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Agenda 07/28/2009 Item #14AAgenda Item No. 14A July 28, 2009 Page 1 of 38 EXECUTIVE SUMMARY Recommendation that the Community Redevelopment Agency (CRA) approves a Resolution approving the form of a Loan Agreement with Fifth Third Bank for a $13,500,000 term loan; authorize the CRA Chairman to sign and make payments as needed to purchase real property and finance various capital improvement projects within the Bayshore Gateway Triangle CRA; pledge Bayshore Gateway Triangle CRA Tax Increment Funds (TIF) and other legally available monies as the loan repayment source; and authorize all necessary budget amendments OBJECTIVE: To approve a Resolution approving the form of a Loan Agreement with Fifth Third Bank for a $13,500,000 term loan; authorize the CRA Chairman to sign and make payments as needed to purchase real property and finance various capital improvement projects within the Bayshore Gateway Triangle CRA; pledge Bayshore Gateway Triangle CRA Tax Increment Funds (TIF) and other legally available monies as the loan repayment source; and authorize all necessary budget amendments. CONSIDERATIONS: On June 23, 2009 the CRA accepted a Fifth Third Bank proposal for a $13,500,000 Term Loan to pay off an existing Wachovia Bank Line of Credit debt of $5,901,000 and provide an additional $7,599,000 in new debt. As a condition, Fifth Third Bank accepts a pledge of CRA TTF, proceeds from sale of real property and other legally available CRA moneys as the repayment source. The additional funds will be used to acquire parcels of land important to the proactive redevelopment of the Gateway Triangle sector of the CRA. Notification to all affected taxing bodies has been made by certified letters. FISCAL IMPACT: Sufficient Bayshore /Gateway Triangle CRA tax increment revenues are available to service debt service payments. Budget amendments will be necessary to set up the required debt service transfer to Fund 287 and establish the appropriate expense budget in Fund 187 to acquire the targeted strategic parcels. This financing requires the pledge of CRA tax increment revenues as the debt repayment source. Closing on the term loan is scheduled September 1, 2009. GROWTH MANAGEMENT IMPACT: Policy 4.7 of the Future Land Use Element of the Growth Management Plan states that redevelopment plans may be developed for specific areas within the County, including the Bayshore Gateway Triangle CRA. LEGAL CONSIDERATIONS: Bond counsel and the County Attorney's Office have reviewed and prepared all necessary loan documentation as presented for approval. This item is not quasi-judicial, and as such, ex parte disclosure is not required. A simple majority vote is necessary for CRA action. (HFAC). RECOMMENDATION: That the CRA approves a Resolution approving the form of a Loan Agreement with Fifth Third Bank for a $13,500,000 term loan; authorize the CRA Chairman to sign and make payments as needed to purchase real property and finance various capital improvement projects within the Bayshore Gateway Triangle CRA; pledge Bayshore Gateway Triangle CRA Tax Increment Funds (TIF) and other legally available monies as the loan repayment source; and authorize all necessary budget amendments. Prepared by: David L. Jackson on July 9, 2009 Executive Director, Bayshore /Gateway Triangle Community Redevelopment Agency Page l of l Agenda Item No. 14A July 28, 2009 Page 2 of 38 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: 14A Item Summary: Recommendation that the Community Redevelopment Agency (CRA) approves a Resolution approving the form of a Loan Agreement with Fifth Third Bank for a $13,500,000 term loan; authorize the CRA Chairman to sign and make payments as needed to purchase real property and finance various capital improvement projects within the Bayshore Gateway Triangle CRA; pledge Bayshore Gateway Triangle CRA Tax Increment Funds (TIF) and other legally available monies as the loan repayment source; and authorize all necessary budget amendments. To be heard before Item 10E. (David Jackson. Executive Director, Bayshore Gateway Triangle CRA) Meeting Date: 7/28/2009 9:00:00 AM Prepared By David Jackson Executive Director Date Community Redevelopment Bayshore- Gateway Redevelopment 7/10/2009 5:14:31 PM Agency Approved By David Jackson Executive Director Date Community Redevelopment Bayshore - Gateway Redevelopment 7/10/2009 5:14 PM Agency Approved By Heidi F. Ashton Assistant County Attorney Date County Attorney County Attorney Office 7/16/2009 3:46 PM Approved By OMB Coordinator OMB Coordinator Date County Manager's Office Office of Management & Budget 7116/2009 3:54 PM Approved By Jeff Klatzkow County Attorney Date County Attorney County Attorney Office 7/1612009 5:07 PM Approved By Mark Isackson Budget Analyst Date County Manager's Office Office of Management & Budget 7120/2009 4:44 PM Approved By Leo E. Ochs, Jr. Deputy County Manager Date Board of County County Manager's Office 7/21/2009 1:05 PM Commissioners file: / /C: \AgendaTest\ Export\ 133- July% 2028,% 202009 \14. %20AIRPORT %20AUTHORIT... 7/22/2009 Agenda Item No. 14A July 28, 2009 Page 3 of 38 CRA RESOLUTION NO. A RESOLUTION OF THE COLLIER COUNTY COMMUNITY REDEVELOPMENT .AGENCY ACCEPTING THE PROPOSAL OF FIFTH THIRD BANK TO PROVIDE THE AGENCY WITH A $13,500,000 TERM LOAN TO REFINANCE ALL AMOUNTS OUTSTANDING UNDER AN EXISTING REVOLVING LINE OF CREDIT WITH WACHOVIA BANK, NATIONAL ASSOCIATION AND FINANCE VARIOUS CAPITAL IMPROVEMENT PROJECTS WITHIN THE BAYSHORE /GATEWAY TRIANGLE COMMUNITY REDEVELOPMENT AREA; APPROVING THE FORM OF A LOAN AGREEMENT WITH FIFTH THIRD BANK; APPROVING THE FORM OF A NOTE EVIDENCING SUCH TERM LOAN; AUTHORIZING THE REPAYMENT OF SUCH TERM LOAN FROM INCREMENT TAX REVENUES DERIVED WITHIN THE BAYSHORE /GATEWAY TRIANGLE COMMUNITY REDEVELOPMENT AREA AND OTHER LEGALLY AVAILABLE MONEYS OF THE AGENCY; DELEGATING CERTAIN AUTHORITY TO THE CHAIRMAN; AUTHORIZING THE EXECUTION AND DELIVERY OF OTHER DOCUMENTS IN CONNECTION THEREWITH; AND PROVIDING FOR AN EFFECTIVE DATE FOR THIS RESOLUTION. BE IT RESOLVED BY THE COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY: SECTION 1. AUTHORITY FOR THIS RESOLUTION. This Resolution is adopted pursuant to the provisions of the Florida Constitution, Chapter 163, Part 111, Florida Statutes, and other applicable provisions of law. SECTION 2. DEFINITIONS. When used in this resolution, terms not otherwise defined herein shall have the meanings set forth in the hereinafter defined Loan Agreement, unless the context clearly indicates a different meaning. "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. Agenda Item No. 14A July 28, 2009 Page 4 of 38 "Bank" shall mean Fifth Third Bank, and its successors and assigns. "Chairman" shall mean the Chairman of the Governing Body, or in his 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. "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. "County" shall mean Collier County, Florida, a political subdivision of the State of Florida. "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 111, Florida Statutes, and Ordinance No. 2000 -42 of the County, as it may be amended and supplemented from time to time. "Loan Agreement" shall mean the Loan Agreement to be executed between the Bank and the Agency, which shall be substantially in the form attached hereto as Exhibit B. "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 2009 Note" shall mean the Collier County Community Redevelopment Agency Taxable Note (Fifth Third Bank), Series 2009, as more particularly described in the Loan Agreement. The words "herein," "hereunder," "hereby," "hereto," "hereof," and any similar terms shall refer to this Resolution. Words importing the singular number include the plural number, and vice versa. SECTION 3. RESOLUTION TO CONSTITUTE CONTRACT. In consideration of the purchase and acceptance of the Series 2009 Note by the Bank, the provisions of this Resolution shall be a part of the contract of the Agency with the Bank, and shall be deemed to be and shall constitute a contract between the Agency and the Bank. The pledge made in this Resolution and the provisions, covenants and agreements 1) Agenda Item No. 14A July 28, 2009 Page 5 of 38 herein set forth to be performed by or on behalf of the Agency shall be for the benefit, protection and security of the Bank. SECTION 4. FINDINGS. It is hereby ascertained, determined and declared: (A) That the Agency has and shall have from time to time certain community redevelopment capital improvement needs and requirements within the Community Redevelopment Area which must be acquired and constructed. (B) That on July 26, 2006, the Agency entered into a $7,000,000 revolving line of credit an-angement with Wachovia Bank, National Association (tile "Line of Credit ") pursuant to which $5,901,000 principal amount is currently outstanding. (C) That the Bank has submitted its proposal to provide the Agency with a $13,500,000 term loan (the "Loan ") to (1) refinance the amounts outstanding under the Line of Credit, and (ii) finance the acquisition of certain land within the Community Redevelopment Area, all as more particularly described in the Loan Agreement. (D) That the Loan shall be repaid solely from the Increment Tax Revenues and certain other legally available moneys of the Agency in the manner and to the extent set forth in the Loan Agreement and the ad valorem taxing power of neither the Agency nor the County will ever be necessary or authorized to pay said amounts. SECTION 5. ACCEPTANCE OF PROPOSAL. The Agency hereby accepts the proposal of the Bank to provide the Agency with the Loan in the form attached hereto as Exhibit A (the "Proposal "). The execution and delivery of the Proposal to the Bank is hereby approved and ratified and all of the terms and provisions of the Proposal are hereby approved. SECTION 6. APPROVAL OF FORM OF LOAN AGREEMENT. The repayment of the Loan by the Agency shall be pursuant to the terms and provisions of the Loan Agreement. The terms and provisions of the Loan Agreement in substantially the form attached hereto as Exhibit B are hereby approved, with such changes, insertions and additions as the Chairman may approve. The Agency hereby authorizes and directs the Chairman to execute and deliver, and the Secretary to attest, on behalf of the Agency the Loan Agreement substantially in the form attached hereto as Exhibit B, with such changes, insertions and additions as the Chairman may approve, his execution thereof being evidence of such approval. SECTION 7. LIMITED OBLIGATION. The obligation of the Agency to repay amounts on the Loan is a limited and special obligation payable from Increment Tax Revenues and other legally available moneys of the Agency described in the Loan Agreement 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 Agenda Item No. 14A July 28, 2009 Page 6 of 38 in the Agency or the County other than the Increment Tax Revenues and such other moneys. SECTION 8. APPROVAL OF SERIES 2009 NOTE. The Chairman is authorized and directed to execute and deliver, and the Secretary is authorized and directed to attest, the Series 2009 Note substantially in the form attached to the Loan Agreement as Exhibit A, with such changes, insertions and additions as the Chairman may approve, his execution thereof being evidence of such approval. SECTION 9. GENERAL AUTHORIZATION. The Chairman, the Secretary and the Executive Director for the Agency are authorized to execute and deliver such documents, instruments and contracts, whether or not expressly contemplated hereby, and the County Attorney, Bond Counsel to the County and the Agency and other employees or agents of the Agency and the County are hereby authorized and directed to do all acts and things required hereby or thereby as may be necessary for the full, punctual and complete performance of all the terms, covenants, provisions and agreements herein and therein contained, or as otherwise may be necessary or desirable to effectuate the purpose and intent of this Resolution. SECTION 10. REPEAL OF INCONSISTENT DOCUMENTS. All ordinances, resolutions or parts thereof in conflict herewith are hereby superseded and repealed to the extent of such conflict. SECTION 11. EFFECTIVE DATE. This Resolution shall Become effective immediately upon its adoption. DULY ADOPTED this 28 °i day of.luly, 2009. (SEAL) Attest: Secretary APPROVED AS TO FORM AND LEGAL SUFFICIENCY: Leaal Counsel COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY By: .lim Coletta, Chairman 4 Agenda Item No. 14A July 28, 2009 Page 7 of 38 EXHIBIT A Proposal of Fifth Third Bank Tomorrow'' June 15, 2009 Mr. David Jackson Executive Director Bayshore Gateway Triangle Community Redevelopment Agency 4069 Bayshore Drive Naples, Florida 34112 Mr. Jackson: Agenda Item No. 14A July 28, 2009 Page 8 of 38 FIFTH THIRD BANW Please find below an updated Term Sheet for Fifth Third Bank's proposal to provide a $13,500,000 Term Loan to the Bayshore Gateway Triangle Community Redevelopment Agency to refinance the existing Line of Credit with Wachovia Bank and finance the acquisition of land associated with the Gateway triangle Project. Updated Term Sheet Borrower: Bayshore Gateway Triangle Community Redevelopment Agency ( "CRA ") Guarantor: N/A Request: $13,500,000 Term Loan Purpose: (1) Refinance existing revolving Line of Credit debt with Wachovia Bank; and (2) Acquisition of land associated with the Gateway Triangle Project Term: Five (5) Year Term Amortization: Fifteen (15) Years Rate: (1) Taxable Variable Rate Option Taxable rate of 30 -Day LIBOR plus 3.75 %; for illustrative purposes, the rate as of June 15, 2009, is 4.07 %. (2) Taxable Fixed Rate AIternative Fifth Third Bank would be pleased to offer an interest rate hedged in the form of an interest rate swap. As of June 15, 2009, the indicative market rate of interest for a 5 -year swap (including the Borrower's option to cancel the swap at any month after the second year) would Agenda Item No. 14A Y July 28, 2009 Page 9 of 38 Tomorrov� "pry'' «,;:. iiFTH 1 HIRr) BA14W be an indicative all -in fixed rate of interest of 6.80 %. This rate is subject to changing market conditions until execution of a swap agreement via a recorded phone line. The CRA may hedge the rate of interest of the proposed credit facility via the execution of an interest rate swap with a counterparty deemed acceptable by Fifth Third Bank. Under the interest rate swap agreement, the CRA would receive the proposed variable rate index and pay a fixed rate to the swap provider. The variable rate received by the CRA would offset the proposed credit facility's variable rate index. The proposed effective all -in fixed rate of interest to be paid by the Borrower would be the fixed rate paid under the swap agreement plus the proposed credit spread over the variable rate index. Repayment: (1) Monthly principal plus interest; (2) Monthly principal plus interest (similar to a 15 -year mortgage style amortization) Fees: $800 Loan Documentation Fee plus Borrower is responsible for all legal and out of pocket expenses associated with the proposed financing. if the Borrower elects to execute a swap agreement, there will be a $750 Swap Documentation fee. All documents shall be prepared by CRA bond counsel and documents and opinions shall be acceptable to the Bank and it's counsel. Collateral: The loans will be secured by tax increment revenues and a covenant to budget and appropriate from all legally available CRA non -ad valorem revenues. Prepayment: There are no prepayment penalties. However, if the Borrower fixes the interest rate via the execution of a swap agreement , the Borrower is subject to a mark to market adjustment at the time the swap is terminated. Contingencies and Covenants: 1) During the term of the facility, the CRA agrees to budget and appropriate from tax incremental revenues an amount equal to or greater than the projected Annual Debt Service on the respective credit facilities. 2) The CRA will maintain Debt Service Coverage equal to or greater than 1.25:1.0. The calculation shall be determined by using the average of actual receipts and cash carried forward (reserves) for the prior fiscal year based on the CRA's annual audit. 3) The CRA agrees to maintain a Debt Reserve Fund equal to or great than: o Annual principal and interest debt service for the Term Loan 4) If any land is purchased by the CRA with Fifth Third Bank loan proceeds and subsequently sold, the sale proceeds will be required to be applied against the principal amount outstanding. 5) If any land already purchased by the CRA under the Wachovia Line of Credit is sold, the sale proceeds will be required to be applied against the principal amount outstanding. 6) Quarterly financial statements shall be submitted within 45 -days of quarter end. 7) Audited annual financial statements shall be submitted within 120 -days of year -end. 8) The operating Budget for the CRA shall be submitted within 45 days of adoption. 9) The CRA is prohibited from incurring any additional debt without the written consent of Fifth Third Bank. 10) Final credit approval required by Fifth Third Bank. Representations and Warranties: Usual and customary for transactions of this type. Events of Default: Usual and customary for transactions of this type. Indemnification: Usual and customary for transactions of this type. Governing Laws: State of Florida Documents: Any potential transaction is subject to the CRA agreeing to execute documents and provide any other documentation that the Bank deems necessary to close the Loan facility and maintain its security interests in the future. Mr. Jackson, our entire Fifth Third Bank team is excited about the opportunity to partner with the Bayshore Gateway Triangle Community Redevelopment Agency. If you have any questions or require additional information, please feel free to contact me at 239.591.6461 or via email at L,ori,Buhs@,53.com. Respectfully Submitted, Lori T. Buhs Vice President Fifth Third Bank Financing Proposal Accepted on June 23, 2009 By: ATTEST: DWIGHT E. BROOK BY: Approved as to form and legal sufficiency Steven T. Williams Assistant County Attorney Agenda Item No. 14A July 28, 2009 Page 11 of 38 COLLIER COUNTY COMMUNITY REDEVELOP�ENT A ENCY JIM COLETTA, CHAIRMAN Agenda Item No. 14A July 28, 2009 Page 12 of 38 EXHIBIT B Form of Loan Agreement Agenda Item No. 14A July 28, 2009 Page 13 of 38 LOAN AGREEMENT BETWEEN COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY AND FIFTH THIRD BANK Dated as of September 1, 2009 Agenda Item No. 14A July 28, 2009 Page 14 of 38 TABLE OF CONTENTS Page ARTICLE I DEFINITION OF TERMS SECTION 1.01. DEFINITIONS ................................................................... SECTION 1.02. INTER PR ETATI ON .......................................................................... 4 SECTION 1.03. TITLES AND HEADINGS ............................................................... 5 ARTICLE 11 REPRESENTATIONS, WARRANTIES AND COVENANTS; SECURITY FOR NOTES SECTION 2.01 SECTION 2.02 SECTION 2.03 SECTION 2.04. SECTION 2.05. SECTION 2.06 SECTION 2.07 REPRESENTATIONS BY THE AGENCY ...................................... 6 GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BANK ................................................... 7 SERIES 2009 NOTE NOT 1-0 BE INDEBTEDNESS OF THE AGENCY, COUNTY OR STATE ............................................... 7 SECURITY. ....................................................................................... 7 COVENANT TO BUDGET AND APPROPRIATE NON-AD VALOREMREVENUES ............................................................. 7 PAYMENT COVENANT ................................................................. 8 NO IMPAIRMENT; RECEIPT OF INCREMENT' TAX REVENUES................................................................................. 8 SECTION 2.08. ISSUANCE OF ADDITIONAL AGENCY DEB T' .......................... 8 SECTION 2.09. DEBT SERVICE COVERAGE RATIO ............................................ 9 SECTION 2.10. DEBT SERVICE RESERVE FUND .................. ............................... 9 SECTION 2.11. PURCHASE AND SALE OF LAND ................. ............................... 9 ARTICLE III DESCRIPTION OF SERIES 2009 NOTE; PAYMENT TERMS; OPTIONAL PREPAYMENT SECTION 3.01. DESCRIPTION OF THE SERIES 2009 NOTE .............................. 10 SECTION 3,02. OPTIONAL PREPAYMENT .......................................................... I I ARTICLE IV CONDITIONS FOR ISSUANCE OF "THE SERIES 2009 NOTE SECTION 4.01. CONDITIONS FOR ISSUANCE .................................................... 12 Agenda Item No. 14A July 28, 2009 Page 15 of 38 ARTICLE V EVENTS OF DEFAULT; REMEDIES SECTION 5.01. EVENTS OF DEFAULT ................................................................. 14 SECTION 5.02. REMEDIES ...................................................................................... 14 ARTICLE VI MISCELLANEOUS SECTION 6.01. AMENDMENTS, CHANGES OR MODIFICATIONS TO THE AGREEMENT ................................................................... 15 SECTION 6.02. COUNTERPARTS ........................................................................... 15 SECTION 6.03. SEVERABILITY ............................................................................. 15 SECTION 6.04. TERM OF AGREEMENT ............................................................... 15 SECTION 6.05. NOTICE OF CHANGES IN FACT ................................................. 15 SECTION6.06. NOTICES ......................................................................................... 15 SECTION 6.07. APPLICABLE LAW ........................................................................ 16 SECTION 6.08. INCORPORATION BY REFERENCE ........................................... 16 EXHIBITS EXHIBIT - GENERAL DESCRIPTION OF THE PROJECT ....... ............................A -1 EXHIBIT 13 - FORM 017 SI-, RTES _"009 NOTE .............................................................. 13-1 Agenda Item No. 14A July 28, 2009 Page 16 of 38 This LOAN AGREEMENT (the "Agreement ") is made and entered into as of September 1, 2009, 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 11I, 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 put-poses 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 finance the costs of the acquisition of certain land within the Community Redevelopment Area (as defined herein), as generally described in Exhibit A hereto and more particularly described in the plans and specifications on file with the Agency, and all incidental costs relating thereto (the "Project "); and WHEREAS, the Agency finds it necessary and in the best interests of the Agency to refinance the amounts outstanding under a revolving line of credit arrangement entered into with Wachovia Bank, National Association on .July 26, 2006 (the "Line of Credit "); and WHEREAS, the Agency finds that refinancing the Line of Credit and financing costs of the Project 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 $13,500,000 to refinance the amounts outstanding under the Line of Credit and finance the costs of the Project. Agenda Item No. 14A July 28, 2009 Page 17 of 38 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 111, 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 laves 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 September 1, 2009, 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 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 Chairman of the Governing Body or his or her 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. I Agenda Item No. 14A July 28, 2009 Page 18 of 38 "Chairman" 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. "Community Redevelopment Trust Fund" shall mean the Community Redevelopment Trust Fund established by the County pursuant to Ordinance 2000 -42, adopted on .tune 13, 2000. "County" shall mean Collier County, Florida, a political subdivision of the State of Florida. "Debt Service Reserve Fund" shall mean the fund created pursuant to Section 2.10 hereof. "Debt Service Coverage Ratio" shall mean, as of any date of calculation thereof, a fraction, the numerator of which is equal to the sum of actual Increment Tax Revenues, Non -Ad Valorem Revenues and cash carried forward (reserves) for the prior Fiscal Year based on the Agency's annual audit, and the denominator of which is the Annual Debt Service for such Fiscal Year. "Final Maturity Date" shall mean September 1, 2014. "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 Agenda Item No. 14A July 28, 2009 Page 19 of 38 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. "Line of Credit" shall have the meaning ascribed to such term in the recitals hereof. "Non -Ad Valorem Revenues" shall mean all revenues of the Agency derived fi-om any source whatsoever other than the Increment Tax Revenues and other ad valorem taxation on real or personal property, which are legally available to make the payments required herein. "Pledged Funds" shall mean, collectively, (1) the Increment Tax Revenues, and (2) such legally available Non -Ad Valorem Revenues of the Agency budgeted and appropriated pursuant to Section 2.05 hereof. "Project" shall have the meaning ascribed to such term in the recitals hereof: "Reserve Requirement" shall mean $1,560,000.00. "Resolution" shall mean the Resolution adopted by the Agency on July 28, 2009, which among other things authorized the execution and delivery of this Loan Agreement and the issuance of the Series 2009 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 2009 Note" shall mean the Collier County Community Redevelopment Agency Taxable Note (Fifth Third Bank), Series 2009 authorized by the Resolution and more particularly described in Article III hereof: "State" shall mean the State of Florida. SECTION 1.02. INTERPRETATION. Unless the context clearly requires otherwise, words of masculine Qendcr shall be construed to include correlative words of the feminine and neuter genders and \ ice versa, and words of the sink *ular number shall be construed to include correlativc words of the plural number and vice versa. Any capitalized terms used in this Agreement not herein defined shall have the 111eaning7 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. 4 Agenda Item No, 14A July 28, 2009 Page 20 of 38 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 C7iven 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 Agenda Item No. 14A July 28; 2009 Page 21 of 38 ARTICLE lI REPRESENTATIONS, WARRANTIES AND COVENANTS; SECURITY FOR NOTES SECTION 2.01. REPRESENTATIONS BY THE AGENCY. The Agency represents, \,varrants 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 2009 Note in the aggregate principal amount of S13,5 00,000. (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 2009 Note, and to perform all of its obligations hereunder and under the Series 2009 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 2009 Note and enter the Agreement and, when issued in accordance with the terms of this Agreement, the Series 2009 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' ri« hts 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 agility of the Agency to perform the Agency's obligations under this Agreement or- under the Series 2009 Note. (e) The Agency ,,will furnish to the Bank a copy of the annual audited financial statements of the CounV, 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 or as soon as such items become available, which report shall show the Increment Tax Revenues collected and Non -Ad Valorem Revenues for such fiscal Year. 6 Agenda Item No. 14A July 28, 2009 Page 22 of 38 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. (f) As of the date hereof, no outstanding indebtedness of the Agency exists other than the Line of Credit 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 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 2009 Note to the Agency for the purpose of refinancing the amounts outstanding under the Line of'Credit and financing the costs of Project. SECTION 2.03. SERIES 2009 NOTE NOT TO BE INDEBTEDNESS OF THE AGENCY, COUNTY OR STATE. The Series 2009 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 2009 Note or the interest thereon. The Series 2009 Note is a special and limited obligation payable as to principal and interest solely from the Pledged Funds. SECTION 2.04. SECURITY. The Series 2009 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 2009 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 2009 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 2009 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 7 Agenda Item No. 14A July 28, 2009 Page 23 of 38 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 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 2009 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 2009 Note at the dates and place and in the manner provided herein and in the Series 2009 Note accordin�� 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 limitin; Agenda Item No. 14A July 28, 2009 Page 24 of 38 upon the issuance of such indebtedness the Series 2009 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 1.25 so long as the Series 2009 Note is outstanding. SECTION 2.10. DEBT SERVICE RESERVE FUND. The Agency shall establish and maintain so long as the Series 2009 Note is outstanding a separate fund to be known as the "Debt Service Reserve Fund — Series 2009 Note." Moneys on deposit in the Debt Service Reserve Fund shall be used only to pay the Annual Debt Service on the Series 2009 Note to the extent the Pledged Funds are insuffiicient therefor. 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 amot.mt 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 2009 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 that any land is purchased by the Agency with the proceeds of the loan issued by the Bank hereunder and is subsequently sold, or, any land previously purchased by the Agency with proceeds drawn under the Line of Credit is subsequently sold, all of the net proceeds of the sale of' such land shall be applied to the optional prepayment of the principal outstanding under the Series 2009 Note within 30 days of the receipt of such sales proceeds pursuant to Section 3.02 hereof. [Remainder of page intentionally left blank] 9 Agenda Item No. 14A July 28, 2009 Page 25 of 38 ARTICLE III DESCRIPTION OF SERIES 2009 NOTE; PAYMENT TERMS; OPTIONAL PREPAYMENT SECTION 3.01. DESCRIPTION OF THE SERIES 2009 NOTE. (a) The Agency hereby authorizes the issuance and delivery of the Series 2009 Note to the Bank which Note shall be in an amount equal to THIR'T'EEN MILLION FIVE HUNDRED THOUSAND AND 00 /100 DOLLARS ($13,500,000) and shall be designated as the "Collier County Community Redevelopment Agency Taxable Note (Fifth Third Bank), Series 2009." The text of the Series 2009 Note shall be substantially in the form attached hereto as Exhibit B, with such omissions, insertions and variations as may be necessary and desirable to reflect the particular terms of the Series 2009 Note. The provisions of the form of the Series 2009 Note are hereby incorporated in this Agreement. (b) The Series 2009 Note shall be dated the date of its delivery. The Series 2009 Note shall be executed in the name of the Agency by the manual signature of the Chairman and attested by the manual signature of the Secretary. In case any one or more of the officers, who shall have signed the Series 2009 Note, shall cease to be such officer of the Agency before the Series 2009 Note so signed shall have been actually delivered, such Series 2009 Note may nevertheless be delivered as herein provided and may be issued as if the person who signed such Series 2009 Note had not ceased to hold such office. (c) The Series 2009 Note shall bear interest from its date of issuance at the Interest Rate (calculated on the basis of a 3160 -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 2009 Note shall be payable on the first day of each month, commencing October 1, 2009 (each an "Interest Payment Date ") so long as any amount under the Series 2009 Note remains outstanding. Principal of the Series 2009 Note shall be payable on the first day of each month, commencing October 1, 2009 (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 I'Mal Maturity Date. -]'Ile full outstanding principal balance of the Series 2009 Note shall become due and payable on the Final Maturity Date. The scheduled principal payments shall be set forth in the Series 2009 Note. (d) All payments of principal of and interest on the Series 2009 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 (1) 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 10 Agenda Item No. 14A July 28, 2009 Page 26 of 38 Bank shall agree upon in writing. If any Interest Payment Date or Principal Payment Date is not a Business Day, the corresponding payment shall be due on the next succeeding Business Day. (e) The Agency agrees to pay a loan documentation fee to the Bank equal to $800, plus any legal fees or out -of- pocket expenses of the Bank associated with the issuance of the Series 2009 Note, which fees and expenses shall not exceed $5,000. The Bank shall pay for all of its costs relating to servicing the term loan. SECTION 3.02. OPTIONAL PREPAYMENT. The Series 2009 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 2009 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 2009 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 2009 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 2009 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 2009 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] Agenda Item No. 14A July 28, 2009 Page 27 of 38 ARTICLE IV CONDITIONS FOR ISSUANCE OF THE SERIES 2009 NOTE SECTION 4.01. CONDITIONS FOR ISSUANCE. (a) In connection with the issuance of the Series 2009 Note, the Bank shall not be obligated to purchase the Series 2009 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: (1) An opinion of Bond Counsel in form and substance to the effect that the Series 2009 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 2009 Note to finance or refinance, or reimburse itself for prior expenditures incurred for, the costs of the Project, which shall include, but not be limited to: (i) The costs of architectural and engineering services related to the Project, including, without limitation, the costs of preparation of studies, surveys, reports, tests, plans and specifications; (ii) The costs of icgal, accounting, marketing and other special services related to the Project; (iii) Costs and lees incurred in connection with the issuance of the Series 2009 Note; (iv) Fees and chargcs incurred in connection with applications to federal, state and local governmental agencies for any requisite approval or permits regarding the acquisition o('tlIC Project; (v) Costs incurred in connection with the acquisition of the sites for the Project, including any necessary ri <Lhts -of -way, easements or other interests in real or personal property; (vi) Interest on the Series 2009 Note accruing prior to the completion date of the Project; 12 Agenda Item No. 14A July 28, 2009 Page 28 of 38 (vii) To the extent permitted by law, other costs and expenses relating to the Project which are incurred for the purpose of providing for the Project, including the administrative and maintenance costs associated with the management of the Project, and other facilities functionally related and subordinate thereto; and (viii) The costs relating to refinancing amounts outstanding under the Line of Credit. [Remainder of page intentionally left blank] l3 Agenda Item No. 14A July 28; 2009 Page 29 of 38 ARTICLE V EVENTS OF DEFAULT; REMEDIES SECTION 5.01. EVENTS OF DEFAULT. An "Event of Default" shall be deemed to have occurred under this Agrecment if. (a) The Agency shall fail to make timely payment of principal or interest then due on any amounts drawn against the Series 2009 Note; (b) Any representation or warranty of the Agency contained in Article 11 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 11 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 Tiling by the Agency of a voluntary petition in bankruptcy, or the commission by the Agency of' any act of bankruptcy, or adjudication of the A,-,ency 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 ,vith 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 2009 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 Lranted and contained in this Agreement, and ma_N, 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 2009 Note and all interest accrued thereon to be immediately due and payable. 14 Agenda Item No. 14A July 28, 2009 Page 30 of 38 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 illeaal 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 2009 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 wan -anted by the Agency in this Agreement or in connection with the issuance of the Series 2009 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 marl, postage prepaid, to Collier County Community Redevelopment Agency, Bayshore /Gateway Triangle Community Redevelopment Area, 4069 Bayshore Drive, Naples, Florida 34112, Attention: Executive Director, with a copy to County Administrator, Collier County Government Complex, 3301 East Tamiami Trail, Building F, Naples, Florida 34112, and to the Bank, Fifth "Third Bank, 999 Vanderbilt Beach Road, MD B9997C, Naples, Florida 34108, Attention: Lori T. Bulls, 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 mai I. 15 Agenda Item No. 14A July 28, 2009 Page 31 of 38 SECTION 6.07. APPLICABLE LAW. The substantive laws of the State of Florida shall aovern 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. [Remainder of page intentionally left blank] 16 Agenda Item No. 14A July 28, 2009 Page 32 of 38 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first set forth herein. ATTEST: By: Secretary APPROVED AS TO FORM AND LEGAL SUFFICIENCY: Legal Counsel COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY By: .lim Coletta, Chairman FIFTH THIRD BANK By: Lori T. Buhs, Vice President 17 Agenda Item No. 14A July 28, 2009 Page 33 of 38 EXHIBIT A GENERAL DESCRIPTION OF THE PROJECT The Project includes the acquisition of seven (7) parcels of land totaling approximately 6.29 acres located in the Triangle Lake Subdivision within the Community Redevelopment Area, as more particularly described in the plans and specifications on file with the Agency. A -1 Agenda Item No. 14A July 28, 2009 Page 34 of 38 D FORM OF SERIES 2009 NOTE UNITED STATES OF AMERICA STATE OF FLORIDA COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY TAXABLE NOTE (FIFTH THIRD BANK), SERIES 2009 Interest Final Rate Date of Issuance Maturity Date Variable September 1, 2009 September 1, 2014 COLLIER COUNTY COMMUNI'T'Y 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 'T'HIRTEEN MILLION FIVE HUNDRED THOUSAND AND 00 /100 DOLLARS ($13,500,000) pursuant to that certain Loan Agreement by and between Fifth Third Bank, and the Agency, dated as of September 1, 2009 (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 "), commencincy October 1, 2009, 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 October 1, 2009, in the amounts set forth on Appendix 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 July 28, 2009 (the "Resolution "), as such Resolution may be amended and supplemented from time to time, and is subject to all [�J Agenda Item No. 14A July 28, 2009 Page 35 of 38 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 A�,_reernent. 'this Note is being issued to finance the costs of acquiring certain land within the Community Redevelopment Area (as defined in the Agreement) and refinance the amount outstanding under an existing revolving line of credit as described in the Agreement. This Note is secured by and shall be payable from the Pledged Funds as described in the A- •eement. This Note shall be secured by and payable from the Pledged Funds as described and provided for in the A(greement. 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 sub' ect 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, chartYed 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. Fach 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 A <(reement shall apply with respect to this Note. 'phis 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 (imitations 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. B -2 Agenda Item No. 14A July 28, 2009 Page 36 of 38 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. ATTEST: By: Secretary APPROVED AS TO FORM AND LEGAL SUFFICIENCY: Leu,al Counsel COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY By: Jim Coletta, Chairman B -3 Agenda Item No. 14A July 28, 2009 Page 37 of 38 APPENDIX I PRINCIPAL REPAYMENT SCHEDULE Date Principal Amount Date Principal Amount 10/11/09 $ 75,000.00 4/l/12 $ 75,000.00 1 l/ 1 /09 75,000.00 5/1 /'12 75,000.00 12'1/09 75,000.00 6/1'/1) 75,000.00 1/1,11,10 75,000.00 7/ I/ 12 75,000.00 2/1;' 10 75,000.00 8/1 /12 75,000.00 75,000.00 9/ 1/ 12 75,000.00 4/1 I'10 75,000.00 101/1 /12 75,000.00 S/ 1 i 10 75,000.00 11 /11 / 12 75,000.00 6/1 /10 75,000.00 12/ 1/ 12 75,000.00 7;" 1 /10 75,000.00 1111113 75,000.00 81/1 i 10 75,000.00 2/1 / 13 75,000.00 9/ 1 / 10 75,000.00 3/1 I 1-1 75,000.00 10/ 1 / 10 75,000.00 41/1 d 75,000.00 H/1/10 75,000.00 5/ 1 /13 75,000.00 1211110 75,000.00 6/1 /'] 3 75,000.00 11/11/11 75,000.00 7i 1 %I3 75,000.00 21/ 1!1 1 75.000.00 8/ 1/1 3 75,000.00 I 1 75,000.00 9" 1/ 1/ 3 75,000.00 4/ 1 1 1 75,000.00 10/ l l 13 75,000.00 511 / 11 75,000.00 1 1/l/ 13 75,000.00 6/ 1 / 1 1 75,000.00 12/1 / 13 75,000.00 71/11/1 1 75,000.00 1 / 1 /14 75,000.00 8i 1/ 1 1 75,000.00 2/1,'14 75,000.00 9/1/11 75,000.00 3/ 1 i 14 75,000.00 10/1%1 1 75.000.00 41/1214 75.000.00 1 1/l/ 11 75,000.00 5;'1114 75,000.00 12 /1 /1 1 75,1100.00 6/ 1 /14 75,000.00 1/1/12 75.000.00 7!1,'14 75,000.00 2/ 1 % 12 75,000.00 8 1 d4 75,000.00 11/1 12 75,000.00 9, 1,,'] 4 9,075,000.00 B -1 -1 Agenda Item No. 14A July 28, 2009 Page 38 of 38