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Resolution 2013-109 RESOLUTION NO. 1 0 9 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA AUTHORIZING THE COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY TO ENTER INTO A LOAN AGREEMENT WITH FIFTH THIRD BANK AND OBTAIN A TERM LOAN THEREUNDER; APPROVING THE ACTIONS TAKEN BY THE AGENCY WITH RESPECT TO ITS APPROVAL OF THE LOAN AGREEMENT AND THE TERM LOAN; AND PROVIDING SEVERABILITY AND AN EFFECTIVE DATE. BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, as follows: SECTION 1. FINDINGS. It is hereby found and determined that: (A) On the date hereof, the Collier County Community Redevelopment Agency (the "Agency"), at a duly held meeting, adopted a resolution (the "CRA Resolution"), which, among other things, authorized the Agency to receive a $7,557,900 term loan (the "Loan") from Fifth Third Bank (the "Bank") and approved the form of a Loan Agreement (the "Loan Agreement") to be entered into between the Agency and the Bank. (B) The Agency shall use the proceeds of the Loan to refinance the amounts outstanding under an existing loan agreement with the Bank to allow for the extension of the maturity thereof. (C) The Agency's repayment obligations under the Loan Agreement shall be secured by and payable from increment tax revenues to be collected by the Agency with respect to the Bayshore/Gateway Triangle Community Redevelopment Area (the "Community Redevelopment Area"), and, to the extent such increment tax revenues are insufficient, other legally available non-ad valorem revenues of the Agency as described in the Loan Agreement (the "Pledged Funds"). (D) The Board of County Commissioners (the "Board") of Collier County, Florida (the "County") finds it to be in the best interests of the County to authorize the Agency to obtain the Loan and to approve the provisions of the Loan Agreement. SECTION 2. AUTHORITY FOR THIS RESOLUTION. This Resolution is adopted pursuant to the provisions of Chapter 125, Florida Statutes, Chapter 163, Part III, Florida Statutes, and other applicable provisions of law. SECTION 3. AUTHORIZATION OF AGENCY OBTAINING THE LOAN. The County hereby authorizes the Agency to obtain the Loan for the purposes set forth in the Loan Agreement. SECTION 4. APPROVAL OF FORM OF LOAN AGREEMENT. The terms and provisions of the Loan Agreement in substantially the form attached hereto as Exhibit A are hereby approved, with such changes, insertions and additions as the Chairman of the Agency may approve, his execution thereof being evidence of such approval. SECTION 5. APPROVAL OF AGENCY'S ACTIONS; NO IMPAIRMENT; NO ADDITIONAL DEBT. (A) The Board hereby approves the actions taken by the Agency in its adoption of the CRA Resolution. (B) So long as any indebtedness of the Agency is outstanding under the Loan Agreement, the pledging of the Increment Tax Revenues (as defined in the Loan Agreement) in the manner provided in the Loan Agreement shall not be subject to repeal, modification or impairment by any subsequent ordinance, resolution, agreement or other proceedings of the County or the Agency. The County covenants to do all things necessary or required on its part by the Act, or other applicable provisions of the law, to maintain the levy, collection and receipt of the Increment Tax Revenues. The County shall exercise all legally available remedies to enforce such levy, collection and receipt now or hereafter available under law. The County will not take any action, or enter into any agreement that shall result in reducing the level of Increment Tax Revenues received by the Agency from that level prevailing at the time the County takes such action or enters into such agreement. Without limiting the generality of the foregoing, the County agrees not to cause or allow the boundaries of the Community Redevelopment Area to be decreased or the Agency to cease to exist or to shorten the scheduled sunset provision with respect to the Agency's existence without the prior written consent of the Bank. (C) So long as any indebtedness of the Agency is outstanding under the Loan Agreement, the County shall not issue any indebtedness or allow the Agency to issue any indebtedness that is payable from or secured by the Increment Tax Revenues unless the provisions of the Loan Agreement are complied with. SECTION 6. LIMITED OBLIGATION. The obligation of the Agency to repay the Loan is a limited and special obligation payable from the Pledged Funds solely in the manner and to the extent set forth in the Loan Agreement and shall not be deemed a pledge of the faith and credit or taxing power of either the Agency or the County and such obligation shall not create a lien on any property whatsoever of or in the Agency or the County other than the Pledged Funds. SECTION 7. GENERAL AUTHORITY. The members of the Board and the County's officers, counsel, agents and officials are hereby authorized to do all acts 2 1 and things required of them consistent with the requirements of this Resolution, the CRA Resolution, the Loan Agreement and any other document relating to the matters described herein for the full punctual and complete performance of all the terms, covenants and agreements contained in this Resolution, the CRA Resolution, the Loan Agreement and such other documents. SECTION 8. SEVERABILITY OF INVALID PROVISIONS. If any one or more of the covenants, agreements or provisions contained herein 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 severable from the remaining covenants, agreements or provisions hereof and shall in no way affect the validity of any of the other provisions of this Resolution. SECTION 9. EFFECTIVE DATE. This Resolution shall take effect immediately upon its adoption. DULY ADOPTED, in Regular Session this 14th of May, 2013. BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA (SEAL) / / . B : ;, / -Chaimiaman, Board •' ounty / Commissioners ATTES, . . Georgla 4.--14ill4r-, Esq Dwight E. Brock,Clerk By .Dept#O Ster0 Chairman's APPRI,VED #S TO FORM AND FG' ' SUFFICIENCY: County A • 'ey Jeffre . Klatzkow 3 1 EXHIBIT A Form of Loan Agreement LOAN AGREEMENT BETWEEN COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY AND FIFTH THIRD BANK Dated as of May 31, 2013 TABLE OF CONTENTS Page ARTICLE I DEFINITION OF TERMS SECTION 1.01. DEFINITIONS 1 SECTION 1.02. INTERPRETATION 4 SECTION 1.03. TITLES AND HEADINGS 5 ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS; SECURITY FOR NOTES SECTION 2.01. REPRESENTATIONS BY THE AGENCY 6 SECTION 2.02. GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BANK 6 SECTION 2.03. SERIES 2013 NOTE NOT TO BE INDEBTEDNESS OF THE AGENCY, COUNTY OR STATE 7 SECTION 2.04. SECURITY. 7 SECTION 2.05. COVENANT TO BUDGET AND APPROPRIATE NON-AD VALOREM REVENUES 7 SECTION 2.06. PAYMENT COVENANT 8 SECTION 2.07. NO IMPAIRMENT; RECEIPT OF INCREMENT TAX REVENUES 8 SECTION 2.08. ISSUANCE OF ADDITIONAL INDEBTEDNESS. 8 SECTION 2.09. DEBT SERVICE COVERAGE RATIO 8 SECTION 2.10. DEBT SERVICE RESERVE FUND. 8 SECTION 2.11. PURCHASE AND SALE OF LAND 9 SECTION 2.12. PROVISION OF FINANCIAL INFORMATION 9 ARTICLE III DESCRIPTION OF SERIES 2013 NOTE; PAYMENT TERMS; OPTIONAL PREPAYMENT SECTION 3.01. DESCRIPTION OF THE SERIES 2013 NOTE 10 SECTION 3.02. OPTIONAL PREPAYMENT 11 ARTICLE IV CONDITIONS FOR ISSUANCE OF THE SERIES 2013 NOTE SECTION 4.01. CONDITIONS FOR ISSUANCE 12 i ARTICLE V EVENTS OF DEFAULT; REMEDIES SECTION 5.01. EVENTS OF DEFAULT 13 SECTION 5.02. REMEDIES 13 ARTICLE VI MISCELLANEOUS SECTION 6.01. AMENDMENTS, CHANGES OR MODIFICATIONS TO THE AGREEMENT 14 SECTION 6.02. COUNTERPARTS 14 SECTION 6.03. SEVERABILITY 14 SECTION 6.04. TERM OF AGREEMENT 14 SECTION 6.05. NOTICE OF CHANGES IN FACT 14 SECTION 6.06. NOTICES 14 SECTION 6.07. APPLICABLE LAW 15 SECTION 6.08. INCORPORATION BY REFERENCE 15 EXHIBITS EXHIBIT A - FORM OF SERIES 2013 NOTE A-1 ii This LOAN AGREEMENT (the "Agreement") is made and entered into as of May 31, 2013, by and between the COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY, FLORIDA, a community redevelopment agency duly organized and validly existing under the laws of the State of Florida, and its successors and assigns (the "Agency"), and FIFTH THIRD BANK, a Michigan banking corporation authorized to do business in the State of Florida and its successors and assigns (the "Bank"); WITNESSETH: WHEREAS, the Agency is authorized by provisions of the Chapter 163, Part III, Florida Statutes, Chapter 125, Florida Statutes, and other applicable provisions of law (collectively, the "Act") to, among other things, acquire, construct, equip, own, sell, lease, operate and maintain various capital improvements and public facilities to promote the purposes of the Act and the welfare and economic prosperity of the residents of Collier County, Florida (the "County") and to borrow money to finance and refinance the acquisition, construction, equipping and maintenance of such capital improvements and public facilities; and WHEREAS, the Agency finds it necessary and in the best interests of the Agency to refinance the amounts outstanding under an existing loan agreement with Fifth Third Bank (the "Bank") dated as of on September 1, 2009, in order to extend the maturity of the indebtedness incurred thereunder(the "Prior Loan"); and WHEREAS, the Agency finds that refinancing the Prior Loan will serve a public purpose under the Act; and WHEREAS, the Bank is willing to make a term loan available to the Agency, and the Agency is willing to incur such loan pursuant to the terms and provisions of this Agreement in an aggregate principal amount of$7,557,900 to refinance the Prior Loan. NOW, THEREFORE, THIS AGREEMENT WITNESSETH: That the parties hereto, intending to be legally bound hereby and in consideration of the mutual covenants hereinafter contained, DO HEREBY AGREE as follows: ARTICLE I DEFINITION OF TERMS SECTION 1.01. DEFINITIONS. The terms defined in this Article I shall, for all purposes of this Agreement, have the meanings in this Article I specified, unless the context clearly otherwise requires. "Act" shall mean the Florida Constitution, Chapter 163, Part III, Florida Statutes, Chapter 125, Florida Statutes, and other applicable provisions of law. "Agency" shall mean the Collier County Community Redevelopment Agency, a community redevelopment agency duly created and validly existing under the laws of the State of Florida. "Agency Debt" shall mean any indebtedness of the Agency secured by or payable from, in whole or in part, any portion of the Pledged Funds, including but not limited to the loan made hereunder. "Agreement" shall mean this Loan Agreement, dated as of May 31, 2013, by and between the Agency and the Bank and any and all modifications, alterations, amendments and supplements hereto made in accordance with the provisions hereof. "Annual Audit" shall mean the annual audit of the County, which shall include financial activities and information regarding the Agency, prepared pursuant to the requirements of Section 2.12 hereof. "Annual Budget" shall mean the annual budget, which shall include financial activities and information regarding the Agency, prepared pursuant to the requirements of Section 2.12 hereof. "Annual Debt Service" shall mean the aggregate amount in the applicable Fiscal Year of principal and interest required to be paid on outstanding Agency Debt during such Fiscal Year. "Authorized Officer" shall mean the Chair or her or his duly authorized designee. "Bank" shall mean Fifth Third Bank, and its successors and assigns. "Bond Counsel" shall mean Nabors, Giblin & Nickerson, P.A., Tampa, Florida or any other attorney at law or firm of attorneys, of nationally recognized standing in matters pertaining to the federal tax exemption of interest on obligations issued by states and political subdivisions, and duly admitted to practice law before the highest court of any state of the United States of America. "Business Day" shall mean any day other than a Saturday, Sunday or a day on which the Bank is authorized or required to be closed. "Chair" shall mean the Chairman of the Governing Body, or in his or her absence or unavailability, the Vice-Chairman of the Governing Body. "Community Redevelopment Area" shall mean the Bayshore/Gateway Triangle Redevelopment Area identified by the County pursuant to Resolution No. 2000-82, adopted on March 14, 2000 and Ordinance 2000-42, adopted on June 13, 2000, as each may be amended or supplemented from time to time. 2 "Community Redevelopment Trust Fund" shall mean the Community Redevelopment Trust Fund established by the County pursuant to Ordinance 2000-42, adopted on June 13, 2000, as it may be amended or supplemented from time to time. "County" shall mean Collier County, Florida, a political subdivision of the State of Florida. "Debt Service Coverage Ratio" shall mean, as of any date of calculation thereof, a fraction, the numerator of which is equal to: (a) the sum of actual Increment Tax Revenues, Non-Ad Valorem Revenues and Transfers In for a Fiscal Year based on the Annual Audit, less (b) Operating Expenses for such Fiscal Year based on the Annual Audit, and the denominator of which is the Annual Debt Service for such Fiscal Year. "Debt Service Reserve Fund" shall mean the fund created pursuant to Section 2.10 hereof. "Final Maturity Date" shall mean June 1, 2018. "Fiscal Year" shall mean the 12-month period commencing on October 1 of any year and ending on September 30 of the immediately succeeding year. "Governing Body" shall mean the Board of County Commissioners of Collier County, Florida, acting in its capacity as the Governing Body of the Agency. "Increment Tax Revenues" shall mean all of the increment tax revenues that are derived within the Community Redevelopment Area and received by the Agency, all in accordance with Chapter 163, Part III, Florida Statutes, and Ordinance No. 2000-42 of the County, as it may be amended and supplemented from time to time. "Interest Payment Date" shall have the meaning ascribed thereto in Section 3.01(c)hereof. "Interest Rate" shall mean the LIBOR Rate plus three hundred seventy-five (375) basis points (3.75%), which Rate shall be adjusted as provided in Section 3.01(c) hereof. "LIBOR Rate" shall mean the rate for deposits in U.S. dollars with a 30-day maturity that appears on Telerate Page 3750 (or such other page as may replace that page on that service, or such other service as may be nominated by the British Bankers' Association, for the purpose of displaying London interbank offered rates for U.S. dollar deposits) as of 11:00 a.m., London time, on the first day of each month. This rate shall be used by the Bank in computing the Interest Rate. "Non-Ad Valorem Revenues" shall mean all revenues of the Agency derived from any source whatsoever other than the Increment Tax Revenues and other ad 3 valorem taxation on real or personal property, which are legally available to make the payments required herein. "Operating Expenses" shall mean those expenses of the Agency currently shown in the Annual Audit as Current Expenditures, or such other term or terms subsequently used to describe such Expenses. "Pledged Funds" shall mean, collectively, (1) the Increment Tax Revenues, (2) such legally available Non-Ad Valorem Revenues of the Agency budgeted and appropriated pursuant to Section 2.05 hereof, and (3) amounts on deposit in the Debt Service Reserve Fund. "Prior Loan" shall mean the loan from the Bank to the Agency evidenced by the outstanding Collier County Community Redevelopment Agency Taxable Note (Fifth Third Bank), Series 2009. "Project" shall have the meaning ascribed to such term in the recitals hereof. "Reserve Requirement" shall mean (1) as of the date of the issuance of the Series 2013 Note, $400,000, (2) as of the first anniversary of the issuance of the Series 2013 Note, $600,000, and (3) as of the second anniversary of the issuance of the Series 2013 Note, $800,000. "Resolution" shall mean the Resolution adopted by the Agency on May 14, 2013, which among other things authorized the execution and delivery of this Loan Agreement and the issuance of the Series 2013 Note. "Secretary" shall mean Clerk of the Circuit Court of Collier County, Florida and Ex-Officio Clerk to the Board of Commissioners of Collier County, Florida, acting in his capacity as Secretary to the Agency, or his duly authorized designee. "Series 2013 Note" shall mean the Collier County Community Redevelopment Agency Taxable Note (Fifth Third Bank), Series 2013 authorized by the Resolution and more particularly described in Article III hereof. "State" shall mean the State of Florida. "Transfers In" shall mean those transfers into the Agency's special revenue fund currently shown in the Annual Audit as Other Financing Sources, or such other term or terms subsequently used to describe such transfers. SECTION 1.02. INTERPRETATION. Unless the context clearly requires otherwise, words of masculine gender shall be construed to include correlative words of the feminine and neuter genders and vice versa, and words of the singular number shall be construed to include correlative words of the plural number and vice versa. Any 4 capitalized terms used in this Agreement not herein defined shall have the meaning ascribed to such terms in the Resolution. This Agreement and all the terms and provisions hereof shall be construed to effectuate the purpose set forth herein and to sustain the validity hereof. SECTION 1.03. TITLES AND HEADINGS. The titles and headings of the articles and sections of this Agreement, which have been inserted for convenience of reference only and are not to be considered a part hereof, shall not in any way modify or restrict any of the terms and provisions hereof, and shall not be considered or given any effect in construing this Agreement or any provision hereof or in ascertaining intent, if any question of intent should arise. [Remainder of page intentionally left blank] 5 ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS; SECURITY FOR NOTES SECTION 2.01. REPRESENTATIONS BY THE AGENCY. The Agency represents, warrants and covenants that: (a) The Agency is a community redevelopment agency duly organized and validly existing under the laws of the State. Pursuant to the Resolution, the Agency has duly authorized the execution and delivery of this Agreement, the performance by the Agency of all of its obligations hereunder, and the issuance of the Series 2013 Note in the aggregate principal amount of$7,557,900. (b) The Agency has complied with all of the provisions of the constitution and laws of the State, including the Act, and has full power and authority to enter into and consummate all transactions contemplated by this Agreement or under the Series 2013 Note, and to perform all of its obligations hereunder and under the Series 2013 Note and, to the best knowledge of the Agency, the transactions contemplated hereby do not conflict with the terms of any statute, order, rule, regulation, judgment, decree, agreement, instrument or commitment to which the Agency is a party or by which the Agency is bound. (c) The Agency is duly authorized and entitled to issue the Series 2013 Note and enter this Agreement and, when issued in accordance with the terms of this _ Agreement, the Series 2013 Note and the Agreement will each constitute legal, valid and binding obligations of the Agency enforceable in accordance with their respective terms, subject as to enforceability to bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors' rights generally, or by the exercise of judicial discretion in accordance with general principles of equity. (d) There are no actions, suits or proceedings pending or, to the best knowledge of the Agency, threatened against or affecting the Agency, at law or in equity, or before or by any governmental authority, that, if adversely determined, would materially impair the ability of the Agency to perform the Agency's obligations under this Agreement or under the Series 2013 Note. (e) As of the date hereof, no outstanding indebtedness of the Agency exists other than the Prior Loan and any interest accrued thereon. SECTION 2.02. GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BANK. The Bank hereby represents, warrants and agrees that it is a Michigan banking corporation authorized to execute and deliver this Agreement and to perform its obligations hereunder, and such execution and delivery will not 6 constitute a violation of its charter, articles of association or bylaws. Pursuant to the terms and provisions of this Agreement, the Bank agrees to provide the loan evidenced by the Series 2013 Note to the Agency for the purpose of refinancing the Prior Loan. SECTION 2.03. SERIES 2013 NOTE NOT TO BE INDEBTEDNESS OF THE AGENCY, COUNTY OR STATE. The Series 2013 Note, when delivered by the Agency pursuant to the terms of this Agreement, shall not be or constitute an indebtedness of the Agency, the County, the State of Florida or any political subdivision or agency thereof, within the meaning of any constitutional, statutory or charter limitations of indebtedness, but shall be payable solely from the Pledged Funds, as herein provided. The Bank shall never have the right to compel the exercise of the ad valorem taxing power of the Agency or the County, or taxation in any form on any property therein to pay the Series 2013 Note or the interest thereon. The Series 2013 Note is a special and limited obligation payable as to principal and interest solely from the Pledged Funds. SECTION 2.04. SECURITY. The Series 2013 Note shall be secured by and payable from the Pledged Funds. The Agency does hereby irrevocably pledge the Pledged Funds to the payment of the principal of and interest on the Series 2013 Note in accordance with the provisions hereof. SECTION 2.05. COVENANT TO BUDGET AND APPROPRIATE NON- AD VALOREM REVENUES. To the extent the Increment Tax Revenues are insufficient to pay Annual Debt Service on the Series 2013 Note for any Fiscal Year, the Agency covenants and agrees to appropriate in its annual budget, by amendment, if necessary, from Non-Ad Valorem Revenues lawfully available in each Fiscal Year, amounts which shall be sufficient to pay the Annual Debt Service on the Series 2013 Note. Such covenant and agreement on the part of the Agency to budget and appropriate such amounts of Non-Ad Valorem Revenues shall be cumulative to the extent not paid, and shall continue until such Non-Ad Valorem Revenues or other legally available funds in amounts sufficient to make all such required payments shall have been budgeted, appropriated and actually paid. Notwithstanding the foregoing covenant of the Agency, the Agency does not covenant to maintain any services or programs, now provided or maintained by the Agency, which generate Non-Ad Valorem Revenues. Such covenant to budget and appropriate does not create any lien upon or pledge of such Non-Ad Valorem Revenues, nor does it preclude the Agency from pledging in the future its Non-Ad Valorem Revenues, nor does it require the Agency to levy and collect any particular Non-Ad Valorem Revenues, nor does it give the Bank a prior claim on the Non-Ad Valorem Revenues as opposed to claims of general creditors of the Agency. Such covenant to appropriate Non-Ad Valorem Revenues is subject in all respects to the payment of obligations secured by a pledge of such Non-Ad Valorem Revenues heretofore or hereafter entered into (including the payment of debt service on other debt instruments). However, the covenant to budget and appropriate in its annual 7 budget for the purposes and in the manner stated herein shall have the effect of making available for the payment of debt service on the Series 2013 Note in the manner described herein and in the Resolution Non-Ad Valorem Revenues and placing on the Agency a positive duty to appropriate and budget, by amendment, if necessary, amounts sufficient to meet its obligations hereunder. SECTION 2.06. PAYMENT COVENANT. The Agency covenants that it shall duly and punctually pay from the Pledged Funds the principal of and interest on the Series 2013 Note at the dates and place and in the manner provided herein and in the Series 2013 Note according to the true intent and meaning thereof and all other amounts due under this Agreement. SECTION 2.07. NO IMPAIRMENT; RECEIPT OF INCREMENT TAX REVENUES. The pledging of the Increment Tax Revenues in the manner provided herein shall not be subject to repeal, modification or impairment by any subsequent ordinance, resolution, agreement or other proceedings of the Agency or the County. The Agency covenants to do all things necessary or required on its part by the Act, or other applicable provisions of the law, to maintain the levy, collection and receipt of the Increment Tax Revenues. The Agency shall exercise all legally available remedies to enforce such levy, collection and receipt now or hereafter available under law. The Agency will not take any action, or enter into any agreement that shall result in reducing the level of Increment Tax Revenues received by the Agency from that level prevailing at the time the Agency takes such action or enters into such agreement. Without limiting the generality of the foregoing, the Agency agrees not to cause or allow the boundaries of the Community Redevelopment Area to be decreased or the Agency to cease to exist without the prior written consent of the Bank. SECTION 2.08. ISSUANCE OF ADDITIONAL INDEBTEDNESS. The Agency shall not issue any indebtedness without the written consent of the Bank unless upon the issuance of such indebtedness the Series 2013 Note shall be paid in full and no longer outstanding hereunder. SECTION 2.09. DEBT SERVICE COVERAGE RATIO. The Agency agrees to maintain a Debt Service Coverage Ratio of: (a) 1.10 for the Fiscal Year ending September 30, 2014, (b) 1.12 for the Fiscal Year ending September 30, 2015, and (c) 1.15 for all subsequent Fiscal Years, so long as the Series 2013 Note is outstanding. SECTION 2.10. DEBT SERVICE RESERVE FUND. The Agency shall establish and maintain so long as the Series 2013 Note is outstanding a separate fund to be known as the "Debt Service Reserve Fund— Series 2013 Note." Moneys on deposit in the Debt Service Reserve Fund shall be used only to pay the Annual Debt Service on the Series 2013 Note to the extent the Pledged Funds are insufficient therefor. The Agency shall maintain an account with the Bank for the Debt Service Reserve Fund so long as the Series 2013 Note is outstanding hereunder. If the County or the Agency establishes its 8 primary banking relationship with a financial institution other than the Bank, the Bank shall pay interest on the Debt Service Reserve Fund at the same rate as similarly situated public depositories. Except as otherwise provided in this Section 2.10, moneys in the Debt Service Reserve Fund are required to be maintained in an amount equal to the Reserve Requirement. The investments in the Debt Service Reserve Fund shall be valued at their market value annually as of September 30 of each Fiscal Year. If at the time of any valuation the amount on deposit in the Debt Service Reserve Fund is less than the Reserve Requirement as a result of a decline in the market value of investments in the Debt Service Reserve Fund, the Agency shall deposit to the Debt Service Reserve Fund from the Pledged Funds the amount necessary to restore the amount on deposit in the Debt Service Reserve Fund to the Reserve Requirement within 120 days following the date on which the Agency determines such deficiency. If the amount on deposit in the Debt Service Reserve Fund is less than the Reserve Requirement as a result of the Debt Service Reserve Fund having been drawn upon to pay any principal or interest on the Series 2013 Note, the Agency shall deposit in the Debt Service Reserve Fund the amount which was withdrawn in not more than 12 substantially equal monthly payments beginning with the first day of the first month after the month in which such draw occurred. SECTION 2.11. PURCHASE AND SALE OF LAND. In the event any land previously purchased by the Agency with proceeds of the Prior Loan or with proceeds drawn under the line of credit refinanced by the Prior Loan is subsequently sold, all of the net proceeds of the sale of such land (net of typical and customary closing costs) shall be applied to the prepayment of the principal outstanding under the Series 2013 Note within 30 days of the receipt of such sales proceeds pursuant to Section 3.02 hereof. SECTION 2.12. PROVISION OF FINANCIAL INFORMATION. The Agency will furnish to the Bank a copy of the Annual Audit, including financial information concerning the Agency, and all standard statements for a Comprehensive Annual Financial Report, prepared by a certified public accountant acceptable to the Bank, within 180 days of the close of each Fiscal Year, which report shall show the Increment Tax Revenues collected and Non-Ad Valorem Revenues for such Fiscal Year. Within 45 days of the close of each quarter, the Agency will furnish to the Bank a copy of the unaudited quarterly financial statements of the Agency, which report shall show the Increment Tax Revenues and Non-Ad Valorem Revenues collected for such quarter. The Agency shall also provide the Bank with a copy of the annual budget of the Agency each year within 45 days of the final adoption of such budget. 9 ARTICLE III DESCRIPTION OF SERIES 2013 NOTE; PAYMENT TERMS; OPTIONAL PREPAYMENT SECTION 3.01. DESCRIPTION OF THE SERIES 2013 NOTE. (a) The Agency hereby authorizes the issuance and delivery of the Series 2013 Note to the Bank which Note shall be in an amount equal to SEVEN MILLION EIGHT HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($7,557,900) and shall be designated as the "Collier County Community Redevelopment Agency Taxable Note (Fifth Third Bank), Series 2013." The text of the Series 2013 Note shall be substantially in the form attached hereto as Exhibit A, with such omissions, insertions and variations as may be necessary and desirable to reflect the particular terms of the Series 2013 Note. The provisions of the form of the Series 2013 Note are hereby incorporated in this Agreement. (b) The Series 2013 Note shall be dated the date of its delivery. The Series 2013 Note shall be executed in the name of the Agency by the manual signature of the Chair and attested by the manual signature of the Secretary. In case any one or more of the officers, who shall have signed the Series 2013 Note, shall cease to be such officer of the Agency before the Series 2013 Note so signed shall have been actually delivered, such Series 2013 Note may nevertheless be delivered as herein provided and may be issued as if the person who signed such Series 2013 Note had not ceased to hold such office. (c) The Series 2013 Note shall bear interest from its date of issuance at the Interest Rate (calculated on the basis of a 360-day year consisting of twelve 30-day months), which Interest Rate shall be adjusted as of the first day of each month based upon changes in the LIBOR Rate. Interest on the Series 2013 Note shall be payable on the first day of each month, commencing July 1, 2013 (each an "Interest Payment Date") so long as any amount under the Series 2013 Note remains outstanding. Principal of the Series 2013 Note shall be payable on the first day of each month, commencing July 1, 2013 (each a "Principal Payment Date"), through and including the Final Maturity Date, and shall be in equal amounts based on a fifteen (15) year amortization, with a balloon payment due and payable on the Final Maturity Date. The full outstanding principal balance of the Series 2013 Note shall become due and payable on the Final Maturity Date. The scheduled principal payments shall be set forth in the Series 2013 Note. (d) All payments of principal of and interest on the Series 2013 Note shall be payable in any coin or currency of the United States which, at the time of payment, is legal tender for the payment of public and private debts and shall be made to the Bank (i) in immediately available funds, (ii) by delivering to the Bank no later than the payment date a check or draft of the Agency, or (iii) in such other manner as the Agency and the Bank shall agree upon in writing. If any Interest Payment Date or Principal Payment 10 Date is not a Business Day, the corresponding payment shall be due on the next succeeding Business Day. (e) The Agency agrees to pay any legal fees or out-of-pocket expenses of the Bank associated with the issuance of the Series 2013 Note, which fees and expenses shall not exceed $1,500. The Bank shall pay for all of its other costs relating to making and servicing the term loan. SECTION 3.02. OPTIONAL PREPAYMENT. The Series 2013 Note may be prepaid at any time prior to the Final Maturity Date, at the option of the Agency, from any moneys legally available therefor, upon notice as provided herein, in whole or in part at any time or from time to time, without a prepayment premium, by paying to the Bank all or a part of the principal amount of the Series 2013 Note to be prepaid, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment. Any prepayment shall be made on such date and in such principal amount as shall be specified by the Agency in a written notice provided to the Bank not less than ten (10) days prior thereto by first class mail. Notice having been given as aforesaid, the amount of principal of the Series 2013 Note stated in such notice or the whole thereof, as the case may be, shall become due and payable on the date of prepayment stated in such notice, together with interest accrued and unpaid to the date of prepayment on the principal amount then being paid. If on the date of prepayment moneys for the payment of the principal amount to be prepaid on the Series 2013 Note, together with interest to the date of prepayment on such principal amount shall have been paid to the Bank as above provided, then from and after the date of prepayment, interest on such prepaid principal amount of the Series 2013 Note shall cease to accrue. If said money shall not have been so paid on the date of prepayment, such principal amount of the Series 2013 Note shall continue to bear interest until payment thereof at the Interest Rate. The Bank shall make appropriate notations in its records indicating the amount and date of any such prepayment and shall promptly transmit an acknowledgment to the Agency indicating the amount and date of such prepayment. [Remainder of page intentionally left blank] 11 ARTICLE IV CONDITIONS FOR ISSUANCE OF THE SERIES 2013 NOTE SECTION 4.01. CONDITIONS FOR ISSUANCE. (a) In connection with the issuance of the Series 2013 Note, the Bank shall not be obligated to purchase the Series 2013 Note pursuant to this Agreement unless at or prior to the issuance thereof the Agency delivers to the Bank the following items in form and substance acceptable to the Bank and Bond Counsel: (i) An opinion of Bond Counsel in form and substance to the effect that the Series 2013 Note has been duly authorized by the Agency and is an enforceable obligation in accordance with its terms (enforceability of it may be subject to standard bankruptcy exceptions and the like); and (ii) Such additional certificates, opinions, instruments and other documents as the Bank or Bond Counsel may deem necessary or appropriate. (b) The Agency shall apply the proceeds of the Series 2013 Note, together with other legally available moneys of the Agency, to pay the Prior Loan in full on the date of issuance of the Series 2013 Note. [Remainder of page intentionally left blank] 12 ARTICLE V EVENTS OF DEFAULT; REMEDIES SECTION 5.01. EVENTS OF DEFAULT. An "Event of Default" shall be deemed to have occurred under this Agreement if: (a) The Agency shall fail to make timely payment of principal or interest then due on any amounts drawn against the Series 2013 Note; (b) Any representation or warranty of the Agency contained in Article II of this Agreement or any certificate provided the Bank under Article IV shall prove to be untrue in any material respect; (c) Any covenant of the Agency contained in Article II of this Agreement shall be breached or violated for a period of sixty (60) days after the Agency's notice of such breach or violation, unless the Bank shall agree in writing, in its sole discretion, to an extension of such time prior to its expiration; (d) There shall occur the dissolution or liquidation of the Agency, or the filing by the Agency of a voluntary petition in bankruptcy, or the commission by the Agency of any act of bankruptcy, or adjudication of the Agency as a bankrupt, or assignment by the Agency for the benefit of its creditors, or appointment of a receiver for the Agency, or the entry by the Agency into an agreement of composition with its creditors, or the approval by a court of competent jurisdiction of a petition applicable to the Agency in any proceeding for its reorganization instituted under the provisions of the Federal Bankruptcy Act, as amended, or under any similar act in any jurisdiction which may now be in effect or hereafter amended. (e) There shall occur an event of default under any Agency Debt (other than the Series 2013 Note). SECTION 5.02. REMEDIES. If any event of default shall have occurred and be continuing, the Bank or any trustee or receiver acting for the Bank may either at law or in equity, by suit, action, mandamus or other proceedings in any court of competent jurisdiction, protect and enforce any and all rights under the Laws of the State of Florida, or granted and contained in this Agreement, and may enforce and compel the performance of all duties required by this Agreement or by any applicable statutes to be performed by the Agency or by any officer thereof. No remedy herein conferred upon or reserved to the Bank is intended to be exclusive of any other remedy or remedies, and each and every such remedy shall be cumulative, and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Upon any default hereunder, the Bank may declare the entire amount of the Series 2013 Note and all interest accrued thereon to be immediately due and payable. 13 ARTICLE VI MISCELLANEOUS SECTION 6.01. AMENDMENTS, CHANGES OR MODIFICATIONS TO THE AGREEMENT. This Agreement shall not be amended, changed or modified without the prior written consent of the Bank and the Agency. SECTION 6.02. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original; but such counterparts shall together constitute but one and the same Agreement, and, in making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart. SECTION 6.03. SEVERABILITY. If any clause, provision or section of this Agreement shall be held illegal or invalid by any court, the invalidity of such provisions or sections shall not affect any other provisions or sections hereof, and this Agreement shall be construed and enforced to the end that the transactions contemplated hereby be effected and the obligations contemplated hereby be enforced, as if such illegal or invalid clause, provision or section had not been contained herein. SECTION 6.04. TERM OF AGREEMENT. This Agreement shall be in full force and effect from the date hereof and shall continue in effect as long as the Series 2013 Note is outstanding. SECTION 6.05. NOTICE OF CHANGES IN FACT. Promptly after the Agency becomes aware of the same, the Agency will notify the Bank of(a) any change in any material fact or circumstance represented or warranted by the Agency in this Agreement or in connection with the issuance of the Series 2013 Note, and (b) any default or event which, with notice or lapse of time or both, could become a default under the Agreement, specifying in each case the nature thereof and what action the Agency has taken, is taking and/or proposed to take with respect thereto. SECTION 6.06. NOTICES. Any notices or other communications required or permitted hereunder shall be sufficiently given if delivered personally or sent registered or certified mail, postage prepaid, to Collier County Community Redevelopment Agency, Bayshore/Gateway Triangle Community Redevelopment Area, 4069 Bayshore Drive, Naples, Florida 34112, Attention: Interim Executive Director, with a copy to County Manager, Collier County Government Complex, 3299 Tamiami Trail East, Suite 202, Naples, Florida 34112, and to the Bank, Fifth Third Bank, 999 Vanderbilt Beach Road, MD B9997C, Naples, Florida 34108, Attention: James Mitchell, or at such other address as shall be furnished in writing by any such party to the other, and shall be deemed to have been given as of the date so delivered or deposited in the United States mail. 14 SECTION 6.07. APPLICABLE LAW. The substantive laws of the State of Florida shall govern this Agreement. SECTION 6.08. INCORPORATION BY REFERENCE. All of the terms and obligations of the Resolution are hereby incorporated herein by reference as if said Resolution was fully set forth in this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first set forth herein. COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY By: Tim Nance, Chairman ATTEST: By: Secretary APPROVED AS TO FORM AND LEGAL SUFFICIENCY: Legal Counsel FIFTH THIRD BANK By: James Mitchell, Vice President 15 EXHIBIT A FORM OF SERIES 2013 NOTE UNITED STATES OF AMERICA STATE OF FLORIDA COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY TAXABLE NOTE (FIFTH THIRD BANK), SERIES 2013 Interest Final Rate Date of Issuance Maturity Date Variable May 31, 2013 June 1, 2018 COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY, FLORIDA (the "Agency"), for value received, hereby promises to pay, solely from the Pledged Funds described in the within mentioned Agreement, to the order of Fifth Third Bank, or its successors or assigns (the "Bank"), the principal sum of SEVEN MILLION FIVE HUNDRED FIFTY-SEVEN THOUSAND NINE HUNDRED AND 00/100 DOLLARS ($7,557,900) pursuant to that certain Loan Agreement by and between Fifth Third Bank, and the Agency, dated as of May 31, 2013 (the "Agreement"), and to pay interest on the outstanding principal amount hereof from the Date of Issuance set forth above, or from the most recent date to which interest has been paid, at the Interest Rate (as defined in the Agreement), subject to adjustment as provided in the Agreement (each an "Interest Payment Date"), commencing July 1, 2013, so long as any amount under this Note remains outstanding; provided, however, if such Interest Payment Date is not a Business Day (as defined in the Agreement), then such payment shall be due and payable on the next succeeding Business Day. Principal of this Note shall be payable on the first day of each month, commencing July 1, 2013, in the amounts set forth on Appendix I attached hereto through the Final Maturity Date set forth above. The full outstanding principal balance of this Note shall become due and payable on the Final Maturity Date. The principal and interest on this Note is payable in any coin or currency of the United States of America which, at the time of payment, is legal tender for the payment of public and private debts. This Note is issued under the authority of and in full compliance with the Constitution and statutes of the State of Florida, including, particularly, Chapter 163, Part III, Florida Statutes, Chapter 125, Florida Statues, and other applicable provisions of law, a resolution duly adopted by the Agency on May 14, 2013 (the "Resolution"), as such Resolution may be amended and supplemented from time to time, and is subject to all A-1 terms and conditions of the Resolution and the Agreement. Any term used in this Note and not otherwise defined shall have the meaning ascribed to such term in the Agreement. This Note is being issued to refinance the amount outstanding under an existing loan agreement, as described in the Agreement. This Note is secured by and shall be payable from the Pledged Funds as described in the Agreement. This Note shall be secured by and payable from the Pledged Funds as described and provided for in the Agreement. The Agency has irrevocably pledged the Pledged Funds to the payment of the principal of and interest on this Note in accordance with the provisions of the Agreement. This Note shall bear interest at the Interest Rate identified above on the basis of a 360-day year consisting of twelve 30-day months. Such Interest Rate is subject to adjustment as of the first day of each month as provided in the Agreement. Notwithstanding any provision in this Note to the contrary, in no event shall the interest contracted for, charged or received in connection with this Note (including any other costs or considerations that constitute interest under the laws of the State of Florida which are contracted for, charged or received) exceed the maximum rate of interest allowed under the State of Florida as presently in effect. All payments made by the Agency hereon shall apply first to accrued interest, and then to the principal amount then due on this Note. The Agency may prepay this Note as a whole or in part, at any time or from time to time, by paying to the Bank all or part of the outstanding principal amount thereof, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment, without prepayment premium. Each prepayment of the Note shall be made on such date and in such principal amount as shall be specified by the Agency in a written notice delivered to the Bank not less than ten (10) days prior thereto, all in accordance with the provisions of the Agreement. All of the prepayment provisions contained in Section 3.02 of the Agreement shall apply with respect to this Note. This Note, when delivered by the Agency pursuant to the terms of the Agreement and the Resolution, shall not be or constitute an indebtedness of the Agency, Collier County or of the State of Florida, within the meaning of any constitutional, statutory or charter limitations of indebtedness, but shall be payable solely from the Pledged Funds, as provided in the Agreement and the Resolution. The Bank shall never have the right to compel the exercise of the ad valorem taxing power of the Agency or the State, or taxation in any form of any property therein to pay the Note or the interest thereon. A-2 All acts, conditions and things required to happen, exist and be performed precedent to and in the issuance of this Note have happened, exist and have been performed as so required. IN WITNESS WHEREOF, the Agency caused this Note to be signed by the manual signature of the Chairman of its Governing Body and attested by the manual signature of the Secretary to the Agency, and this Note to be dated the Date of Issuance set forth above. COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY By: Tim Nance, Chairman ATTEST: By: Secretary APPROVED AS TO FORM AND LEGAL SUFFICIENCY: Legal Counsel A-3 APPENDIX I PRINCIPAL REPAYMENT SCHEDULE Date Principal Amount Date Principal Amount A-I-1