RESOLUTION
The regular meeting of the County of Sullivan Industrial Development Agency (“Agency”) was convened in public session at the Sullivan County Government Center, 100 North Street, Village of Monticello, Sullivan County, New York on March 13, 2012 at 10:00 a.m. local time.
The meeting was called to order by Chairman Ira Steingart, and, upon roll being called, the following members of the Agency were:
PRESENT ABSENT
Ira Steingart [ ] [ ]
Harold Gold [ ] [ ]
Raymond Walter [ ] [ ]
Edward T. Sykes [ ] [ ]
Charles Barbuti, Jr. [ ] [ ]
Harris Alport [ ] [ ]
Suzanne Loughlin [ ] [ ]
Cindy L. Garlinghouse [ ] [ ]
Steve White [ ] [ ]
The following persons were also present:
Allan C. Scott, Chief Executive Officer
Jennifer C.S. Brylinski, Agency Executive Director
Elizabeth A. Hunt, Agency Executive Assistant
Walter F. Garigliano, Esq., Agency Counsel
The following resolution was duly offered by ___________________, and seconded by ___________________________, to wit:
Resolution No. ___ – 12
RESOLUTION AUTHORIZING A SECOND OMNIBUS AMENDMENT TO PROJECT DOCUMENTS RELATING TO THE 457 EQUITIES, LLC (“COMPANY”) FACILITY LOCATED AT 457 BROADWAY, MONTICELLO, NEW YORK
WHEREAS, the Agency was created by Chapter 560 of the Laws of 1970 of the State of New York, as amended, pursuant to Title I of Article 18-A of the General Municipal Law of the State of New York (collectively, the “Act”) as a body corporate and politic and as a public benefit corporation of the State of New York; and
WHEREAS, on or about September 1, 2005 the Company and the Agency entered into a sale/leaseback transaction to facilitate the: (i) construction, reconstruction, renovation, installation and equipping a building to consist of approximately 23,000± square feet (“Building”) situate on one (1) parcel of real estate consisting of <1.00± acre to be located at 457 Broadway in the Village of Monticello, Town of Thompson (“Town”), County of Sullivan, State of New York and identified on the Town tax map as Section 115, Block 6, Lot 2 (“Land”) and related facilities to be owned by the Agency; (ii) acquire and install thereon and therein certain furniture, fixtures, machinery, equipment and tools (“Equipment”); (iii) construct improvements to the Building, the Land and the Equipment (collectively, the Building, the Land and the Equipment are referred to as the “Facility” or the “Project”); and (iv) lease of the Facility from the Agency to the Company; and
WHEREAS, the Company and the Agency entered into a Lease Agreement and a Payment in Lieu of Tax Agreement (“PILOT Agreement”) both effective as of September 1, 2005; and
WHEREAS, in accordance with paragraphs 1 and 2 of the PILOT Agreement, the Company owed the Agency a PILOT Payment in the amount of $21,922.60 (“PILOT Payment”) on February 15, 2009; and
WHEREAS, the Company did not timely made the PILOT Payment; and
WHEREAS, the failure of the Company to timely make the PILOT Payment due February 15, 2009 constituted a default pursuant to paragraph 12(a) of the PILOT Agreement; and
WHEREAS, paragraph 13 of the PILOT Agreement reads:
“Remedies on Default in Payment; Termination. Upon the happening of an event of default as defined in ¶12(a)(b) and (c) hereof, the Agency may immediately terminate this PILOT Agreement without notice to the Company and without prejudice or limitation as to all other rights or remedies herein and/or under law or in equity. Such termination may be accomplished by conveying title to the Land by quitclaim deed as well as title to the Equipment, all as determined by the Agency, from the Agency to the Company and the recording of said deed in the Sullivan County Clerk’s Office shall be deemed to be delivery thereof. The Company hereby appoints the Agency’s Chairman and Chief Executive Officer, each acting individually, as its attorneys-in-fact for the limited purpose of signing any forms that must necessarily accompany the deed in order for the deed to be recorded. The Company acknowledges that the foregoing appointment is coupled with an interest and is irrevocable.”
; and
WHEREAS, in accordance with Sections 12(a) and 13 of the PILOT Agreement, pursuant to Agency Resolution 14-09, in the interest of protecting the taxing jurisdictions, the Agency authorized the Agency’s Chairman and Chief Executive Officer to execute a deed, bill of sale and related documents from the Agency to the Company conveying the Land and improvements comprising of the Project and deliver and record such deed in the event that the Company shall not pay the PILOT Payment on or before 3:00 p.m. on February 27, 2009; and
WHEREAS, the Company did not pay the PILOT Payment on or the established deadline and, as such, the Agency, executed, delivered and, as appropriate, recorded in the Office of the Clerk of Sullivan County that certain (i) Bargain and Sale Deed, dated February 27, 2009 from the Agency to the Company together with related recordation documents, including Form TP 584 and RP 5217; and (ii) Bill of Sale; and
WHEREAS, the Company, at the Agency’s regular board meeting held on April 14, 2009, requested that the Agency consider reinstating the Project; and
WHEREAS, the Agency duly adopted a resolution on May 12, 2009 authorizing the Agency, with the permission of the Town of Thompson Board of Assessment Review to reinstate real property tax abatements to the Project; provided that the following conditions are met on or before May 15, 2009:
- The Company pays the PILOT Payment together with interest and penalties;
- The Company enters into, executes and delivers an Omnibus Amendment to Project Documents pursuant to which the Company agrees to post security for the PILOT Payment annually either in the form of a cash payment or Letter of Credit in an amount not less than one hundred ten (110%) percent of the previous PILOT Payment;
- The Company pays to the Agency all legal fees, costs and expenses incurred by the Agency for terminating the Project on February 27, 2009 for non-payment of the PILOT Payment and reinstating the Project; and
- The Company enters into, executes and delivers all documents necessary to transfer fee title to the Facility to the Agency.
WHEREAS, the Company failed to meet all of the conditions timely and the Agency, after due consideration, contemplates extending the deadline from May 15, 2009 to the date on which the Town of Thompson Board of Assessment Review adjourns as the final deadline in which the Company shall meet the following conditions:
- The Company pays the PILOT Payment together with interest and penalties;
- The Company enters into, executes and delivers an Omnibus Amendment to Project Documents pursuant to which the Company agrees to post security for the PILOT Payment annually either in the form of a cash payment or Letter of Credit in an amount not less than one hundred ten (110%) percent of the previous PILOT Payment;
- The Company pays to the Agency all legal fees, costs and expenses incurred by the Agency for terminating the Project on February 27, 2009 for non-payment of the PILOT Payment and reinstating the Project;
- The Company enters into, executes and delivers all documents necessary to transfer fee title to the Facility to the Agency; and
- The Company pays all outstanding delinquentVillageofMonticellospecial district taxes.
; and
WHEREAS, all payments shall be either delivered to the Agency by wire transfer or delivered in certified funds to its counsel; and
WHEREAS, the Company has been unable to secure a Letter of Credit as contemplated by Condition #2 above, but has paid its 2012 PILOT Payment (Condition #1), paid the fees and expenses incurred by the Agency in termination of the Project (Condition #3); executed and delivered the fee transfer documents (Condition #4) and made adequate provision for payment of outstanding and delinquent Village of Monticello special district taxes (Condition #5); and
WHEREAS, the Company has requested that the Agency establish an escrow to be handled by monthly payments to secure future amounts owed to the Agency and the taxing jurisdictions (“Escrow Account”); and
WHEREAS, the Agency is willing to substitute the Escrow Account in lieu of a Letter of Credit; and
WHEREAS, to memorialize the substitution of an Escrow Account in lieu of a Letter of Credit as security for the Company’s obligations, it is necessary to amend the Project Documents.
NOW, THEREFORE, BE IT RESOLVED BY THE MEMBERS OF THE AGENCY AS FOLLOWS:
Section 1. The Agency is hereby authorizes establishment of an Escrow Account in lieu of a Letter of Credit as financial security for the Company’s obligations to the Agency.
Section 2. The Chairman and Chief Executive Officer of the Agency, each acting individually, are each hereby authorized, empowered, and directed, on behalf of the Agency, to execute and deliver the Omnibus Amendment to Project Documents, in form approved by Counsel to the Agency and with such changes, variations, omissions and insertions as the Chairman and Chief Executive Officer of the Agency so executing the same shall approve.
Section 3. The officers, employees and agents of the Agency are hereby authorized and directed for and in the name and on behalf of the Agency to do all acts and things required and to execute and deliver all such certificates, instruments, documents, and to pay all such fees, charges and expenses and to do all such further acts and things as may be necessary or in the opinion of the officer, employee or agent acting on behalf of the Agency desirable and proper to effect the purposes of the foregoing resolutions and to cause compliance by the Agency with all the terms, covenants and provisions of the documents for and on behalf of the Agency.
Section 4. These resolutions shall take effect immediately.
The question of adoption of the foregoing resolutions were duly put to a vote on roll call, which resulted as follows:
Ira Steingart [ ] Yes [ ] No [ ] Absent [ ] Abstain
Harold Gold [ ] Yes [ ] No [ ] Absent [ ] Abstain
Raymond Walter [ ] Yes [ ] No [ ] Absent [ ] Abstain
Edward T. Sykes [ ] Yes [ ] No [ ] Absent [ ] Abstain
Charles Barbuti, Jr. [ ] Yes [ ] No [ ] Absent [ ] Abstain
Harris Alport [ ] Yes [ ] No [ ] Absent [ ] Abstain
Suzanne Loughlin [ ] Yes [ ] No [ ] Absent [ ] Abstain
Cindy L. Garlinghouse [ ] Yes [ ] No [ ] Absent [ ] Abstain
Steve White [ ] Yes [ ] No [ ] Absent [ ] Abstain
The resolutions were thereupon duly adopted.