Loading...
HomeMy WebLinkAbout1999-147MEMORANDUM OF AGREEMENT This is a Memorandum of Agreement dated as of the 18th day of May 1999, between INDIAN RIVER COUNTY, FLORIDA, a political subdivision of the State of Florida (the "Issuer"), and SAINT EDWARD'S SCHOOL, INCORPORATED (together with its successors or assigns, the "Borrower"). WHEREAS, the Issuer is authorized and empowered by the provisions of the Constitution and laws of the State of Florida to issue industrial development revenue bonds for the purposes of providing funds to pay all or any part of the cost of any "project" as defined in Part It of Chapter 159, Florida Statutes. (the "Act"), and to lease or sell such project to others, or loam the proceeds from the salts of such bonds to others, to finance the acquisition, construction. renovation and equipping of such projects; and WHEREAS, the Borrower desires to finance or refinance the acquisition, construction, renovation and equipping of educational facilities (the "Projects") on a tract of land located in Indian River County, Florida (collectively, the "Project Site'); and WHEREAS, the Issuer has initially determined that, it has the authority to finance or refinance the acquisition, construction, renovation and equipping of the Projects within the geographic boundaries of Indian River Comity, which Projects shall constitute "projects" within the meaning of the Act, ;in(l to make a loan to the Borrower to enable? the Borrower to finance or refin.aiwe the acquisition, construction, renovation and equipping of the Projects; and WHEREAS, the Borrower wishes to obtain assurances from the Issuer that it will finance, its whole or in part, the cost of financing or refinancing the acquisition, construction, renovation and equipping of the Projects from proceeds received from the sale of the Issuer's industrial development revenue bonds; and WHEREAS, the Issuer, by its adoption on the date hereof of its resolution (the "Inducement Resolution"), has indicated its willingness, subject to the conditions contained herein and in the Inducement Resolution, to proceed with such financing as an inducement to the Borrower to finance or refinance the acquisition, construction, renovation and equipping of the Projects; and WHEREAS, subject to compliance with all requirements of law, including the requirements of the Act, and in accordance with the terms hereof, the Issuer desires to make all reasonable efforts to issue and to sell its industrial development revenue bonds in an aggregate amount up to, but not in excess of, $18,OOO,000 (the "Bonds"), for the purpose of financing or refinancing the cost of the Projects, subject and pursuant to the Inducement Resolution; and WHEREAS, the Issuer wishes to enter into certain agreements with the Borrower with respect to the issuance of the Bonds and the financing or refinancing of the acquisition, construction, renovation and equipping of the Projects. NOW, THEREFORE, for good and valuable consideration, the parties hereto agree as follows: 1. The Issuer agrees: (a) That, if the Borrower meets all prerequisites for the issuance of the Bonds established by the Issuer, it will snake all reasonable efforts to authorize the issuance and, sale of the Bonds pursuant to the terms of the Constitution and laws of the State, the Act and the Inducement Resolution and this Memorandum of Agreement; and (b) That it will (but only to the extent of the net proceeds received from the sale of the Bonds) make a loan to the Borrower to finance or refinance the acquisition, construction, renovation and equipping of the Projects, with installment payments due under a loan agreement between the Issuer and the Borrower to he at least sufficient to pay the principal of, interest on and redemption premiums, if any, with respect to the Bonds as and when the same shall become due ,and payable, together with all other costs and expenses connected with such financing and the operation and maintenance of the Projects; and (c) That, in the event the Issuer acquires an interest in or it mortgage on the Projects, it will convey or release any such interest it, retains in the Projects to the Borrower Upton payment by the Borrower of the amount required to retire the outstanding Bonds, and all other costs connected with such financing; and (d) That, in the event that the cost of the Projects exceeds the sum of net proceeds available from the first issuance of Bonds, and if the aggregate principal amount of Bonds issued therefor is less than $18,000,000 the Issuer will use its reasonable efforts to issue additional bonds, subject to and in compliance with the Constitution of the State, the Act and other documents executed in connection with the original issuance of the Bonds, up to a maximum aggregate principal amount of $18,000,000. 2. The Borrower agrees: 2 (a) That the Borrower and/or the Borrower's agents will use all reasonable efforts to find one or more purchasers for the Bonds; and (b) That the Borrower will enter into a loan agreement with the Issuer, under the terms of which the Borrower will be obligated to p;_iy to the Issuer sums sufficient to pay the principal of, interest on and redemption premiums, if any, with respect to the Bonds when the same shall become due and payable, to operate, maintain and repair the Projects at its own expense, to report annually to the Issuer the annual bond indehtedness outstanding and any other information necessary to comply with Section 218.32, Florida. Statutes, and to pay all other reasonable costs incurred by the Issuer in connection with the financing of the Projects, except as may be paid out of Bond proceeds or otherwise; and (c) That all risk of loss to the Projects will be borne by the Borrower. 3, All commitments of the Issuer under Paragraph 1 hereof and of the Borrower under Paragraph 2 hereof are subject to the mutual agreement of the Issuer and the Borrower as to the terms and conditions of the a hove- referenced loan agreement and of the Bonds and the other instruments and proceedings relating to the Bonds, including, without limitation, and to the sale of the Bonds pursuant to such terms and conditions. It is the intent of the parties hereto that the Bonds shall he prepared in such form and shall be issued, underwritten and sold and the proceeds thereof used, all as may be mutually agreed upon by the parties in accordance with the requirements and provisions of the Constitution of the State MEW and the Act. The Borrower and the Issuer further agree as follows: (a) The Borrower is authorized, subject to the conditions set forth herein, to acquire, construct, renovate and equip the Projects, and is further authorized, without intending to limit the foregoing, to prepare or cause the preparation of plans, specifications and other contract documents, to award, at the discretion of the Borrower, construction and other contracts upon a competitive or negotiated basis, to inspect and supervise the construction or renovation of the Projects, to employ engineers, architects, builders and other contractors, and to perform such other functions and services as may, in the opinion of the Borrower, be desirable in connection with the acquisition, renovation, construction and equipping of the Projects, The Borrower may advance such funds as may be necessary to accomplish such purposes and shall be entitled to reimbursement for such expenses from, and only to the extent of, the net proceeds received from the sale of the Bands in accordance with subparagraph (b) below. In connection with the issuance of the Bands, the Borrower shall not be required to submit plans and specifications for the Projects to the Issuer for approval. Nothing herein shall be construed as an approval by the Issuer of any plans and specifications or as a waiver of any right of the Issuer with respect thereto or estoppel by the Issuer from asserting any rights or responsibilities it may have in that regard. (b) Costs and expenses for which the Borrower may claim reimbursement from the net proceeds derived from the sale of the Bonds, include, but are not limited to, costs and expenses related to the preparation of plans and specifications for the Projects, the acquisition, construction, renovation and equipping of the Projects and all components thereof, architectural, engineering and supervisory services used with respect to the Projects, acceptance fees of any trusts established in connection with the issuance and sale of the Bonds, legal, accounting and financial advisory Gees and expenses, underwriting fees, costs of retiring indebtedness, the proceeds of which financed costs of acquisition, construction. renovation and equipping of the Projects or portions thereof, including any swap termination fees due with respect thereto, filing fees and printing and engraving costs incurred in connection with the authorization, sale and issuance of the Bonds, the execution andfiling of a trust agreement, if any. to he hereafter executed by the Issuer and a trustee to be named therein, and such other agreements im may be required by the initial purchaser or purchasers of the Bonds. fees, costs and expenses disbursed or incurred in connection with or related to this Memorandum of Agreement, and the Bonds, the acquisition, construction, renovation and equipping of the Projects, labor, services and materials used or furnished in site improvement for the site of the Projects, and the equipping of the Projects, and all other fees and expenses disbursed or incurred by the Borrower in connection with the Projects or the Bonds and properly allowable under the Act and the Internal Revenue Code of 1886, as amended (the "Code"). All such costs shall be reimbursed to the Borrower in accordance with the terms of the Act and the Code, (c) If the net proceeds derived from the sale of the Bonds shall be less than the cost of the Projects, the Borrower agrees to complete the Projects at the Borrower's expense. The Borrower shall be entitled to reimbursement from the Issuer for such cast overruns only to the extent of the not proceeds received from the sale of such additional bonds as the Issuer, in its sole discretion, may authorize, sell and deliver. The Issuer does not snake any warranty, either expressed or implied, that the funds derived from the sale of the Bonds will be sufficient to pay all of the costs incurred in connection with the acquisition, construction, renovation and equipping of the Projects or that any additional bonds will be issued or may be sold. The Borrower recognizes that the Borrower shall not be entitled to reimbursement from the Issuer for costs incurred by it in completing the Projects, except to the extent of moneys otherwise available from the sale of the Bonds and any additional bonds, and agrees that the Borrower shall not be entitled to any abatement or diminution of the loan installments payable under the loan agreement to be entered into between the Borrower and the Issuer upon the delivery of the Bonds because of Ruch unreimhurged costs. b. The Borrower agrees to indemnify, defend and hold harmless they Issuer, its members, employees and agents against any and all liability. loss, costs. cost overruns, expenses, charges, claims, damages and attorney's fees of whatever kind or nature, which the Issuer, its members, employees or agents may incur or sustain by reason or in consequence of the relationship existing between the Issuer and the Borrower with respect to the execution and delivery of this Memorandum of Agreement, the issuance and sale of the Bonds or the acquisition, contruction, renovation, equipping or operation of the .Projects. 6. If for any reason the Issuer shall fail to deliver the Bonds and receive the proceeds thereof within one year after completion of the Projects, if the Issuer sooner abandons its efforts to issue the Bonds in accordance with the Inducement Resolution and this Memorandum of Agreement, or if the Borrower shall terminate this Memorandum of Agreement by written notice to the Issuer, this Memorandum of Agreement shall terminate. The Borrowers obligations to indemnify the Issuer in accordance with the terms of this Memorandum of Agreement shall survive termination and shall not be released notwithstanding anything contained herein. 7. This Memorandum of Agreement way be supplemented and amended from time to time by written agreement signed by both parties, and shall be superseded by the loan agreement to be executed by the Issuer and the Borrower, upon the execution thereof, to the extent the terms thereof conflict with the terms contained herein. 8. This Memorandum of Agreement, and the rights, duties and obligations of the Borrower hereunder, may be assigned by the Borrower subject to the prior written approval of the assignee in the sole discretion of the Issuer. 14 IN WITNESS WHEREOF, the parties hereto have set their hands and seal as of the day and year first above written. (SEAL) LAKI #242775 0 6 INDIAN RIVER COUNTY, FLORIDA hai:rman, Board of County Commissioners KFENNETH R. MACHT SAINT EDWARD'S SCHOOL, INCORPORATED rj•r;r c' }' i3 iAgr I V RESOLUTION NO. 99-47 A RESOLUTION F.XPRESSINO THE INTENT OF INDIAN RIVER COUNTY, FLORIDA TO LOAN FUNDS FOR THE FINANCING AND REFINANCING OF THE ACQUISITION, CONSTRUCTION, AND EQUIPPING OF EDUCATIONAL FACILITIES IN INDIAN RIVER COUNTY, FLORIDA: PROVIDING FOR THE LENDING OF FUNDS FOR SUCH PURPOSE TO SAINT EDWARD'S SCHOOL, INCORPORATED OR ITS SUCCESSORS OR ASSIGNS. PROVIDING FOR THE ISSUANCE OF INDUSTRIAL DEVELOPMENT REVENUE BONDS OF THE COUNTY IN AN AGGREGATE: PRINCIPAL AMOUNT NOT TO EXCEED $18,000.000 FOR THE PURPOSE OF MAKING A LOAN OF FUNDS TO FINANCE ALL Oft A PORTION OF THE COST OF SUCH PROJECTS; AUTHORIZING THE EXECUTION OF A MEMORANDUM OF AGREEMENT PERTAINING TO THE ISSUANCE OF SUCH BONDS: AND PROVIDING CERTAIN OTHER DE'T'AILS WITH REsPEc THERETO. BE IT RESOLVED by the BOARD OF COUM COMMISSIONERS (t1w Aioard") of INDIAN RIVER COUNTY, FLORIDA. that: SECTION L AVIIIORITY. This Resolution is adopted pursuant to the provisions of Part I1 of Chapter 159, Florida Statutes. Chapter 125, Florida Statutes, and other applicable provisions of law. SECTION 2. DEFINITIONS. A. "Act" means Part 11 of Chapter 159, Florida Statutes, Chapter 1215, Florida Statutes, and ether applicable provisions of law. B. "Bonds" or "Bond" means the proposed Indian River County, Florida, Industrial Development Revenue Bonds (Saint Edward's School, Incorporated Project), Series 1999, to be issued in an aggregate principal amount not exceeding $18,000,000 to be authorized by subsequent resolution of the Issuer pursuant to the Act and in accordance with the terms, conditions and limitations contained in such resolution. C. "Borrower" means Saint Edward's School, Incorporated, a Florida not-for-profit corporation, and its successors or assigns who have been approved by the Issuer. D. "Chairman" means the Chairman or the Vice Chairman of the Board. 40 A 0 E. "Issuer" means Indian River County, Florida, it political subdivision of the State. F. "Projects" means the financing or refinancing of the acquisition, construction, and equipping on the Project Site of capital projects consisting of educational facilities, including refinancing existing loans which financed the construction of a portion of such educational facilities, including construction of a new middle school and construction or renovation of upper school classrooms, fine arts complex, athletic building, administrative building and site improve tueuts. G. "Project Site" means the tract of land located in Indian River County, Florida, on which the Projects will be, or have been, constructed, renovated and equipped. of the Board.. H. "Clerk" means the Clerk of the Circuit Court and ex -officio Clerk 1. "State" means the State of Florida. SECTION 3. PROPOSAIi. The Borrower has requested that the Issuer issue its revenue bond's under the Act in an aggregate principal aniount not exceeding $18,000.000 for the purpose of financing or refinancing till or part of the cost of the Projects, which amounts the Borrower has represented will, together with other available funds of the Borrower. be sufficient to pay all of the cost of financing or refinancing the Projects, such Bonds to be secured under the terms of a loan agreement between the Issuer and the Borrower in an amount sufficient to pay the principal of and interest on such Bonds as the same become due and payable. SECTION 4. FINDINGS. 'rhe Issuer hereby finds. determines and declares as follows: A. The Issuer is authorized and empowered by the Act to enter into transactions such as those contemplated by the Borrower, and to fully perforin the obligations of the Issuer to be undertaken in connection with the financing or refinancing of the Projects, which shall promote the industrial economy of the Issuer and the State, increase opportunities for gainful employment and purchasing power and improve living conditions, increase educational opportunities and otherwise contribute to the prosperity and welfare of the Issuer, the State and the inhabitants thereof. B. Based solely upon the representations of the Borrower with respect to the Projects, the Projects are "educational facilities," and "projects" within the meaning and contemplation of the Act. 2 C. The Borrower has requested that the Issuer issue Bonds in an aggregate principal amount not exceeding $18,000,000 to finance or refinance the acquisition, construction, renovation and equipping of the Projects. The Bonds shall be paid solely from the repayment of it loan of the bond proceeds from the Issuer to the Borrower and other collateral security provided by the Borrower. D. That, based on the criteria established by the Act, the Borrower is financially responsible and fully capable of and willing to fulfill all of its obligations under the terms and provisions of the loan agreement to be negotiated between the parties, under which the Borrower will be obligated, among other things, to pay amounts sufficient to timely discharge the debt service on the Bonds, and to operate, repair and maintain the Projects at the Borrower's expense; 3 D. Based stalely upon the representations of the Borrower with respect to the ]projects, the availability of financing by means of industrial development revenue bonds is an important inducement to the Borrower to proceed with the financing and refinancing of acquisition, construction, renovation and equipping of the Projects. E. The Bonds shall not he deemed to constitute a debt, liability or obligation, or n pledge of the faith and credit or taxing power, of the Issuer, or the Stats: of Florida or any political subdivision thereof, but the Bonds shall be payable solely from the revenues and proceeds to lie derived by the Issuer from payments received under the financing agreements entered into between the Issuer and the Borrower. SECTION 5. DETEHMINATI If, upon further investigation of the Borrower and itsp roposal, the Issuer is table to find: A. That the Issuer, the Borrower and the proposed purchaser of the Bonds have executed or will concurrently with the issuance of the Bonds execute the documentation required for the financing of the Projects as contemplated hereby, B. That adequate provision has been made in the documents for the operation, repair and maintenance of the Projects at the expense of the Borrower and for the payment of the principal of, premium, if any, and interest on the Bonds and reserves, if any, therefor; C. That the interest on the Bonds will be excluded from gross income for federal income tax purposes under existing laws of the United States; D. That, based on the criteria established by the Act, the Borrower is financially responsible and fully capable of and willing to fulfill all of its obligations under the terms and provisions of the loan agreement to be negotiated between the parties, under which the Borrower will be obligated, among other things, to pay amounts sufficient to timely discharge the debt service on the Bonds, and to operate, repair and maintain the Projects at the Borrower's expense; 3 40 a 0 E. That any other requirements, determinations and conditions that the Issuer may reasonably require in connection with the financing have been satisfied; then the Issuer shall, and by passage of this Resolution hereby agrees to, issue Bonds to finance or refinance the acquisition, construction, renovation and equipping of the Projects in accordance with the provisions and authority of the Act and this Resolution. The principal amount. terms of maturity, interest rate and other details of the Bonds will be determined by the Burrower and the Issuer and subsequently adopted by resolution of the Issuer. SECTION 8. AV1HORI7AATI0N TO E!%ECl3TE. The Chairman and the Clerk of the Issuer are authorized in the name and on behalf of the Issuer pursuant to this Resolution to execute and deliver a Memorandum of Agreement (the "Memorandum of Agreement") of even date herewith between the Borrower and the Issuer in substantially the form attached to this Resolution as exhibit "A," with such changes as the officers signing such documents may approve, the execution thereof to be conclusive evidence of such approval. Any action taken by the Borrower in furtherance of the acquisition. construction, renovation and equipping of the Project is hereby ratified, confirmed and approved. The officers executing such Memorandum of Agreement are further authorized to do all acts which may be required or may be advisable with respect thereto. The Chairman and the Clerk of the Issuer are further authorised to take such further action and execute such further instruments as may be necessary to fully effectuate the purpose and intention of the Memorandum of Agreement, and this Resolution. SECTION ?. I I OPLIGATON '. The Bonds and the interest thereon shall not constitute an indebtedness or pledge or the general credit or taxing power of the Issuer, the State of Florida or any political subdivision or agency thereof but shall be payable solely from the revenues pledged therefor pursuant to a loan agreement or other financing agreement entered into by and between the Issuer and the Borrower prior to or contemporaneously with the issuance of the Bonds. SECTION 8. EFFECTIVE DATE. This Resolution shall take effect immediately upon its adoption. 4 40 A PASSED AND ADOPTED this 18th day of May 1999. (SEAL) ATTEST: Lkl(l 4203779 v I 5 INDIAN RIVER COUNTY, FLORIDA ffaii-man, Board of County Commissioners Kenneth R. Macht vif 17