Mississippi Educational Facilities Authority Act for Private, Nonprofit Institutions of Higher Learning

Miss. Code Ann. tit. 37, ch. 104
in effect

Miss. Code Ann. § 37-104-1 Short title.

This chapter may be cited as the “Mississippi Educational Facilities Authority Act for Private, Nonprofit Institutions of Higher Learning.”

Miss. Code Ann. § 37-104-3 Legislative determination; declaration of purpose.

It is hereby declared as a matter of express legislative determination that, for the benefit of the people of the State of Mississippi and for the increase of their commerce, welfare and prosperity and for the improvement of their health and living conditions, it is essential that this and future generations of youth be given the fullest opportunity to learn and to develop their intellectual and mental capacities; that it is essential that institutions of higher learning within the State of Mississippi be provided with appropriate additional means to assist such youth in achieving the required levels of learning and development of their intellectual and mental capacities; and that it is the public purpose of this chapter to provide a measure of assistance and an alternative method to enable institutions of higher learning in the State of Mississippi to provide the educational facilities and structures which are sorely needed to assist the youth of this state in achieving the required levels of learning and development of their intellectual and mental capacities, to the benefit of all of the people of the State of Mississippi.

Miss. Code Ann. § 37-104-5 Definitions.

As used in this chapter, the following words and terms shall have the following meanings: “Authority” means the members of the State Bond Commission, which is composed of the Governor, the Attorney General, and the State Treasurer, under Section 31-17-1, Mississippi Code of 1972, acting as the Educational Facilities Authority for Private, Nonprofit Institutions of Higher Learning. “Private institution of higher learning” means a nonprofit university, college or junior college within the State of Mississippi, authorized by law to provide a program of education beyond the high school level, which is not under the jurisdiction of the Board of Trustees of State Institutions of Higher Learning or the Mississippi Community College Board, and which is accredited by the Southern Association of Colleges and Schools. “Educational facility” means any facility or structure, including, but not limited to, a housing or dormitory facility, academic building, library, laboratory, research facility, classroom, athletic facility, health care facility, maintenance, storage or utility facility, student union building, administration building, and parking facility, and any other facility or structure related thereto, which is essential, useful or convenient for the instruction of students, the conducting of research or the operation and conduct of a private institution of higher learning, and the land underlying said facility or structure, but shall not include any facility or structure used or to be used for sectarian instruction or as a place of religious worship nor any facility which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denomination or sect. “Educational facility project” means the construction, enlargement, repair, improvement, alteration, remodeling, reconstruction, equipping or acquisition of an educational facility. “Cost of the educational facility project” means the cost of construction, enlargement, repair, improvement, alteration, remodeling, reconstruction, equipping or acquisition of an educational facility; the cost of all lands, properties, rights-of-way, easements, franchises and interests acquired, used for or in connection with the educational facility; the cost of demolishing or removing buildings or structures on land so acquired, including the cost of acquiring any lands to which such buildings or structures may be moved; the cost of all machinery and equipment; financing charges, interest prior to and during construction, enlargement, repair, improvement, alteration, remodeling, reconstruction, or equipping of the said educational facility and for one (1) year after completion of said construction, enlargement, repair, improvement, alteration, remodeling, reconstruction, equipping or acquisition; the cost of engineering, architectural, financial and legal services; the cost of all plans, surveys and specifications; studies, estimates of cost and of revenues, and other expenses necessary or incident to determining the feasibility or practicability of the project; administrative expenses; the cost of such other expenses as may be necessary or incident to the financing herein authorized of the construction, enlargement, repair, improvement, alteration, remodeling, reconstruction, equipping or acquisition of any educational facility and the placing of said project in operation. Any obligations or expenses incurred for any of the foregoing purposes shall be regarded as a cost of the educational facility project and may be paid or reimbursed as such out of the proceeds of revenue bonds issued under the provisions of this chapter for such educational facility project. “Participating private institution of higher learning” means a private institution of higher learning which, pursuant to the provisions of this chapter, undertakes an educational facility project, and the financing thereof, or undertakes the refinancing of an educational facility project. “Revenue bonds” means revenue bonds issued by the Authority, under the provisions of this chapter, to finance or refinance an educational facility project at a participating private institution of higher learning and payable from monies received by the Authority from the participating private institution of higher learning pursuant to the bond loan agreement as defined herein. “Bond loan agreement” means an agreement between the participating private institution of higher learning and the Authority for the purposes of: (i) establishing the terms for the payment of the revenue bonds by the participating private institution of higher learning; (ii) establishing the collateral of the participating private institution of higher learning which the parties determine to be necessary to secure the payment of the revenue bonds; (iii) establishing the terms for the payment by the Authority to the participating private institution of higher learning of the proceeds from the sale of the revenue bonds for the payment of the costs of the educational facilities project by the participating private institution of higher learning; and (iv) setting forth all other matters relating to the revenue bonds.

Miss. Code Ann. § 37-104-7 Creation of Authority; nature and administration.

There is hereby created a body politic and corporate to be known as the “Mississippi Educational Facilities Authority for Private, Nonprofit Institutions of Higher Learning,” hereinafter referred to as “the Authority.” The Authority is constituted a public agency and instrumentality of the State of Mississippi and the exercise by the Authority of the powers conferred by this chapter shall be deemed and held to be the performance of an essential public function of the State of Mississippi. The administration of the powers and functions of the Authority shall be conducted by the State Bond Advisory Division, Office of the Governor, subject to the direction and approval of the members of the Authority.

Miss. Code Ann. § 37-104-9 General powers of Authority.

The purpose of the Authority shall be to assist private institutions of higher learning in the financing and refinancing of educational facility projects, and for this purpose the Authority is authorized and empowered: To adopt rules and regulations for the conduct of its affairs and business; To adopt an official seal and alter the same at its pleasure; To maintain an office at such place or places as it may designate; To sue and be sued in its own name; To borrow money for any of the purposes of this chapter, and to issue revenue bonds therefor, and to provide for the rights of the holders of such bonds, all as hereinafter more particularly provided; To enter into bond loan agreements with participating private institutions of higher learning; To receive and accept loans, grants, aid or contributions from any source of either money, property, labor or other things of value to be held, used and applied only for the purposes for which such loans, grants, aid and contributions are made, provided that the purposes of such loans, grants, aid and contributions are not in conflict with any of the provisions of this chapter; To charge to and apportion among participating private institutions of higher learning its administrative costs and expenses incurred in the exercise of the powers and duties conferred by this chapter; To do all things necessary or convenient to carry out the purposes of this chapter; and To physically inspect the educational facilities which are financed or refinanced under the provisions of this chapter, in order to determine whether the participating private institutions of higher learning, or any of their voluntary grantees, are using the educational facilities, or any parts thereof, for sectarian instruction or as places of religious worship or in connection with any parts of the programs of schools or departments of divinity of any religious denominations or sects.

Miss. Code Ann. § 37-104-11 Payment of expenses; liability.

All expenses incurred in carrying out the provisions of this chapter shall be payable solely from funds provided under the authority of this chapter, and no liability shall be incurred by the Authority hereunder beyond the extent to which monies shall have been provided under the provisions of this chapter.

Miss. Code Ann. § 37-104-13 Declaration of need by private institution.

The governing board of any private institution of higher learning is hereby authorized and empowered, in its discretion, to declare by resolution to the Authority the need for an educational facility project at said private institution of higher learning and for the issuance of revenue bonds to finance or refinance said educational facility project.

Miss. Code Ann. § 37-104-15 Investigation by Authority.

The Authority is hereby authorized and directed, upon receipt from the governing board of any private institution of higher learning of said resolution, to proceed forthwith to make such investigation as it shall deem necessary and proper in order to determine that the private institution of higher learning reasonably shall be expected to produce sufficient revenues over a period not exceeding twenty-five (25) years to retire the revenue bonds issued for the financing or refinancing of the educational facility project as herein authorized, as well as the interest thereon and a reasonable sum for the maintenance, renewal and replacement of such educational facility or facilities or parts thereof, so long as said revenue bonds are outstanding.

Miss. Code Ann. § 37-104-17 Issuance of revenue bonds.

Having determined that the private institution of higher learning reasonably can be expected to produce sufficient revenue over a period of twenty-five (25) years to pay the revenue bonds issued for the financing or refinancing of the educational facility project, as well as the interest on the revenue bonds and a reasonable sum for maintenance, renewal and replacement as aforesaid, the Authority shall have the power and is hereby authorized, at one (1) time or from time to time, to provide by resolution for the issuance of negotiable revenue bonds to provide funds for the purpose of financing or refinancing all or any part of the cost of the educational facility project, but in no event shall the amount of the revenue bonds issued for the financing or refinancing of any educational facility project exceed the estimated cost of the educational facility project. The principal of and the interest on the revenue bonds shall be payable solely from a special fund to be provided for that purpose in the manner hereinafter set forth. The revenue bonds shall bear date or dates, be in such denomination or denominations, bear interest at such rate or rates, not to exceed that rate authorized in Section 75-17-103, Mississippi Code of 1972, be payable at such place or places within or without the State of Mississippi, shall mature absolutely at such time or times, be redeemable prior to maturity at such time or times and upon such terms, with or without premium, shall bear such registration privileges, and shall be substantially in such form, all as shall be determined by the bond loan agreement and the resolution of the Authority. However, the revenue bonds shall mature in annual installments beginning not more than three (3) years from date thereof and extending not more than twenty-five (25) years from date thereof. The revenue bonds shall be signed by the president of the Authority, or by his facsimile signature, attested by the secretary of the Authority, and the official seal of the Authority shall be affixed thereto. The interest coupons, if any, to be attached to the revenue bonds may be executed by the facsimile signature of the president of the Authority. Whenever any revenue bonds shall have been signed by the president of the Authority who was in office at the time of such signing but who may have ceased to be president of the Authority prior to the sale and delivery of the revenue bonds or who may have not been in office on the date the revenue bonds may bear, the signatures of such president of the Authority upon the revenue bonds and coupons shall nevertheless be valid and sufficient for all purposes and have the same effect as if the president of the Authority so officially signing the revenue bonds had remained in office until the delivery of the revenue bonds to the purchaser or had been in office on the date the revenue bonds may bear.

Miss. Code Ann. § 37-104-19 Bond loan agreement.

After the determination that the private institution of higher learning shall reasonably be expected to produce sufficient revenue over a period of twenty-five (25) years to pay the revenue bonds issued for the financing or refinancing of the educational facility project, as well as the interest on the revenue bonds and a reasonable sum for maintenance, renewal and replacement, has been made by the Authority, and before the issuance of the revenue bonds, the private institution of higher learning shall enter into a bond loan agreement with the Authority for the purposes of: (a) establishing the terms for the payment of the revenue bonds by the participating private institution of higher learning; (b) establishing the collateral of the participating private institution of higher learning which the parties determine to be necessary to secure the payment of the revenue bonds; (c) establishing the terms for the payment by the Authority to the participating private institution of higher learning of the proceeds from the sale of the revenue bonds for the payment of the costs of the educational facilities project by the participating private institution of higher learning; and (d) setting forth all other matters relating to the revenue bonds. The bond loan agreement shall also provide that, for as long as the participating private institution of higher learning, or any voluntary grantee of the participating private institution of higher learning, shall own the educational facility which is the subject of the educational facility project, or any part thereof, said educational facility, or any part thereof, shall not be used for sectarian instruction or as a place of religious worship, or used in connection with any part of the program of a school or department of divinity of any religious denomination or sect. This provision shall hereinafter be referred to as “the sectarian use provision” of the bond loan agreement. The bond loan agreement shall set forth the legal description of the real property of the educational facility and the bond loan agreement shall be recorded by the participating private institution of higher learning in the land records of the county (or the applicable judicial district of a county) in which the educational facility is located or is to be located. The bond loan agreement may be recorded in its full text or in a short form evidencing: (a) the names and addresses of the parties; (b) the date of the bond loan agreement; (c) the legal description of the educational facility; (d) a brief summary of the subject matter of the bond loan agreement; and (e) the full text of the sectarian use provision of the bond loan agreement. The participating private institution of higher learning shall also execute to the Authority, for the benefit of the State of Mississippi, all instruments necessary to perfect in the State of Mississippi a lien or security interest or both, which are first in priority over all other liens and security interests, in the collateral property of the participating private institution of higher learning identified in the bond loan agreement. All such instruments shall contain the full text of the sectarian use provision of the bond loan agreement.

Miss. Code Ann. § 37-104-21 Negotiability of bonds and coupons; tax exemption.

All revenue bonds and interest coupons issued under the provisions of this chapter shall have and are hereby declared to have all the qualities and incidents of negotiable instruments under the Mississippi Uniform Commercial Code. The revenue bonds and the income therefrom shall be exempt from all taxation within the State of Mississippi.

Miss. Code Ann. § 37-104-23 Sale of bonds.

The Authority may sell the revenue bonds in such a manner and for such price as it may determine to be for the best interest of the State of Mississippi, but no such sale shall be made at a price less than par, plus accrued interest to date of delivery of the bonds to the purchaser. Notice of the sale of any revenue bonds shall be published at least one (1) time not less than ten (10) days prior to the date of sale, and shall be so published in one or more newspapers published in Jackson, Mississippi, and having general circulation within the State of Mississippi, and in one or more other newspapers or financial journals as may be directed by the Authority.

Miss. Code Ann. § 37-104-25 Disposition of sale proceeds; issuance of additional revenue bonds.

The proceeds of the sale of revenue bonds shall be paid into the State Treasury to the credit of a special fund known as the Educational Facilities Authority Fund; shall be used solely for financing or refinancing of the cost of the educational facility project, except as hereinafter provided, and shall be disbursed to the participating institution of higher learning upon order of the State Treasurer, pursuant to such restrictions, if any, as the bond loan agreement and the resolution authorizing the issuance of the revenue bonds may provide. If the proceeds of the revenue bonds, by error of calculation or otherwise, shall be less than the cost of the educational facility project, unless otherwise provided in the bond loan agreement and the resolution authorizing the issuance of the bonds, additional revenue bonds may in like manner be issued to provide the amount of such deficit which, unless otherwise provided in the bond loan agreement and the resolution authorizing the issuance of the bonds, shall be deemed to be of the same issue and shall be entitled to payment from the same fund without preference or priority of the revenue bonds first issued for the same purpose. If the proceeds of the revenue bonds of any issue shall exceed the amount required for the purpose for which the revenue bonds were issued, the surplus shall be paid into a sinking fund, hereinafter established in Section 37-104-31, for the payment of the principal of and the interest on such revenue bonds.

Miss. Code Ann. § 37-104-27 Proceedings and conditions for issuance of bonds; validation.

Revenue bonds may be issued without any other proceeding or the happening of any other conditions or things than those proceedings, conditions and things which are specified or required in this chapter. The revenue bonds authorized under this chapter may, in the discretion of the Authority, be validated by the Chancery Court of Hinds County, Mississippi, in the manner and with the force and effect provided now or hereafter by Sections 31-13-1 through 31-13-11, Mississippi Code of 1972, for the validation of county, municipal, school district and other bonds. The necessary papers for such validation proceedings shall be transmitted to the State Bond Attorney by the Authority and the required notice shall be published in a newspaper published in the City of Jackson, Mississippi.

Miss. Code Ann. § 37-104-29 Liability of state on bonds.

Revenue bonds issued under the provisions of this chapter shall not be deemed to constitute a debt of the State of Mississippi or a pledge of the faith and credit of the state, but such bonds shall be payable solely from the sinking fund provided therefor, as hereinafter established in Section 37-104-31. The issuance of such revenue bonds shall not directly, indirectly or contingently obligate the state to levy or pledge any form of taxation whatever therefor, and all such revenue bonds shall contain recitals on their face substantially covering the foregoing provisions of this section.

Miss. Code Ann. § 37-104-31 Allocation of payments by private institutions; sinking fund.

The payments to be made by the participating private institution of higher learning, in payment and retirement of the revenue bonds according to the terms of the bond loan agreement, may be pledged and allocated by the Authority to the payment of the principal of and interest on the revenue bonds as the bond loan agreement and the resolution authorizing the issuance of the revenue bonds may provide. Such pledge may include funds received from one or more or all sources and shall be set aside at regular intervals into a sinking fund, which sinking fund shall be pledged to and charged with the payment of: The interest upon such revenue bonds as such interest shall accrue; The principal of the revenue bonds as the same shall become due; The necessary charges of the paying agent or paying agents for paying principal and interest of and on such bonds; and Any premium on bonds retired by call or purchase as may be provided herein. The use and disposition of such sinking fund shall be subject to such terms as may be provided in the bond loan agreement and the resolution authorizing any issue of revenue bonds, but except as may otherwise be provided in said bond loan agreement and authorizing resolution, such sinking fund shall be a fund for the benefit of all revenue bonds issued under such resolution, without distinction or priority of one over the other. Subject to the provisions of the bond loan agreement and the resolution authorizing the issuance of the revenue bonds, surplus monies in the sinking fund may be applied to the purchase or redemption of any of such revenue bonds, and any such revenue bonds so purchased or redeemed shall forthwith be cancelled and shall not again be issued.

Miss. Code Ann. § 37-104-33 Rights of bond and coupon holders.

Any holder of revenue bonds issued under the provisions of this chapter, or of any of the interest coupons pertaining thereto, except to the extent that such rights are not restricted by the bond loan agreement and the resolution directing the issuance of such revenue bonds, may, either at law or in equity, by suit, action, mandamus, or other proceeding, protect and enforce any and all rights granted hereunder and under the bond loan agreement and the authorizing resolution; and may enforce and compel performance of all duties required by this chapter and by the bond loan agreement and the authorizing resolution. No holder of any revenue bonds shall have the right to compel any exercise of taxing power by the State of Mississippi to provide funds to pay any such revenue bonds or the interest thereon, or to enforce the payment thereof against any property of the State of Mississippi; nor shall any such revenue bonds constitute a charge, lien, or encumbrance, legal or equitable, upon any property of the state.

Miss. Code Ann. § 37-104-35 Issuance of refunding bonds.

The Authority is authorized to provide by resolution for the issuance of revenue-refunding bonds for the purpose of refunding any revenue bonds issued under the provisions of this chapter and then outstanding, together with interest thereon to the date of such refunding bonds, and redemption premium thereon, if any. The issuance of such revenue-refunding bonds, the maturity, and all other details thereof, the rights of the holders thereof, and the duties of the Authority in respect thereto shall be governed by the provisions of this chapter insofar as the same may be applicable.

Miss. Code Ann. § 37-104-37 Bonds as legal investments and securities.

All revenue bonds issued under the provisions of this chapter shall be legal investments for trustees, other fiduciaries, savings banks, trust companies, and insurance companies organized under the laws of the State of Mississippi; and such revenue bonds shall be legal securities which may be deposited with and shall be received by all public officers and bodies of this state and all municipalities and public subdivisions for the purpose of securing the deposit of public funds.

Miss. Code Ann. § 37-104-39 Acceptance of grants, loans, aid, or contributions.

The Authority, in addition to the monies which may be received by it from the sale of revenue bonds and from the receipt of payments by the participating private institution of higher learning for the payment of the revenue bonds pursuant to the bond loan agreement, shall have the authority to accept from any public or private agency, or from any individual, grants, loans, aid or contributions for or in aid of the educational facility project or for the payment of the revenue bonds for said educational facility project, and to receive and accept grants, loans, aid or contributions, from any source, of money or property or other things of value to be held, used, and applied only for the purposes for which such grants, loans, aid or contributions may be made, provided the purposes of such loans, grants, aid or contributions are not in conflict with any of the provisions of this chapter.

Miss. Code Ann. § 37-104-41 Monies received deemed trust funds.

All monies received by the Authority pursuant to this chapter, from any source whatever, shall be deemed to be trust funds to be held and applied solely as provided herein.

Miss. Code Ann. § 37-104-43 Withdrawals from Educational Facilities Authority Fund.

The funds which are transferred from the sale of revenue bonds to the special fund in the State Treasury known as the Educational Facilities Authority Fund may be withdrawn only in the following manner: Said funds shall be paid by the State Treasurer upon warrants issued by the State Auditor of Public Accounts, which warrants shall be issued upon requisition by the Authority, signed by the Governor. All expenditures ordered by the Authority shall be evidenced by complete records maintained by the Authority of said expenditures, and the Authority shall submit a full report of its work and all the transactions carried on by it and a complete statement of all its expenditures at the next regular session of the Legislature.

Miss. Code Ann. § 37-104-45 Construction of chapter.

This chapter shall be deemed to provide a complete, additional and alternative method for the doing of things authorized thereby and shall be regarded as supplemental and additional to powers conferred by other laws; provided, the issuance of revenue bonds and revenue-refunding bonds under the provisions of this chapter need not comply with the requirements of any other law applicable to the issuance of bonds. Except as otherwise expressly provided herein, none of the powers granted to the Authority under the provisions of this chapter shall be subject to the supervision or regulation or require the approval or consent of any municipality or political subdivision or any department, division, commission, board, body, bureau, official or agency thereof, or of any other state agency, department, division, commission, board, body, bureau, or official. The powers and duties conferred upon the State Bond Commission, and its members, the Governor, the Attorney General and the State Treasurer, acting as the Authority, are supplemental to and not to conflict with the duties and powers conferred upon the State Bond Commission, the Governor, the Attorney General, and State Treasurer by law.

Miss. Code Ann. § 37-104-49 Final date for issuance of bonds.

No bonds may be issued under Sections 37-104-1 through 37-104-45 after July 1, 1996.

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