Exhibit 10.9
FIRST AMENDMENT TO AMENDED AND RESTATED
PAYMENT IN LIEU OF TAX AGREEMENT
This First Amendment, dated as of January 22, 1998, is by and between
ONEIDA COUNTY INDUSTRIAL DEVELOPMENT AGENCY, a New York public benefit
corporation having an office at 000 Xxxxxx Xxxx, Xxxx, Xxx Xxxx 00000 (the
"Agency"), and SPECIAL METALS CORPORATION, a Delaware corporation having an
office at 0000 Xxxxxx Xxxxxxxxxx Xxxx, Xxx Xxxxxxxx, Xxx Xxxx 00000 (the
"Company").
RECITALS
A. The Agency and the Company entered into a Payment in Lieu of Tax
Agreement dated as of February 1, 1994 (the "Original Agreement").
B. The Company requested that the Original Agreement be extended for a
term of 10 years and the Agency, by resolution adopted on October 3, 1996,
approved the extension of the Original Agreement for a term of ten years.
C. The extension was evidenced by an Amended and Restated Payment in
Lieu of Tax Agreement dated as of February 28, 1997 signed by the Agency and the
Company (the "Amended and Restated Agreement").
D. The Company and the Agency desired to amend the Amended and Restated
Agreement to clarify certain of its provisions.
NOW, THEREFORE, the Amended and Restated Agreement is hereby amended as
follows:
1. Section 2 of the Amended and Restated Agreement is amended in its
entirety to read as follows:
(a) The Company shall pay to each Authority as set forth on Exhibit B
attached hereto and made a part hereof, an amount in lieu of the Exempt
Taxes (the "Pilot Payments") during each Exemption Year equal to one
third (1/3) of such taxes that would be payable to each such Authority
as if the Company, and not the Agency, owned the Project Facility, for
each Exemption Year through the Exemption Year ending February 28,
2007; and one hundred (100%) percent of such taxes for each Exemption
Year thereafter. Pilot Payments at the level of one third (1/3) of such
taxes are hereafter referred to as "Reduced Pilot Payments"; Pilot
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Payments at the level of one hundred percent (100%) of such taxes are
referred to as "Full Pilot Payments".
(b) Anything herein to the contrary notwithstanding, if the Company (i)
fails to continue to maintain the operation of the Project Facility in
the County of Oneida, State of New York or (ii) fails to maintain
during any Exemption Year an average number of full-time equivalent
employees of not less than 390, then for each Exemption Year
thereafter, the Company shall pay to each Authority Full Pilot Payments
during each subsequent Exemption Year equal to one hundred percent
(100%) of such taxes that would be payable to each such Authority as if
the Company, and not the Agency, owned the Project Facility.
Notwithstanding the foregoing, if the Company can demonstrate to the
reasonable satisfaction of the Agency that the reduction in the number
of full-time equivalent employees below 390 during any Exemption Year
is primarily the result of adverse economic conditions and/or
efficiencies of operation, and not the transfer of production from the
Project Facility to other facilities operated by the Company, the
Company shall be entitled to continue to make Partial Pilot Payments
during each subsequent Exemption Year.
(c) If the Company is required by the terms hereof to make Full Pilot
Payments during an Exemption Year due to its failure to maintain an
average full-time employment level of 390 or more for the prior
Exemption Year, the Company shall be entitled to resume making Partial
Pilot Payments if, during any subsequent Exemption Year during the term
of this Agreement, the average number of full-time equivalent employees
at the Project Facility again equals or exceeds 390. In such event, the
Company's ability to make Partial Pilot Payments shall be restored as
of the first day of the Exemption Year immediately following the
Exemption Year in which the average number of full-time equivalent
employees once again equals or exceeds 390.
(d) Anything herein to the contrary notwithstanding, upon the failure
of the Company in making any payment when due hereunder and upon
failure to cure such default within thirty (30) days of receipt of
notice as herein provided, the Company shall henceforth pay Full Pilot
Payments equal to one hundred percent (100%) of the Exempt Taxes
together with interest at the rate of nine percent (9%) per annum on
all delinquent payments,
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together with expenses of collection, including but not limited to,
payment of attorneys fees; provided, however, nothing herein contained
shall be deemed to limit any other rights and remedies the Agency may
have hereunder or under the Lease.
(e) Anything herein to the contrary notwithstanding, this Agreement
shall terminate on the date on which the Lease shall terminate and the
Agency shall reconvey title to the Project Facility to the Company
pursuant to the Lease.
2. Except as amended as stated above, the Amended and Restated Pilot
Agreement shall remain in effect in accordance with its terms.
3. This Amendment shall be governed and construed in accordance with
the laws of the State of New York.
4. This Amendment shall be effective as of the date set forth above at
the beginning.
5. This Amendment may be executed in one or more counterparts, each of
which shall be an original and all of which together shall constitute but one
and the same instrument.
ONEIDA COUNTY
INDUSTRIAL DEVELOPMENT
AGENCY
By: /s/ Xxxxxx X. Xxxxx
-----------------------
Xxxxxx X. Xxxxx
Chairman
SPECIAL METALS
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Xxxxxx X. Xxxxxx
President
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