SECOND AMENDMENT AND EXTENSION
TO INSTALLMENT SALE AGREEMENT
THIS SECOND AMENDMENT AND EXTENSION TO INSTALLMENT SALE AGREEMENT (“Second Amendment”) is effective as of the 31st day of December, 2013 by and between the COUNTY OF SULLIVAN INDUSTRIAL DEVELOPMENT AGENCY, a corporate governmental agency constituting a body corporate and politic and a public benefit corporation of the State of New York, having its principal place of business located at One Cablevision Center, Ferndale, New York 12734 (“IDA”) and WEST DELAWARE HYDRO ASSOCIATES, L.P., a New York limited partnership, having its principal office located at c/o Brookfield Power, New York Hydro, 399 B Big Bay Road, Queensbury, New York 12804 (“Company”) and as set forth herein amends and extends that certain Installment Sale Agreement, dated as of October 1, 1987 by and between the IDA and the Company (“ISA”), which was amended by that certain First Amendment to Installment Sale Agreement, dated as of December 31, 2007 by and between the IDA and the Company (“First Amended ISA” and together with the ISA collectively, the “Agreement”).
WHEREAS, Title 1 of Article 18-A of the General Municipal Law of the State of New York (“Enabling Act”) was duly enacted into law as Chapter 1030 of the Laws of 169 of the State of New York (“State”); and
WHEREAS, the Enabling Act authorizes the creation of industrial development agencies for the benefit of the several counties, cities, villages and towns in the State and empowers such agencies, among other things, to acquire, construct, reconstruct, lease, improve, maintain, equip and sell land and any building or other improvement, and all real and personal properties, including, but not limited to, machinery and equipment deemed necessary in connection therewith, whether or not now in existence or under construction, which shall be suitable for manufacturing, warehousing, research, commercial or industrial facilities, in order to advance job opportunities, health, general prosperity and the economic welfare of the people of the State and to improve its standard of living; and
WHEREAS, the Enabling Act further authorizes each such agency to installment sell or lease any or all of its facilities at such rentals and on such other terms and conditions as it deems advisable; and
WHEREAS, the IDA was created pursuant to and in connection with the provisions of the Enabling Act, Chapter 560 of the Laws of 1970 of the State (collectively referred to as the “Act”) and is empowered under the Act to undertake the providing, financing and leasing of the facility described below; and
WHEREAS, the IDA and the Company entered into the ISA pursuant to which the IDA appointed the Company its agent to (i) acquire, construct, install and equip a hydroelectric generating facility (“Plant”) on two (2) parcels of real estate consisting of approximately 2.465± acres located in the Town of Neversink (“Town”), County of Sullivan, State (“Land”); (ii) acquire and install thereon and therein certain fixtures, machinery, equipment and tools (“Equipment”); (iii) construct improvements to the Plant, the Land and the Equipment (collectively, the Plant, the Land and the Equipment are referred to as the “Facility”); and (iv) finance a portion of the costs of the foregoing; and
WHEREAS, the IDA took an interest in the Land in the form of an easement pursuant to that certain Indenture, made as of October 1, 1987 from the Company to the IDA and sold its interest in the Facility to the Company in installments pursuant to the ISA; and
WHEREAS, effective December 31, 2007, the IDA entered into the First Amended ISA and that certain First Amendment to Agreement for Payments in Lieu of Taxes (“First Amended PILOT”) to extend the termination dates thereof for five (5) years; and
WHEREAS, the Town and the Company have jointly requested the IDA extend the termination date of the ISA and the Agreement for Payments in Lieu of Taxes, dated as of February 1, 1986 by and between the Issuer and the Company (“PILOT Agreement”); and
WHEREAS, the IDA, at the Company’s request, contemplates amending the IDA and PILOT Agreement to further extend the termination dates thereof.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual terms, conditions, limitations and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, it is mutually agreed as follows:
- Administrative Fee. Section 5.6 of the Agreement is hereby amended to add the following:
“Commencing January 1, 2014 and each January 1st of each calendar year thereafter during the term hereof the Company shall pay the IDA an Administrative Fee of FOUR THOUSAND and 00/100 ($4,000.00) Dollars.”
- Integration. Except as herein amended, all other terms and conditions of the ISA, as amended by the First Amended ISA shall remain in full force and effect. If there shall be any conflict or inconsistency between the terms of this Second Amendment, the First Amended ISA and the ISA, the terms of this Second Amendment shall control.
IN WITNESS WHEREOF, the Company and the IDA have caused this Second Amendment to be executed, in their respective names effective as of the date first above written.
COUNTY OF SULLIVAN INDUSTRIAL DEVELOPMENT AGENCY
By: Allan C. Scott, Chief Executive Officer
WEST DELAWARE HYDRO ASSOCIATES, L.P.
By: Brookfield Power West Delaware, its General Partner