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 December 14, 2015 at 11:30 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 [ x ] [ ]
Edward T. Sykes [ x ] [ ]
Suzanne Loughlin [ ] [ x ]
Charles Barbuti, Jr. [ x ] [ ]
Sean Rieber [ x ] [ ]
Howard Siegel [ x ] [ ]
Carol Roig [ x ] [ ]
Paul Guenther [ x ] [ ]
The following persons were also present:
Steve White, Chief Executive Officer
Jennifer C.S. Brylinski, Agency Executive Director
Julio Garaicoechea, Agency Project Manager
Walter F. Garigliano, Agency General Counsel
The following resolution was duly offered by Sean Rieber, and seconded by Paul Guenther to wit:
Resolution No. 02 – 15
RESOLUTION AUTHORIZING AND APPROVING EXECUTION AND DELIVERY OF AN AMENDMENT TO THE AMENDED AND RESTATED INTERCREDITOR AGREEMENT BY AND AMONG SCFC, U.S. BANK NATIONAL ASSOCIATION (“TRUSTEE”), TD BANK, N.A. (“TD BANK”) AND CITIZENS NATIONAL ASSOCIATION (“CITIZENS” TOGETHER WITH SCFC, TRUSTEE AND TD BANK COLLECTIVELY, THE “CREDITORS”) 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 TD Bank N.A., as swap provider (“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 RBS Citizens, N.A. (“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 various projects financed by the Series 2011 Bonds (“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”); 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 (as hereinafter defined) 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 documents evidencing the 20111 Bonds (“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 Bank N.A. as a Line of Credit Lender (“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 (“2006 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 “2006 TD Bank Loan”), which 2006 TD Bank Loan is evidenced by an Amended and Restated Revolving Credit Note, as amended, modified, supplemented or restated (the “2006 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 Citizens N.A. as Line of Credit Lender (“Line Lender”) and the Company entered into a Loan Agreement, dated as of May 24, 2006, as may be amended, modified, supplemented or restated (“2006 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 (“2006 RBS Bank Loan”), which 2006 RBS Bank Loan is evidenced by a Consolidated, Amended and Restated Revolving Line of Credit Note (“2006 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, on or about October 23, 2013, the Creditors entered into an Amended and Restated Intercreditor Agreement by and among U.S. Bank National Association, TD Bank, N.A. and RBS Citizens, National Association (“Original Intercreditor Agreement”); and
WHEREAS, TD Line Lender and the Company propose to enter into an Amended and Restated Loan and Security Agreement (as amended, modified, supplemented or restated from time to time, “TD Bank Agreement”), pursuant to which TD Line Lender has proposed to extend credit in the form of (i) a revolving line of credit under which TD Line Lender made or will make one or more loans to the Company in an aggregate principal amount not to exceed $5,000,000 outstanding at any time (“TD Revolving Credit”) and (ii) one or more term loans under which TD Line Lender made or will make one or more term loans to the Company in an aggregate principal amount not to exceed $4,250,000 (“TD Bridge Loans”; together with the TD Revolving Credit, collectively, the “TD Bank Loan”), which such TD Bank Loan shall be evidenced by (i) an Amended and Restated Revolving Credit Note evidencing the TD Revolving Credit, and (ii) one or more Time Notes, each to be dated as of the date of such borrowing, evidencing the TD Bridge Loans (as each of (i) and (ii) may be amended, modified, supplemented or restated, collectively, the “TD Bank Note”); and
WHEREAS, the TD Bank Loan is proposed to be secured by, among other things, (i) a security interest in the TD Bank Collateral (as defined herein) pursuant to an Amended and Restated Pledge and Security Agreement (as the same may be amended, restated, supplemented or modified from time to time, the “TD Bank Security Agreement”) and (ii) an Amended and Restated Guaranty of Payment by and between the Guarantors and TD Line Lender (as the same may be amended, restated, supplemented or modified from time to time, the “TD Bank Guaranty”); and
WHEREAS, Citizens Line Lender and the Company proposed to enter into an Amended and Restated Loan Agreement (as may be amended, modified, supplemented or restated, “Citizens Bank Agreement”), pursuant to which Citizens Line Lender has extended credit in the form of (i) a revolving line of credit under which Citizens Line Lender made or will make one or more loans to the Company in an aggregate principal amount not to exceed $5,000,000 outstanding at any time (the “Citizens Revolving Credit”) and (ii) one or more term loans under which Citizens Line Lender made or will make one or more term loans to the Company in an aggregate principal amount not to exceed $1,750,000 (the “Citizens Bridge Loans”; together with the Citizens Revolving Credit, collectively, the “Citizens Bank Loan”), which such Citizens Bank Loan is evidenced by (i) an Amended and Restated Revolving Credit Note, evidencing the Citizens Revolving Credit, and (ii) one or more Time Notes, each to be dated as of the date of such borrowing, evidencing the Citizens Bridge Loans (as each of (i) and (ii) may be amended, modified, supplemented or restated, collectively, the “Citizens Bank Note”); and
WHEREAS, the Citizens Bank Loan is secured by, among other things, (i) a security interest in the Citizens Bank Collateral (as defined herein) pursuant to the Amended and Restated Continuing General Security Agreement (as the same may be amended, restated, supplemented or modified from time to time, the “Citizens Security Agreement”) and (ii) an Amended and Restated Guaranty of Payment by and between the Guarantors and Citizens Line Lender (as the same may be amended, restated, supplemented or modified from time to time, the “Citizens Bank Guaranty”); and
WHEREAS, at the request of the Company, TD Bank and Citizens Bank, National Association have agreed to increase the availability of their respective loans to the Company and the Creditors wish to amend certain terms in the Original Intercreditor Agreement; and
WHEREAS, SCFC wishes to authorize its Chairman, Vice-Chairman and Chief Executive Officer to execute and deliver Amendment No. 1 to Amended and Restated Intercreditor Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE MEMBERS OF SCFC AS FOLLOWS:
Section 1. SCFC hereby approves Amendment No. 1 to Amended and Restated Intercreditor Agreement.
Section 2. SCFC hereby authorizes its Chairman, Vice-Chairman and Chief Executive Officer (either acting individually) to execute and deliver Amendment No. 1 to Amended and Restated Intercreditor Agreement together with any and all agreements, certificates, documents and instruments necessary relating to the foregoing all in form approved by Counsel to the Agency and with such changes, variations, omissions and insertions as the Chief Executive Officer, Chairman or Vice Chairman of the Agency shall approve, the execution thereof by the Chief Executive Officer, Chairman or Vice Chairman of the Agency to constitute conclusive evidence of such approval.
Section 3. This resolution shall take effect immediately.
Ira Steingart [ x ] Yes [ ] No [ ] Absent [ ] Abstain
Edward T. Sykes [ x ] Yes [ ] No [ ] Absent [ ] Abstain
Suzanne Loughlin [ ] Yes [ ] No [ x ] Absent [ ] Abstain
Charles Barbuti, Jr. [ x ] Yes [ ] No [ ] Absent [ ] Abstain
Sean Rieber [ x ] Yes [ ] No [ ] Absent [ ] Abstain
Howard Siegel [ x ] Yes [ ] No [ ] Absent [ ] Abstain
Carol Roig [ x ] Yes [ ] No [ ] Absent [ ] Abstain
Paul Guenther [ x ] 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 December 14, 2015, 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 14th day of December, 2015.
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Secretary
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