RESOLUTION
A regular meeting of 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 December 11, 2012 at 10:00 a.m. local time.
The meeting was called to order by Chairman Ira Steingart, and, upon the roll being called, the following members of the Agency were:
PRESENT ABSENT
Ira Steingart [ ] [ ]
Harold Gold [ ] [ ]
Edward T. Sykes [ ] [ ]
Suzanne Loughlin [ ] [ ]
Charles Barbuti, Jr. [ ] [ ]
Harris Alport [ ] [ ]
Steve White [ ] [ ]
Sandy Shaddock [ ] [ ]
Sean Rieber [ ] [ ]
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 AND APPROVING THE EXECUTION AND DELIVERY OF THE MODIFICATION NO. 1 TO FEE AND LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING AND RELATED DOCUMENTS BY IDEAL SNACKS CORPORATION (“COMPANY”) AND THE AGENCY TO SOVEREIGN BANK, N.A. (“MORTGAGEE”) IN AN AMOUNT NOT TO EXCEED FORTY-SIX MILLION AND 00/100 ($46,000,000.00) DOLLARS
WHEREAS, the Agency was created by Chapter 560 of the Laws of 1970 of the State of New York (“State”), as amended, pursuant to Title I of Article 18-A of the General Municipal Law of the State (collectively, the “Act”) as a body corporate and politic and as a public benefit corporation of the State; and
WHEREAS, on or about August 1, 2003, the Company entered into a lease/leaseback transaction with the Agency pursuant to which the Agency undertook a project (“2002 Project”) consisting of (i) the construction and equipping of an approximately 26,600 square foot expansion to the Company’s existing facility (“2002 Project Building”) situate on one (1) parcel of real estate consisting of approximately 2.59″ acres located at 89 Mill Street in the Village of Liberty (“Village”), Town of Liberty (“Town”), County of Sullivan (“County”), State and identified on the tax map as Town Section 115, Block 3, Lot 1.1 (“2002 Project Land”); (ii) acquisition and installation thereon and therein of certain furniture, fixtures, machinery, equipment and tools (“2002 Project Equipment”); (iii) construction of improvements to the 2002 Project Building, the 2002 Project Land and the 2002 Project Equipment (collectively, the 2002 Project Building, the 2002 Project Land and the 2002 Project Equipment are referred to as the “2002 Project Facility”); and (iv) lease of the 2002 Project Facility to the Agency and back from the Agency to the Company; and
WHEREAS, on or about December 1, 2003, the Company entered into a lease/leaseback transaction with the Agency pursuant to which the Agency undertook a project (“2003 Project” and together with the 2002 Project, the “Project”) consisting of the (i) construction and equipping of a two (2) story manufacturing warehouse building to consist of approximately 104,600 square feet (“2003 Project Building” and together with the 2002 Project Building, the “Building”) situate on three (3) parcels of real estate consisting of approximately 3.96″ acres to be located at 89 Mill Street in the Village, Town, County, State and identified on the tax map as Town Section 113, Block 3, Lots 1.1, 2 and a portion of 5.1 (“Second Project Land”) and related facilities to be leased to the Agency; (ii) acquisition and installation thereon and therein of certain furniture, fixtures, machinery, equipment and tools (“2003 Project Equipment” and together with the 2002 Project Equipment, the “Equipment”); (iii) construction of improvements to the 2003 Project Building, the 2003 Project Land and the 2003 Project Equipment (collectively, the 2003 Project Building, the 2003 Project Land and the 2003 Project Equipment are referred to as the “2003 Project Facility”); and (iv) lease of the 2003 Project Facility to the Agency and back from the Agency to the Company; and
WHEREAS, on or about December 15, 2004 the Company amended its lease/leaseback transactions with the Agency to include additional parcels of real property, namely those parcels identified on the tax map as Town Section 113, Block 1, Lot 10, Section 113, Block 2, Lot 2 and Section 23, Block 1, Lot 86 acquired by the Company and utilized in connection with its manufacturing operations (“Additional Land” and together with the 2002 Project Land and 2003 Project Land, the “Land”). The 2002 Project Facility, 2003 Project Facility and Additional Land are collectively referred to herein as the “Facility”); and
WHEREAS, on or about June 9, 2005, the Company arranged a credit facility in the aggregate amount of $21,000,000.00 Dollars as contemplated by that certain Loan and Security Agreement, dated as of June 10, 2005 among the financial institutions listed on the signature pages thereto, AmSouth Bank, as Agent, AmSouth Bank Corp., as Administrative Agent (“AmSouth”) and the Company; and
WHEREAS, in 2005, the Company requested and the Agency mortgaged its leasehold interest in the Facility (as hereinafter defined) to the extent of $8,000,000.00 Dollars to AmSouth and the Agency abated the mortgage recording tax relating thereto; and
WHEREAS, on or about June 10, 2005, the Agency mortgaged its interest to AmSouth; and
WHEREAS, the Company refinanced its 2005 credit facility with Sovereign Bank and the Agency joined in execution of a Fee and Leasehold Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing and any and all related documents, agreements, certificates and instruments by the Company and the Agency to Sovereign Bank in an amount not to exceed $8,000,000.00 Dollars; and
WHEREAS, on or about March 22, 2006, the Company presented an application to the Agency whereby the Agency undertook a project consisting of the (i) construction and equipping of an approximately 1,700± square foot corridor connecting the 2002 Facility and the 2003 Facility intended to house an enrobing manufacturing line on one (1) parcel of real property located at 89 Mill Street in the Village and Town, County, State and identified on the tax map as Town Section 113, Block 3, Lot 5.3 (“2006 Facility” and together with the 2002 Facility, the 2003 Facility, the “Facility” or the “2006 Expansion Project” and together with the 2002 Expansion Project and the 2003 Expansion Project, the “Project”); and
WHEREAS, in August, 2011, (i) the Agency consented to the loan of an amount not to exceed $22,000,000 Dollars, secured in part by a mortgage on the Facility in the amount of $8,000,000, dated September 21, 2011 and filed in the Office of Sullivan County Clerk on October 5, 2011 as Instrument No. 2011-6552 (“Mortgage”); (ii) the Agency and the Company amended the project documents to provide that the Agency provide a copy of any notice which the Agency delivers to the Company (as defined in the project documents) under the project documents to Sovereign Bank (“Sovereign”); (iii) the Agency executed necessary affidavits to record the Mortgage without payment of mortgage tax; and (iv) the Agency authorized Sovereign to exercise the rights of the Company to terminate the project documents; and
WHEREAS, on September 13, 2011 the Agency adopted a resolution authorizing the Company to obtain a loan from Sovereign in an amount not to exceed $22,000,000 Dollars secured in part by the Mortgage contemporaneously with the Sovereign loan; and
WHEREAS, AmSouth was paid off; and
WHEREAS, on or about March 27, 2012, the Company presented an Application to the Agency whereby the Agency undertook a project consisting the (i) construction and equipping of an approximately 20,000± square foot two (2) story addition to its existing manufacturing Facility situate on three (3) parcels of real property consisting of approximately 6.9± acres located along 87-89 Mill Street in the Village and Town, County, State and identified on the tax map as Town Section 113, Block 3 and Lots 1.2, 1.3 and 5.1 (“2012 Updated Land”) and related facilities leased to the Agency and leased back to the Company (“2012 Facility” and together with the 2002 Facility and the 2003 Facility, the “Facility”) or the “2012 Expansion Project” and together with the 2002 Expansion Project and the 2003 Expansion Project, the “Project”); and
WHEREAS, on or about November 26, 2012, the Company presented two (2) Applications to the Agency, copies of which are on file at the office of the Agency, requesting that the Agency whereby the Agency undertook the following projects:
Warehouse Phase 1 [a – see note at end]
The (i) construction, installation and equipping of a two (2) story manufacturing warehouse building to consist of approximately 41,000 square feet (“Warehouse #1 Building”) situate on three (3) parcels of real estate consisting of approximately 6.9″ acres to be located at 89 Mill Street in the Village, Town, County, State and identified on the tax map as Town Section 113, Block 3, Lots 1.2, 1.3 and 5.1 (“Warehouse #1 Land”) and related facilities a leasehold interest in which the Agency is to acquire; (ii) acquisition and installation thereon and therein of certain furniture, fixtures, machinery, equipment and tools (“Warehouse #1 Equipment”); (iii) construction of improvements to the Warehouse #1 Building, the Warehouse #1 Land and the Warehouse #1 Equipment (collectively, the Warehouse #1 Building, the Warehouse #1 Land and the Warehouse #1 Equipment are referred to as the “Warehouse #1 Facility” or the “Warehouse #1 Project”); (iv) lease of the Warehouse #1 Facility from the Company to the Agency; and (v) leaseback of the Warehouse #1 Facility from the Agency to the Company; and
Warehouse Phase 2
The (i) construction, installation and equipping of a two (2) story manufacturing warehouse building to consist of approximately 65,000 square feet (“Warehouse #2 Building” together with Warehouse #1 Building, collectively “Building”) situate on one (1) parcel of real estate consisting of approximately 6.71″ acres to be located at 89 Mill Street in the Town, County, State and identified on the tax map as Town Section 113, Block 3 and Lot 5.1 (“Warehouse #2 Land” together with Warehouse #1 Land, collectively, “Land”) and related facilities a leasehold interest in which the Agency is to acquire; (ii) acquisition and installation thereon and therein of certain furniture, fixtures, machinery, equipment and tools (“Warehouse #2 Equipment” together with the Warehouse #1 Equipment, collectively, “Equipment”); (iii) construction of improvements to the Building, the Land and the Equipment (collectively, the Building, the Land and the Equipment are referred to as the “Warehouse #2 Facility” together with Warehouse #1 Facility, collectively, the “Facility” or the “Warehouse #2 Project” together with the Warehouse #1 Project, collectively, the “Project”); (iv) lease of the Warehouse #2 Facility from the Company to the Agency; and (v) leaseback of the Warehouse #2 Facility from the Agency to the Company; and
WHEREAS, the Company, the Mortgagee and the financial institutions from time to time party to the Loan Agreement (as defined below) as lenders (collectively, the “Lenders”) are about to enter into that certain Amended and Restated Loan and Security Agreement (as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, the “New Loan Agreement”), pursuant to which, among other things (a) Mortgagee and the Company have agreed to amend and restate the Loan Agreement (as defined in the Mortgage as in effect immediately prior to the date hereof and referred to herein as the “Existing Loan Agreement”), (b) the Indebtedness of the Company under the Existing Loan Agreement, including the Indebtedness of the Company secured by the Mortgage, will continue as Indebtedness of the Company under the New Loan Agreement subject to the terms and conditions thereof and (c) Lenders (or Sovereign Bank, N.A. on behalf of Lenders) may make loans and advances and provide other financial accommodations to the Company in accordance with the terms thereof; and
WHEREAS, the parties desire to amend the Mortgage to reflect the amendment and restatement of the Existing Loan Agreement as, and the consolidation of the Existing Loan Agreement into, the New Loan Agreement; and
WHEREAS, the underlying loan facility will increase in size but the amount secured by the Mortgage will not increase; and
WHEREAS, the Company and Mortgagee have requested that the Agency will join in a Modification and any and all related documents, agreements, certificates and instruments in favor of the Mortgagee.
NOW, THEREFORE, BE IT RESOLVED BY THE MEMBERS OF THE AGENCY AS FOLLOWS:
Section 1. The Chief Executive Officer of the Agency, acting individually, is hereby authorized, on behalf of the Agency, to execute and deliver the Modification of the Agency’s leasehold interest in the Facility to Mortgagee together with and any and all related documents, agreements, certificates and instruments, all in form approved by Counsel to the Agency and with such changes, variations, omissions and insertions as the Chairman or Chief Executive Officer of the Agency shall approve, the execution thereof by the Chief Executive Officer of the Agency to constitute conclusive evidence of such approval.
Section 2. 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 and any and all related documents, agreements, certificates and instruments, 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 3. These resolutions shall take effect immediately.
The question of adoption of the foregoing Resolution was duly put to a vote on roll call, which resulted as follows:
Ira Steingart [ ] Yes [ ] No [ ] Absent [ ] Abstain
Harold Gold [ ] Yes [ ] No [ ] Absent [ ] Abstain
Edward T. Sykes [ ] Yes [ ] No [ ] Absent [ ] Abstain
Suzanne Loughlin [ ] Yes [ ] No [ ] Absent [ ] Abstain
Charles Barbuti, Jr. [ ] Yes [ ] No [ ] Absent [ ] Abstain
Harris Alport [ ] Yes [ ] No [ ] Absent [ ] Abstain
Steve White [ ] Yes [ ] No [ ] Absent [ ] Abstain
Sandy Shaddock [ ] Yes [ ] No [ ] Absent [ ] Abstain
Sean Rieber [ ] Yes [ ] No [ ] Absent [ ] Abstain
The resolutions were thereupon duly adopted.
STATE OFNEW YORK :
:ss.:
COUNTYOFSULLIVAN :
I, the undersigned (Assistant) Secretary of theCountyofSullivan Industrial Development Agency DO HEREBY CERTIFY THAT:
1. I have compared the foregoing copy of a resolution of the County of Sullivan Industrial Development Agency (“Agency”) with the original thereof on file in the office of the Agency, and that the same is a true and correct copy of such resolution and of the proceedings of the Agency in connection with such matter.
2. Such resolution was passed at a meeting of the Agency duly convened in public session on the 11th day of December, 2012 at 10:00 a.m. at theSullivanCountyGovernmentCenter,100 North Street,Village ofMonticello, Sullivan County, New York, at which the following members were present:
PRESENT ABSENT
Ira Steingart [ ] [ ]
Harold Gold [ ] [ ]
Edward T. Sykes [ ] [ ]
Suzanne Loughlin [ ] [ ]
Charles Barbuti, Jr. [ ] [ ]
Harris Alport [ ] [ ]
Steve White [ ] [ ]
Sandy Shaddock [ ] [ ]
Sean Rieber [ ] [ ]
3. The question of the adoption of the foregoing resolution was duly put to a vote on roll call which resulted as follows:
Ira Steingart [ ] Yes [ ] No [ ] Absent [ ] Abstain
Harold Gold [ ] Yes [ ] No [ ] Absent [ ] Abstain
Edward T. Sykes [ ] Yes [ ] No [ ] Absent [ ] Abstain
Suzanne Loughlin [ ] Yes [ ] No [ ] Absent [ ] Abstain
Charles Barbuti, Jr. [ ] Yes [ ] No [ ] Absent [ ] Abstain
Harris Alport [ ] Yes [ ] No [ ] Absent [ ] Abstain
Steve White [ ] Yes [ ] No [ ] Absent [ ] Abstain
Sandy Shaddock [ ] Yes [ ] No [ ] Absent [ ] Abstain
Sean Rieber [ ] Yes [ ] No [ ] Absent [ ] Abstain
and therefore, the resolution was declared duly adopted.
I FURTHER CERTIFY that (i) all members of the Agency had due notice of said meeting, (ii) pursuant to Sections 103a and 104 of the Public Officers Law (Open Meetings Law), said meeting was open to the general public and public notice of the time and place of said meeting was duly given in accordance with such Sections 103a and 104, (iii) the meeting in all respects was duly held, and (iv) there was a quorum present throughout.
IN WITNESS WHEREOF, I have hereunto set my hand and seal on the 11th day of December, 2012. ______________________________ Secretary
[a] The Warehouse Phase 1 Application supplemented the March 27, 2012 application.
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