RESOLUTION
A special meeting of the Sullivan County Funding Corporation (“SCFC”) was convened in public session at the Sullivan County Government Center, 100 North Street, Village of Monticello, Sullivan County, New York on October 8, 2013 at 10:30 a.m. local time.
The meeting was called to order by Vice-Chairman Harold Gold, and, upon roll being called, the following members of SCFC were:
PRESENT ABSENT
Ira Steingart [ ] [ √ ]
Harold Gold [ √ ] [ ]
Edward T. Sykes [ √ ] [ ]
Suzanne Loughlin [ √ ] [ ]
Charles Barbuti, Jr. [ √ ] [ ]
Harris Alport [ √ ] [ ]
Cindy Garlinghouse [ ] [ √ ]
Steve White [ ] [ √ ]
Sean Rieber [ √ ] [ ]
The following persons were also present:
Allan C. Scott, Chief Executive Officer
Jennifer C.S. Brylinski, Executive Director
Walter F. Garigliano, General Counsel
The following resolution was duly offered by Sean Rieber, and seconded by Charles Barbuti, Jr., to wit:
Resolution No. 04 – 13
RESOLUTION AUTHORIZING AND APPROVING ACCEPTANCE OF CERTAIN MORTGAGES AS ADDITIONAL COLLATERAL SECURITY FOR THE OBLIGATIONS OF THE COMPANY TO SCFC AND EXECUTION AND DELIVERY OF AN AMENDED AND RESTATED INTERCREDITOR AGREEMENT BY AND AMONG SCFC, U.S. BANK NATIONAL ASSOCIATION, TD BANK, N.A. AND RBS CITIZENS, NATIONAL ASSOCIATION RELATING TO THE CENTER FOR DISCOVERY, INC. PROJECT (“COMPANY”)
WHEREAS, pursuant to that certain Indenture of Trust, dated as of December 1, 2011 (the “Indenture”), between SCFC and the Trustee, SCFC issued its Tax-Exempt Revenue Bonds, Series 2011A-E in the principal amount of $69,710,000 (the “Series 2011A-E Bonds”) and its Taxable Revenue Bonds, Series 2011F in the principal amount of $878,000 (the “Series 2011F Bonds”; together with the Series 2011A-E Bonds, the “Series 2011 Bonds”) for the benefit of the Company; and
WHEREAS, the Series 2011 Bonds are secured by payments to be made by the Company to SCFC pursuant to the Loan Agreement, dated as of December 1, 2011 (“Loan Agreement”), by and between the SCFC and the Company; and
WHEREAS, as security and collateral for the Series 2011 Bonds and the Company’s obligations under the Swap Agreement (defined below), SCFC assigned to the Trustee, pursuant to the Indenture, the Trust Estate, as defined in the Indenture and substantially all of the SCFC’s rights under the Loan Agreement, except for certain Unassigned Rights of SCFC; and
WHEREAS, in connection with the issuance of the Series 2011 Bonds, the Company and the TD Swap Provider entered into a certain ISDA Master Agreement, and ISDA Schedule thereto, and ISDA Credit Support Annex to the Schedule and a Confirmation letter or letters relating to the Series 2011A-E Bonds (and may subsequently enter into additional confirmation letters) collectively, as modified, restated or supplemented from time to time, (“TD Swap Agreement”); and
WHEREAS, in connection with the issuance of the Series 2011 Bonds, the Company and the RBS Swap Provider entered into certain ISDA Master Agreement, and ISDA Schedule thereto, and ISDA Credit Support Annex to the Schedule and a Confirmation letter or letters relating to the Series 2011A-E Bonds (and may subsequently enter into additional confirmation letters) collectively, as modified, restated or supplemented from time to time, (“RBS Swap Agreement”; together with the TD Swap Agreement, the “Swap Agreement”); and
WHEREAS, in order to provide additional security and collateral for the Series 2011 Bonds, the Company’s obligations under the Loan Agreement and as security for the Company’s obligations under the Swap Agreement, SCFC and the Company executed and delivered to SCFC a certain Mortgage, Assignment of Rents, Security Agreement and Fixture Filing dated as of December 1, 2011 (“Mortgage”) pursuant to which the Company granted a mortgage lien and a security interest in the Series 2011 Project together with an assignment of leases and rents contained therein; and
WHEREAS, the Mortgage was assigned by SCFC to the Trustee pursuant to a certain Assignment of Mortgage, dated as of December 1, 2011 (“Mortgage Assignment”), from SCFC to the Trustee; and
WHEREAS, pursuant to a Pledge and Security Agreement, dated as of December 1, 2011 (“Organization Security Agreement”) by the Company in favor of the Trustee and the Swap Provider, the Company granted to the Trustee and the Swap Provider as security and collateral for the Series 2011 Bonds, the Company’s obligations under the Loan Agreement and as security for the Company’s obligations under the Swap Agreement, a second lien security interest in and a pledge of the Company’s Gross Revenues (as defined in the Organization Security Agreement), subject to and subordinate to the lien granted to the Line Lender under the Bank Agreement described below; and
WHEREAS, the Company, Developmental Residential Services, Inc. (“DRS”), Center for Discovery Magnet Services Corp. (“CDMS”), Center for Discovery Endowment Fund Inc., Sullivan C.P. Residence Corporation, Inc. (“SCP”) and SDTC Foundation Inc. (“SDTC”) (collectively, the “Guarantors”) guaranteed the principal of and interest on the Series 2011 Bonds and the Company’s obligations under the Swap Agreement and the Bond Documents, pursuant to a certain Guaranty, dated as of December 1, 2011, from the Company and Guarantors to the Trustee and Swap Provider (the “Bond Guaranty”); and
WHEREAS, TD Line Lender and the Company entered into a Loan and Security Agreement, dated as of May 24, 2006, as amended, modified, supplemented or restated (“TD Bank Agreement”), pursuant to which TD Line Lender extended credit in the form of a revolving line of credit under which TD Line Lender made a loan or loans to the Company in an aggregate principal amount not to exceed $8,000,000 outstanding at any time (the “TD Bank Loan”), which such TD Bank Loan is evidenced by an Amended and Restated Revolving Credit Note, as amended, modified, supplemented or restated (the “TD Bank Note”) and secured by a security interest in certain collateral of the Company hereinafter referred to as the “TD Bank Collateral”, as such term is more particularly defined in the Amended and Restated Intercreditor Agreement; and
WHEREAS, RBS Line Lender and the Company entered into a Loan Agreement, dated as of May 24, 2006, as may be amended, modified, supplemented or restated (“RBS Bank Agreement”), pursuant to which RBS Line Lender extended credit in the form of a revolving line of credit under which RBS Line Lender made a loan or loans to the Company in an aggregate principal amount not to exceed $8,000,000 outstanding at any time (“RBS Bank Loan”), which such RBS Bank Loan is evidenced by a Consolidated, Amended and Restated Revolving Line of Credit Note (“RBS Bank Note”) and secured by a security interest in all accounts and receivables collateral of the Company pursuant to the Continuing General Security Agreement dated as of December 18, 2007 (the “RBS Security Agreement”) hereinafter referred to as the “RBS Bank Collateral”, as such term is more particularly defined in the Amended and Restated Intercreditor Agreement; and
WHEREAS, TD Term Loan Lender, SCFC and the Company have proposed that the TD Term Loan Lender and Company enter into that certain Mortgage and Security Agreement (“TD Mortgage and Security Agreement”), pursuant to which TD Term Loan Lender shall extend credit in the form of a term loan under which TD Term Loan Lender will, upon satisfaction of the conditions set forth therein, make a loan to the Company in the aggregate principal amount of $1,250,000 (“TD Term Loan”) which such TD Term Loan will be evidenced by that certain Mortgage Note, as amended, restated, modified or supplemented (“TD Mortgage Note”) and secured by the grant of a security interest in the TD Bank Collateral (as such term is defined herein) pursuant to that certain Pledge and Security Agreement, dated as of the date hereof, as amended, restated, modified or supplemented (“TD Pledge Agreement”); and
WHEREAS, DRS, CDMS, SDTC and SCP (collectively, the “Term Loan Guarantors”) shall guarantee the principal of and interest on the TD Term Loan and the Company’s obligations under the TD Term Loan Documents, pursuant to a certain Guaranty of Payment, as amended, restated, modified or supplemented (the “TD Term Loan Guaranty”); and
WHEREAS, RBS Term Loan Lender, SCFC and the Company proposed that the RBS Term Loan Lender and Company enter into that certain Mortgage and Security Agreement, dated as of the date hereof, as amended, restated, modified or supplemented (“RBS Mortgage and Security Agreement”) pursuant to which RBS Term Loan Lender extended credit in the form of a term loan under which RBS Term Loan Lender will, upon satisfaction of the conditions set forth therein, make a loan to the Company in the aggregate principal amount $1,250,000 (“RBS Term Loan”) which such RBS Term Loan will be evidenced by that certain Mortgage Note, as amended, restated, modified or supplemented (“RBS Mortgage Note”) and secured by the grant of a security interest in the RBS Bank Collateral (as such term is defined herein) pursuant to that certain Pledge and Security Agreement, dated as of the date hereof, as amended, restated, modified or supplemented (“RBS Pledge Agreement”); and
WHEREAS, the Term Loan Guarantors shall guarantee the principal of and interest on the RBS Term Loan and the Company’s obligations under the RBS Term Loan Documents, pursuant to a certain Guaranty of Payment, dated as of the date hereof, as amended, restated, modified or supplemented (“RBS Term Loan Guaranty”); and
WHEREAS, the Creditors and SCFC wish to enter into an Amended and Restated Intercreditor Agreement to (i) agree upon the relative priorities among the Creditors (a) in the Trust Estate, the Mortgage, including all foreclosure proceeds, insurance proceeds, condemnation awards and the assignment of rents and leases thereunder to secure the Company’s obligations under the Series 2011 Bonds, the Loan Agreement and the Swap Agreement, and (b) in the Bond Guaranty and the Term Loan Guaranty to secure the Company’s obligations under the Series 2011 Bonds, the Loan Agreement, the Swap Agreement and the Term Loan Documents, (c) in the security interests in and pledge of the Company’s accounts, receivables and Gross Revenues to secure the Company’s obligations under the Series 2011 Bonds, the Loan Agreement, the Swap Agreement, the Bank Agreement and the Pledge Agreement, (ii) establish limitations or conditions upon their respective rights to enforce, foreclose or realize upon such security interest, and (iii) agree upon the manner in which any money realized from the enforcement, foreclosure or other realization upon such security interests are to be applied; and
WHEREAS, SCFC wishes to authorize certain of its officers to accept the TD Mortgage and Security Agreement and to cause the TD Mortgage and Security Agreement to be recorded in the Office of the Sullivan County Clerk; and
WHEREAS, SCFC wishes to authorize certain of its officers to accept the RBS Mortgage and Security Agreement and to cause the RBS Mortgage and Security Agreement to be recorded in the Office of the Sullivan County Clerk; and
WHEREAS, SCFC wishes to authorize certain of its officers to execute the Amended and Restated Intercreditor Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE MEMBERS OF SCFC AS FOLLOWS:
Section 1. SCFC hereby authorizes its Chairman, Vice-Chairman and Chief Executive Officer (either acting individually) to accept the TD Mortgage and Security Agreement and cause the TD Mortgage and Security Agreement to be recorded in the Office of the Sullivan County Clerk.
Section 2. SCFC hereby authorizes its Chairman, Vice-Chairman and Chief Executive Officer (either acting individually) to accept the RBS Mortgage and Security Agreement and cause the RBS Mortgage and Security Agreement to be recorded in the Office of the Sullivan County Clerk.
Section 3. SCFC hereby approves the Amended and Restated Intercreditor Agreement.
Section 4. SCFC authorizes its Chairman, Vice-Chairman and Chief Executive Officer (either acting individually) to sign the Amended and Restated Intercreditor Agreement together with any and all agreements, certificates, documents and instruments necessary relating to the foregoing with such changes, variations, omissions and insertions as the Chairman, Vice-Chairman or Chief Executive Officer of SCFC shall approve, the execution thereof by the Chairman, Vice-Chairman or Chief Executive Officer of the Agency to constitute conclusive evidence of such approval.
Section 5. This resolution shall take effect immediately.
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
Cindy Garlinghouse [ ] Yes [ ] No [ √ ] Absent [ ] Abstain
Steve White [ ] Yes [ ] No [ √ ] Absent [ ] Abstain
Sean Rieber [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
The resolution was thereupon duly adopted.
STATE OF NEW YORK )
ss.:
COUNTY OF SULLIVAN )
I, the undersigned (Assistant) Secretary of the Sullivan County Funding Corporation, DO HEREBY CERTIFY:
That I have compared the annexed extract of the minutes of the meeting of the Sullivan County Funding Corporation (the “Corporation”), including the resolutions contained therein, held on October 8, 2013, with the original thereof on file in my office, and that the same is a true and correct copy of the proceedings of the Corporation and of such resolutions set forth therein and of the whole of said original insofar as the same related to the subject matters therein referred to.
I FURTHER CERTIFY that public notice of the time and place of said meeting was duly given in accordance with Article 7 of the New York Public Officers Law, that all members of the Corporation had due notice of the meeting and that the meeting was in all respects duly held.
IN WITNESS WHEREOF, I have hereunto set my hand on this 8th day of October, 2013.
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Secretary
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