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HomeMy WebLinkAbout1984-040ARESOLUTION NO. 84-40 (a) A RESOLUTION PROVIDING FOR THE FINANCING OF THE ACQUISITION, CONSTRUCTION AND EQUIPMENT OF AN APPROXIMATELY 40,000 SQUARE FOOT INDUSTRIAL FACILITY FOR THE DESIGN, ENGINEER- ING AND MANUFACTURE OF COMPUTER SYSTEMS, SUB- SYSTEMS AND PERIPHERALS, AND OTHER ELECTRONIC " SYSTEMS, LOCATED AT 10300 COUNTY ROAD 12 (FELLSMERE) IN INDIAN RIVER COUNTY, FLORIDA; PROVIDING FOR THE To+ i Nno u io:�LnCv�.a Or NOT EXCEEDING $2,500,000 INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1984 (HETRA PROJECT), OF INDIAN RIVER COUNTY, FLORIDA, THE PROCEEDS OF WHICH WILL BE LOANED TO HETRA COMPUTER AND COMMUNICATIONS INDUSTRIES, INC., THE OWNER OF SUCH PROJECT, TO PAY THE COST THEREOF; PROVIDING FOR THE RIGHTS OF THE HOLDERS OF SUCH BONDS AND FOR THE PAYMENT THEREOF; APPOINTING A TRUSTEE AND PAYING AGENT FOR THE HOLDERS OF THE BONDS; AUTH- ORIZING THE SALE OF THE BONDS AND EXECU- TION ANn DRT.TVRRV OF a TRUST INvDENITURE AND A LOAN AGREEMENT, MORTGAGE AND SECURITY AGREEMENT; MAKING CERTAIN OTHER COVENANTS AND AGREEMENTS IN CONNECTION WITH THE ISSUANCE OF THE BONDS; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA: SECTION 1. AUTHORITY FOR RESOLUTION. This resolution is adopted pursuant to Chapter 159, Part II, Florida Statutes, and other applicable provisions of law (collectively, the "Act"). SECTION 2. DEFINITIONS. Unless the context otherwise requires, the terms used in this resolution shall have the meanings specified in the Trust Indenture (the "Indenture") and Loan Agreement, Mortgage and Security Agreement (the "Loan Agreement") attached hereto as Exhibits A and B, respectively. SECTION 3. FINDINGS. It is hereby ascertained, deter- mined and declared as follows: -1- A. Indian River County, Florida (the "Issuer"), is authorized by the Act to make and execute financing agreements, contracts, deeds and other instruments necessary or convenient for the purpose of facilitating the financing of certain projects, including machineryl equipment, land, rights in land and other appurtenances and facilities related thereto, to the end that the Issuer may be able to promote the economic develop- ment of the State of Florida (the "State"), increase oppor- tunities for gainful employment and otherwise aid in improving the prosperity and welfare of the State and its inhabitants; and to provide such financing through the issuance of industrial development revenue bonds. B. The acquisition, construction and equipment of an approximatley 40,000 square foot indust-Aal facility for the design, engineering and manufacture of computer systems, sub- systems and peripherals, and other electronic systems, including any necessary utilities, by HETRA Computer and Communications Industries, Inc., a Delaware corporation (the "Borrower"), the owner thereof, to be located at the street address of 10300 County Road 12 (Fellsmere), entirely within the unincorporated area of the Issuer (the "Project"), is appropriate to the needs and circumstances of the coimnunit,r of the Issuer, and the loca- tion of the Project within the jurisdictional territorial limits of the Issuer will make a significant contribution to the econo- mic growth of such community, will provide gainful employment and will serve a public purpose by advancing the economic prosperity and the general welfare of the State and its people. C. Giving due regard to the ratio of the Borrower's current assets to its current liabilities, the net worth and ear- nings trends of the Borrower, coverage of all its fixed charges, the nature of the business involved, its inherent stability and all other factors determinative of the Borrower's capabilities, financial and otherwise, of fulfilling its obligations con- sistently with the purposes of the Act, the Borrower is finan- cially responsible and fully capable and willing to fulfill its obligations under the Loan Agreement, including the obligation to make payments thereunder in the amounts and at the times required pursuant to the terms of the Loan Agreement and the obligation to operate, repair and maintain the Project, at its own expense; and the Borrower is desirous of fully performing all other obliga- tions and responsibilities .imposed upon it pursuant to the provi- sions of the Loan Agreement. D. The Issuer is able to cope satisfactorily with the impact of the Project, and all the necessary public facilities, -2- •i utilities and services that will be necessary for the construction, operation, repair and maintenance of the Project and on account of any increase in population or other circumstan- ces resulting by reason of the location of the Project within the jurisdictional territorial limits of the Issuer, will be provided by the Borrower when needed. . E. Adequate provision is made under the provisions of the Loan Agreement for the operation, repair and maintenance of the Project at the expense of the Borrower, and for the payment of tha principal oi, pretiium, if any, and interest on the Bonds. F. The principal of, premium, if any, and interest on the Bonds and all payments required under the Loan Agreement and the Indenture shall be payable from the proceeds derived by the Issuer under the Loan Agreement, including the loan payments required to be made by the Borrower in connection with its use and operation of the Project, and the Issuer shall never be required to (1) levy ad valorem taxes on any property within its jurisdictional territorial limits to pay the principal of, premium, if any, and interest on the Bonds or to make any other payments provided under the Loan Agreement and the Indenture, or (2) pay the same from any funds of the Issuer other than those derived by the Issuer under the Loan Agreement; and such Bonds shall not constitute a lien upon any other property owned by or situated within the jurisdictional territorial limits of the Issuer. G. The payments to be made by the Borrower to the Trustee under the Loan Agreement will be sufficient to pay all principal of, premium, if any, and interest on the Bonds, as the same shall become due, and to make all other payments required by the Loan Agreement and the Indenture. H. The costs to be paid from the proceeds of the Bonds will be costs of the Project, within the meaning of the Act. I. The interest on the Bonds will be exempt from federal income taxation under existing laws of the United States. J. Industrial development revenue bonds are tradi- tionally sold on a negotiated basis and, consequently, a com- petitive sale of the Bonds would in all probability not produce better terms than a negotiated sale, particularly in view of the timing of such an offering and the current instability of the bond market. K. The Bonds are payable from the proceeds of the Loan Agreement and, therefore, the Issuer does not have a direct -3- ii interest in the terms of sale. The Borrower has expressed its unwillingness to undertake the risks and expenses attendant to a public sale of the Bonds. L. The complex nature of the security for payment of the Bonds requires a lengthy review of the credit of the Borrower which would be financially impractical for bidders to undertake in a competitive sale context. M. The Issuer expects to sell the Bonds at negotiated sale shortly after their validation. N. Notice of the proposed adoption of this resolution was published at least once not later han 14 days prior to the date of adoption of this resolution, in a newspaper of general circulation in the area of the Issuer. SECTION 4. FINANCING OF PROJECT AUTHORIZED. The financing of the cost of the Project in the manner provided in the Loan Agreement is hereby authorized. SECTION 5. AUTHORIZATION OF BONDS. Obligations of the Issuer to be known as "Industrial Development Revenue Bonds, Series 1984 (HETRA Project)," are hereby authorized to be issued in an aggregate principal amount not exceeding $2,500,000, in the form and manner described in the Indenture. The Bonds will be dated such date and mature in such years and amounts, will con- tain such redemption provisions and will bear interest at such rate or rates (not exceeding the maximum interest rate permitted by the Act), all as provided in the Indenture. SECTION 6. AUTHORIZATION OF EXECUTION AND DELIVERY OF LOAN AGREEMENT. The Loan Agreement, in substantially the form attached hereto as Exhibit B, with such changes, insertions and corrections as may be approved by the Chairman of the Board of County Commissioners of the Issuer (the "Chairman"), such appro- val to be presumed by his execution thereof, is hereby approved by the Issuer, and the Issuer hereby authorizes and directs the Chairman and Clerk of the Board of County Commissioners of the Issuer (the "Clerk") to execute and attest under the official seal of the Issuer, the Loan Agreement, and to deliver to the Borrower the Loan Agreement, all of the provisions of which, when executed and delivered d by Uy the issuer as authorized herein and by the Borrower duly authorized, shall be deemed to be a part of this resolution as fully and to the same extent as if incor- porated verbatim herein. SECTION 7. TRUSTEE AND PAYING AGENT. The Issuer hereby appoints Barnett Banks Trust Company, N.A., Jacksonville, Florida, as Trustee and Paying Agent with respect to the Bonds. -4- •• SECTION 8. AUTHORIZATION OF EXECUTION AND DELIVERY OF INDENTURE. As security for the payment of the principal of, premium, if any, and interest on the Bonds, pro rata and without preference of any one of the Bonds over any other thereof, the Indenture, in substantially the form attached hereto as Exhibit A, with such changes, insertions and corrections as may be approved by the Chairman, such approval to be presumed by his execution thereof, is hereby approved by the Issuer, and the Issuer hereby authorizes and directs the Chairman and Clerk to execute and attest under the official seal of the Issuer; the Indenture, and to deliver to the Trustee the indenture, all of the provisions of which, when executed and delivered by the Issuer as authorized herein and by the Trustee duly authorized, shall be deemed to be a part of this resolution as fully and to the same extent as if incorporated verbatim herein. The Issuer does hereby provide in the Indenture the terms, conditions, covenants, rights, obligations, duties and agreements to and for the benefit of the holders of the Bonds, the Issuer, the Borrower_ and the Trustee. SECTION 9. SALE OF BONDS. The Bonds may be sold at negotiated sale, all at one time or in installments from time to time, for such price or prices and upon such other terms and conditions, consistent with the Act, as the Issuer may determine in its discretion. SECTION 10. NO PERSONAL LIABILITY. No covenant, stipu- lation, obligation or agreement herein contained or contained in the Loan Agreement or the Indenture shall be deemed to be a covenant, stipulation, obligation or agreement of any member, agent or employee of the Issuer or its governing body in his individual capacity, and neither the members of the Board of County Commissioners of the Issuer nor any officer of the Issuer executing the same shall be liable personally thereon or on the Bonds or be subject to any personal liability or accountability by reason of the issuance of the Bonds. SECTION 11. NO THIRD PARTY BENEFICIARIES. Except as herein or in the Loan Agreement or the Indenture otherwise expressly provided, nothing in this resolution or in the Loan Agreement or the Indenture, expressed or implied, is intended or shall be construed to confer upon any person or firm or cor- poration other than the Issuer, the Borrower, the holders of the Bonds and the Trustee any right, remedy or claim, legal or equitable, under and by reason of this resolution, the Loan Agreement or the Indenture; this resolution, the Loan Agreement and the Indenture intended to be and being for the sole and exclusive benefit of the Issuer, the Borrower, the holders from time to time of the Bonds and the Trustee. -5- * .4= . , . SECTION 12. PREREQUISITES PERFORMED. All acts, con- ditions and things relating to the passage of this resolution, and to the execution of the Loan Agreement or the Indenture, required by the Constitution or laws of the State to happen, exist and be �c,.. med i-.._ p@rLviiucu by the 'LS5Uer precedent to and in the passage hereof, and precedent. to the execution and delivery of the Loan Agreement or the Indenture, have happened, exist and have been performed as so required. SECTION 13. ELECTION UNDER SECTION 103(b)(6)(D). The Issuer does hereby elect to Have Line provisions of Section 103(b)(6)(D) of the Internal Revenue Code of 1954, as amended (collectivel.v, the "Coda"), apply to the Bonds, and the Chairman is hereby authorized and directed to evidence such election by executing and filing on behalf of the Issuer, a statement in the form required by Section 1.103-10(b)(2)(vi) of the regulations under the Code. SECTION 14. PRIORITY IN ALLOCATION. The Board of County Commissioners of the Issuer will establish a first priority for and allocate, out of any volume allotment it receives or may receive from state or federal sources with respect to industrial development revenue bonds Issued by it or on behalf of it during the calendar year 1984, not exceeding *2,500,000 aggregate principal amount for the Bonds. SECTION 15. GENERAL AUTHORITY. The members of the Board of County Commissioners of the Issuer and the officers, attorneys, engineers or other agents or employees of the Issuer are hereby authorized to do all acts and things required of them by this resolution, the Loan Agreement or the Indenture, or desirable or consistent with the requirements hereof or such documents, for the full, punctual and complete performance of all the terms, covenants and agreements contained in the Bonds, the Loan Agreement or the Indenture and this resolution. SECTION 16. VALIDATION AUTHORIZED. The attorney for the Issuer is hereby authorized and directed to prepare and file proceedings in the Circuit Court for Indian River County, Florida, to validate the Bonds in the manner provided by law. SECTION 17. ARBITRAGE. The Issuer covenants that it will not direct the Trustee to make any investments or acquiesce in them making of any investtitents by the Trustee pursuant to or under the Loan Agreement or the Indenture which could cause the Bonds to be "arbitrage bonds" within the meaning of Section 103(c) of the Code and the applicable regulations issued thereunder. 6 SECTION 18. RESOLUTION CONSTITUTES A CONTRACT. The Issuer covenants and agrees that this resolution shall constitute a contract between the Issuer and the holders from time to time Of any of the Bonds then outstanding, and that all covenants and agreements set forth herein and in the Loan Agreement and the Indenture to be performed by the Issuer shall be for the equal and ratable benefit and security of all holders of the Bonds without privilege, priority or distinction as to lien or other- wise of any of the Bonds over any other of the Bonds. SE'C`PION 19. SEVERABILITY OF INVALID PROVISIONS. If any one or r:rore of the covenants, agreements or provisions herein con- tained shall be held contrary to any express provisions of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separable from the remaining covenants, agreements or provisions and shall in no way affect the validity of any of the other provisions hereof or of the Bonds issued hereunder. SECTION 20. REPEALING CLAUSE. All resolutions or parts thereof of the Issuer in conflict with the provisions herein con- tained are, to the extent of such conflict, hereby superseded and repealed. SECTION 21. EFFECTIVE DATE. This resolution shall take effect immediately upon its adoption. The foregoing resolution was offered by Commissioner Lyons who moved its adoption. The motion was seconded by Commissioner Wodtke and, upon being put to a vote, the vote was as follows; Chairman Don C. Scurlock, Jr. Aye Vice -Chairman Patrick B. Lyons Ave Commissioner Richard N. Bird Aye Commissioner Margaret C. Bowman Absent Commissioner William C. Wodtke, Jr. Aye -7- The Chairman thereupon declared the resolution duly passed and adopted this 13th day of June, 1984. Attest: F;REDA"W 1I;GHT, Clete APPROVED A TO FOf.M, :SND LEGAL SU 'I .IENCY.. �./ By Au4. BRANDEN URG ty Attorney BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA By DON C. SCURL CK, JR. Chairman -8-