. The Fiscal Year
initially is July 1 to June 30.
“Fund” means any of the funds established by Section 4 of the Escrow Agreement.
“Ineligible Costs” means Project Costs which are not Eligible Costs.
“Initiation of Operations” means the date on which the operation (within the meaning of
the Regulations and as established by MDNR) of the Project commenced.
“Interest Account” means the Interest Account established for the District within the Debt
Service Fund under the Escrow Agreement.
“Interest Payment Date” means May 1 and November 1 of each year, beginning on May 1,
2005.
“Interest Period” means each six-month period from May 1 through October 31, inclusive,
and November 1 through April 30, inclusive.
“Investment Securities” has the meaning set forth in the Escrow Agreement.
“Loan” means the loan in the Original Principal Amount made by MDNR to the District
under the SRF Direct Loan Program in accordance with this Agreement.
“Loan Payment” means each amount to be paid by the District in repayment of the Loan
pursuant to Section 4.1, as set forth in the Loan Payment Schedule.
“Loan Payment Date” means May 1 and November 1 of each calendar year, commencing
May 1, 2005.
“Loan Payment Schedule” means the Loan Payment Schedule attached as Schedule 1, as
the same may be modified upon the partial prepayment of the Loan pursuant to Section 4.1(c), (d)
or (e).
“Loan Term” means the Original Term and all Renewal Terms, but ending on the
occurrence of the earliest event specified in Section 4.2.
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Financing Agreement dated as of November 1, 2004.
“Maximum Loan Term” means the Original Term and all Renewal Terms through the
Renewal Term ending November 1, 2014.
“Ordinance” means Ordinance No. 11874 of the District, adopted October 14, 2004,
authorizing this Agreement and the Escrow Agreement.
“Original Principal Amount” means $535,600.
“Original Term” means the period from the Closing Date until the end of the Fiscal Year of
the District in effect at the Closing Date.
“Paying Agent” means Commerce Bank, N.A., Kansas City, Missouri, the paying agent
and escrow agent, and its successors and assigns acting at any time as paying agent and escrow
agent under this Agreement and the Escrow Agreement.
“Principal Account” means the Principal Account established for the District within the
Debt Service Fund under the Escrow Agreement so designated and established by Section 4 of the
Escrow Agreement
“Project” means the planning, acquisition, construction, improvement, repair,
rehabilitation, and extension of sewer improvements within Subdistrict No. 99048 including the
related appurtenances and facilities and extensions, improvements, additions and enlargements
thereto made or acquired by the District; which constitute a project for which MDNR is making the
Loan to the District pursuant to this Financing Agreement, with such additions, deletions,
modifications or changes as may be agreed to in writing by the District and MDNR, with written
notice to the Paying Agent, provided that such written notice shall specify the scope of the
changes.
“Project Costs” means all costs or expenses which are necessary or incident to the Project
and directly attributable thereto, which consist of Eligible Costs and Ineligible Costs, if any.
“Project Loan Fund” means the fund so designated and established by Section 4 of the
Escrow Agreement.
“Regulations” means 10 CSR 20-4.040 through 10 CSR 20-4.050 of the Code of State
Regulations, as amended.
“Renewal Terms” means the optional renewal terms of the Loan pursuant to Article IV,
each having a duration of one year and a term co-extensive with the Fiscal Year of the District.
“Requisition” means Form SRF-01, in substantially the form of Exhibit A, with such
changes thereto as are approved by MDNR with written notice to the District and the Paying
Agent.
“State” means the State of Missouri.
6
Financing Agreement dated as of November 1, 2004.
“Subdistrict” means Subdistrict No. 99048 (West Watson Road - Nanell Lane) consisting
of sixty (60) properties located in St. Louis County, Missouri, formed by Ordinance No. 10973
adopted on June 14, 2001, following submission of a petition from interested property owners in
September 1998.
“Supplemental Agreement” means any agreement supplementing or amending this
Agreement pursuant to Section 7.5.
“System” means the District’s entire wastewater treatment or sanitary sewerage facilities
now or hereafter owned or operated by the District for the collection, treatment or disposal of
sewage.
“Tax Bills” means the special tax bills to be issued by the District pursuant to Section 9.060
of the Plan of the District, Ordinance No. 10928 and Ordinance No. 10973 creating the special
benefit district for the Subdistrict of the District, constituting liens on the properties of the
Subdistrict charged.
Section 1.2. Rules of Interpretation.
(a) Words of the masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders.
(b) Unless the context shall otherwise indicate, the words importing the singular
number shall include the plural and vice versa, and words importing persons shall include firms,
associations and corporations, including public bodies, as well as natural persons.
(c) All references in this Agreement to designated “Articles”, “Sections” and other
subsections are, unless otherwise specified, to the designated Articles, Sections and subsections of
this Agreement as originally executed.
(d) The words “herein”, “hereof”, “hereunder” and other words of similar import refer
to this Agreement as a whole and not to any particular Article, Section or subsection.
(e) Wherever an item or items are listed after the word “including” or “include,” such
listing is not intended to be a listing that excludes items not listed.
(f) All approvals, notices, consents and other actions of MDNR under this Agreement
(other than the execution of this Agreement and any amendments hereto) shall be executed by the
Director, Financial Assistance Center, Water Protection Program (“WPP”) of MDNR or designee,
such designation to be made by a written instrument filed with the District and the Paying Agent
by the Director, Financial Assistance Center, WPP, or in the event this position is vacant, the
Acting Director, Financial Assistance Center.
7
Financing Agreement dated as of November 1, 2004.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.1. Representations, Warranties and Covenants of the District. The District
represents and warrants to and covenants with MDNR as follows:
a. Organization and Authority.
(i) The District is a body corporate, a municipal corporation and a political
subdivision of the State of Missouri duly created and validly existing under and pursuant to
the constitution of the State of Missouri and the Plan of the District adopted by the voters
of the District for its government and has all requisite power and authority to own its
properties and carry on its governmental functions as now being conducted.
(ii) The District has full legal right and authority and all necessary licenses and
permits required as of the date hereof to own, operate and maintain the System, to carry on
its activities relating thereto, to execute and deliver this Agreement, to undertake and
complete the Project, and to carry out and consummate all transactions and obligations
contemplated by this Agreement.
(iii) The proceedings of the District’s governing body approving this Agreement
and authorizing the District to undertake and complete the Project have been duly and
lawfully adopted.
(iv) This Agreement and the Escrow Agreement have been duly authorized,
executed and delivered by the District and constitute the legal, valid and binding
obligations of the District enforceable in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting
creditors’ rights and to the exercise of judicial discretion in accordance with general
principles of equity.
b. Full Disclosure. To the best knowledge of the District, after due investigation, there
is no fact that the District has not disclosed to MDNR in writing on the District’s application for
participation in the SRF Direct Loan Program, or otherwise, that materially adversely affects or
that may materially adversely affect the properties or activities of the District, or the System, or the
ability of the District to make all Loan Payments, issue the Tax Bills upon the Completion of
Disbursements and otherwise observe and perform its duties, covenants, obligations and
agreements under this Agreement.
c. Pending Litigation. To the best knowledge of the District, after due investigation,
there are no proceedings pending or, to the knowledge of the District, threatened against or
affecting the District, in any court or before any governmental authority or arbitration board or
tribunal that, if adversely determined, would materially adversely affect the properties, activities,
prospects or condition (financial or otherwise) of the District or the System, or the ability of the
District to make all Loan Payments, issue the Tax Bills upon the Completion of Disbursements and
8
Financing Agreement dated as of November 1, 2004.
otherwise observe and perform its duties, covenants, obligations and agreements under this
Agreement, that have not been disclosed in writing to MDNR in the District’s application for
participation in the SRF Direct Loan Program or otherwise.
d. Compliance with Existing Laws and Agreements. The agreements of the District
in this Agreement will not constitute a default under any indenture, mortgage, deed of trust, lease
or agreement or other instrument executed by the District or by which it or any of its property is
bound or any applicable law, rule, regulation or judicial proceeding.
e. No Defaults. No event has occurred and no condition exists that constitutes or,
with the giving of notice or the lapse of time, would constitute an Event of Default. To the best
knowledge of the District, after due investigation, the District is not in violation of any
agreement which would materially adversely affect the ability of the District to make all Loan
Payments or otherwise observe and perform its agreements under this Agreement.
f. Governmental Consent. To the best of its knowledge, the District has made all
filings which it is obligated to make with, and has obtained all permits, licenses, franchises,
consents, authorizations and approvals required to date from, all federal, state and local
regulatory agencies having jurisdiction to the extent, if any, required by applicable laws and
regulations to be made or to be obtained in undertaking the Project or this Agreement. To the
best of its knowledge, the District has complied with all applicable provisions of law requiring
any notification to any governmental body or officer in connection with this Agreement or with
the undertaking, completion or financing of the Project.
g. Source of Revenue. The District has established a dedicated revenue source for the
payment of its obligations under this Agreement. The dedicated source of revenue includes the
Tax Bills when issued and any other source of revenue lawfully available to the District for such
purpose. Nothing contained in this Agreement shall be construed to constitute a pledge of any
moneys or revenues of, or impose any payment obligation on, the District except as set forth in
Article IV.
h. Performance Under Agreement. The District covenants and agrees:
(i) to comply with all applicable State and federal laws, rules and regulations in
the performance of this Agreement, including federal laws and executive orders referenced
in Exhibit B; and
(ii) to cooperate with MDNR in the timely observance and performance of the
respective duties, covenants, obligations and agreements of the District and MDNR under
this Agreement.
i. Completion of Project and Provision of Moneys Therefore. The District covenants
and agrees:
(i) to complete the Project in a timely manner; and
9
Financing Agreement dated as of November 1, 2004.
(ii) to provide from its own financial resources, to the extent of legally available
funds, all moneys in excess of the amount available under this Agreement required to
complete the Project.
j. Requests for Disbursements; Use of Proceeds. The District shall request
Disbursements to pay Eligible Costs in accordance with this Agreement to the extent moneys are
available in the Project Loan Fund for Disbursements in order to provide for the prompt payment
of the contractors. The District will apply the Disbursements to finance a portion of the Project
Costs, and, where applicable, to reimburse the District for a portion of the Project Costs, which
portion was paid or incurred in anticipation of reimbursement from moneys held in the Project
Loan Fund and is eligible for such reimbursement pursuant to the Regulations. All costs will be
Eligible Costs which MDNR is authorized to finance pursuant to the Act and the Regulations. The
District is obligated to meet its obligations to its construction contractors whether or not
Disbursements are received by the District.
k. Completion Required Without Regard to Sufficiency of Loan Proceeds. Subject to
the provisions of the Ordinance, the District agrees to complete the Project regardless of whether or
not the proceeds of the Loan are sufficient to complete the Project.
l. Notice of Completion. The District agrees to provide written notice of the
completion of construction and Initiation of Operation of the Project to MDNR.
m. Compliance Certification. Promptly after the first anniversary of the Initiation of
Operation, the District will certify to MDNR whether the Project meets the performance standards
for the Project. Any statement of noncompliance must be accompanied by a corrective action
report containing an analysis of the cause of the Project’s failure to meet performance standards,
actions necessary to bring it into compliance and a projected date for positive certification of the
Project. Timely corrective action will be implemented by the District.
n. Retention of Project Records. The District will retain all records related to the
Project for a minimum period of four years following the Completion of Disbursements. The
District shall retain all Project records related to post-completion activities for a minimum period
of four years following the repayment of the Loan.
o. Operation and Maintenance of System. The District covenants and agrees that it
shall, in accordance with prudent wastewater treatment utility practice and subject to applicable
law,
(i) at all times operate the System in an efficient manner,
(ii) maintain the System in good repair, working order and operating condition
over the structural and design life of the System,
(iii) implement the user charge and sewer use ordinance or resolution as
approved by MDNR prior to the Initiation of Operation and for the life of the System, and
10
Financing Agreement dated as of November 1, 2004.
(iv) in accordance with 10 CSR 20-9.020 of the Regulations, provide a certified
operator for the life of the System.
p. Records and Accounts.
(i) The District will keep accurate records and accounts for the System (the
“System Records”) separate and distinct from its other records and accounts (the
“General Accounts”). If the aggregate Disbursements made under this Agreement
exceeds $500,000 during any Fiscal Year of the District, the District will complete an
audit of its System Records for the Fiscal Year in accordance with OMB Circular No.
A−133, Audits of States, Local Governments, and Non-Profit Organizations (which has
replaced OMB Circular No. A-128). The System Records and General Accounts will be
available for inspection by MDNR at any reasonable time, and a copy of the District’s
annual audit, including all written comments and recommendations of the accountant,
will be furnished to MDNR within the time period provided in OMB Circular No. A−133.
(ii) The District will maintain the System Records in accordance with
generally accepted accounting principles as codified in the Governmental Accounting
Standards Board’s Codification of Governmental Accounting and Financial Reporting
Standards (Codification).
q. Inspections; Information. The District will permit EPA, MDNR and any party
designated by MDNR to examine, visit and inspect the Project at any reasonable time, and to
inspect and make copies of any accounts, books and records, including (without limitation) its
records regarding receipts, disbursements, contracts, investments, financial standing and other
related matters, and will supply such reports and information as EPA and MDNR may reasonably
require in that connection.
r. Insurance. The District will carry and maintain such reasonable amount of all risk
insurance on the properties and operations of the System as would be carried by similar municipal
operators of wastewater treatment facilities, insofar as the properties are of an insurable nature.
s. Notice of Material Adverse Change. The District will promptly notify the Paying
Agent and MDNR of any material adverse change in the activities, prospects or condition
(financial or otherwise) of the System, or in the ability of the District to make all Loan Payments
and otherwise observe and perform its duties, covenants, obligations and agreements under this
Agreement.
Section 2.2. Representations by MDNR. MDNR represents to and covenants with the
District, as follows:
a. MDNR is a department of the State and a governmental instrumentality duly
organized and existing under the laws of the State with lawful power and authority to enter into
this Agreement acting by and through its duly authorized officers.
11
Financing Agreement dated as of November 1, 2004.
b. MDNR is the State’s administrative body responsible for the enforcement and
management of the SRF Direct Loan Program.
c. The execution, delivery and performance of this Agreement by MDNR will not
result in a breach of any of the terms of, or constitute a default under, any indenture, mortgage,
deed of trust, lease or agreement or other instrument to which MDNR is a party or by which it or
any of its property is bound or any applicable law, rule or regulation.
d. MDNR will, in a timely manner, process Requisitions in accordance with this
Agreement.
e. MDNR acknowledges and consents to the form and substance of the Escrow
Agreement.
ARTICLE III
EXECUTION OF AGREEMENT; DISBURSEMENTS
Section 3.1. Execution and Delivery of Agreement. Simultaneously with the execution of
this Agreement, the District will deliver to MDNR and the Paying Agent each of the following:
(a) a copy of the Ordinance, certified as true and correct by the Secretary-
Treasurer of the District;
(b) a certificate of the District executed by a District Representative (in the
form attached hereto as Exhibit C);
(c) a signed copy of the opinion of special counsel to the District (in the form
attached hereto as Exhibit D);
(d) a signed opinion of general counsel to the District (in the form attached as
Exhibit E); and
(e) an executed counterpart of the Agreement, or a copy thereof certified as true
and correct by the Secretary-Treasurer of the District.
Section 3.2. Maximum Amount of Loan. Subject to all of the terms, provisions and
conditions of this Agreement, including particularly Article IV, MDNR will make the Loan to the
District in the maximum amount equal to the Original Principal Amount to pay all or a portion of
the Eligible Costs of the Project and, if applicable, subject to the written approval of MDNR,
Financing Costs. The Original Principal Amount of the Loan may be reduced without revision of
any other terms, provisions or conditions of this Agreement to reflect reductions in the estimated or
actual total Eligible Costs as impacted by opening of bids, changes in the Project approved by
MDNR, final actual Eligible Costs and prepayments.
12
Financing Agreement dated as of November 1, 2004.
Section 3.3. Disbursements.
(a) Disbursements from the Project Loan Fund will be made in accordance with this
Section and Section 6 of the Escrow Agreement. Disbursements can be requested only once each
calendar month. The District will deliver, by overnight delivery service, first class mail or other
similar means, a completed Requisition to MDNR and the Paying Agent. The Requisition must be
executed by the District Representative, set forth the amounts due and payable to the payees
identified in signed invoices or statements attached to the Requisition as submitted to MDNR and
contain such additional information as MDNR may request. The execution and delivery of a
Requisition shall be deemed to be a representation by the District that, to the best knowledge of the
District, the amounts for which a Disbursement is requested are due and payable and constitute
Eligible Costs.
(b) MDNR will undertake a full review of a Requisition within ten Business Days after
the receipt thereof to determine if any Project Costs are Ineligible Costs. This determination shall
be conclusive and binding on all parties. By the close of business on the tenth Business Day
following the receipt of a Requisition, MDNR will notify the Paying Agent of MDNR’s approval
of the Requisition in whole or in part by transmitting to the Paying Agent the approved Requisition
by facsimile transmission. The approved Requisition will not be accompanied by applicable
vouchers and statements. The Paying Agent will pay the Actual Reimbursement Amount, as set
forth in each Requisition from moneys available for such purpose, to the District within five
Business Days after the Paying Agent’s receipt of the approved Requisition. MDNR will not
approve any Disbursement upon an Event of Default by the District, an event of non-appropriation
by the District or the issuance of a stop-work order by EPA or MDNR.
(c) Any proceeds remaining in the Project Loan Fund on the Completion of
Disbursements, shall be applied to prepay the Loan in accordance with Section 4.1(c).
Section 3.4. Completion of Project and Initiation of Operations. The completion of
construction of the Project shall be evidenced to the Paying Agent and MDNR by a certificate
signed by the District Representative stating (i) that the construction of the Project has been
completed in accordance with the plans and specifications therefor, (ii) that all costs and expenses
incurred in the construction of the Project have been paid except costs and expenses the payment of
which is not yet due or is being retained or contested in good faith by the District, (iii) the Initiation
of Operation, and (iv) that the Project meets NPDES permit limits, if applicable. This certificate
must be accompanied by a certification by the Consulting Engineer that the Project meets NPDES
permit limits, if applicable. This certificate may state that it is given without prejudice to any
rights of the District against third parties which exist at the date of the certificate or which may
subsequently come into being.
Section 3.5. Completion of Disbursements. The Completion of Disbursements will be the
date of a certificate, signed by the District Representative and delivered to the Paying Agent and
MDNR, stating that no further disbursements from the Project Loan Fund will be requested by the
District. The District agrees that it will request no further disbursements following execution by it
of such certificate.
13
Financing Agreement dated as of November 1, 2004.
Section One. ARTICLE IV
LOAN PROVISIONS
Section 4.1. The Loan; Loan Term; Loan Payments; Prepayment.
(a) MDNR will make the Loan to the District on the Closing Date by depositing the
Original Principal Amount with the Paying Agent for deposit in the Project Loan Fund and the
Debt Service Reserve Fund, as provided in the Escrow Agreement. The Loan will bear interest at
the annual interest rate of ____%, plus Additional Interest, from the Closing Date, and will be for
the Original Term, subject to renewal for successive Renewal Terms as provided in paragraph (b).
The Loan is subject to repayment and prepayment in accordance with this Article IV.
(b) Subject to the terms, provisions and conditions of this Agreement, including this
Article IV, the District will repay the Loan by making Loan Payments during the Loan Term as
provided in Section 4.9. A portion of Loan Payments due on each Principal Payment Date
constitutes interest and a portion constitutes principal. The interest component and the principal
component of each Loan Payment is designated in the Loan Payment Schedule. The Original
Term of the Loan will commence on the Closing Date and will terminate on June 30, 2005, the last
day of the District’s current Fiscal Year. The Loan Term may be continued, solely at the option of
the District, at the end of the Original Term or any Renewal Term for an additional Renewal Term
up to the Maximum Loan Term. At the end of the Original Term and at the end of each Renewal
Term until the Maximum Loan Term has been completed, the District will be deemed to have
exercised its option to continue the Loan Term for the next Renewal Term unless the District has
terminated this Agreement pursuant to Section 4.2. The terms and conditions of the Loan during
any Renewal Term shall be the same as the terms and conditions during the Original Term, except
that the Loan Payments for each Renewal Term will be in the amounts set forth in the Payment
Schedule.
(c) The Loan will be prepaid in part, in an amount equal to the amount remaining on
deposit in the Project Loan Fund upon the receipt by the Paying Agent of the Certificate of the
District establishing the Completion of Disbursements, on the earliest practicable date for which
notice may be given, without prepayment penalty, plus accrued interest to the date of prepayment.
(d) The Loan will be prepaid in part upon the District’s receipt of the prepayment of a
Tax Bill, on the earliest practicable date for which notice may be given, without prepayment
penalty, plus accrued interest to the date of prepayment.
(e) At the option of the District, the Loan may be prepaid in whole or in part on any
Interest Payment Date without prepayment penalty, plus accrued interest thereon to the date of
prepayment.
(f) Notice of any prepayment must be given by the Paying Agent on behalf of the
District by mailing a copy of an official prepayment notice to MDNR by first class mail, postage
14
Financing Agreement dated as of November 1, 2004.
prepaid, at least 15 days, but not more than 30 days, prior to the date fixed for prepayment. All
official notices of prepayment shall be dated and shall state (i) the prepayment date, (ii) the
principal amount of the Loan being prepaid, and (iii) the amount of accrued interest on such
principal prepaid. Unless waived, the District shall give the Paying Agent written notice of the
prepayment date not less than 10 days prior to the date that the Paying Agent is required to mail
MDNR the prepayment notice.
(g) Upon the prepayment of the Loan in part, the Loan Payment Schedule will be
modified by MDNR, without the prior written consent of the District, in a written instrument
delivered to the Paying Agent and the District.
Section 4.2. Termination of Loan Term. The Loan Term shall terminate upon the
earliest of any of the following events:
(a) the expiration of the Original Term or any Renewal Term and the non-
renewal of the Loan in the event of non-appropriation of funds pursuant to Section 4.4;
(b) a default by the District and MDNR’s election to terminate this Agreement
under Article VI; or
(c) the payment by the District of all Loan Payments authorized or required to
be paid by the District during the Maximum Loan Term.
Section 4.3. Continuation of Loan Term. The District currently intends, subject to the
provisions of Section 4.4, to continue the Loan Term through the Original Term and all Renewal
Terms and to pay the Loan Payments. The District reasonably believes that legally available funds
will be available in an amount sufficient to make the Loan Payments and the Additional Payments
during the Original Term and each of the Renewal Terms. The District currently intends to do all
things lawfully within its power to obtain and maintain funds from which the Loan Payments and
the Additional Payments may be made, including making provision for such payments to the
extent necessary in each proposed annual budget submitted for approval in accordance with
applicable procedures of the District and to exhaust all available reviews and appeals in the event
such portion of the budget is not approved. Notwithstanding the foregoing, the decision whether or
not to appropriate funds or to extend the Loan for any Renewal Term is solely within the discretion
of the then-current governing body of the District.
Section 4.4. Non-Appropriation. The obligation of the District to make Loan Payments
and Additional Payments are limited to such funds as may lawfully budgeted and appropriated by
the District for that purpose for the District’s then current Fiscal Year. If sufficient funds are not
appropriated or are not otherwise legally available to make the Loan Payments due in the next
Renewal Term, the Loan will be deemed to be terminated at the end of the then current Original
Term or Renewal Term. The District agrees to deliver notice to the Paying Agent and MDNR of
termination within one week after the approval of the District’s budget for the Fiscal Year by the
governing body of the District, but failure to give this notice will not extend the Loan Term beyond
the Original Term or Renewal Term.
15
Financing Agreement dated as of November 1, 2004.
Section 4.5. Loan Payments and Additional Payments Are Current Expenses. The
obligations of the District to pay Loan Payments and Additional Payments constitute a current
expense of the District, are from Fiscal Year to Fiscal Year and do not constitute a mandatory
payment obligation of the District in any Fiscal Year beyond the then current Fiscal Year of the
District. The District’s obligations under this Agreement and the Escrow Agreement will not in
any way be construed to be a debt of the District in contravention of any applicable constitutional,
statutory or charter limitation or requirement concerning the creation of indebtedness by the
District, nor will anything contained in this Agreement or the Escrow Agreement constitute a
pledge of the general credit, tax revenues, funds or moneys of the District.
Section 4.6. Establishment of Funds and Accounts with Paying Agent. The District
hereby agrees to cause to be created and established the following special funds and accounts, each
of which will be held by the Paying Agent under the Escrow Agreement:
(a) Debt Service Fund, consisting of a Principal Account and an Interest Account;
(b) Project Loan Fund;
(c) Debt Service Reserve Fund; and
(d) Administrative Expense Fund.
Section 4.7. Disposition of Loan Proceeds and Other Moneys. The proceeds of the Loan
in the Original Principal Amount will be deposited on the Closing Date with the Paying Agent.
The Paying Agent shall deposit $482,040 in the Project Loan Fund and $53,560 in the Debt
Service Reserve Fund, which moneys shall be disbursed in accordance with this Agreement and
Sections 6 and 7 of the Escrow Agreement.
Section 4.8. Application of Moneys in the Project Loan Fund.
(a) Moneys in the Project Loan Fund will be disbursed to the District for the sole
purpose of paying Eligible Costs and for paying the costs and expenses incident to the Loan.
(b) Requisitions shall be submitted for withdrawals from the Project Loan Fund in
accordance with Article III, and accompanied by a certificate executed by the District
Representative that such payment is being made for a purpose within the scope of this Agreement
and that the amount of such payment represents only the contract price of the property, equipment,
labor, materials or service being paid for or, if such payment is not being made pursuant to an
express contract, that such payment is not in excess of the reasonable value thereof.
Section 4.9. Loan Payments and Additional Payments.
(a) The District will repay the Loan by making Loan Payments on each Loan Payment
Date (or if that day is not a Business Day, the next succeeding Business Day), with the interest
portion of each Loan Payment and the Additional Interest deposited to the Interest Account and the
principal portion deposited to the Principal Account, provided that an amount equal to the moneys
16
Financing Agreement dated as of November 1, 2004.
remaining in the Debt Service Fund after the payment of Loan Payment to MDNR on an Interest
Payment Date shall be credited against the next Loan Payment due after that Interest Payment
Date, and an amount equal to actual investment earnings on moneys in the Project Loan Fund
(other than an amount equal to Additional Interest) and the Debt Service Reserve Fund will be
credited against the Loan Payments due on and prior to the next Interest Payment Date on a pro
rata basis.
(b) The District will pay the Additional Payments on each Interest Payment Date to the
Paying Agent for deposit to the Administrative Expense Fund, upon receipt of an invoice for the
Additional Payments from the Paying Agent.
Section 4.10. Debt Service Reserve Fund.
(a) On the Closing Date an amount equal to the Debt Service Reserve Requirement
will be deposited in the Debt Service Reserve Fund from proceeds of the Loan.
(b) The Paying Agent is authorized to transfer from the Debt Service Reserve Fund the
amount of the deficiency in any Loan Payment or other payment on any date specified in Section
4.9(b) pursuant to the Escrow Agreement, at the written direction of MDNR. If the Loan is
terminated at the end of the then current Original Term or Renewal Term in accordance with
Section 4.4, moneys then on deposit in the Debt Service Reserve Fund will be transferred by the
Paying Agent prior to the end of the then current Original Term or Renewal Term, to the Interest
Account to the extent of interest then due and payable on the Loan and the balance to the Principal
Account. On the date on which the Loan is prepaid in part pursuant to Section 4.1, the Paying
Agent will transfer the Excess Debt Service Reserve Amount to the District.
(c) If at any time a transfer is made from the Debt Service Reserve Fund pursuant to
the first sentence of paragraph (b), the District will pay the amount transferred within 30 days of
such transfer to the Paying Agent for deposit into the Debt Service Reserve Fund.
(d) At the written direction of the District, moneys in the Debt Service Reserve Fund
will be used to make the final Loan Payments in inverse order of their due dates. Any amounts in
the Debt Service Reserve Fund in excess of the Debt Service Reserve Requirement on any Interest
Payment Date will be transferred to the Interest Account.
Section 4.11. Investment of Moneys. Moneys held by the Paying Agent in the Funds and
Accounts established pursuant to the Escrow Agreement shall be invested at the written direction
of the District in Investment Securities in accordance with Section 10 of the Escrow Agreement.
All earnings on any investments held in any Fund or Account shall be credited to Funds and
Accounts as provided in Section 10 of the Escrow Agreement, for further application as provided
in Sections 6 and 7 thereof. In determining the amount held in any Fund or Account under any of
the provisions of this Agreement, obligations will be valued at the lower of the cost or the market
value thereof.
Section 4.12. Disposition of Remaining Moneys. Following the payment in full of the
Loan and the payment of the Additional Payments, the Paying Agent will transfer the remaining
17
Financing Agreement dated as of November 1, 2004.
balances in the Principal Account, the Interest Account and the Debt Service Reserve Fund to the
District.
Section Two. ARTICLE V
ASSIGNMENT
Section 5.1. Assignment of Tax Bills. To secure the repayment of the Loan in full, upon
the issuance of the Tax Bills the District will assign all of its right, title and interest in the Tax Bills
to MDNR. The District will execute any documentation reasonably requested by MDNR to
perfect the security interest of MDNR in the Tax Bills.
Section Three. ARTICLE VI
EVENTS OF DEFAULTS AND REMEDIES
Section 6.1. Events of Default. Any of the following events will be an “Event of Default”
under this Agreement:
(a) failure by the District to pay, or cause to be paid, any Loan Payment
required to be paid when due pursuant to Article IV;
(b) failure by the District to observe and perform any agreement on its part to
be observed or performed under this Agreement, other than as referred to in paragraph (a),
and the continuation of the failure for a period of 30 days after written notice is given
pursuant to Section 6.2; except if the failure stated in the notice is correctable but cannot be
corrected within the applicable period and corrective action is instituted and diligently
pursued by the District, MDNR may not unreasonably withhold its consent to an extension
to the date which is 90 days after the delivery of the original notice;
(c) any representation made by or on behalf of the District contained in this
Agreement or in any instrument furnished in compliance with or with reference to this
Agreement, is determined by MDNR to be false or misleading in any material respect;
(d) a petition is filed by or against the District under any federal or state
bankruptcy or insolvency law or other similar law, unless any petition filed against the
District is dismissed within 30 days after such filing and the dismissal is final and not
subject to appeal; and
(e) the District generally fails to pay its debts as they become due.
Notwithstanding anything in this Agreement to the contrary, if any condition, event or act
which, with the giving of notice or the passage of time, or both, would constitute an Event of
18
Financing Agreement dated as of November 1, 2004.
Default under this Agreement occurs, MDNR in its sole discretion, with written notice to the
District and the Paying Agent, may refrain from approving Disbursements.
Section 6.2. Notice of Default. The District shall give the Paying Agent and MDNR
prompt telephonic notice of the occurrence of any Event of Default referred to in Section 6.1(d) or
(e) and of the occurrence of any other event or condition which, with the passage of time or the
giving of notice, or both, would constitute an Event of Default. Telephonic notice will be
immediately followed by written notice of the Event of Default. Notice of default given to the
District by MDNR will specify the event or condition, state that the event or condition constitutes
an Event of Default if not remedied, and request that the event or condition be remedied. Except as
provided in the first sentence of this Section, notice will be given in the manner provided in
Section 7.3.
Section 6.3. Remedies on Default. Whenever an Event of Default referred to in Section
6.1 shall have occurred and be continuing, MDNR shall have the right, by written notice to the
District, with a copy to the Paying Agent,
(a) to declare all Loan Payments and other amounts payable by the District
under this Agreement to the end of the then current Original Term or Renewal Term to be
due;
(b) to apply moneys in the Debt Service Reserve Fund to the remaining balance
of the Loan;
(c) by mandamus or other suit, action or proceedings at law or in equity to
enforce the rights of MDNR against the District and its officers, agents and employees, and
to require and compel duties and obligations required by the provisions of this Agreement
or by the constitution and laws of the State;
(d) by suit, action or other proceedings in equity or at law to require the
District, its officers, agents and employees to account as if they were the trustees of an
express trust;
(e) by suit, action or other proceedings in equity or at law to enjoin any acts or
things which may be unlawful or in violation of the rights of MDNR;
(f) to withhold approval of any Disbursement; and
(g) to take such action as otherwise provided by law;
provided, however, that any amounts payable by the District are expressly limited by the
provisions of Article IV.
19
Financing Agreement dated as of November 1, 2004.
Section 6.4. Attorneys’ Fees and Other Expenses.
(a) To the extent permitted by law, upon (i) an Event of Default or (ii) the occurrence
and continuance of any event which, with the giving of notice or lapse of time or both, would
constitute an Event of Default, the District, on demand, will pay to the Paying Agent and MDNR
the reasonable fees and expenses of attorneys and other reasonable fees, costs and expenses
(including the reasonably allocated costs of in-house counsel and legal staff) incurred by the
Paying Agent and MDNR in the collection of Loan Payments or the enforcement of any
agreements of the District.
(b) Prior to incurring any fees, costs and expenses, the Paying Agent and MDNR will
provide written notice to the District that it intends to incur fees, costs and expenses. Failure by
the Paying Agent or MDNR to give the notice will not affect the Paying Agent’s or MDNR’s
right to receive payment for attorney’s fees and expenses under this Section. Upon request by
the District, the Paying Agent and MDNR will provide the District with copies of statements
evidencing the fees, costs and expenses for which the Paying Agent or MDNR is requesting
payment. The statements may be edited to maintain the attorney-client privilege.
Section 6.5. Application of Moneys. Any moneys collected by MDNR pursuant to Section
6.3 will be applied first, to pay interest on the Loan then due and payable, second, to pay principal
of the Loan then due and payable, third, to pay the fees, costs and expenses owed by the District
pursuant to Section 6.4, and fourth, to pay other amounts due and payable under this Agreement.
Section 6.6. No Remedy Exclusive; Waiver; Notice. No remedy conferred upon or
reserved to MDNR or the Paying Agent is intended to be exclusive and every such remedy is
cumulative and in addition to every other remedy given under this Agreement or existing at law or
in equity. No delay or omission to exercise any right, remedy or power accruing upon any Event
of Default will impair any right, remedy or power or will be construed as a waiver. Any right,
remedy or power may be exercised from time to time and as often as may be deemed expedient.
Neither the Paying Agent nor MDNR are required to give notice to the District in advance of the
exercise of any right, remedy or power reserved to them in this Article, except as expressly
provided in this Article.
Section Four. ARTICLE VII
MISCELLANEOUS
Section 7.1. Effect of Breach. Failure on the part of MDNR in any instance or under any
circumstances to observe or fully perform any obligation assumed by or imposed upon it by this
Agreement or by law shall not make MDNR liable in damages to the District or relieve the District
from making any payment to MDNR or fully performing any other agreement under this
Agreement. The District may have and pursue any other remedies provided by law for compelling
performance by MDNR of any agreement of MDNR.
20
Financing Agreement dated as of November 1, 2004.
Section 7.2. Termination of Agreement. This Agreement will terminate with respect to the
District upon the payment in full of the Loan and when the District and MDNR have fully
performed all agreements under this Agreement.
Section 7.3. Notices. All notices, filings and other communications will be given by first-
class mail, postage pre-paid, or sent by telegram, telecopy or telex or other similar
communication, or delivered by a reputable private courier or overnight delivery service,
addressed as follows (notice to the Paying Agent shall be effective only upon receipt):
MDNR:
General:
Missouri Department of Natural Resources
Water Protection Program
P.O. Box 176 (zip code 65102)
205 Jefferson
Jefferson City, Missouri 65101
Attention: Director, Financial Assistance Center
For Requisitions:
Missouri Department of Natural Resources
Water Protection Program
P.O. Box 176 (zip code 65102)
205 Jefferson
Jefferson City, Missouri 65101
Attention: Payment and Account Specialist
Financial Assistance Center
Paying Agent:
Commerce Bank, N.A.
922 Walnut Street, TBMZ-5
Kansas City, Missouri 64106
Attention: Corporate Trust Department
District:
The Metropolitan St. Louis Sewer District
2350 Market Street
St. Louis, Missouri 63103
Attention: Executive Director
Each party may change its address by giving written notice of the new address to the other parties.
Section 7.4. Exculpatory Provision. In exercising powers under this Agreement, the
District and MDNR and their members, directors, officers, employees and agents will not be
21
Financing Agreement dated as of November 1, 2004.
liable to any other party to this Agreement (i) for any actions taken or omitted by it or its
members, officers, directors, employees or agents in good faith and believed by it or them to be
authorized or within their discretion or rights or powers conferred upon them, or (ii) for any
claims based on this Agreement against any member, director, officer, employee or agent of the
District or MDNR in his or her individual capacity.
Section 7.5. Amendment. This Agreement may be amended by a written instrument
executed by the parties to this Agreement. No amendment affecting the rights, duties or
obligations of the Paying Agent shall be effective unless consented to by the Paying Agent.
Section 7.6. Severability of Invalid Provisions. If any agreement provided in this
Agreement is contrary to law, that agreement will be severable from the remaining agreements and
will not affect the validity of the other provisions of this Agreement.
Section 7.7. Execution in Counterparts. This Agreement may be executed in any number
of counterparts, each of which will be regarded for all purposes as one original and constitute one
and the same instrument.
Section 7.8. Applicable Law. This Agreement shall be governed exclusively by the
applicable laws of the State.
Section 7.9. Binding Effect. This Agreement shall inure to the benefit of and shall be
binding upon the District and MDNR and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed by
their respective officers hereunto duly authorized and dated as of the day and year first above
written.
[remainder of this page intentionally left blank]
S-1
Financing Agreement dated as of November 1, 2004.
THIS FINANCING AGREEMENT is executed as of the date first hereinabove written.
MISSOURI DEPARTMENT OF NATURAL
RESOURCES
By
Department Director
S-2
Financing Agreement dated as of November 1, 2004.
THIS FINANCING AGREEMENT is executed as of the date first hereinabove written.
THE METROPOLITAN ST. LOUIS
SEWER DISTRICT
By
Title: Executive Director
[SEAL]
ATTEST:
Secretary-Treasurer of
the District
Approved as to form:
General Counsel
Taxpayer Identification No.: 43-6011991
1-1
SCHEDULE 1
LOAN PAYMENT SCHEDULE
The following Loan Payments shall be made in accordance with, and subject to, the credits and
limitations set forth in Article IV and this Payment Schedule. Additional Interest is payable on
each Interest Payment Date.
Loan Principal Interest Total Fiscal Year
Payment Date Component Component Loan Payment Total
A−1
EXHIBIT A
FORM OF REQUISITION (Form SRF-01)
B−1
EXHIBIT B
APPLICABLE FEDERAL REQUIREMENTS
Age Discrimination Act, PL 94−135
Civil Rights Act of 1964, PL 88−352
Prohibition against sex discrimination under Section 13 of the Federal Water Pollution
Control Act, PL 92−500
Section 504 of the Rehabilitation Act of 1973, PL 93−112 (including Executive Orders
11914 and 11250)
C−1
EXHIBIT C
CLOSING CERTIFICATE OF DISTRICT
We, the undersigned, hereby certify that we are the duly appointed, qualified and acting
Executive Director and Secretary-Treasurer, respectively, of The Metropolitan St. Louis Sewer
District (the “District”), and as such officers we are familiar with the books and records of the
District. In connection with the making of a loan by the Missouri Department of Natural
Resources (“MDNR”) to the District in the original principal amount of $535,600 (the “Loan”), we
hereby further certify as follows:
(1) Due Organization. The District is a body corporate, a municipal corporation and a
political subdivision of the State of Missouri duly created and validly existing under and pursuant
to the constitution and statutes of the State of Missouri and the Plan of the District adopted by the
voters of the District for its government and has all requisite power and authority to own its
properties and carry on its governmental functions as now being conducted.
(2) Transcript of Proceedings. The transcript of proceedings (the “Transcript”) relating
to the authorization of the Loan includes a true and correct copy of the proceedings had by the
District and other records, proceedings and documents relating to the receipt of the Loan by the
District; such proceedings of the District shown in said Transcript have not been modified,
amended or repealed and are in full force and effect as of the date hereof; and such proceedings
have been duly filed in the official records of the District.
(3) Regular Meetings. All meetings of the District as shown in the Transcript were
regular meetings, or were held pursuant to regular adjournment at the next preceding meeting, or
were special meetings called and held as shown in the Transcript, and each such meeting was duly
held, was open to the public at all times and a quorum was present throughout. At all such
meetings where required, proper notice of the time, place and purposes of each such meeting was
given to the members of the Board of Trustees (the “Board”) of the District or was waived and
proper notice was given to the public as required by law, including Chapter 610, RSMo, as
amended. All meetings of the District at which any action was taken by the District in connection
with the authorization of the hereinafter referred to Financing Documents was attended by a
quorum and such action received the necessary affirmative vote of a majority of the Board.
(4) Incumbency of Officers. The following named persons were and are the duly
appointed, qualified and acting members of the Board and officers of the District at all times
during the proceedings relating to the authorization of the Financing Documents and at the present
time, as follows:
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Name Title
Robert J. Baer Chair
Harold Crumpton Vice Chair
Dee Joyce-Hayes Trustee
Bart J. Margiotta Trustee
Marian A. Rhodes Trustee
Joan M. Swartz Trustee
Jeffrey Theerman Executive Director
Karl J. Tyminski Secretary-Treasurer
(5) Ordinance. Ordinance No. 11874 of the District adopted on October 14, 2004,
attached as Exhibit A (the “Ordinance”), is a full, true and correct copy of the Ordinance duly
adopted at a meeting of the District duly held on such date, a quorum being present and voting
thereon, as such Ordinance appears on the records of the District, and the same has not been
modified, amended or repealed and is in full force and effect as of the date hereof.
(6) Execution of Documents. The following documents have been duly executed and
delivered in the name and on behalf of the District by the undersigned, pursuant to and in full
compliance with the Ordinance; the copies of said documents contained in the Transcript are true,
complete and correct copies or complete and correct copies or counterparts of said documents as
executed and delivered by the District, and are in substantially the same form and text as the copies
of such documents which were before the District and approved by the Ordinance; and said
documents have not been amended, modified or rescinded and remain in full force and effect as of
the date hereof:
(a) Financing Agreement dated as of November 1, 2004 (the “Financing Agreement”),
between the District and MDNR; and
(b) Escrow Trust Agreement dated as of November 1, 2004 (the “Escrow Agreement”),
between the District and Commerce Bank, N.A.
The above-referenced documents are hereinafter referred to as the “Financing Documents”.
The undersigned each certify that the signature of the other appearing hereon is the genuine
signature of such other officer.
(7) No Litigation. To the knowledge of the undersigned, after due inquiry, there is no
action, suit, proceeding, inquiry or investigation at law or in equity before or by any court, public
board or body for which the District has been served with process or official notice or threatened
against or affecting the District, wherein an unfavorable decision, ruling or finding would
adversely affect the transactions contemplated by the Financing Documents or any agreement or
instrument to which the District is a party and which is used or contemplated for use in the
transactions contemplated by the Financing Documents or the ability of the District to make all
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Loan Payments (as defined in the Financing Documents) and otherwise perform its duties,
covenants, obligations and agreements under the Financing Documents.
(8) Representations, Certifications and Warranties. The representations, certifications
and warranties of the District contained in the Financing Documents (subject to the limitations and
qualifications in those representations and warranties, such as “to the District’s knowledge”) are
true and correct in all material respects as of the date hereof, and, to the District’s knowledge, it has
complied with all covenants and satisfied all conditions in terms of the Financing Documents
required on its part to be performed or satisfied at or prior to the date hereof.
(9) No Default. To the District’s knowledge, at the date hereof, no event of default of
the District specified in the Financing Documents, and no event which, with the giving of notice or
the lapse of time or both, would become such an event of default of the District under the
Financing Documents, has occurred.
(10) Authorization and Effect of Documents. The District has duly authorized, by all
necessary action, the execution, delivery, receipt and due performance of the Financing Documents
and any and all such other agreements and documents as may be reasonably required to be
executed, delivered and received by the District in order to carry out, give effect to and
consummate the transactions contemplated by the Financing Documents and the Ordinance. The
Financing Documents, as executed and delivered, constitute legal, valid and binding obligations of
the District enforceable against it in accordance with their respective terms.
(11) Government Purpose. The construction of the Project, as described in the Financing
Documents, is necessary, convenient and in furtherance of the District’s governmental purposes
and is in the best interests of the District. During the term of the Financing Documents, the Project
will at all times be used by the District for the purpose of performing its lawful governmental
functions.
(12) District Representatives. The following named persons have been designated the
District Representative and Alternative District Representative, respectively, under the Financing
Documents, and the signatures appearing opposite their names are the true and genuine signatures
of such persons:
Name Signature
District Representative Karl J. Tyminski
Alternate District
Representative Janice M. Zimmerman
Alternate District
Representative Theresa A. Bellville
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(13) No Pecuniary Interest. To the District’s knowledge, no member of the Board and no
official of the District has any pecuniary interest, directly or indirectly, in any contract,
employment, purchase or sale made, or to be made, in connection with the proposed transaction
contemplated by the Financing Documents.
(14) No Violation or Breach. To the District’s knowledge, the execution and delivery by
the District of the Financing Documents, the performance of the terms thereof by the District will
not violate any provision of Missouri law or the District’s Plan, or any resolution or ordinance of
the District, or any applicable judgment, order, rule or regulation of any court or of any public or
governmental agency or authority, and will not conflict with, violate or result in the breach of any
of the provisions of or constitute a default under, any indenture, mortgage, deed of trust or other
agreement or instrument to which the District is a party, or by which it or its properties are bound.
(15) Consents and Approvals. To the District’s knowledge, all approvals, consents,
authorizations and orders, if any, required to be obtained by the District in connection with the
execution and delivery of the Financing Documents and the performance of the terms thereof by
the District have been duly obtained.
WITNESS our hands and the seal of the District this 1st day of November, 2004.
Signature Official Title
Executive Director
[SEAL] Secretary-Treasurer
EXHIBIT D
OPINION OF SPECIAL COUNSEL TO DISTRICT
[Closing Date]
Missouri Department of Natural Resources
Jefferson City, Missouri
The Metropolitan St. Louis
Sewer District
St. Louis, Missouri
Commerce Bank, N.A., as Paying Agent
Kansas City, Missouri
Re: SRF Direct Loan Program Project Financing for Subdistrict No. 99048 (West
Watson Road – Nanell Lane)
Ladies and Gentlemen:
We have acted as special co-counsel to The Metropolitan St. Louis Sewer District (the
“District”), and as such, in connection with the referenced financing, we have examined the
Constitution and statutes of the State of Missouri and the Plan of the District adopted by the voters
of the District for its government (the “Plan”), the relevant proceedings and Ordinance No. _____
of the District adopted by the District on October 14, 2004 (the “Ordinance”), the hereinafter
referred to Financing Documents, and such other records, proceedings, instruments, certificates
and documents as we deem relevant in rendering this opinion.
Based upon such examination, we are of the opinion that:
1. The District is a body corporate, a municipal corporation and a political subdivision
of the State of Missouri duly created and validly existing under and pursuant to the Constitution
and statutes of the State of Missouri and the Plan.
2. The Ordinance has been duly adopted by the District and is in full force and effect as
of the date hereof.
3. The Financing Agreement dated as of November 1, 2004, between the District and
the Missouri Department of Natural Resources (“MDNR”) and the Escrow Trust Agreement dated
as of November 1, 2004 (the “Escrow Trust Agreement”), between the District and Commerce
Bank, N.A. (collectively, the “Financing Documents”) have been duly authorized, executed and
delivered by and for and on behalf of the District and constitute the legal, valid and binding
agreements of the District enforceable in accordance with their terms.
4. The execution and delivery by the District of the Financing Documents, and
compliance with the provisions thereof by the District under the circumstances contemplated
thereby, do not and will not in any material respect conflict with or constitute a breach of or default
under any indenture or other agreement or instrument to which the District is a party or any
regulation, court order or consent decree to which the District is subject.
5. No additional or further approval, consent or authorization of any governmental or
public agency or authority of the State of Missouri (other than any permits (including building
permits), governmental permissions (including environmental clearances), rights and licenses as
may be necessary, as to which we express no opinion) not already obtained is required by the
District in connection with the transactions contemplated by the Financing Documents, or the
entering into and performance of its obligations under the Financing Documents, other than the
approvals, consents or authorizations of any governmental or public agency or authority of the
State of Missouri which the District is required to obtain pursuant to the Financing Documents.
It is to be understood that the enforceability of the Financing Documents may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors’
rights generally heretofore or hereafter enacted and as limited by equitable principles applicable to
the remedy of specific performance and that their enforcement may be subject to the exercise of
judicial discretion in accordance with general principles of equity.
Very truly yours,
EXHIBIT E
OPINION OF GENERAL COUNSEL TO DISTRICT
[Closing Date]
Missouri Department of Natural Resources
Jefferson City, Missouri
The Metropolitan St. Louis Sewer District
St. Louis, Missouri
Commerce Bank, N.A., as Paying Agent
Kansas City, Missouri
RE: SRF Direct Loan Program Project Financing for Subdistrict No. 99048 (West
Watson Road – Nanell Lane)
Ladies and Gentlemen:
I am General Counsel to The Metropolitan St. Louis Sewer District (the "District"), and as such,
in connection with the referenced financing, I have examined the following:
1. Ordinance No. 11874 (relating to the approval of the hereinafter-mentioned
Financing Agreement and Escrow Trust Agreement) adopted by the Board of Trustees of the
District on October 14, 2004 (the "Ordinance");
2. The Financing Agreement dated as of November 1, 2004 (the "Financing
Agreement") between the District and the Missouri Department of Natural Resources;
3. The Escrow Trust Agreement dated as of November 1, 2004 (the "Escrow Trust
Agreement"), between the District and Commerce Bank, N.A.; and
4. Such other records, proceedings, instruments, certificates and documents as I
deem relevant in rendering this opinion.
Based on the foregoing, I am of the opinion that there is no action, suit, proceeding or
investigation at law or in equity before or by any court, public board or body, pending to which the
District has been served with process or with other official notice or of which I am aware, or to the best of
my knowledge, threatened against or affecting the District, wherein an unfavorable decision, ruling or
finding would adversely affect the transactions contemplated by the Ordinance, the Financing Agreement
or the Escrow Trust Agreement or the validity of the Ordinance, the Financing Agreement or the Escrow
Trust Agreement.
Very truly yours,
Randy E. Hayman
General Counsel
(EXHIBIT B)
===============================================
ESCROW TRUST AGREEMENT
Dated as of November 1, 2004
between
THE METROPOLITAN ST. LOUIS SEWER DISTRICT
and
COMMERCE BANK, N.A.,
as paying agent and escrow agent
relating to
Subdistrict No. 99048
(West Watson Road – Nanell Lane)
===============================================
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ESCROW TRUST AGREEMENT
THIS ESCROW TRUST AGREEMENT (this “Escrow Agreement” or “Agreement”),
dated as of November 1, 2004, by and between THE METROPOLITAN ST. LOUIS SEWER
DISTRICT (the “District”), a body corporate, a municipal corporation and a political subdivision
duly organized and existing under the Constitution and laws of the State of Missouri and the
District’s Plan approved by the voters for its government, and COMMERCE BANK, N.A., a
national banking association duly organized, existing and authorized to accept and execute trusts of
the character herein set out by virtue of the laws of the United States of America, with its principal
corporate trust office located in Kansas City, Missouri, as paying agent and escrow agent (the
“Paying Agent”);
RECITALS:
1. The Federal Water Quality Act of 1987, 33 U.S.C. Section 1381 et seq. (the
“Federal Act”), authorizes the Administrator of the United States Environmental Protection
Agency (the “EPA”) to make capitalization grants to states for deposit in state water pollution
control revolving funds to provide assistance for constructing publicly owned wastewater treatment
works and for certain other purposes.
2. Section 644.122, Revised Statutes of Missouri, as amended (“RSMo”), establishes
“The Water and Wastewater Loan Fund” in the Treasury of the State of Missouri and requires that
all moneys received from the EPA capitalization grant program and state matching funds be
deposited in The Water and Wastewater Loan Fund.
3. The Federal Act and regulatory requirements of EPA provide that The Water and
Wastewater Loan Fund be operated in a manner which preserves The Water and Wastewater Loan
Fund in perpetuity for the designated purposes thereof and thereby provide necessary and ongoing
assistance to communities to attain and maintain compliance with the Federal Act.
4. In furtherance of the requirements to preserve The Water and Wastewater Loan
Fund in perpetuity the Missouri Department of Natural Resources, a department of the State of
Missouri (“MDNR”), has entered into the Operating Agreement dated June 15, 1989, as amended
(the “Operating Agreement”) with EPA under which MDNR and its management of The Water
and Wastewater Loan Fund are required to meet certain operational requirements and are subject to
annual audits by EPA.
5. Pursuant to 10 CSR 20-4.040 through 10 CSR 20-4.050 of the Code of State
Regulations, MDNR, in cooperation with the Clean Water Commission of the State of Missouri
(the “Clean Water Commission”), has developed and implemented the Missouri Direct Loan State
Water Pollution Control Revolving Fund Program (the “SRF Direct Loan Program”) and has stated
its intent to make loans to political subdivisions of the State of Missouri.
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6. The Clean Water Commission has approved a loan in a principal amount not to
exceed $535,600 under the terms of the MDNR Fiscal Year 2004 Intended Use Plan, of which
authorization the District has applied for a loan and a loan shall be made in the principal amount of
$535,600 (the “Loan”) to the District from The Water and Wastewater Loan Fund to be made by
MDNR pursuant to the below defined Financing Agreement.
7. MDNR and the District have determined to enter into the Financing Agreement
dated as of November 1, 2004 (the “Financing Agreement”), for the purposes of providing the
financing for the Project and setting forth their covenants and agreements respecting the
application of the net proceeds of the Loan to finance the project as described in the Financing
Agreement and in satisfaction of the obligations of MDNR under the Federal Act and EPA
guidance to preserve The Water and Wastewater Loan Fund in perpetuity.
8. As a condition to the execution and delivery of the Financing Agreement, MDNR
has required that the District enter into this Escrow Agreement with the Paying Agent.
AGREEMENT:
Section 1. Definitions. The words and terms defined in this Section and in the Recitals
hereto shall for all purposes of this Agreement have the meanings herein and therein specified,
unless the context clearly otherwise requires. In addition to words and terms defined in this
Agreement, the words and terms used in this Agreement shall have the meanings ascribed to them
in Section 1.1 of the Financing Agreement.
“Account” means any of the accounts established by Section 4.
“Administrative Expense Fund” means the fund so designated and established by Section
4.
“Business Day” means any day other than a Saturday, a Sunday or any other day on which
banking institutions in the State are authorized or required not to be open for the transaction of
regular banking business.
“Debt Service Fund” means the fund so designated and established by Section 4.
“Debt Service Reserve Fund” means the fund so designated and established by Section 4.
“Federal Securities” means any direct obligation of, or obligation the timely payment of the
principal of and interest on which are unconditionally guaranteed by, the United States of America
and backed by the full faith and credit thereof.
“Fund” means any of the funds established by Section 4.
“Interest Account” means the Interest Account established within the Debt Service Fund.
“Interest Payment Date” means each May 1 and November 1, commencing May 1, 2005.
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“Investment Securities” means any of the following securities legal for the investment of
funds of the District at the time of purchase thereof; as provided in the Charter Plan of the District,
funds of the District may be invested in the same manner as the State Treasurer may invest funds
of the State, pursuant to Article IV, Section 15 of the Constitution of the State:
(a) Obligations of the United States Government;
(b) Obligations of any agency or instrumentality of the United States;
(c) Time certificates of deposit (including those issued by the Paying Agent or
any affiliate) secured by collateral as required by the Constitution and laws of the State;
(d) Repurchase agreements maturing and payable within 90 days and secured
by collateral as required by the Constitution and laws of the State;
(e) Deposits with “Approved Depository Banks” provided the Approved
Depository Banks shall give a bond equal to the deposit, with good and sufficient
sureties, or the deposit of collateral as required by the Constitution and laws of the State;
(f) Banker’s Acceptances issued by domestic commercial banks possessing
the highest rating issued by a nationally recognized rating agency and maturing and
becoming payable not more than one hundred eighty days from the date of purchase;
(g) Commercial paper issued by domestic corporations which has received the
highest rating issued by a nationally recognized rating agency and maturing and
becoming payable not more than one hundred eighty days from the date of purchase.
Eligible commercial paper is further limited to issuing corporations that have a total
commercial paper program size in excess of five hundred million dollars
($500,000,000.00); and
(h) Money market funds rated in the highest rating category by a nationally
recognized rating service, consisting of or secured by Government Obligations or
repurchase agreements consisting of or secured by Government Obligations.
“Loan Payments” means the amounts to be paid by the Paying Agent to MDNR on each
Interest Payment Date and Principal Payment Date in repayment of the Loan pursuant to Section 6
and Section 4.1 of the Financing Agreement, as set forth in the Loan Payment Schedule, plus
Additional Interest.
“Loan Payment Schedule” means the Loan Payment Schedule attached as Schedule 1, and
any replacement schedule provided by MDNR in accordance with Section 4.1(f) of the Financing
Agreement upon the partial prepayment of the Loan.
“Moody’s” means Moody’s Investors Service.
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“Paying Agent’s Fee” means the Paying Agent’s fees and ordinary expenses (excluding
any extraordinary fees and expenses) in an amount equal to $750 per annum, payable on each
Principal Payment Date for services performed as the paying agent and escrow agent under this
Agreement, plus an acceptance fee of $750 payable on the Closing Date.
“Principal Account” means the Principal Account established within the Debt Service
Fund.
“Principal Payment Date” means each November 1 commencing November 1, 2005.
“Project Loan Fund” means the fund so designated and established by Section 4.
“Standard & Poor’s” means Standard & Poor’s, a Division of the McGraw-Hill
Companies.
“State” means the State of Missouri.
Section 2. Rules of Interpretation
(a) Words of the masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders.
(b) Unless the context shall otherwise indicate, the words importing the singular
number shall include the plural and vice versa, and words importing persons shall include firms,
associations and corporations, including public bodies, as well as natural persons.
(c) All references in this Agreement to designated “Articles”, “Sections” and other
subsections are, unless otherwise specified, to the designated Articles, Sections and subsections of
this Agreement as originally executed.
(d) The words “herein”, “hereof”, “hereunder” and other words of similar import refer
to this Agreement as a whole and not to any particular Article, Section or subsection.
(e) All approvals, notices, consents and other actions of MDNR under this Agreement
shall be executed by the Director, Financial Assistance Center, Water Protection Program (“WPP”)
of MDNR or any other person designated by a written instrument executed by the Department
Director of MDNR and filed with the District and the Paying Agent.
Section 3. Receipt of Documents. The Paying Agent hereby acknowledges receipt of a
certified copy (certified as true and correct by the Secretary-Treasurer of the District) or executed
counterpart of the Financing Agreement. Reference herein to, or citation herein of, any provisions
of the Financing Agreement shall be deemed to incorporate the same as a part hereof in the same
manner and with the same effect as if they were fully set forth herein. On the Closing Date the
District shall cause to be delivered to the Paying Agent and the Paying Agent shall have received
the documents described in Section 3.1 of the Financing Agreement.
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Section 4. Establishment of Funds and Accounts. There are hereby created and established
with the Paying Agent the following special and irrevocable separate trust funds and accounts,
each of which shall be held by the Paying Agent under this Agreement:
(a) Debt Service Fund, consisting of a Principal Account and an Interest
Account;
(b) Project Loan Fund;
(c) Debt Service Reserve Fund; and
(d) Administrative Expense Fund.
Section 5. Debt Service Fund.
(a) There shall be deposited in the Debt Service Fund moneys from the sources, in the
amounts and on the dates as follows:
(1) on each Interest Payment Date, from the Project Loan Fund and the Debt
Service Reserve Fund, in the Interest Account, the investment earnings at such time held in
the Project Loan Fund and the Debt Service Reserve Fund;
(2) upon the Completion of Disbursements, the amount remaining in the Project
Loan Fund (other than investment earnings, which shall be applied as provided in Section
6(d)), in the Principal Account, such amount to be applied to the mandatory prepayment of
the Loan pursuant to Section 4.1(c) of the Financing Agreement;
(3) on each Loan Payment Date, in the Principal Account the principal
component of each Loan Payment (as set forth in the Payment Schedule) and in the Interest
Account the balance of the monthly Loan Payment and any other moneys received from the
District for deposit in the Interest Account; and
(4) on each Interest Payment Date, to the extent moneys in the Debt Service
Fund are not sufficient to pay the Loan Payment then due, from the Debt Service Reserve
Fund an amount equal to such deficiency.
(b) Moneys on deposit in the Debt Service Fund will be applied solely to pay to
MDNR (i) the Loan Payments on each Interest Payment Date and Principal Payment Date and (ii)
the principal amount of the Loan prepaid by the District pursuant to Section 4.1 of the Financing
Agreement, plus interest, to the date fixed for prepayment of the Loan.
(c) No later than the 15th day of the month after each Interest Payment Date the Paying
Agent shall provide a written notice to the District of the amount remaining in the Interest Account
of the Debt Service Fund which will constitute a credit against the Loan Payments in accordance
with Section 4.9(a) of the Financing Agreement.
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(d) Except as provided in Section 6(d), moneys remaining in the Debt Service Fund at
the close of business on November 1, 2014 will be transferred to the District in accordance with
Section 4.12 of the Financing Agreement.
Section 6. Project Loan Fund.
(a) On the Closing Date a portion of the proceeds of the Loan in the amount of
$482,040 shall be deposited by the Paying Agent in the Project Loan Fund. Moneys in the Project
Loan Fund shall be disbursed as provided in this Section.
(b) Written requisitions, in the form attached to the Financing Agreement as Exhibit A,
shall be submitted for withdrawals (including Loan origination costs) from the Project Loan Fund
in accordance with Article III and Section 4.8 of the Financing Agreement. Prior to making any
Disbursement from the Project Loan Fund, the Paying Agent will receive a Requisition setting
forth the Actual Reimbursement Amount approved by MDNR (as described in Section 3.3 of the
Financing Agreement) and a certificate executed by the District Representative that payment is
being made for a purpose within the scope of the Financing Agreement and that the amount of such
payment represents only the contract price of the property, equipment, labor, materials or service
being paid for or, if such payment is not being made pursuant to an express contract, that such
payment is not in excess of the reasonable value thereof. Each Disbursement made from the
Project Loan Fund for the payment of Project Costs shall be in the amount of the Actual
Reimbursement Amount as set forth in the applicable Requisition.
In making disbursements from the Project Loan Fund, the Paying Agent shall be entitled to
conclusively rely upon each written requisition and certificate of the District Representative
without inquiry or investigation. It is understood that the Paying Agent shall not be required to
make any inspections of the Project or improvements thereto, make any provision to obtain
completion bonds, mechanic’s or materialmen’s lien releases or otherwise supervise the Project.
The approval of each requisition by MDNR and certification as aforesaid by the District
Representative shall constitute, unto the Paying Agent, an irrevocable determination that all
conditions precedent to the payment of the specified amounts from the Project Loan Fund have
been completed.
(c) Investment earnings on moneys held in the Project Loan Fund shall be deposited
into the Project Loan Fund and then transferred to the Interest Account of the Debt Service Fund
pursuant to Section 5.
(d) All Disbursements from the Project Loan Fund shall be made prior to the receipt by
the Paying Agent of the Certificate of the District establishing the Completion of Disbursements.
Any moneys remaining in the Project Loan Fund (other than investment earnings) on the
Completion of Disbursements shall be transferred to the Principal Account of the Debt Service
Fund and applied to the mandatory prepayment of the Loan in accordance with Section 4.1(c) of
the Financing Agreement. Investment earnings (other than the amount constituting Additional
Interest payable on the Loan) remaining in the Project Loan Fund on the Completion of
Disbursements shall be transferred to the Interest Account of the Debt Service Fund; any amount
7
of investment earnings remaining in the Project Loan Fund constituting Additional Interest shall be
separately accounted for as Additional Interest.
(e) On each Interest Payment Date prior to the Completion of Disbursements and on
the Completion of Disbursements, the Paying Agent shall determine the Additional Interest
payable on the Loan on such Interest Payment Date and on the Interest Payment Date next
following the Completion of Disbursements and shall provide written notice thereof to the District
and MDNR.
Section 7. Debt Service Reserve Fund.
(a) On the Closing Date a portion of the proceeds of the Loan in the amount of
$53,560, constituting 10% of the aggregate loan amount, will be deposited in the Debt Service
Reserve Fund. Moneys in the Debt Service Reserve Fund shall be disbursed as provided in this
Section. No further deposits in the Debt Service Reserve Fund will be required except as provided
in Section 4.10(c) of the Financing Agreement.
(b) Investment earnings on moneys held in the Debt Service Reserve Fund shall be
deposited into the Debt Service Reserve Fund and then transferred to the Interest Account of the
Debt Service Fund pursuant to Section 5.
(c) On any date on which the Loan is prepaid under Section 4.1 of the Financing
Agreement, the Paying Agent will transfer the Excess Debt Service Reserve Amount to the
District. On each Interest Payment Date, if moneys in the Debt Service Fund are not sufficient to
pay the Loan Payment then due, the Paying Agent will immediately transfer an amount equal to
such deficiency from the Debt Service Reserve Fund to the Debt Service Fund. Moneys in the
Debt Service Reserve Fund may, with the prior written consent of the District, be applied to the
optional prepayment of the Loan, provided the Loan is prepaid in whole and funds are available
(including the amount on deposit in the Debt Service Reserve Fund) to prepay the Loan. Moneys
in the Debt Service Reserve Fund will be used to make the final Loan Payments in inverse order of
their due dates unless the Loan and all interest thereon is otherwise paid. Any amounts in the Debt
Service Reserve Fund in excess of the Debt Service Reserve Requirement on any Interest Payment
Date will be transferred to the Interest Account.
Section 8. Administrative Expense Fund. There shall be deposited in the Administrative
Expense Fund such amounts as are received from the District for the payment of the Paying
Agent’s Fee, the Paying Agent’s extraordinary fees and expenses (if any), and the Administrative
Fee as provided in Section 4.9(b) of the Financing Agreement. The Paying Agent shall withdraw
the Paying Agent’s Fee when due and shall promptly disburse the Administrative Fee to MDNR.
Moneys in the Administrative Expense Fund shall not be invested.
Section 9. Notice of Prepayment. At the written request of the District, the Paying Agent
shall give official notice of any prepayment by mailing an official prepayment notice to MDNR by
first-class mail, at least 15 days, but not more than 30 days, prior to the date fixed for prepayment.
All notices of prepayment shall be dated and shall state (i) the prepayment date, (ii) the principal
8
amount of the Loan being prepaid, and (iii) the amount of interest to be accrued through the
prepayment date on such principal amount to be prepaid.
Section 10. Investments. Moneys in the Debt Service Fund, the Project Loan Fund and the
Debt Service Reserve Fund shall at all times be invested by the Paying Agent in Investment
Securities at the written direction of the District, provided such Investment Securities shall mature
at such times and in such amounts as will make cash available for the purposes of such Funds and
Accounts as needed. Net investment earnings on the Accounts of each Fund shall be credited to
such Accounts except that investment earnings on the Principal Account shall be deposited in the
Interest Account. If an investment 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
earnings” means aggregate earnings less aggregate losses from investments during the applicable
period, less any transaction fees incurred in purchasing or selling investments.
Section 11. Assignment of Moneys and Investment Securities. The District hereby assigns
and pledges to the Paying Agent its right, title and interest in the moneys and Investment Securities
hereunder, and all earnings thereon, until used and applied in accordance with this Agreement for
the benefit and security of MDNR to secure (i) the payment of the principal of and interest on the
Loan when due, (ii) the payment of all sums due under this Escrow Agreement and the Financing
Agreement in the manner herein and therein described, and (iii) the punctual performance by the
District of all of its obligations under the terms and provisions of this Escrow Agreement and the
Financing Agreement. The matured principal of and earnings on the Investment Securities and any
cash in the Funds and Accounts hereunder are hereby pledged and assigned and shall be applied
solely for the payment of the principal of, redemption premium, if any, and interest on the Loan,
except as otherwise expressly provided herein.
Section 12. Acceptance of the Trusts. The Paying Agent hereby accepts the trusts imposed
upon it by this Agreement, and agrees to perform said trusts, but only upon and subject to the
following express terms and conditions, and no implied covenants or obligations shall be read into
this Agreement against the Paying Agent:
a. The Paying Agent undertakes to perform such duties and only such duties as
are specifically set forth in this Agreement. The Paying Agent shall exercise such of the
rights and powers vested in it by this Agreement and use the same degree of care and skill
in their exercise as a prudent corporate trust department under reasonably similar
circumstances would exercise or use under the circumstances in the conduct of such
department’s affairs;
b. The Paying Agent may execute any of the trusts or powers hereof and
perform any of its duties by or through attorneys, agents, receivers, employees or such
other professionals as may be reasonably necessary but shall be answerable for the conduct
of the same in accordance with the standard specified above, and shall be entitled to act
upon the opinion or advice of its counsel, who may be counsel to the District or MDNR or
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the Paying Agent, concerning all matters of trust hereof and the duties hereunder, and,
subject to the provisions of Sections 5, 6 and 7, may in all cases pay such reasonable
compensation to all such attorneys, agents, receivers, employees and such other
professionals as may reasonably be employed in connection with the trusts hereof. The
Paying Agent may act upon an opinion or advice of counsel, as aforesaid, and shall not be
responsible for any loss or damage resulting from any action or non-action by it taken or
omitted to be taken in good faith in reliance upon any such opinion of counsel;
c. The Paying Agent shall not be responsible for any recital herein or in the
Financing Agreement, or for the validity of the execution by the District of this Agreement
or for any supplements hereto or instruments of further assurance, or for the sufficiency of
the security for the Loan, and the Paying Agent shall not be bound to ascertain or inquire as
to the performance or observance of any covenants, conditions or agreements on the part of
the District in connection with the matters referred to in this Agreement, except as
hereinafter set forth, and the Paying Agent shall not be responsible or liable for any loss
suffered in connection with any investment of funds made by it in accordance with this
Agreement;
d. The Paying Agent, in its individual or other capacity, may engage in or be
interested in any financial or other transaction with the District or MDNR, with the same
rights it would have were it not Paying Agent;
e. The Paying Agent shall be protected in acting upon any notice, request,
consent, certificate, order, affidavit, opinion of counsel, letter, telegram or other paper or
document reasonably believed by it to be genuine and correct and to have been signed or
sent by the proper person or persons;
f. As to the existence or non-existence of any fact or as to the sufficiency or
validity of any instrument, paper or proceeding, the Paying Agent shall be entitled to rely
upon a certificate signed on behalf of the District by the District Representative as
sufficient evidence of the facts therein contained, and prior to the occurrence of a default of
which the Paying Agent has been notified as provided in subsection h of this Section, or of
which by said subsection it is deemed to have notice, the Paying Agent shall also be at
liberty to accept a similar certificate to the effect that any particular dealing, transaction or
action is necessary or expedient, but may at its discretion secure such further evidence
deemed necessary or advisable, but shall in no case be bound to secure the same. The
Paying Agent may accept a certificate of the District Representative to the effect that a
resolution in the form therein set forth has been adopted by the District, as applicable, as
conclusive evidence that such resolution has been duly adopted and is in full force and
effect;
g. The permissive right of the Paying Agent to do things enumerated in this
Agreement shall not be construed as a duty and the Paying Agent shall not, except as
provided in subsection a of this Section, be answerable for other than its negligence or
willful misconduct;
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h. The Paying Agent shall not be required to take notice or be deemed to have
notice of any default hereunder except failure by the District to cause to be made any of the
payments to the Paying Agent required to be made by or on behalf of the District pursuant
to this Agreement or the Financing Agreement unless the Paying Agent shall be
specifically notified in writing of such default by the District or MDNR; and all notices or
other instruments required by this Agreement to be delivered to the Paying Agent, must, in
order to be effective, be delivered at the principal corporate trust office of the Paying Agent
and in the absence of such notice so delivered the Paying Agent may conclusively assume
there is no default except as aforesaid;
i. At any and all reasonable times the Paying Agent, and its duly authorized
agents, attorneys, experts, engineers, accountants and representatives shall have the right,
but shall not be required, to inspect all books, papers and records of the District pertaining
to the Financing Agreement and this Agreement, and to make copies thereof and take such
memoranda therefrom and in regard thereto as may be desired;
j. The Paying Agent shall not be required to give any bond or surety in respect
of the execution of the trusts and powers under this Agreement;
k. Notwithstanding anything elsewhere in this Agreement contained, the
Paying Agent shall have the right, but shall not be required, to demand, in respect to the
withdrawal of any cash or any action whatsoever within the scope of this Agreement, any
showings, certificates, opinions, appraisals or other information, or action or evidence
thereof, in addition to that by the terms hereof required, as a condition of such action,
deemed by the Paying Agent desirable for the purpose of establishing the right of the
District to the withdrawal of any cash or the taking of any other action by the Paying
Agent;
l. Notwithstanding anything otherwise prescribed in this Agreement, before
taking any action under this Agreement other than any action under Sections 5, 6, and 7,
the Paying Agent may, in its discretion, require that satisfactory indemnity be furnished to
it by MDNR or other parties for the reimbursement of all expenses which it may incur or
advance and to protect it against all liability, except liability which is adjudicated to have
resulted from its negligence or willful misconduct, by reason of any action so taken; and
m. All moneys received by the Paying Agent shall, until used or applied or
invested as herein provided, be held in trust in the manner and for the purposes for which
they were received but need not be segregated from other funds except to the extent
required by this Agreement or law. The Paying Agent shall not be under any liability for
interest on any moneys received hereunder except for accounting for income on Investment
Securities.
Section 13. Records; Reporting Requirements.
(a) The Paying Agent’s records related to activities performed under this Agreement
are subject to audit and inspection by the State upon receipt of notice during normal business
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hours. The Paying Agent will maintain such financial transaction records in accordance with
generally accepted accounting principles.
(b) The Paying Agent will provide monthly and annual (as of June 30) financial reports
to MDNR. Each financial report will cover financial activities during the preceding period. These
reports will consist of financial transaction registers. Financial transaction register means a register
of all financial transactions during the reporting period for each Fund and Account maintained
under this Agreement. Each financial transaction register will identify the Loan and contain, for
each Fund and Account, a date, description and amount for all financial transactions and starting
and ending balances.
Section 14. Obligations of Paying Agent Limited.
(a) In order to make the payments required by this Agreement, the Paying Agent is hereby authorized
to redeem or otherwise dispose of Investment Securities in order to provide sufficient amounts to make such
payments. The liability of the Paying Agent to make the payments required by this Agreement shall be limited
solely to the money and Investment Securities in the Funds and Accounts hereunder. The Paying Agent shall not be
liable for any loss resulting from any investment, sale, transfer or other disposition made pursuant to this Agreement
in compliance with the provisions hereof. The Paying Agent shall not be liable for the accuracy of the calculations
as to the sufficiency of the Loan Payments. So long as the Paying Agent applies the amounts in the Funds and
Accounts as provided herein, the Paying Agent shall not be liable for any deficiencies in the amounts necessary to
pay the Loan caused by such calculations. Notwithstanding the foregoing, the Paying Agent shall not be relieved of
liability arising from and proximate to its failure to comply fully with the terms of this Agreement.
(b) The financial obligations of the District under this Agreement are subject to the
limitations of Article IV of the Financing Agreement.
Section 15. Fees, Charges and Expenses of the Paying Agent. The District shall pay to the
Paying Agent reasonable compensation for all services performed by the Paying Agent hereunder,
and also the reasonable expenses, charges and other disbursements of the Paying Agent, and those
of its attorneys, agents, employees and other professionals as may be reasonably necessary
incurred in and about the administration and execution of the trusts hereby created and
performance of its powers and duties hereunder; provided that the total amount of such fees,
charges and expenses for ordinary services under this Agreement shall not exceed the Paying
Agent’s Fees. Notwithstanding the preceding provisions of this Section, the Paying Agent shall be
entitled to reimbursement from the District of its reasonable out-of-pocket, legal or extraordinary
expenses incurred in carrying out the duties, terms or provisions of this Agreement, including but
not limited to costs incurred for giving notice of the prepayment of the Loan. Claims for such
reimbursement may be made to the District. In each instance in which this Agreement provides for
compensation, reimbursement or indemnification of the Paying Agent, such provision shall be
deemed to provide for, whether or not expressly so stated, the payment of all related fees, costs,
charges, advances and expenses of the Paying Agent (including without limitation, attorney’s fees
and expenses), unless the context shall clearly indicate otherwise.
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Section 16. Resignation or Removal of Paying Agent; Successor Paying Agent.
(a) The Paying Agent may at any time resign and be discharged from its duties and
responsibilities hereby created by giving written notice to the District and MDNR not less than 60
days prior to the date when the resignation is to take effect. Such resignation shall take effect
immediately upon the acceptance by the District and MDNR of the resignation, the appointment of
a successor Paying Agent (which may be a temporary Paying Agent) by the District, with the prior
written consent of MDNR, the acceptance of such successor Paying Agent of the terms, covenants
and conditions of this Agreement, the transfer of the Funds and Accounts hereunder, including the
money and Investment Securities held therein, to such successor Paying Agent and the completion
of any other actions required for the principal of and interest on the Investment Securities to be
made payable to such successor Paying Agent rather than the resigning Paying Agent.
(b) The Paying Agent may be removed at any time by MDNR or the District by an
instrument or concurrent instruments in writing, not less than 60 days prior to the date such
removal is to take effect unless the Paying Agent is being removed for its negligence or willful
misconduct in which case such removal may be effective immediately, delivered to the Paying
Agent and the District or MDNR, as applicable. Any removal pursuant to this paragraph shall
become effective upon the appointment of a successor Paying Agent (which may be a temporary
successor Paying Agent) by the District, with the prior written consent by MDNR, the acceptance
of such successor Paying Agent of the terms, covenants and conditions of this Agreement, the
transfer of the Funds and Accounts hereunder, including the money and Investment Securities held
therein, to such successor Paying Agent and the completion of any other actions required for the
principal of and interest on the Investment Securities to be made payable to such successor Paying
Agent rather than the Paying Agent being removed.
(c) If the Paying Agent resigns or is removed, or is dissolved, or is in the course of
dissolution or liquidation, or otherwise becomes incapable of acting hereunder, or if the Paying
Agent is taken under the control of any public officer or officers, or of a receiver appointed by a
court, the District, with the prior written consent of MDNR, shall appoint a temporary Paying
Agent to fill such vacancy until a successor Paying Agent is appointed by the District, with the
prior written consent of MDNR, and has accepted such appointment, in the manner above
provided, and any such temporary Paying Agent so appointed by the District, with the prior written
consent of MDNR, shall immediately and without further act be superseded by the successor
Paying Agent so appointed.
(d) If no appointment of a successor Paying Agent or a temporary successor Paying
Agent has been made by MDNR or the District, with the prior written consent of MDNR, pursuant
to the foregoing provisions of this Section within 60 days after written notice of resignation of the
Paying Agent has been given to the District and MDNR, or written notice of removal has been
delivered to the Paying Agent, MDNR or any retiring or removed Paying Agent may apply to any
court of competent jurisdiction for the appointment of a successor Paying Agent, and such court
may thereupon, after such notice, if any, as it shall deem proper, appoint a successor Paying Agent.
(e) No successor Paying Agent shall be appointed unless such successor Paying Agent
(i) is a corporation with trust powers authorized to do business in the State and organized under the
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banking or corporate laws of the United States or the State and (ii) either (A) has at the time of
appointment capital and surplus of not less than $25,000,000, (B) is owned by a company that has
at the time of appointment capital and surplus of not less than $25,000,000, or (C) has assets under
corporate trust management of not less than $100,000,000.
(f) Every successor Paying Agent appointed hereunder shall execute, acknowledge and
deliver to its predecessor and to the District and MDNR an instrument in writing accepting such
appointment hereunder, and thereupon such successor Paying Agent without any further act, deed
or conveyance shall become fully vested with all the rights, immunities, powers, trusts, duties and
obligations of its predecessor, but such predecessor shall, nevertheless, on the written request of
such successor Paying Agent, the District or MDNR, execute and deliver an instrument
transferring to such successor Paying Agent all the estates, properties, rights, powers and trusts of
such predecessor hereunder, and every predecessor Paying Agent shall deliver all securities and
money held by it to its successor and the duties and obligations of the predecessor Paying Agent
hereunder shall thereupon cease and terminate. Should any transfer, assignment or instrument in
writing from the District be required by any successor Paying Agent for more fully and certainly
vesting in such successor Paying Agent the estates, rights, powers and duties hereby vested or
intended to be vested in the predecessor Paying Agent, any such transfer, assignment and
instruments in writing shall, on request, be executed, acknowledged and delivered by the District.
(g) Any corporation into which the Paying Agent may be merged or consolidated, to
which the Paying Agent sells all or substantially all of its corporate trust business, or that results
from any merger, conversion, consolidation or reorganization involving the Paying Agent, will be
the successor Paying Agent under this Agreement without the execution or filing of any paper or
any other act on the part of the parties hereto.
Section 17. Amendment. This Agreement is made for the benefit of the District and
MDNR, and it shall not be repealed, revoked, altered or amended without the written consent of
the parties hereto and MDNR.
Section 18. Notices. All notices, filings and other communications shall be given by first-
class mail, postage pre-paid, or sent by telegram, telecopy or telex or other similar
communication, or delivered by a reputable private courier or overnight delivery service,
addressed as follows (notice to the Paying Agent shall be effective only upon receipt):
MDNR:
Missouri Department of Natural Resources
Water Protection Program
201 Jefferson
P.O. Box 176 (zip code 65102)
Jefferson City, Missouri 65101
Attention: Director Financial Assistance Center
(573) 751-9396 - FAX
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Paying Agent:
Commerce Bank, N.A.
922 Walnut Street, TBMZ-5
Kansas City, Missouri 64106
Attention: Corporate Trust Department
District:
The Metropolitan St. Louis Sewer District
2350 Market Street
St. Louis, Missouri 63103
Attention: Executive Director
Each party may change its address by giving written notice of the new address to the other parties.
Section 19. Payments Due on Other Than Business Day. In any case where any Interest
Payment Date, Principal Payment Date or other date for the payment of interest on or principal of
the Loan or any other payment is due hereunder shall not be a Business Day, then such payment
need not be made on such date but may be made (without additional interest) on the next
succeeding Business Day with the same force and effect as if made on the scheduled date.
Section 20. Severability of Invalid Provisions. If any one or more of the covenants or
agreements provided in this Escrow Agreement on the part of the Paying Agent, the District to be
performed should be contrary to law, then such covenant or covenants or agreement or agreements
shall be deemed severable from the remaining covenants and agreements and shall in no way affect
the validity of the other provisions of this Agreement.
Section 21. Execution in Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be executed by the Paying Agent and the District and all of
which shall be regarded for all purposes as one original and shall constitute and be but one and the
same instrument.
Section 22. Survival. This Agreement, including all representations, warranties, covenants
and obligations, shall remain in effect until the Paying Agent and the District have fully performed
all of their obligations hereunder.
Section 23. Applicable Law. This Agreement shall be governed exclusively by the
applicable laws of the State.
Section 24. Binding Effect. This Agreement shall inure to the benefit of and shall be
binding upon the District and the Paying Agent and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed by
their respective officers hereunto duly authorized and dated as of the day and year first above
written.
[remainder of this page intentionally left blank]
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THIS ESCROW TRUST AGREEMENT is executed as of the date first hereinabove written.
[SEAL] COMMERCE BANK, N.A., as Escrow Agent and
Paying Agent
ATTEST:
By
Title: Title:
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THIS ESCROW TRUST AGREEMENT is executed as of the date first hereinabove written.
THE METROPOLITAN ST. LOUIS
SEWER DISTRICT
By
Title: Executive Director
[SEAL]
ATTEST:
Secretary-Treasurer of
the District
Approved as to form:
General Counsel
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SCHEDULE 1
LOAN PAYMENT SCHEDULE