Exhibit 10.40
CLOSING ITEM NO.: A-13
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COUNTY OF SARATOGA INDUSTRIAL DEVELOPMENT AGENCY
AND
XXXXXXXX ADHESIVES, INC.
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PAYMENT IN LIEU OF TAX AGREEMENT
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DATED AS OF OCTOBER 1, 1997
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PAYMENT IN LIEU OF TAX AGREEMENT
THIS PAYMENT IN LIEU OF TAX AGREEMENT dated as of OCTOBER 1, 1997
("Agreement") by and between the COUNTY OF SARATOGA INDUSTRIAL DEVELOPMENT
AGENCY, a public benefit corporation of the State of New York having its office
at the Saratoga County Municipal Center, 00 XxXxxxxx Xxxxxx, Xxxxxxxx Xxx, Xxx
Xxxx 00000 (the "Issuer"), and XXXXXXXX ADHESIVES, INC., a corporation having an
address of 0000 Xxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000 (the "Company");
W I T N E S S E T H:
WHEREAS, the New York State Industrial Development Agency Act, being
Title I of Article 18-A of the General Municipal Law, Chapter 24, of the
Consolidated Laws of the State of New York, as amended (the "Enabling Act"),
authorizes and provides for the creation of industrial development agencies for
the benefit of the several counties, cities, villages and towns in the State of
New York and empowers such agencies, among other things, to acquire, construct,
reconstruct, lease, improve, maintain, equip and dispose of land and any
buildings or other improvements, 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, among other things, manufacturing, warehousing,
research, commercial or industrial purposes, in order to advance the job
opportunities, health, general prosperity and economic welfare of the people of
the State of New York and to improve their recreation opportunities, prosperity
and standard of living; and
WHEREAS, the Enabling Act further authorizes each such agency to lease
or sell any or all of its facilities and to issue its bonds for the purpose of
carrying out any of its corporate purposes and, as security for the payment of
the principal and redemption price of, and interest on, any such bonds so issued
and any agreements made in connection therewith, to mortgage and pledge any or
all of its facilities whether then owned or thereafter acquired, and to pledge
the revenues and receipts from the lease or sale thereof to secure the payment
of such bonds and interest thereon; and
WHEREAS, the Issuer was created pursuant to and in accordance with the
provisions of the Enabling Act by Chapter 855 of the Laws of 1971 of the State
of New York, as amended (said chapter and the Enabling Act being hereinafter
collectively referred to as the "Act"), and is empowered under the Act to
undertake the Project (as hereinafter defined) in order to so advance the job
opportunities, health, general prosperity and economic welfare of the people of
the State of New York and improve their standard of living; and
WHEREAS, the Issuer, by resolution adopted on September 16, 1997 (the
"Resolution"), resolved to issue its Industrial Development Revenue Bonds
(Xxxxxxxx Adhesives, Inc. Project), Series 1997 A in the aggregate principal
amount not to exceed $6,000,000 (the "Bonds") in connection with a project (the
"Project") undertaken by the Issuer consisting of (A) (1) the acquisition of a
certain parcel of land comprising approximately 16.37 acres constituting Lot #3
located in the Xxxxxx Industrial Park in the Town of Xxxxxx, Saratoga County,
New York as more particularly described on Exhibit "A" attached hereto (the
"Land"), (2) the construction on the Land of two (2) buildings approximately
10,000 square feet each in size and one (1) approximately 800 square foot
building for use in the manufacturing of synthetic organic chemicals and related
functions (collectively the "Facility") and (3) the acquisition and installation
therein of certain machinery and equipment (the "Equipment" and together with
the Land and the Facility, the "Project Facility"), and (B) the financing of a
portion of the costs of the foregoing; and
WHEREAS, the Issuer will sell the Project Facility to the Company
pursuant to the terms of an installment sale agreement dated as of October 1,
1997 (as amended from time to time, the "Installment Sale Agreement") by and
between the Issuer and the Company; and
WHEREAS, the Bonds will be issued and sold pursuant to a trust
indenture dated as of October 1, 1997 (the "Indenture") by and between the
Issuer and Star Bank, N.A., as trustee (the "Trustee"); and
WHEREAS, under the present provisions of the Act and Section 412-a of
the Real Property Tax Law of the State of New York (the "Real Property Tax
Law"), the Issuer is not required to pay taxes or assessments upon any of the
property acquired by it or under its jurisdiction, supervision or control or
upon its activities; and
WHEREAS, pursuant to the provision of Section 6.6 of the Installment
Sale Agreement, the Company has agreed to make payments in lieu of real estate
taxes with respect to the Project Facility in the amounts and in the manner
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
DEFINITION OF TERMS. All words and terms used herein and not otherwise defined
herein shall have the meanings assigned to such words and terms in the
Installment Sale Agreement.
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ARTICLE I
REPRESENTATIONS AND WARRANTIES
SECTION 1.01. REPRESENTATIONS AND WARRANTIES OF COMPANY. The Company represents
and warrants that:
(A) Power: The Company is a company duly formed and validly
existing under the laws of the State of Virginia, is authorized to conduct
business in the State of New York and has power and authority to enter into this
Agreement and to carry out its obligations hereunder.
(B) Authorization: Neither the execution and delivery of this
Agreement, the consummation by the Company of the transactions contemplated
hereby nor the fulfillment by the Company of or compliance by the Company with
the provisions of this Agreement will conflict with or result in a breach of any
of the terms, conditions or provisions of the Articles of Incorporation or
by-laws of the Company or, in any material respect, of any order, judgment,
agreement, or instrument to which the Company is a party or by which it is
bound, or will constitute a default under any of the foregoing.
(C) Governmental Consent: To the knowledge of the Company no
consent, approval or authorization of, or filing, registration or qualification
with, any governmental or public authority on the part of the Company not
already obtained is required as a condition precedent to the execution, delivery
or performance of this Agreement by the Company or as a condition precedent to
the consummation by the Company of the transactions contemplated hereby.
SECTION 1.02. REPRESENTATIONS AND WARRANTIES OF THE ISSUER. The Issuer
represents and warrants that:
(A) Power: The Issuer is duly established under the provisions of
the Act and has the power to enter into this Agreement and to carry out its
obligations hereunder. By proper official action, the Issuer has been duly
authorized to execute, deliver and perform this Agreement.
(B) Authorization: Neither the execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby by the
Issuer nor the fulfillment by the Issuer or compliance by the Issuer with the
provisions of this Agreement will conflict with or result in a breach by the
Issuer of any of the terms, conditions or provisions of the Act, the by-laws of
the Issuer, or any order, judgment, restriction, agreement or instrument to
which the Issuer is a party or by which it is bound, or will constitute a
default by the Issuer under any of the foregoing.
(C) Governmental Consent: To the knowledge of Issuer no consent,
approval or authorization of, or filing, registration or qualification with, any
governmental or public authority on the part of the Issuer is required as a
condition precedent to the execution, delivery or performance of this Agreement
by the Issuer or as a condition precedent to the consummation by the Issuer of
the transactions contemplated hereby.
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ARTICLE II
COVENANTS AND AGREEMENTS
SECTION 2.01. TAX-EXEMPT STATUS OF PROJECT FACILITY.
(A) Assessment of Facility: Pursuant to Section 874 of the Act and
Section 412-a of the Real Property Tax Law, the parties hereto acknowledge that,
upon acquisition of the Project Facility by the Issuer, and for so long
thereafter as the Issuer shall own the Project Facility, the Project Facility
shall be assessed by the various taxing entities having jurisdiction over the
Project Facility, including, without limitation, any county, city, school
district, town, village or other political unit or units wherein the Project
Facility is located (such taxing entities being sometimes collectively
hereinafter referred to as the "Taxing Entities", and each of such Taxing
Entities being sometimes individually hereinafter referred to as a "Taxing
Entity") as exempt upon the assessment rolls of the respective Taxing Entities
prepared subsequent to the acquisition by the Issuer of title to the Project
Facility. The Company shall promptly, following acquisition by the Issuer of
title to the Project Facility, cooperate to ensure that the Project Facility is
assessed as exempt upon the assessment rolls of the respective Taxing Entities
prepared subsequent to such acquisition by the Issuer, and for so long
thereafter as the Issuer shall own the Project Facility, the Company shall take
such further action as may be necessary to maintain such exempt assessment with
respect to each Taxing Entity. The Issuer will cooperate with the Company and
will take all action as may be necessary (subject to the provisions of Section
3.01 hereof) to preserve the tax exempt status of the Project Facility. The
parties hereto acknowledge that the Project Facility shall not be entitled to
such exempt status on the tax rolls of any Taxing Entity until the first March 1
to occur following the Issuer's acquisition of the Project Facility with respect
to town, county and school taxes. Pursuant to the provisions of the Installment
Sale Agreement, the Company will be required to pay to the appropriate Taxing
Entity all taxes and assessments lawfully levied and/or assessed by the
appropriate Taxing Entity against the Project Facility, including taxes and
assessments levied for the current tax year and all subsequent tax years until
the Project Facility shall be entitled to exempt status on the tax rolls of the
appropriate Taxing Entity.
(B) Special Assessments: The parties hereto understand that the
tax exemption extended to the Issuer by Section 874 of the Act and Section 412-a
of the Real Property Tax Law does not entitle the Issuer to exemption from
special assessments and special ad valorem levies. Pursuant to the Installment
Sale Agreement, the Company will be required to pay to the appropriate Taxing
Entity all special assessments and special ad valorem levies lawfully levied
and/or assessed by the appropriate Taxing Entity against the Project Facility.
SECTION 2.02. PAYMENTS IN LIEU OF TAXES.
(A) Agreement to Make Payments: The Company agrees that it will
make annual payments in lieu of real estate taxes with respect to the Project to
the Issuer in the amounts hereinafter provided for redistribution to the
respective Taxing Entities in proportion to the amounts which said Taxing
Entities would have received had not the Project Facility been acquired and
owned by the Issuer.
(B) Amount of Payments in Lieu of Taxes:
(1) Town and County Taxes: (a) Commencing on February 15,
1999 and continuing on February 15 of each year thereafter up to and including
February 15, 2008, payments in lieu of real estate taxes shall be due, owing and
payable by the Company to the Issuer on account of town and county taxes with
respect to each appropriate Taxing Entity equal to the product of (i) the
Initial Assessed Land Value (as herein defined) and (ii) the tax rate or rates
of each such Taxing Entity applicable to the Project Facility for the current
tax year of such Taxing Entity. For purposes of this Section 2.02, the term
"Initial Assessed Land Value" shall mean the greater of
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(i) the Assessed Value of the Land determined in accordance with Section 2.02(3)
hereof and (ii) the product of the purchase price paid by the Company for the
Land and the applicable Equalization Rate.
(b) Commencing February 15, 2009 and continuing on each
February 15 thereafter for such time as this Agreement is in effect,
payments in lieu of real estate taxes shall be due, owing and payable
by the Company to the Issuer on account of town and county taxes with
respect to each appropriate Taxing Entity in an amount to be determined
by multiplying (i) the Assessed Value of the Project Facility
determined pursuant to Section 3 of this Section 2.02 by (ii) the tax
rate or rates of such Taxing Entity applicable to the Project Facility
for the current tax year of such Taxing Entity
(2) School Taxes: (a) Commencing September 15, 1998 and
continuing on September 15 of each year up to and including September 15, 2007,
payments in lieu of real estate taxes shall be due, owing and payable by the
Company to the Issuer on account of school taxes equal to the product of (i) the
Initial Assessed Land Value and (ii) the tax rate or rates of the Xxxxxx Falls
Central School District applicable to the Project Facility for the current tax
year.
(b) Commencing September 15, 2008 and continuing for such
time as this Agreement is in effect, payments in lieu of real estate
taxes shall be due, owing and payable by the Company to the Issuer on
account of school taxes in an amount to be determined by multiplying
(i) the Assessed Value of the Project Facility determined pursuant to
Section 3 of this Section 2.02 by (ii) the tax rate or rates of the
Xxxxxx Falls Central School District applicable to the Project Facility
for the current tax year of the Xxxxxx Falls Central School District.
(3) (a) For purposes of this Section 2.02 the "Assessed
Value" of the Land or the Project Facility, as applicable, shall be determined
by the appropriate officer or officers of the Taxing Entity responsible for
assessing properties in each Taxing Entity (said officer or officers being
hereinafter collectively referred to as the "Assessor"). The Assessor shall (a)
appraise the Land or the Project Facility, as applicable, (excluding, where
permitted by law, personal property) in the same manner as other similar
properties in said Taxing Entity and (b) place a value for assessment purposes
upon the Land or the Project Facility, as applicable, equalized if necessary by
using the appropriate equalization rates as apply in the assessment and levy of
real property taxes.
(b) If the Company is dissatisfied with the amount of
Assessed Value as initially established or as changed, the Company may
pursue review of the Assessed Value under Article 7 of the New York
State Real Property Tax Law or any other law or ordinance then in
effect relating to disputes over assessed valuation of real property in
the State of New York, and may take any and all other action available
to it at law or in equity, for a period of two (2) years from the date
such Assessed Value is initially established or changed. IF THE COMPANY
FAILS TO PURSUE REVIEW OF (I) THE INITIALLY ESTABLISHED ASSESSED VALUE,
DURING THE SEVEN (7) YEAR PERIOD FOLLOWING SUCH ESTABLISHMENT, OR (II)
ANY CHANGE IN ASSESSED VALUE, DURING THE TWO (2) YEAR PERIOD FOLLOWING
ANY SUCH CHANGE, THE COMPANY SHALL BE DEEMED TO HAVE WAIVED ANY RIGHT
TO CONTEST OR DISPUTE SUCH ASSESSED VALUE AT ANY TIME FOR A SEVEN (7)
YEAR PERIOD COMMENCING IN 2008 NOTWITHSTANDING ANYTHING IN THE NEW YORK
STATE REAL PROPERTY TAX LAW TO THE CONTRARY. THIS SEVEN (7) YEAR
LIMITATION SHALL APPLY TO EACH AND EVERY CHANGE IN ASSESSMENT MADE
DURING THE PERIOD THAT THE ISSUER HOLDS TITLE TO THE PROJECT FACILITY,
AND SHALL BE FOR THE BENEFIT OF THE ISSUER AND THE OTHER TAXING
ENTITIES. The Issuer hereby irrevocably appoints the Company its
attorney-in-fact and agent (coupled with an interest) for the purpose
of commencing any proceeding, preparing and filing all documents and
taking any and all other actions required to be taken by Issuer,
necessary or desirable, in the opinion of the Company, to contest or
dispute any Assessed Value within such two (2) year period; provided,
however, that the Issuer shall incur no expense or liability in
connection with any action taken or omitted to be taken by its
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attorney-in-fact and agent. The Issuer agrees to promptly furnish to
the Company any communication which the Issuer may receive from any
Taxing Entity relating to the Project Facility.
(4) Additional Amounts in Lieu of Taxes: Commencing on
each of the first February 15 and September 15 of the first tax year following
the date on which any structural addition shall be made to the Project Facility
or any portion thereof or any additional building or other structure shall be
constructed on the Land (such structural additions and additional buildings and
other structures being hereinafter referred to as "Additional Facilities"), the
Company agrees to make additional annual payments in lieu of property taxes
(such additional payments being hereinafter collectively referred to as
"Additional Payments") to the Issuer with respect to such Additional Facilities,
such Additional Payments to be computed separately for each Taxing Entity as
follows:
(1) Determine the amount of general taxes and general
assessments (hereinafter referred to as the "Normal Tax") which would
be payable to each Taxing Entity if such Additional Facilities were
owned by the Company and not the Issuer by multiplying (a) the
additional Assessed Value of such Additional Facilities determined
pursuant to subsection (B)(3) of this Section 2.02, by (b) the tax rate
or rates of such Taxing Entity that would be applicable to such
Additional Facilities if such Additional Facilities were owned by the
Company and not the Issuer, and (c) reduce the amount so determined by
the amounts of any tax exemptions that would be afforded to the Company
by such Taxing Entity if such Additional Facilities were owned by the
Company and not the Issuer.
(2) In each calendar year during the term of this
Agreement (commencing in the calendar year when such Additional
Facilities first appear on the assessment roll of any Taxing Entity),
the amount payable by the Company to the Issuer on behalf of each
Taxing Entity as a payment in lieu of property tax with respect to such
Additional Facilities pursuant to this Agreement shall be an amount
equal to one hundred percent (100%) of the Normal Tax due each Taxing
Entity with respect to such Additional Facilities for such calendar
year (unless the Issuer and the Company shall enter into a separate
written agreement regarding payments in lieu of property taxes with
respect to such Additional Facilities, in which case the provisions of
such separate written agreement shall control).
SECTION 2.03. INTEREST. If the Company shall fail to make any payment required
by this Agreement when due, its obligation to make the payment so in default
shall continue as an obligation of the Company until such payment in default
shall have been made in full, and the Company shall pay the same together with
late fees and interest thereon equal to the greater of (A) any late fees and
interest which would be applicable with respect to each Taxing Entity were the
Project Facility owned by the Company and not the Issuer and (B) the late fees
and interest prescribed by subsection (5) of Section 874 of the General
Municipal Law of the State of New York (or any successor statute thereto).
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ARTICLE III
LIMITED OBLIGATION OF THE ISSUER
SECTION 3.01. NO RECOURSE; LIMITED OBLIGATION OF THE ISSUER.
(A) No Recourse: All covenants, stipulations, promises, agreements
and obligations of the Issuer contained in this Agreement shall be deemed to be
the covenants, stipulations, promises, agreements and obligations of the Issuer
and not of any member, officer, agent, servant or employee of the Issuer in his
individual capacity, and no recourse under or upon any obligation, covenants or
agreement contained in this Agreement, or otherwise based upon or in respect of
this Agreement, or for any claim based thereon or otherwise in respect thereof,
shall be had against any past, present or future member, officer, agent (other
than the Company), servant or employee, as such, of the Issuer or any successor
public benefit corporation or political subdivision or any person executing this
Agreement on behalf of the Issuer, either directly or through the Issuer or any
successor public benefit corporation or political subdivision or any person so
executing this Agreement, it being expressly understood that this Agreement is a
corporate obligation, and that no such personal liability whatever shall attach
to, or is or shall be incurred by, any such member, officer, agent (other than
the Company), servant or employee of the Issuer or of any successor public
benefit corporation or political subdivision or any person so executing this
Agreement under or by reason of the obligations, covenants or agreements
contained in this Agreement or implied therefrom; and that any and all such
personal liability of, and any and all such rights and claims against, every
such member, officer, agent (other than the Company), servant or employee under
or by reason of the obligations, covenants or agreements contained in this
Agreement or implied therefrom are, to the extent permitted by law, expressly
waived and released as a condition of, and as a consideration for, the execution
of this Agreement.
(B) Limited Obligation: The obligations and agreements of the
Issuer contained herein shall not constitute or give rise to an obligation of
the State of New York or the County of Saratoga, New York, and neither the State
of New York nor the County of Saratoga, New York shall be liable thereon, and
further such obligations and agreements shall not constitute or give rise to a
general obligation of the Issuer, but rather shall constitute limited
obligations of the Issuer payable solely from the revenues of the Issuer derived
and to be derived from the lease, sale or other disposition of the Project
Facility (except for revenues derived by the Issuer with respect to the
Unassigned Rights.
(C) Further Limitation: Notwithstanding any provision of this
Agreement to the contrary, the Issuer shall not be obligated to take any action
pursuant to any provision hereof unless (1) the Issuer shall have been requested
to do so in writing by the Company, and (2) if compliance with such request is
reasonably expected to result in the incurrence by the Issuer (or any of its
members, officers, agents, servants or employees) of any liability, fees,
expenses or other costs, the Issuer shall have received from the Company
security or indemnity and an agreement from the Company satisfactory to the
Issuer to defend and hold harmless the Issuer against all such liability,
however remote, and for the reimbursement of all such fees, expenses and other
costs.
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ARTICLE IV
EVENTS OF DEFAULT
SECTION 4.01. EVENTS OF DEFAULT. Any one or more of the following events
(hereinafter an "Event of Default") shall constitute a default under this
Agreement:
(A) Failure of the Company to pay any amount due and payable by it
pursuant to this Agreement and continuance of said failure for a period of
fifteen (15) days after written notice to the Company stating that such payment
is due and payable;
(B) Failure of the Company to observe and perform any other
covenant, condition or agreement on its part to be observed and performed by it
hereunder (other than as referred to in paragraph (A) above) and continuance of
such failure for a period of thirty (30) days after written notice to the
Company specifying the nature of such failure and requesting that it be
remedied; provided that if such default cannot reasonably be cured within such
thirty (30) day period, and the Company shall have commenced action to cure the
breach of such covenant, condition or agreement within said thirty (30) day
period and thereafter diligently and expeditiously proceeds to cure the same,
such thirty (30) day period shall be extended for a period not to exceed ninety
(90) days from the date of receipt by the Company of such notice; or
(C) Any warranty or representation by the Company contained in
this Agreement shall prove to have been false or incorrect in any material
respect on the date when made or on the effective date of this Agreement and
such falsity or incorrectness has a material adverse affect on the Company's
ability to perform its obligations under this Agreement.
SECTION 4.02. REMEDIES ON DEFAULT. Whenever any Event of Default shall have
occurred and be continuing with respect to this Agreement, the Issuer may take
whatever action at law or in equity as may appear necessary or desirable to
collect the amount then in default or to enforce the performance and observance
of the obligations, agreements and covenants of the Company under this Agreement
including, without limitation, the exercise by the Issuer of the remedy set
forth in subsections (A)(3) and (A)(4) of Section 10.2 of the Installment Sale
Agreement. Each such Event of Default shall give rise to a separate cause of
action hereunder and separate suits may be brought hereunder as each cause of
action arises. The Company irrevocably agrees that any suit, action or other
legal proceeding arising out of this Agreement may be brought in the courts of
the State of New York, consents to the jurisdiction of each such court in any
such suit, action or proceeding, and waives any objection which it may have to
the laying of the venue of any such suit, action or proceeding in any of such
courts.
SECTION 4.03. PAYMENT OF ATTORNEY'S FEES AND EXPENSES. If an Event of Default
should occur and be continuing under this Agreement and the Issuer should employ
attorneys or incur other reasonable expenses for the collection of any amounts
due and payable hereunder or for the enforcement of performance or observance of
any obligation or agreement on the part of the Company herein contained, the
Company agrees that it will, on demand therefor by the Issuer, reimburse the
Issuer for the reasonable fees and disbursements of such attorneys and such
other reasonable expenses so incurred, whether or not an action is commenced.
SECTION 4.04. REMEDIES; WAIVER AND NOTICE.
(A) No Remedy Exclusive: Notwithstanding anything to the contrary
contained herein, no remedy herein conferred upon or reserved to the Issuer or
the Company is intended to be exclusive of any other available remedy or
remedies, but each and every such remedy shall be cumulative and shall be in
addition to every other remedy given under this Agreement or now or hereafter
existing at law or in equity or by statute.
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(B) Delay: No delay or omission in exercising any right or power
accruing upon the occurrence of an Event of Default hereunder shall impair any
such right or power or shall be construed to be a waiver thereof, but any such
right or power may be exercised from time to time and as often as may be deemed
expedient.
(C) Notice Not Required: In order to entitle the Issuer to
exercise any remedy reserved to it in this Agreement, it shall not be necessary
to give any notice, other than such notice as may be expressly required in this
Agreement.
(D) No Waiver: In the event any provision contained in this
Agreement should be breached by any party and thereafter duly waived by the
other party so empowered to act, such waiver shall be limited to the particular
breach so waived and shall not be deemed to be a waiver of any other breach
hereunder. No waiver, amendment, release or modification of this Agreement shall
be established by conduct, custom or course of dealing.
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ARTICLE V
MISCELLANEOUS
SECTION 5.01. TERM OF AGREEMENT.
(A) General: This Agreement shall become effective and the
obligations of the Company and the Issuer shall arise absolutely and
unconditionally upon the execution and delivery of this Agreement by the Company
and the Issuer. This Agreement shall continue to remain in effect until the
termination of the Installment Sale Agreement in accordance with its terms.
(B) Extended Term: In the event that (1) title to the Project
Facility shall be conveyed to the Company, (2) on the date on which the Company
obtains title to the Project Facility, the Project Facility shall be assessed as
exempt upon the assessment roll of any one or more of the Taxing Entities solely
as a result of the Issuer's prior ownership of the Project Facility, and (3) the
fact of obtaining title shall not immediately obligate the Company to make pro
rata tax payments pursuant to legislation similar to Chapter 635 of the 1978
Laws of New York (codified as subsection 3 of Section 302 of the Real Property
Tax Law and Section 520 of the Real Property Tax Law), this Agreement shall
remain in full force and effect but only to the extent set forth in this
sentence and the Company shall be obligated to make payments to the Issuer in
amounts equal to the Normal Tax which would be due from the Company if the
Project Facility were owned by the Company and not the Issuer until the first
tax year in which the Company shall appear on the tax rolls of the various
Taxing Entities having jurisdiction over the Project Facility as the legal owner
of record of the Project Facility.
SECTION 5.02. FORM OF PAYMENTS. The amounts payable under this Agreement shall
be payable in such coin and currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts.
SECTION 5.03. COMPANY ACTS. Where the Company is required to do or accomplish
any act or thing hereunder, the Company may cause the same to be done or
accomplished with the same force and effect as if done or accomplished by the
Company.
SECTION 5.04. AMENDMENT OF AGREEMENT. This Agreement may not be amended,
changed, modified, altered, supplemented or terminated unless such amendment,
change, modification, alteration or termination is in writing and unless signed
by the party against which enforcement of the amendment, change, modification,
alteration, supplement or termination shall be sought and, if any Mortgage
remains outstanding, the Security Representative.
SECTION 5.05. NOTICES. All notices, certificates or other communications
hereunder shall be in writing and shall be sufficiently given and shall be
deemed given when (A) sent to the applicable address stated below by registered
or certified mail, return receipt requested, or by such other means as shall
provide the sender with documentary evidence of such delivery (including, but
not limited to, overnight delivery) or (B) delivery is refused by the addressee,
as evidenced by the affidavit of the Person who attempted to effect such
delivery. The address to which notices, certificates and other communications
hereunder shall be delivered are as follows:
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(A) TO THE ISSUER:
County of Saratoga Industrial Development Agency
Saratoga County Municipal Center
00 XxXxxxxx Xxxxxx
Xxxxxxxx Xxx, Xxx Xxxx 00000
Attention: Chairman
WITH A COPY TO:
Snyder, Kiley, Toohey & Xxxxxxx
000 Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
(B) TO THE COMPANY:
Xxxxxxxx Adhesives, Inc.
0000 Xxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Executive Vice President
WITH A COPY TO:
Xxxxxxxx Xxxxxx Xxxxxxxxx & Xxxxxxx, P.C.
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Dallas, Jr., Esq.
provided, that the Issuer and the Company may, by notice given hereunder to each
of the others, designate any further or different addresses to which subsequent
notices, certificates or other communications to them shall be sent.
SECTION 5.06. BINDING EFFECT. This Agreement shall inure to the benefit of, and
shall be binding upon, the Issuer, the Company and their respective successors
and assigns.
SECTION 5.07. SEVERABILITY. If any article, section, subdivision, paragraph,
sentence, clause, phrase, provision or portion of this Agreement shall for any
reason be held or adjudged to be invalid or illegal or unenforceable by any
court of competent jurisdiction, such article, section, subdivision, paragraph,
sentence, clause, phrase, provision or portion so adjudged invalid, illegal or
unenforceable shall be deemed separate, distinct and independent and the
remainder of this Agreement shall be and remain in full force and effect and
shall not be invalidated or rendered illegal or unenforceable or otherwise
affected by such holding or adjudication.
SECTION 5.08. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York including all matters of
construction, validity and performance.
SECTION 5.09. ASSIGNMENT. This Agreement may not be assigned by the Company
absent the prior written consent of the Issuer.
11
IN WITNESS WHEREOF, the Issuer and the Company have caused this
Agreement to be executed in their respective names, all being done the date
first above written.
COUNTY OF SARATOGA INDUSTRIAL
DEVELOPMENT AGENCY
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, Chairman
XXXXXXXX ADHESIVES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------------
Title: Executive Vice President
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EXHIBIT "A"
DESCRIPTION OF THE REAL PROPERTY
THAT TRACT OR PARCEL OF LAND, situate in the Town of Xxxxxx, County of
Saratoga and State of New York more fully described as Lot Number 3 as shown on
subdivision maps of Xxxxxx Industrial Park prepared by The Saratoga Associates
and filed in the Saratoga County Clerk's Office on March 18, 1992 in drawer
#M-348 A-Z and AA-DD; and as modified by revised subdivision maps of Xxxxxx
Industrial Park prepared by The Saratoga Associates and filed in the Saratoga
County Clerk's Office on February 16, 1994 in drawer #M-398, A-S and being
further bounded and described as follows:
BEGINNING at a point marked with a capped iron rod found at the point
of intersection of the easterly line of Xxxxxx Road with the common division
line of Xxx Xx. 0 xx xxx xxxxx xxx Xxx Xx. 0 to the south as shown on said map;
thence from said point of beginning along said common division line the
following five (5) courses and distances:
1) North 90 deg. 00 min. 00 sec. East, 347.86 feet to a point marked with
a capped iron rod found;
2) South 00 deg. 00 min. 00 sec. West, 32.63 feet to a point marked with a
capped iron rod found;
3) North 90 deg. 00 min. 00 sec. East, 191.52 feet to a point marked with
a capped iron rod found;
4) North 00 deg. 00 min. 00 sec. East, 32.63 feet to a point marked with a
capped iron rod found;
5) North 90 deg. 00 min. 00 sec. East, 680.17 feet to the point of
intersection of the westerly line of Lot No. 5 with the common division line of
Xxx Xx. 0 xx xxx xxxxx xxx Xxx Xx. 0 to the south as shown on said map; thence
along said westerly line, South 16 deg. 10 min. 56 sec. West, 102.04 feet to a
point in the northwesterly line of lands of The State of New York as shown on
said map, said point also being at the 145 foot elevation; thence along said
northwesterly and the westerly line of lands of The State of New York as it
winds and turns along the 145 foot elevation in a southerly direction 712 +/-
feet to the point of intersection of said westerly line of lands of The State of
New York with the common division line of Xxx Xx. 0 xx xxx xxxxx xxx Xxx Xx. 0
to the south as shown on said map, the last course having a tie-line of South 33
deg. 02 min. 30 sec. West, 699.47 feet; thence along said common division line,
South 90 deg. 00 min. 00 sec. West, 865.65 feet to a point marked with a capped
iron rod found at the point of intersection of the easterly line of Xxxxxx Road
with the common division line of Xxx Xx. 0 xx xxx xxxxx xxx Xxx Xx. 0 to the
south as shown on said map; thence along said easterly line in a northerly
direction the following four (4) courses and distances:
1) North 00 deg. 00 min. 00 sec. West, 116.35 feet to a point of
curvature;
2) Along a curve to the right an arc length of 464.05 feet to a point of
tangency, said curve having a radius of 2,773.32 feet and a delta angle
of 09 deg. 35 min. 13 sec.;
3) North 09 deg. 35 min. 13 sec. East, 50.00 feet to a point of curvature;
4) Along a curve to the left an arc length of 57.49 feet to the point or
place of beginning, said curve having a radius of 2,294.42 feet and a delta
angle of 01 deg. 26 min. 08 sec., said parcel containing 16.37 +/- acres of land
and being Lot No. 3 as shown on said map.
