(Sullivan County Community College Dormitory Corporation Project)
A special meeting of the Sullivan County Funding Corporation (“Corporation” or “Issuer”) was convened on June 24, 2014 at 10:15 a.m.
The following resolution was duly offered and seconded, to wit:
Resolution No. 02-14
RESOLUTION AUTHORIZING THE ISSUANCE, EXECUTION, SALE AND DELIVERY OF THE ISSUER TAX-EXEMPT AND/OR TAXABLE REVENUE BONDS (SULLIVAN COUNTY COMMUNITY COLLEGE DORMITORY CORPORATION PROJECT), SERIES 2014, IN ONE OR MORE SERIES, AND IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $9,500,000 AND THE EXECUTION AND DELIVERY OF RELATED DOCUMENTS
WHEREAS, pursuant to the powers and purposes contained in Section 1411 of the Not-For-Profit Corporation Law (the “N-PCL”) of the State of New York (the “State”), as amended (hereinafter collectively called the “Act”), a resolution adopted by the Sullivan County Legislature (the “County”), and pursuant to its duly filed Certificate of Incorporation (the “Certificate”), the Issuer was established as a not-for-profit local development corporation of the State with the authority and power to own, lease and sell personal and real property for the purposes of, among other things, acquiring, constructing and equipping certain projects exclusively in furtherance of the charitable or public purposes of relieving and reducing unemployment, promoting and providing for additional and maximum employment, bettering and maintaining job opportunities, instructing or training individuals to improve or develop their capabilities for such jobs, by encouraging the development of, or retention of, an industry in the community or area, and lessening the burdens of government and acting in the public interest; and
WHEREAS, SULLIVAN COUNTY COMMUNITY COLLEGE DORMITORY CORPORATION, a New York not-for-profit corporation and an organization described in 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), having offices at 112 College Road, Loch Sheldrake, New York (the “Company”), has submitted an application (the “Original Application”) and an Amended Application (“Amended Application” collectively, the “Application”) to the Issuer requesting that the Issuer consider the issuance of its Tax-Exempt and/or Taxable Revenue Bonds (Sullivan County Community College Dormitory Corporation Project), Series 2014, in one or more series, in the principal amount not to exceed $9,500,000 (or such other amount as advised by the Company) (the “Bonds”) for the purposes of undertaking a certain project (the “Project”) consisting of the following: (A) the refinancing of an existing taxable mortgage loan in the original principal amount of $8,100,000 (the “Taxable Loan”), the proceeds of which were used by the Company for the purpose of (I) refinancing all of the outstanding County of Sullivan Industrial Development Agency’s Civic Facility Revenue Bonds (Sullivan County Community College Dormitory Corporation Project), Series 2002 (the “Series 2002 Bonds”), the proceeds of which were used to: (1) pay the cost of the construction of two free standing buildings to be used as student dormitory housing, each building consisting of four floors with approximately 40 beds per floor, and each containing appurtenant and ancillary facilities such as an entrance lobby, mailroom, security station, activity lounge with food service area, student study lounge, laundry and vending facilities, trash/recycling facilities and utility/maintenance facilities (the “2002 Improvements”); (2) acquire and install certain machinery equipment and other items of tangible personal property (the “2002 Equipment”; and, together with the 2002 Improvements, the “2002 Facility”); (3) pay certain costs and expenses incidental to the issuance of the Series 2002 Bonds; and (4) fund a capitalized interest account and a debt service reserve fund in connection with the Series 2002 Bonds, (II) funding other expenditures of the Company, and (III) pay costs incidental to such mortgage loan; and (B) paying of all or a portion of the costs incidental to the issuance of the Bonds, capitalized interest and any reserve funds as may be necessary to secure the Bonds (the costs associated with items (A) and (B) above being hereinafter collectively referred to as the “Project Costs”); and
WHEREAS, the Issuer is contemplating assisting the Company with the Project by (i) issuing the Bonds in an amount not to exceed the lesser of the Project Costs or $9,500,000 and (ii) providing an exemption from all mortgage recording taxes with respect to any qualifying mortgage to secure the Bonds or the Company’s obligations relating to the Bonds; and
WHEREAS, in accordance with Section 147(f) of the Internal Revenue Code of 1986 as amended (the “Code”), the Issuer conducted a public hearing with respect to the issuance of the Bonds on Thursday, June 19, 2014, at 2:15 p.m., following the publication on June 3, 2014, in The Sullivan County Democrat of a notice of said public hearing; and
WHEREAS, on June 19, 2014, the County Legislature approved the issuance of the Bonds in accordance with Section 147(f) of the Code; and
WHEREAS, the Bonds are being issued and sold by the Issuer to Sterling National Bank (the “Bank”) pursuant to a certain Bond Purchase Agreement and Loan Agreement (the “Bond Purchase Agreement”), dated June 26, 2012 (or other appropriate date), by and among the Issuer, the Company and Bank; and
WHEREAS, as security for the Bonds, the Company will grant to the Issuer a first priority mortgage lien and security interest in properties of the Company pursuant to a certain Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated as of June 26, 2014 (or other appropriate date) (the “Mortgage”), from the Company to the Issuer; which mortgage lien and security interest will be assigned (except the Unassigned Rights as defined in the Bond Purchase Agreement) by the Issuer to the Bank pursuant to a certain Assignment of Mortgage, dated June 26, 2014 (or other appropriate date) (the “Assignment of Mortgage”); and
WHEREAS, pursuant to the State Environmental Quality Review Act, Article 8 of the Environmental Conservation Law and the regulations adopted pursuant thereto at 6 N.Y.C.R.R. Part 617, as amended (collectively referred to as “SEQRA”), the Project is a Type II action under SEQRA.
NOW, THEREFORE, BE IT RESOLVED by the Issuer as follows:
Section 1. The Issuer hereby finds and determines:
(a) By virtue of the Act, the Issuer has been vested with all powers necessary and convenient to carry out and effectuate the purposes and provisions of the Act and to exercise all powers granted to it under the Act; and
(b) The Project will promote and maintain permanent private sector jobs, health, general prosperity and economic welfare of the citizens of the State of New York and improve their standard of living and will increase the overall number of permanent private sector jobs in the State and thereby serve the public purposes of the Act; and
(c) The Project and the operations conducted therein will not cause or result in the violation of the health, labor or other laws of the United States of America, the State or Sullivan County; and
(d) It is desirable and in the public interest for the Issuer to issue and sell the Bonds to be dated the date of its issuance and sale, upon the terms and conditions set forth in the Bond Purchase Agreement for the purpose of undertaking the Project; and
(e) The public hearing held by the Issuer on June 19, 2014, concerning the issuance of the Bonds was duly held in accordance with the requirements of the Code and the laws of the State, including but not limited to the giving of public notice of the hearing a reasonable time before the hearing and affording a reasonable opportunity for persons with differing views on the issuance of the Bonds to be heard.
(f) All documents to be executed by the Issuer are reasonably necessary to provide the security described herein for the Bond.
Section 2. In consequence of the foregoing, the Issuer hereby determines to: (i) issue the Bonds pursuant to the terms of the Bond Purchase Agreement and make the proceeds available to the Company, (ii) execute a certain Tax Compliance Agreement, dated as of the date of issuance and delivery of the Bonds (the “Tax Compliance Agreement”), pursuant to which the Issuer and the Company make certain covenants to ensure the continued tax-exempt status of the Bonds to be issued as tax-exempt obligations (the “Tax-Exempt Bonds”), (iii) execute an Internal Revenue Service Form 8038 (the “Information Return”) in connection with the issuance of the Tax Exempt Bonds, (iv) take a mortgage lien on certain properties of the Company pursuant to the Mortgage and assign such lien to the Bank pursuant to the Assignment of Mortgage and (v) execute related documents, instruments and certificates.
Section 3. The form and substance of the Bonds (in substantially the form presented to this meeting or in such form as is approved by Counsel to the Issuer and Bond Counsel) are hereby approved, and the Secretary is hereby directed to include a copy of the form of the Bonds submitted to this meeting with the records of the Issuer.
Section 4. The form and substance of the Bond Purchase Agreement (in substantially the form presented to this meeting or in such form as is approved by Counsel to the Issuer and Bond Counsel) are hereby approved, and the Secretary is hereby directed to include a copy of the form of Bond Purchase Agreement submitted to this meeting with the records of the Issuer.
Section 5. The form and substance of the Tax Compliance Agreement (in substantially the form presented to this meeting or in such form as is approved by Counsel to the Issuer and Bond Counsel) is hereby approved, and the Secretary is hereby directed to include copies of the Tax Compliance Agreement submitted to this meeting with the records of the Issuer.
Section 6. The form and substance of the Mortgage and Assignment of Mortgage (in substantially the forms presented to this meeting or in such forms as are approved by Counsel to the Issuer and Bond Counsel) are hereby approved, and the Secretary is hereby directed to include copies of the Mortgage and Assignment of Mortgage submitted to this meeting with the records of the Issuer.
Section 7. The Issuer hereby determines to execute the Information Return in substantially the form hereinafter approved by the Chief Executive Officer, Chairman or Executive Director of the Issuer in accordance with Section 10(a) hereof and to file the same with the Internal Revenue Service.
Section 8. The Issuer is hereby authorized to issue, execute, sell and deliver to the Bank the Bonds in the aggregate principal amount not to exceed $9,500,000 in the form heretofore approved in Section 3 of this resolution, pursuant to the Act and in accordance with the Bond Purchase Agreement; provided that:
(a) The Bonds authorized to be issued, executed, sold and delivered pursuant to this Section (i) shall be issued, executed and delivered at such time as the Chief Executive Officer, Chairman or Executive Director of the Issuer shall determine, (ii) shall be in such principal amount (not to exceed $9,500,000) as is hereinafter approved by the Chief Executive Officer, Chairman or Executive Director of the Issuer in accordance with Section 10 hereof, (iii) shall bear interest at such rates as are set forth in the Bonds and the Bond Purchase Agreement or as are hereinafter approved by the Chief Executive Officer, Chairman or Executive Director of the Issuer in accordance with Section 4 hereof, and (iv) shall be subject to prepayment prior to maturity, and have such other provisions and be issued in such manner and on such conditions as are set forth in the Bonds and the Bond Purchase Agreement, all of which provisions are specifically incorporated herein with the same force and effect as if fully set forth in this resolution.
(b) The Bonds shall be issued solely for the purpose of providing funds to finance the Project Costs, the administrative, legal, financial, and other expenses of the Issuer in connection with the Project and incidental to the issuance of the Bonds, as such costs are more specifically set forth in the Bond Purchase Agreement.
(c) The Bonds and the interest thereon is not and shall never be a debt of the State or Sullivan County, New York, and neither the State nor Sullivan County, New York shall be liable thereon.
(d) The Bonds, together with interest payable thereon, shall be a special obligation of the Issuer payable solely from the revenues and receipts derived from the Bonds, the Bond Purchase Agreement and related documents.
Section 9. Notwithstanding any other provision of this resolution, the Issuer covenants that it will make no use of the proceeds of the Tax- Exempt Bonds or of any other funds which, if such use had been reasonably expected on the date of issue of the Tax- Exempt Bonds, or otherwise, would cause the Tax- Exempt Bonds to be “arbitrage bonds” within the meaning of Section 148 of the Code.
Section 10. (a) The Chief Executive Officer, Chairman or Executive Director of the Issuer or any other member of the Issuer is hereby authorized, on behalf of the Issuer, to execute and deliver the Bonds, the Bond Purchase Agreement, the Mortgage, the Assignment of Mortgage, the Tax Compliance Agreement, and the other documents called for or provided in the Bond Purchase Agreement, to which the Issuer is a party and related documents (hereinafter collectively called the “Bond Documents”) and Information Return, and, where appropriate, the Secretary or Assistant Secretary of the Issuer is hereby authorized (but not required) to affix the seal of the Issuer thereto and to attest the same, all in substantially the forms thereof presented to this meeting or at any time hereafter with such changes, variations, omissions and insertions as the Chief Executive Officer, Chairman or Executive Director or any member of the Issuer shall, in their absolute discretion, approve. The execution thereof by the Chief Executive Officer, Chairman or Executive Director or such member shall constitute conclusive evidence of such approval. All preliminary actions of the Issuer prior to the date hereof with respect to the Project are hereby confirmed and ratified.
(b) The Chief Executive Officer, Chairman or Executive Director of the Issuer are hereby further authorized and directed, on behalf of the Issuer, to approve, without further action of the Issuer, any variations in the terms of the Bonds from those set forth in the form of the Bonds submitted to this meeting including, without limitation, the aggregate principal amount of the Bonds (not in excess of the maximum aggregate principal amount approved in this Resolution), the interest rates, maturities, redemption premiums, optional redemption dates and sinking fund redemption dates and amounts. The execution and delivery of the Bond Purchase Agreement by the Chief Executive Officer, Chairman or Executive Director shall constitute conclusive evidence of such approval.
(c) The Chief Executive Officer, Chairman or Executive Director or any such member is further hereby authorized, on behalf of the Issuer, to designate any additional Authorized Representatives of the Issuer (as defined in and pursuant to the Bond Purchase Agreement).
Section 11. The officers, employees and agents of the Issuer are hereby authorized and directed for and in the name and on behalf of the Issuer to do all acts and things required or provided for the provisions of the Bond Documents, and to execute and deliver all such additional certificates, instruments and documents, 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 member, officer, employee or agent acting, desirable and proper to effect the purposes of the foregoing resolution and to cause compliance by the Issuer with all of the terms, covenants and provisions of the Bond Documents binding upon the Issuer.
Section 12. It is hereby found and determined that all formal actions of the Issuer concerning and relating to the adoption of this resolution were adopted in an open meeting of the Issuer; and that all deliberations of the Issuer and of any of its committees that resulted in such formal action were in meetings open to the public, in compliance with all legal requirements.
Section 13. All prior resolutions or parts thereof inconsistent with this resolution are hereby repealed to the extent of such inconsistency.
Section 14. Due to the complex nature of this transaction, the Issuer hereby authorizes its Chief Executive Officer, Chairman or Executive Director or any other Authorized Representative of the Issuer to approve, execute and deliver such further agreements, documents and certificates as the Issuer may be advised by Counsel to the Issuer or Bond Counsel to be necessary or desirable to effectuate the foregoing, such approval to be conclusively evidenced by the execution of any such agreements, documents or certificates by the Chairman, Vice Chairman or Executive Director or any other Authorized Representative of the Issuer.
Section 15. This resolution shall take effect immediately and the Bonds are hereby ordered to be issued in accordance with this resolution.
The Resolution was thereupon declared duly adopted.
Adopted: June 24, 2014
STATE OF NEW YORK )
COUNTY OF SULLIVAN ) SS:
I, Sean Rieber, the undersigned, Assistant Secretary, DO HEREBY CERTIFY:
That I have compared the annexed extract of minutes of the meeting of the Sullivan County Funding Corporation (the “Issuer”), including the resolution contained therein, held on June 19, 2014, with the original thereof on file in my office, and that the same is a true and correct copy of the proceedings of the Issuer and of such resolution 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 all members of said Issuer had due notice of said meeting, that the meeting was in all respects duly held and that, pursuant to Article 7 of the Public Officers Law (Open Meetings Law), said meeting was open to the general public, and that public notice of the time and place of said meeting was duly given in accordance with such Article 7.
I FURTHER CERTIFY, that there was a quorum of the Directors of the Issuer present throughout said meeting.
I FURTHER CERTIFY, that as of the date hereof, the attached resolution is in full force and effect and has not been amended, repealed or modified.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said Agency this 24th day of June, 2014.