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HomeMy WebLinkAbout1984-10240 • I � RESOLUTION NO. j 84 ;102 A RESOLUTION AWARbING $2,500,OGJ INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1984 (HETRA PROJECT), OF INDIAN RIVER COUNTY, FLORIDA, AT NEGOTIATED SALE TO THE PURCHASER; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, a resolution (hereinafter called "Resolution") of the Board of County Commissioners (hereinafter called "Governing Body") of Indian River County, Florida (hereinafter called "Issuer"), duly adopted on June 13, 1984, authorized the issuance of not exceeding $2,500,000 Industrial Development Revenue Bonds, Series 1984 (HETRA Project), hereinafter called "Bonds," to provide for the acquisition and construction of a capital project in the area of the Issuer; and WHEREAS, the Bonds were validated and confirmed by final judgment of the Circuit Court, Nineteenth Judicial Circuit, in and for Indian River County, Florida, and the appeal period has expired; and WHEREAS, Barnett Bank of Central Florida, N.A., Orlando, Florida (hereinafter called "Purchaser"), has offered to purchase $2,500,000 aggregate principal amount of the Bonds at the price of par, pursuant to the remaining terms of the Bond Purchase Agreement attached hereto (hereinafter called "Bond Purchase Agreement"); and WHEREAS, the Resolution contains specific findings as to the reasons requiring a negotiated sale of the Bonds; and WHEREAS, the Governing Body deems it necessary and desirable at this time to award the Bonds at negotiated sale to the Purchaser; now, therefore, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA: SECTION 1. AWARD OF BONDS. The Bonds, in the aggregate principal amount of $2,500,000, are hereby awarded and sold to the Purchaser at the price of par and upon the remaining terms and conditions of the Bond Purchase Agreement. The Governing Body hereby authorizes and directs its Chairman to execute and its Clerk to attest under the official seal of the Issuer, the Bond Purchase Agreement in substantially the form attached hereto. SECTION 2. EFFECTIVE DATE. This resolution shall take effect immediately upon its adoption. -1- • i • .1, h ` The foregoing resolution was offered by Commissioner Wodtke who moved its adoption. The motion was seconded y Commissioner Bowman and, upon being put to a vote, the vote was as follows: Chairman Don C. Scurlock, Jr. Aye Vice Chairman Patrick B. Lyons Absent Commissioner Margaret C. Bowman Aye Commissioner Richard N. Bird Aye Commissioner William C. Wodtke, Jr. Aye The Chairman thereupon declared the resolution duly passed and adopted this 5th day of December, 1984. BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA By / DON C. SCURLO E, JR. Chairman �FLDAWR—IGHUT, Attest: C k r-A'VV wu&o'� APPROVED AS/fO)FORM AND LEGAL SUF CIENCY- By �a Attorney -2- 40 G BOND PURCHASE AGREEMENT among INDIAN RIVER COUNTY, FLORIDA HETRA COMPUTER AND COMMUNICATIONS INDUSTRIES, INC. and BARNETT BANK OF CENTRAL FLORIDA, N.A. Orlando, Florida Relating to: Indian River County, Florida $2,500,000 Industrial Development Revenue Bonds Series 1984 (HETRA Project) do TABLE OF CONTENTS PART II Section 2.1. Representations and Warranties of Borrower . . . . . . . . . . . . . . . . . . 5 Section 2.2. Payment of Expenses . . . . . . . . . . . . . 5 PART III Section 3.1. Condition of Obligation . . . . . . . . . Section 3.2. Additional Bonds . . . . . . . . . . . . . Section 3.3. Bonds Restricted . . . . . . . . . . . . . Section 3.4. Miscellaneous . . . . . . . . . . . . . . Signatures and Saat� (i) 6 7 7 7 9 PART I Section 1.1. Authorization of. Bonds . . . . . . . . . . . . 1 Section 1.2. Sale and Purchase of Bonds; Closing 2 Section 1.3. Representations of County . . . . . . . . . . 2 Section 1.4. Purchase for Investment . . . . . . . . . . . 4 PART II Section 2.1. Representations and Warranties of Borrower . . . . . . . . . . . . . . . . . . 5 Section 2.2. Payment of Expenses . . . . . . . . . . . . . 5 PART III Section 3.1. Condition of Obligation . . . . . . . . . Section 3.2. Additional Bonds . . . . . . . . . . . . . Section 3.3. Bonds Restricted . . . . . . . . . . . . . Section 3.4. Miscellaneous . . . . . . . . . . . . . . Signatures and Saat� (i) 6 7 7 7 9 40 D •• INDIAN RIVER COUNTY, FLORIDA BOND PURCHASE AGREEM',,JT $2,500,000 Industrial Development Revenue Bonds Series 1984 (HETRA Project) Dated December 5, 1984 To: Barnett Bank of Central Florida, N.A. 201 South Orange Avenue Orlando, Florida 32801 (the "Purchaser") Gentlemen: The undersigned, Indian River County, Florida, a politi- cal subdivision of the State of Florida (the "County"), and HETRA Computer and Communications Industries, Inc., a corporation orga- nized and existing under the laws of the State of Delaware (the "Borrower"), and authorized to do business in the State of Florida, hereby severally agree with you (the "Purchaser"), and the Purchaser by its acceptance hereof agrees with the County and the Borrower, as follows: PART I 1.1. Authorization of Bonds. The County has authorized in compliance with the requirements of law, its industrial deve- lopment revenue bonds in the aggregate principal amount of $2,500,000 to be designated "Indian River County, Florida, Industrial Development Revenue Bonds, Series 1984 (HETRA Project)," the "1984 Bonds." The 1984 Bonds shall be in the form, shall be secured, shall mature and bear interest and be payable and shall be subject to redemption prior to maturity as provided in the resolutions duly adopted by the County's governing body authorizing the issuance of the 1984 Bonds and awarding $2,500,000 aggregate principal amount of the 1984 Bonds to the Purchaser (collectively, the "Resolution"), and the Trust Indenture, dated as of the date of the 1984 Bonds (the "Indenture"), by and between the County, as Issuer and Barnett Banks Trust Company, N.A., Jacksonville, Florida, as Trustee (the "Trustee"), the provisions of which Indenture are incorporated herein by reference. -1- G 40 i® The proceeds of the sale of the 1984 Bonds shall be applied to pay the costs of the acquisition, construction and equipment of an approximately 40,000 sqrire foot industrial faci- lity for the design, engineering and manufacture of computer systems, sub -systems and peripherals, and other electronic systems, including any necessary utilities, within the jurisdic- tional territorial limits of the Issuer (the "Project"). The proceeds of the sale of the 1984 Bonds will be loaned to the Borrower to pay the costs of acquiring, constructing and equipping the Project pursuant to a Loan Agreement, Mortgage and Security Agreement dated as of the date of the 1984 Bonds, bet- ween the County and the Borrower (the "Loan Agreement"). 1.2. Sale and Purchase of Bonds; Closing. The County hereby agrees to se --to t e urc aser, su6�ect to the terms and conditions hereof and subject to validation of the 1984 Bonds by the Circuit Court for Indian River County, Florida, and the Purchaser, in reliance upon the respective representations and warranties of the County and the Borrower contained herein, hereby agrees to purchase from the County, on the Closing Date hereinafter specified, $2,500,000 aggregate principal amount of the 1984 Bonds at a price equal to 100% of the par value thereof. The date for the delivery of the 1984 Bonds hereunder (the "Closing Date") shall be December 21, 1984, or such other business day subsequent thereto, as the County shall designate; provided, at least 5 days' prior notice of such other Closing Date shall be given to the Purchaser. On the Closing Date, the County will deliver the 1984 Bonds to the Purchaser against payment therefor by immediately available funds payable to the Trustee for the account of the County, at the principal office of Trustee in Jacksonville, Florida. On the Closing Date, the County shall deliver to the Purchaser one or more 1984 Bonds in the aggregate principal amount specified above, registered in the name of the Purchaser or its nominee. 1.3. Representations of County. In addition to the representations of the County set forth in Section 1.2 of the Loan Agreement, upon which the Purchaser shall be entitled to rely, the County hereby represents to the Purchaser that: (a) The County is authorized to issue the 1984 Bonds pursuant to Chapter 159, Part II, Florida Statutes, and other applicable provisions of law (collectively, the "Act"). (b) When delivered to and paid for by the Purchaser in accordance with the provisions of this Agreement, the 1984 -2- ab s• Bonds will have been duly authorized, executed, authenticated and delivered; the 1984 Bonds will constitute valid and binding spe- cial obligations of the County payable .iolely and only from the revenues specified in the Resolution and the Indenture and in conformity with, and entitled to the benefit and security of, the Resolution, the Indenture and the Loan Agreement; and this Agreement, the 1984 Bonds, the Resolution, the Indenture, the Loan Agreement and all actions taken by the County in connection therewith shall be in conformity with the Act. (c) The execution and delivery of this Agreement, the Resolution, the Indenture, the 1984 Bonds and the Loan Agreement, and compliance with the provisions hereof and thereof, will not conflict with or constitute a breach of or default under any agreement or other instrument to which the County is a party or any existing law, administrative regulations, court order or consent decree to which the County is subject. (d) On the Closing Date, the Resolution shall have been duly adopted and will be in full force and effect, and the Indenture and the Loan Agreement shall have been duly executed and delivered by the County and, assuming proper execution by the other parties thereto, will be in full force and effect. (e) The County will cause the proceeds from the sale of the 1984 Bonds to be deposited and applied for the purposes set forth in the Resolution, the Indenture and the Loan Agreement. (f) There is no action, suit, proceeding or investiga- tion at law or in equity before or by any court, public board or body pending or threatened against or affecting the County wherein an unfavorable decision, ruling or finding would adver- sely affect the transactions contemplated by this Agreement or the validity of the 1984 Bonds, the Resolution, the Indenture or the Loan Agreement. (g) Except with respect to the acquisition and construction of the Project, no additional or further approval, consent or authorization of, or filing with, any.governmental or Public agency or authority not already obtained by the County is required in connection with the issuance and sale of the 1984 Bonds or the execution and performance of the obligations of the County under this Agreement, the 1984 Bonds, the Resolution, the Indenture or the Loan Agreement. (h) The County has all requisite power and authority to enter into and perform this Agreement, to issue the 1984 Bonds, to apply the proceeds thereof as contemplated by the Resolution -3- 40 GO •® and the Indenture, to enter into and perform its obligations pur- suant to the Indenture and the Loan Agreement, to adopt the Resolution and comply with the provisions thereof, and to pledge the County's payments from the Loan Agreement for the benefit of the holder or holders of the 1984 Bonds. 1.4. Purchase for Investment. Except for participation by other Institutional Investors, hereinafter defined, the Purchaser represents that it is, and on the Closing Date will be, purchasing the 1984 Bonds for its own account for investment and not with a view to, or for sale in connection with, the distribu- tion thereof, and without any present intention of distributing or reselling any 1984 Bonds, but subject, nevertheless, to any requirement of law that the disposition of its property be at all times within its control. The Purchaser understands that the 1984 Bonds have not been registered under the Securities Act of 1933, as amended. The Purchaser acknowledges that in purchasing the 1984 Bonds, it is not relying on any representations of the County with respect to the financial quality of the 1984 Bonds. The Purchaser is relying solely on statements and representations of the Borrower relating to its purchase of the 1984 Bonds. The Purchaser acknowledges that its business is that of a commercial bank. In connection with its business, the Purchaser holds an extensive portfolio of investments, including industrial development revenue bonds, and represents it has knowledge and experience in financial and business matters and is capable of evaluating the merits and risks of purchasing the 1984 Bonds. The Purchaser represents that it has made its own inde- pendent evaluation of the creditworthiness of the Borrower. The Borrower has made available to the Purchaser during the course of the transaction, and prior to the purchase of the 1984 Bonds, the opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the 1984 Bonds and to obtain any additional information relative to the financial data and business of the parties involved and the property to be mortgaged and otherwise used as security. The Purchaser acknowledges that it has been advised by its counsel and is familiar with the provisions of current legislation being proposed in the United States Congress which, if enacted, may have the effect of (a) making the purchase of the 1984 Bonds less attractive to the Purchaser than it anticipated when it delivered to the Borrower its loan commitment, dated February 9, 1984, as amended , 1984, with respect -4- CE 410 .m to the 1984 Bonds; and/or (b) eliminating the exemption from federal income taxation of the interest on the 1984 Bonds. PART II 2.1. Reoresentations and Warranties of Borrower. In addition to the representations and warranties of the Borrower set forth in Section 1.3 of the Loan Agreement, upon which the Purchaser shall be entitled to rely, the Borrower hereby repre- sents and warrants to the Purchaser and the County that: (a) The Borrower has lawful power and authority to execute, deliver and perform its obligations under this Agreement and the Loan Agreement; and all action on the part of the Borrower required for the due execution, delivery and performance of this Agreement and the Loan Agreement has been duly and effectively taken by the Borrower. j (b) Upon execution and delivery, this Agreement and the Loan Agreement will constitute valid and binding obligations of the Borrower enforceable in accordance with their respective terms (except to the extent the enforcement may be limited by any applicable bankruptcy, insolvency, moratorium or similar laws generally affecting the enforcement of creditors' rights, and subject to the availability of equitable remedies, generally). (c) The Loan Agreement and this Agreement and the compliance with and performance by the Borrower of the terms thereof do not and will not conflict with or result in a breach of any of the terms, conditions or provisions of, or constitute a default under, any mortgage, deed of trust, lease or any other restriction or any agreement or instrument to which the Borrower is a party or by which it or any of its property is bound, including without limitation, the Borrower's organizational documents, if any, or any order, rule or regulation applicable to the Borrower or any of its property or of any court or governmen- tal body, or result in the creation or imposition of any prohi- bited lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower under the terms of any instrument or agreement. (d) The Borrower's execution, delivery and performance of the Loan Agreement and this Agreement, do not require any con- sent or approval which has not been obtained including, without limitation, the consent of any regulatory authority or governmen- tal body of the United States of America or any state theroE or any political subdivision of the United States of America or any state thereof. -5- 40 Li 2.2. Payment of Ex enses. Whether or not the purchase herein contemplated shall be consummated the Borrower will pay all expenses, including, but not limited to, fees and expenses of counsel to the Purchaser, incurred in connection with (a) the preparation of this Agreement, the 1984 Bonds, the Resolution, the Indenture and the Loan Agreement, and all amendments, waivers, consents or supplements thereto; (b) the execution and delivery of such instruments; (c) the recording and filing of any Of such instruments and all supplements thereto and (d) the deli- very of all opinions required hereunder; and stamp and other taxes, if any, incident to the transactions herein contemplated; and will indemnify and'hold the holder or holders of the 1984 Bonds harmless against any liabilities with respect to such taxes. PART III 3.1. Condition of Obligation. The obligation of the Purchaser to purchase and pay for the 1984 Bonds on the Closing Date shall be subject to the accuracy of the representations of the County and the Borrower contained herein, and to the satis- faction prior to or concurrently with such purchase and payment of the following further conditions; (a) The Purchaser shall have received from Nabors, Potter, McClelland, Griffith & Jones, P.A., Titusville, Florida, Counsel for the Borrower, favorable opinions dated as of the Closing Date, addressed to the Purchaser and the County, and in form and substance satisfactory to the Purchaser and the County, including opinions with respect to the matters set forth in Section 2.1 hereof as to the Borrower. (b) The Purchaser shall have received a favorable opi- nion of Freeman, Richardson, Watson & Kelly, P.A., Bond Counsel, dated as of the Closing Date, addressed to the Purchaser and in form and substance satisfactory to the Purchaser. (c) The Purchaser shall have received the certificate of an authorized representative of the Borrower to the effect that the respective representations and warranties of the Borrower contained in Part II hereof shall be true on and as of the Closing Date, with the same effect as though such representations and warranties had been made on and as of the Closing Date. (d) The Borrower shall not be in default under this Agreement or the Loan Agreement. (e) The County shall have delivered to the Purchaser a certificate (which may be included in a consolidated closing -6- Ii • •• certificate) dated as of the Closing Date, signed by the Chairman of the governing body of the County, to the effect that the County's representations contained in Part I hereof shall be true on and as of the Closing Date, with the same effect as though such representations had been on and as of the Closing Date. (f) The County shall not be in default under this Agreement, the Resolution, the Indenture or the Loan Agreement. (g) The governing body of the County shall have adopted the Resolution and executed and delivered the Indenture substan- tially in the forms thereof furnished the Purchaser, with such changes, if any, as shall be approved by the County, the Borrower and the Purchaser. (h) The County and the Borrower shall have executed and delivered the Loan Agreement substantially in the form thereof furnished the Purchaser, with such changes, if any, as shall be approved by the County, the Borrower and the Purchaser. (i) All recordings and filings of, or with respect to, the Loan Agreement (including the Mortgage and the Security Interest, as defined in the Loan Agreement), and all necessary or appropriate financing statements relating thereto, shall have been duly recorded or filed in all such places as may be required by law, or as may be deemed necessary or desirable by the Purchaser and the Trustee, in order to establish, preserve, pro- tect and perfect the interest and rights created or intended to be created thereby. (j) The 1984 Bonds shall be validated by final judgment of the Circuit Court for Indian River County, Florida. 3.2. Additional Bonds. The County reserves the right, at the request of the Borrower, to issue additional industrial development revenue bonds in accordance with the provisions of the Indenture. 3.3. Bonds Restricted. The Purchaser acknowledges and agrees that the 1984 Bonds shall be issued only as fully registered bonds. 3.4. Miscellaneous. (a) All covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the purchase by the Purchaser of the 1984 Bonds, and shall continue in full force and effect so long as any -7- 0 0 Of the 1984 Bonds are outstanding and unpaid; and all covenants and agreements in this Agreement shall bF, binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. (b) Upon the occurrence of an Event of Default under the Indenture or the Loan Agreement' (other than one resulting from a default by the County) and if the Purchaser at the time holds any of the 1984 Bonds, it will, or will seek to have any bondholders committee which may be formed, to the extent prac- ticable under all of the circumstances, consult with and notify officials of and counsel for the County with regard to the assertion, maintenance or exercise of rights and remedies under the Indenture or the Loan Agreement. (c) All communications provided for hereunder shall be in writing and, if to the Purchaser, delivered or mailed to the Purchaser at 201 South Orange Avenue, Orlando, Florida 32801, Attention: John D. Hallstrom, or if to the County, delivered or mailed, addressed to the County, Attention: County Attorney, or if to the Borrower mailed addressed to the Borrower at 1151 South Eddie Allen Road, Melbourne, Florida 32901, Attention: President, or if to the Trustee, at 801 Riverside Avenue, Jacksonville, Florida 32204, Attention: Corporate Trust Department, or such other addresses as any of the parties hereto or the Trustee may hereafter designate by notice in writing. (d) This Agreement may be amended only by an agreement in writing signed by the parties hereto. (e) This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. Upon the execution by the Purchaser of the acceptance hereto, this Agreement shall constitute a valid and binding agreement among the parties hereto as of the date first above written. s = 40 a (SEAL) INDIAN RIVER COUNTY, FLORIDA Attest:001, 4 Chairman, boarld of Count( Commissioners i C-1erk, aic i df°. Co ty Commissi6h,ers HETRA COMPUTER AND COMMUNICATIONS INDUSTRIES, INC. By (SEAL) President Attest: Secretary The foregoing instrument is hereby accepted. BARNETT BANK OF CENTRAL FLORIDA, N.A. By Its: -9-