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Resolution 243-1992 }. RESOLUTION NO. 243 - 1992 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, AUTHORIZING THE ISSUANCE OF $3,000,000 INDUSTRIAL DEVELOPMENT REFUNDING. REVENUE BONDS, SERIES 1992 (PLANTATl$NKE1S CONVALESCENT CENTER, INC. PROJECT), OF~MdNROE COUNTY, FLORIDA; APPOINTING A TRUSTEE, ?PAYIN~ AGENT, REGISTRAR AND AUTHENTICATING AGENT FOR TH~ BONDS; AUTHORIZING EXECUTION AND DELIVERY OF ~ TRUST INDENTURE, LOAN AND SECURITY AGREEMENTAND,~ ASSIGNMENT OF MORTGAGE WITH RESPECT TO THE BONDSP; AWARDING THE BONDS AT NEGOTIATED SALE ,TO THEn PURCHASER; AND PROVIDING AN EFFECTIVE DATE. ~; .." r rr1 o '~'n --) -J .....,,-' .~ , , . - ."- ;:-0 BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS (the "Board") OF MONROE COUNTY, FLORIDA (the "Issuer"): SECTION 1. AU'l'HORITY FOR RESOLUTION. This resolutlon 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 and Security Agreement (the "Loan Agreement") attached hereto as exhibits. SECTION 3. FINDINGS. It is hereby ascertained, determined and declared as follows: A. Monroe County, Florida (herein, 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 and/or refinancing of certain projects, including machinery, 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 development of the State of Flori.da (the "State"), increase opportunities for gainful employment and otherwise aid ln 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 refunding by the Issuer of the outstandlng Industrial Development Revenue Bond (Plantation Key Convalescent Center, Inc. Project), Series 1984, of the Monroe County Industrial Development Authority, originally issued to finance a "health care facility" (the "projectW), as defined in the Act, owned by Plantation Key Convalescent Center, Inc., through the issuance of $3,000,000 Industrial Development Refunding Revenue 'Bonds, Series 1992 (Plantation Key Convalescent Center, Inc. Project), of the Issuer (the "Bonds"), is appropriate to the needs and circumstances of, and will make a significant contribution to the economic growth of the Issuer; will preserve gainful employment; and will serve a public purpose by advancing the economic prosperity and the general welfare of the state and its people. C. Based upon (1) the review by Public Financial Management, Inc. ("PFM"), financial advisor to the Issuer, of the "Plantation Key Convalescent Center, Inc. Financial Forecast for the Operations of the Facility for the Years Ending March 31, 1993 Through 1996," dated March 3, 1992 (the "Financial Report"), prepared by Mauldin & Jenkins, the independent feasibility consultant retained by the Borrower with respect to the Project and the proposed Bonds; (2) the report of PFM regarding the same (and its recommendations to the Issuer contained in paragraphs C, D, E and F of its letter to the Board dated May 4, 1992, which have been approved by the Issuer) which included consideration of factors such as the ratio of the Borrower's current assets to its current liabilities, the net worth and earnings 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 consistently with the purposes of the Act; and (3) the representation by the Purchaser, defined below, that it has conducted its own financial review of the Borrower and the Project in connection with the purchase of the Bonds; the Borrower has represented to the county that the Borrower is financially 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 that the Borrower is desirous of fully performing all other obligations and responsibilities imposed upon it pursuant to the provisions of the Loan Agreement. D. All the necessary public facilities, 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 circumstances resulting by reason of the location of the Project within the jurisdictional territorial limits of the Issuer, have been or 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 the principal of, premium, if any, and interest on the Bonds. 2 3247/MON59005/AD2 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 any third party guaranty agreement; and such Bonds shall not be or 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 will be costs of refinancing the Act. paid from the proceeds of the Bonds the Project, within the meaning of I. Industrial development revenue bonds are traditionally sold on a negotiated basis; consequently, a competitive 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. J. The Bonds are payable from the Loan payments; therefore, the Issuer does not have a direct 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. K. 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. L. Nursing Homes of Tennessee, Ltd. a Delaware limited partnership, and INVESTCO, Inc., a Delaware corporation (collectively, the "Purchaser"), through their authorized agent, Bond, Johnson & Bond, Inc., have offered to purchase the Bonds at the price of $2,940,000, and upon the remaining terms and conditions of the purchase commitment letter of Bond, Johnson & Bond, Inc., dated March 19, 1992, with respect to the Bonds (the "Commitment"), the provisions of which are incorporated herein by reference. Certain of the provisions of the Commitment, not relating to the purchase price for the Bonds, may continue to be 3 3247/MON59005/AD2 'negotiated between the Purchaser approval by bond counsel to the issuance of the Bonds. and the Borrower, subject to Issuer and PFM, prior to the SECTION 4. AUTHORIZATION OF BONDS; REMAINING DETAILS. Subject to compliance by the Borrower with those recommendations of PFM described in clause (2) of Section 3C hereof, the issuance of "Industrial Development Refunding Revenue Bonds, Series 1992 (Plantation Key Convalescent Center, Inc. Project)," of the Issuer, in the aggregate principal amount of $3,000,000, is hereby authorized. The Bonds will be dated the date of their delivery and will mature in such years and amounts, will contain such redemption provisions and will bear interest at such rate or rates, all as provided in the Indenture and the Commitment (as it may be revised under the circumstances described in Section 3L hereof) . SECTION 5. AUTHORIZATION OF EXECUTION AND DELIVERY OF BOND DOCUMENTS. The Loan Agreement, Indenture and Assignment of Mortgage (collectively, the "Bond Documents"), in substantially the form attached hereto as Exhibits A, Band C, respectively, with such changes, insertions and corrections as may be approved by the Mayor of the Board (the "Mayor"), upon the recommendation of bond counsel to the Issuer and PFM, such approval to be presumed by her execution thereof, is hereby approved; and the Board hereby authorizes and directs the Mayor and the Clerk of the Circuit Court, ex officio Clerk of the Board of County Commissioners of the Issuer (the "Clerk"), to execute and attest under the official seal of the Issuer, such Bond Documents, all of the provisions of which, when executed and delivered by the Issuer as authorized herein and by the other parties thereto, shall be deemed to be a part of this resolution as fully and to the same extent as if incorporated verbatim herein. SECTION 6. TRUSTEE, PAYING AGENT, REGISTRAR AND AUTHENTICATING AGENT. The Issuer hereby appoints First Union National Bank of Florida, Miami, Florida, as Trustee, Paying Agent, Registrar and Authenticating Agent (collectively, the "Trustee") with respect to the Bonds. SECTION 7. SALE OF BONDS. The Bonds are hereby awarded and sold to the Purchaser at the price of $2,940,000, and upon the remaining terms and conditions in the Indenture and the Commitment (as it may be revised under the circumstances described in Section 3L hereof). SECTION 8. NO PERSONAL LIABILITY. No covenant, stipulation, obligation or agreement herein contained or contained in the Bond Documents shall be deemed to be a covenant, stipulation, obligation or agreement of any member, agent or employee of the Issuer or the Board in his individual capacity, and neither the members of the Board 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. 4 3247/MON59005/AD2 SECTION 9. NO THIRD PARTY BENEFICIARIES. Except as herein or in the Bond Documents otherwise expressly provided, nothing in this resolution or in the Bond Documents, expressed or implied, is intended or shall be construed to confer upon any person or firm or corporation 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 and the Bond Documents; this resolution, the Bond Documents 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. SECTION 10. GENERAL AUTHORITY. The members of the Board and the officers, attorneys or other agents or employees of the Issuer are hereby authorized to do all acts and things required of them by this resolution and the Bond Documents, or desirable or consistent with the requirements hereof or such documents, for the Bond closing and the full, punctual and complete performance of all the terms, covenants and agreements contained in the Bonds, the Bond Documents and this resolution. SECTION 11. SEVERABILITY OF INVALID PROVISIONS. If any one or more of the covenants, agreements or provisions herein contained 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. SECTION 12. REPEALING CLAUSE. All resolutions or parts thereof of the Board in conflict with the provisions herein contained are, to the extent of such conflict, hereby superseded and repealed. SECTION 13. EFFECTIVE DATE. effect immediately upon its adoption. This resolution shall take Mayor Harvey Mayor Pro Tern London Commissioner Cheal Commissioner Jones Commissioner Stormont Yes No Yes Yes Absent 5 3247/MON59005/AD2 Passed and adopted by of Monroe county, Florida, at May 5, 1992. (SEAL) ATTEST: DANNY L r,""("'T TT" ~ . . . f"!~. CIeri 3247/MON59005/AD2 the Board of County Commissioners a regular meeting of the Board on MONROE COUNTY, FLORIDA By L~".".II ~ -: ~. ~~ i~ Mayor, Board of Coun y Commissioners APPROVED AS TO FORM AND LEGAL SUFFICIENCY: )~~c?~ ~Coun y tto ney 6