Agenda 07/09/2019 Item #11C (Resolution - Accepting Golden Gate Golf Course proposal)07/09/2019
EXECUTIVE SUMMARY
Recommendation to approve a resolution accepting the proposal of TD Bank, N.A. to provide the
County with a term loan to purchase certain real property known as the Golden Gate Golf Course;
to enter into the Loan Agreement and all related documents; and to issue a Taxable Special
Obligation Revenue Note, Series 2019 in the principal amount not to exceed $29,000,000; and
approve all necessary budget amendments.
OBJECTIVE: Approve a resolution authorizing the execution of a Loan Agreement with TD Bank, N.A.
and issuance of a Taxable Special Obligation Revenue Note Series 2019 in the principal amount up to
$29,000,000 for purchase of certain real property known as the Golden Gate Golf Course.
CONSIDERATIONS: The Board of County Commissioners (BCC) at the regular meeting of June 25,
2019 directed staff to proceed with strategic purchase of the Golden Gate Golf Course. After previous
BCC discussions regarding the potential purchase, a plan of finance was created in consultation with the
County’s bond counsel - Nabor’s, Giblin & Nickerson, the County Attorney, and County financial
advisors from PFM Financial Advisor’s LLC. Members of the County’s Finance Committee met on May
17th to consider the plan of finance and after discussion provided guidance to solicit competitive proposals
from lending institutions interested in providing the County with a taxable note. A taxable financing
allows the Board maximum flexibility to consider future governmental, not for profit, and/or private land
uses during the planning process without concern over violating IRS conditions that are associated with
tax exempt financing.
The recommended financing structure includes;
• Ten (10) year amortization
• Annual principal payable beginning 10/1/22; semi-annual interest payable beginning 10/1/19
• Provision for pre-payment if desired and financially prudent
• Interest rate locked until closing (estimated July 18, 2019)
Attached is the required resolution and form of Loan Agreement necessary to issue the Taxable Special
Obligation Revenue Note, Series 2019 in a principal amount up to $29,000,000. Closing on the financing
is anticipated on July 18, 2019 prior to a planned end of July property closing.
FISCAL IMPACT: Six (6) competitive proposals were received and the proposal submitted by TD
Bank, N.A. is considered the most advantageous to the County with an all-in true interest cost (TIC),
including closing costs, of 2.79%. Average annual debt service will be $3,317,000 and total debt service
(principal and interest) over the ten (10) year note life is $33,842,400. The Finance Committee on June
19, 2019 recommended that the Board accept the proposal of TD Bank, N.A.
Debt service will be paid from Park Impact Fees for as long as the property is used for active or passive
recreation purposes. Should any portion of the property be re-purposed for non-recreation uses, then the
use of Park Impact Fees to pay debt service will be recalculated.
GROWTH MANAGEMENT IMPACT: None
LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney, is approved as to
form and legality and requires majority vote for approval - JAK.
RECOMMENDATION: That the Board of County Commissioners, approve a resolution authorizing the
execution of a Loan Agreement with TD Bank, N.A. and issue a Taxable Special Obligation Revenue
11.C
Packet Pg. 77
07/09/2019
Note, Series 2019 in the principal amount up to $29,000,000 to evidence a loan under the Loan
Agreement; and approve all necessary budget amendments.
Prepared by: Mark Isackson, Director of Corporate Finance and Management Services, Office of
Management and Budget
ATTACHMENT(S)
1. Authorizing Resolution (PDF)
2. EXHIBIT B - Loan Agreement (PDF)
3. EXHIBIT A - Proposal of TD Bank (PDF)
11.C
Packet Pg. 78
07/09/2019
COLLIER COUNTY
Board of County Commissioners
Item Number: 11.C
Doc ID: 9474
Item Summary: Recommendation to approve a resolution accepting the proposal of TD Bank,
N.A. to provide the County with a term loan to purchase certain real property known as the Golden Gate
Golf Course; to enter into the Loan Agreement and all related documents; and to issue a Taxable Special
Obligation Revenue Note, Series 2019 in the principal amount not to exceed $29,000,000; and approve all
necessary budget amendments. (Mark Isackson, Director of Corporate Finance and Management
Services)
Meeting Date: 07/09/2019
Prepared by:
Title: Operations Coordinator – Office of Management and Budget
Name: Valerie Fleming
06/27/2019 10:39 AM
Submitted by:
Title: Division Director - Corp Fin & Mgmt Svc – Budget and Management Office
Name: Mark Isackson
06/27/2019 10:39 AM
Approved By:
Review:
Office of Management and Budget Valerie Fleming Level 3 OMB Gatekeeper Review Completed 06/27/2019 10:39 AM
Budget and Management Office Mark Isackson Additional Reviewer Completed 06/27/2019 11:15 AM
County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 06/27/2019 11:33 AM
County Manager's Office Leo E. Ochs Level 4 County Manager Review Completed 06/27/2019 1:45 PM
Board of County Commissioners MaryJo Brock Meeting Pending 07/09/2019 9:00 AM
11.C
Packet Pg. 79
RESOLUTION NO. _____
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF
COLLIER COUNTY, FLORIDA ACCEPTING THE PROPOSAL OF TD
BANK, N.A. TO PROVIDE THE COUNTY WITH A TERM LOAN IN
ORDER TO FINANCE THE ACQUISITION OF CERTAIN REAL
PROPERTY; APPROVING THE FORM OF A LOAN AGREEMENT;
AUTHORIZING THE ISSUANCE OF THE COLLIER COUNTY,
FLORIDA TAXABLE SPECIAL OBLIGATION REVENUE NOTE,
SERIES 2019, PURSUANT TO SUCH LOAN AGREEMENT IN THE
AGGREGATE PRINCIPAL AMOUNT OF NOT TO EXCEED
$29,000,000 IN ORDER TO EVIDENCE SUCH LOAN; AUTHORIZING
THE REPAYMENT OF SUCH NOTE FROM A COVENANT TO
BUDGET AND APPROPRIATE LEGALLY AVAILABLE NON-AD
VALOREM REVENUES; DELEGATING CERTAIN AUTHORITY TO
THE CHAIRMAN, THE COUNTY MANAGER, AND OTHER
OFFICERS OF THE COUNTY FOR THE AUTHORIZATION,
EXECUTION AND DELIVERY OF THE LOAN AGREEMENT, THE
SERIES 2019 NOTE AND VARIOUS OTHER DOCUMENTS WITH
RESPECT THERETO; AND PROVIDING FOR AN EFFECTIVE DATE
FOR THIS RESOLUTION.
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
COLLIER COUNTY, FLORIDA:
SECTION 1. DEFINITIONS. When used in this Resolution, capitalized
terms not otherwise defined herein shall have the meanings set forth in the Loan Agreement
(as defined herein), unless the context clearly indicates a different meaning.
"Act" shall mean the Florida Constitution, Chapter 125, Florida Statutes, and other
applicable provisions of law.
"Board" shall mean the Board of County Commissioners of Collier County,
Florida.
"Chairman" shall mean the Chairman of the Board or, in his or her absence or
unavailability, the Vice Chairman of the Board.
"Clerk" shall mean the Clerk of the Circuit Court of Collier County, Florida and
Ex-Officio Clerk of the Board of County Commissioners of the Collier County, Florida
and such other person as may be duly authorized to act on her or his behalf, including any
Deputy Clerk.
11.C.1
Packet Pg. 80 Attachment: Authorizing Resolution (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
2
"County" or "Issuer" shall mean Collier County, Florida.
"County Manager" shall mean the County Manager of the Issuer or, in his or her
absence or unavailability, any Assistant County Manager or a designee of the County
Manager.
"Financial Advisor" means PFM Financial Advisors, LLC, and its successors and
assigns.
"Loan Agreement" shall mean the Loan Agreement to be executed between the
initial Noteholder and the County, which shall be substantially in the form attached hereto
as Exhibit B.
"Non-Ad Valorem Revenues" shall have the meaning assigned such term in the
Loan Agreement.
"Noteholder" or "Holder" or "holder" or any similar term, when used with
reference to a Note, shall mean TD Bank, N.A., and its successors and assigns.
"Resolution" shall mean this Resolution, as the same may from time to time be
amended, modified or supplemented by a supplemental resolution.
"Series 2019 Note" shall mean Collier County, Florida Taxable Special Obligation
Revenue Note, Series 2019, as such Series 2019 Note is more particularly described in the
Loan Agreement.
The terms "herein," "hereunder," "hereby," "hereto," "hereof," and any similar
terms, shall refer to this Resolution; the term "heretofore" shall mean before the date of
adoption of this Resolution; and the term "hereafter" shall mean after the date of adoption
of this Resolution.
Words importing the masculine gender include every other gender.
Words importing the singular number include the plural number, and vice versa.
SECTION 2. AUTHORITY FOR THIS RESOLUTION. This Resolution
is adopted pursuant to the provisions of the Act. The Issuer has ascertained and hereby
determined that adoption of this Resolution is necessary to carry out the powers, purposes
and duties expressly provided in the Act, that each and every matter and thing as to which
provision is made herein is necessary in order to carry out and effectuate the purposes of
the Issuer in accordance with the Act and to carry out and effectuate the plan and purpose
of the Act, and that the powers of the Issuer herein exercised are in each case exercised in
accordance with the provisions of the Act and in furtherance of the purposes of the Issuer.
11.C.1
Packet Pg. 81 Attachment: Authorizing Resolution (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
3
SECTION 3. RESOLUTION TO CONSTITUTE CONTRACT. In
consideration of the purchase and acceptance of the Series 2019 Note by the Noteholder,
the provisions of this Resolution shall be a part of the contract of the County with the
Noteholder, and shall be deemed to be and shall constitute a contract between the County
and the Noteholder. The provisions, covenants and agreements in this Resolution set forth
to be performed by or on behalf of the County shall be for the benefit, protection and
security of the Noteholder.
SECTION 4. FINDINGS. It is hereby ascertained, determined and declared
that:
(A) It is in the best interest of the County and constitutes a paramount public
purpose to acquire the real property known as the Golden Gate Golf Course (the
"Property") located on approximately 165 acres near the intersection of Collier Boulevard
and Golden Gate Parkway in order to provide for the development and use of such property,
which development and use may include public and/or private use.
(B) The County has been advised by its Financial Advisor that the most efficient
and cost-effective method of financing the acquisition of the Property is through the
issuance of the Series 2019 Note pursuant to the Loan Agreement.
(C) The County's Financial Advisor solicited proposals from various financial
institutions to provide a loan to finance the acquisition of the Property.
(D) The Noteholder submitted its proposal to provide the County with a term
loan to finance the acquisition of the Property, which proposal was the most favorable
proposal received by the County and is attached hereto as Exhibit A.
(E) The Series 2019 Note shall be repaid solely from the Non-Ad Valorem
Revenues in the manner and to the extent set forth herein and in the Loan Agreement and
the ad valorem taxing power of the County will never be necessary or authorized to pay
said amounts.
(F) Due to the potential volatility of the market for tax-exempt obligations such
as the Series 2019 Note and the complexity of the transactions relating to such Series 2019
Note, it is in the best interest of the County to issue the Series 2019 Note by a negotiated
sale to the Noteholder, allowing the County to sell and issue the Series 2019 Note at the
most advantageous time, rather than at a specified advertised date, thereby permitting the
County to obtain the best possible price, terms and interest rate for the Series 2019 Note.
SECTION 5. AUTHORIZATION OF THE ACQUISITION OF THE
PROPERTY. The acquisition of the Property and the financing thereof with proceeds of
the Series 2019 Note is hereby authorized.
11.C.1
Packet Pg. 82 Attachment: Authorizing Resolution (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
4
SECTION 6. ACCEPTANCE OF PROPOSAL. The County hereby
accepts the proposal of the Noteholder to provide the County with a term loan to finance
the acquisition of the Property, a copy of which proposal is attached hereto as Exhibit A.
The County Manager is hereby authorized to execute and deliver any documents required
to formally accept such proposal and the terms thereof. All actions taken by such officers
or their designees and the Financial Advisor with respect to such proposal prior to the date
hereof are hereby authorized and ratified. To the extent of any conflict between the
provisions of this Resolution or the Loan Agreement and the proposal, the provisions of
this Resolution and the Loan Agreement shall prevail.
SECTION 7. APPROVAL OF FORM OF LOAN AGREEMENT AND
SERIES 2019 NOTE. The County hereby approves a term loan from the Noteholder in
the principal amount of not to exceed $29,000,000. 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 County hereby
authorizes the Chairman to execute and deliver, and the Clerk to attest and affix the County
seal to, 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 conclusive evidence of such approval. In order to evidence the loan under the Loan
Agreement, it is necessary to provide for the execution of the Series 2019 Note. The
Chairman and the Clerk are authorized to execute and deliver the Series 2019 Note
substantially in the form attached to the Loan Agreement as Exhibit A with such changes,
insertion and additions as they may approve, their execution thereof being evidence of such
approval.
SECTION 8. LIMITED OBLIGATION. The obligation of the County to
repay the Series 2019 Note is a limited and special obligation payable from Non-Ad
Valorem Revenues 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 the County and
such obligation shall not create a lien on any property whatsoever of or in the County. The
Non-Ad Valorem Revenues shall consist of legally available Non-Ad Valorem Revenues
budgeted and appropriated by the Board to pay debt service on the Series 2019 Note, all in
the manner and to the extent described in the Loan Agreement.
SECTION 9. GENERAL AUTHORIZATION. The Chairman, the
County Manager and the Clerk are authorized to execute and deliver such documents,
instruments and contracts, whether or not expressly contemplated hereby; and the County
Attorney and other employees or agents of 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.
11.C.1
Packet Pg. 83 Attachment: Authorizing Resolution (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
5
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 9th day of July, 2019.
COLLIER COUNTY, FLORIDA
(SEAL)
Chairman, Board of County Commissioners
ATTESTED:
Crystal K. Kinzel, Clerk
Approved as to Form and Legality:
County Attorney
11.C.1
Packet Pg. 84 Attachment: Authorizing Resolution (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
EXHIBIT A
TD Bank, N.A. Proposal
11.C.1
Packet Pg. 85 Attachment: Authorizing Resolution (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
EXHIBIT B
Form of Loan Agreement
11.C.1
Packet Pg. 86 Attachment: Authorizing Resolution (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
LOAN AGREEMENT
BETWEEN
COLLIER COUNTY, FLORIDA
AND
TD BANK, N.A.
DATED JULY 18, 2019
11.C.2
Packet Pg. 87 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
i
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITION OF TERMS
SECTION 1.01. DEFINITIONS ................................................................................... 2
SECTION 1.02. INTERPRETATION .......................................................................... 5
SECTION 1.03. TITLES AND HEADINGS ............................................................... 5
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS; SECURITY FOR
SERIES 2019 NOTE
SECTION 2.01. REPRESENTATIONS BY THE COUNTY ...................................... 6
SECTION 2.02. GENERAL REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE NOTEHOLDER ................................... 7
SECTION 2.03. SERIES 2019 NOTE SHALL NOT BE INDEBTEDNESS OF
THE COUNTY OR STATE ......................................................... 7
SECTION 2.04. COVENANT TO BUDGET AND APPROPRIATE NON-AD
VALOREM REVENUES ............................................................. 7
SECTION 2.05. PAYMENT COVENANT.................................................................. 8
SECTION 2.06. ANTI-DILUTION .............................................................................. 8
ARTICLE III
DESCRIPTION OF SERIES 2019 NOTE; PAYMENT TERMS; OPTIONAL
PREPAYMENT
SECTION 3.01. DESCRIPTION OF THE SERIES 2019 NOTE. ............................. 10
SECTION 3.02. OPTIONAL PREPAYMENT. ......................................................... 11
SECTION 3.03. ADJUSTMENT TO INTEREST RATES ........................................ 12
SECTION 3.04. TRANSFER AND ASSIGNMENT. ................................................ 12
ARTICLE IV
CONDITIONS FOR ISSUANCE OF THE SERIES 2019 NOTE
SECTION 4.01. CONDITIONS FOR ISSUANCE .................................................... 12
ARTICLE V
EVENTS OF DEFAULT; REMEDIES
SECTION 5.01. EVENTS OF DEFAULT ................................................................. 14
SECTION 5.02. REMEDIES ...................................................................................... 14
11.C.2
Packet Pg. 88 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
ii
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. AMENDMENTS, CHANGES OR MODIFICATIONS TO THE
AGREEMENT ............................................................................ 16
SECTION 6.02. COUNTERPARTS........................................................................... 16
SECTION 6.03. SEVERABILITY ............................................................................. 16
SECTION 6.04. TERM OF AGREEMENT ............................................................... 16
SECTION 6.05. NOTICE OF CHANGES IN FACT ................................................. 16
SECTION 6.06. NOTICES ......................................................................................... 16
SECTION 6.07. NO THIRD-PARTY BENEFICIARIES .......................................... 17
SECTION 6.08. APPLICABLE LAW........................................................................ 17
SECTION 6.09. WAIVER OF JURY TRIAL ............................................................ 17
SECTION 6.10. INCORPORATION BY REFERENCE ........................................... 17
EXHIBIT A - FORM OF SERIES 2019 NOTE
11.C.2
Packet Pg. 89 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
This LOAN AGREEMENT (this "Agreement") is made and entered into as of July
18, 2019, by and between COLLIER COUNTY, FLORIDA, a political subdivision
under the laws of the State of Florida (the "County"), and TD BANK, N.A., a banking
corporation duly organized and existing under the laws of the United States of America
and authorized to do business in the State of Florida, and its successors and assigns (the
"Noteholder");
W I T N E S S E T H:
WHEREAS, the County is authorized by provisions of the Florida Constitution,
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 health, welfare
and economic prosperity of the residents of 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, it is in the best interest of the County and constitutes a paramount
public purpose to acquire the real property known as the Golden Gate Golf Course (the
"Property") located on approximately 165 acres near the intersection of Collier Boulevard
and Golden Gate Parkway in order to provide for the development and use of such property,
which development and use may include public and/or private use; and
WHEREAS, the financial advisor for the County, PFM Financial Advisors, LLC
(the "Financial Advisor"), solicited bids on behalf of the County from various financial
institutions to provide a term loan to the County to finance the acquisition of the Property;
and
WHEREAS, the proposal submitted by TD Bank, N.A. (including any successors
or assigns, the "Noteholder") was the most favorable proposal received by the County; and
WHEREAS, the Noteholder is willing to make a term loan to the County, and the
County is willing to incur such term loan, pursuant to the terms and provisions of this
Agreement in an aggregate principal amount of $__________ to finance the acquisition of
the Property.
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:
11.C.2
Packet Pg. 90 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
2
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 125, Florida Statutes, and other
applicable provisions of law.
"Agreement" shall mean this Loan Agreement, dated July 18, 2019, between the
County and the Noteholder and any and all modifications, alterations, amendments and
supplements hereto made in accordance with the provisions hereof.
"Board" shall mean the Board of County Commissioners of Collier County,
Florida.
"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 Noteholder is authorized or required to be closed.
"Capital Projects Funds" shall mean the "Capital Projects Funds" of the County
as described and identified in the County's annual audit.
"Chairman" shall mean the Chairman of the Board or, in his or her absence or
unavailability, the Vice Chairman of the Board.
"Clerk" shall mean the Clerk of the Circuit Court of Collier County, Florida and
Ex-Officio Clerk of the Board of County Commissioners of the Collier County, Florida
and such other person as may be duly authorized to act on her or his behalf, including any
Deputy Clerk.
"Counterparty" shall mean the entity entering into a Hedge Agreement with the
County. Counterparty would also include any guarantor of such entity's obligations under
such Hedge Agreement.
"County" shall mean Collier County, Florida.
11.C.2
Packet Pg. 91 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
3
"County Manager" shall mean the County Manager of the County or, in his or her
absence or unavailability, any Assistant County Manager or a designee of the County
Manager.
"Debt" means at any date (without duplication) all of the following to the extent
that they are secured by or payable in whole or in part from any Non-Ad Valorem Revenues
(A) all obligations of the County for borrowed money or evidenced by bonds, debentures,
notes or other similar instruments; (B) all obligations of the County to pay the deferred
purchase price of property or services, except trade accounts payable under normal trade
terms and which arise in the ordinary course of business; (C) all obligations of the County
as lessee under capitalized leases; and (D) all indebtedness of other Persons to the extent
guaranteed by, or secured by, Non-Ad Valorem Revenues of the County; provided,
however, if with respect to any obligation contemplated in (A), (B), or (C) above, the
County has covenanted to budget and appropriate sufficient Non-Ad Valorem Revenues as
a secondary source of funds to satisfy such obligation but has not secured such obligation
with a lien on or pledge of any Non-Ad Valorem Revenues then, and with respect to any
obligation contemplated in (D) above, such obligation shall not be considered "Debt" for
purposes of this Agreement unless the County has actually used Non-Ad Valorem
Revenues to satisfy such obligation during the immediately preceding Fiscal Year or
reasonably expects to use Non-Ad Valorem Revenues to satisfy such obligation in the
current or immediately succeeding Fiscal Year. After an obligation is considered "Debt"
as a result of the proviso set forth in the immediately preceding sentence, it shall continue
to be considered "Debt" until the County has not used any Non-Ad Valorem Revenues to
satisfy such obligation for two consecutive Fiscal Years.
"Default Rate" shall mean the lesser of (A) the prime rate as quoted in the Wall
Street Journal, plus 600 basis points (6.00%) per annum, or (B) the maximum rate
allowable under applicable law.
"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.
"Fitch" shall mean Fitch Ratings, and any successors or assigns thereto.
"General Fund" shall mean the "General Fund" of the County as described and
identified in the County's annual audit.
"General Fund Revenues" shall mean total revenues of the County derived from
any source whatsoever and that are allocated to and accounted for in the General Fund as
shown in the County's annual audit.
"Hedge Agreement" shall mean an agreement in writing between the County and
a Counterparty pursuant to which (1) the County agrees to pay to the Counterparty an
amount, either at one time or periodically, which may, but is not required to, be determined
11.C.2
Packet Pg. 92 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
4
by reference to the amount of interest (which may be at a fixed or variable rate) payable on
debt (or a notional amount) specified in such agreement during the period specified in such
agreement and (2) the Counterparty agrees to pay to the County an amount, either at one
time or periodically, which may, but is not required to, be determined by reference to the
amount of interest (which may be at a fixed or variable rate) payable on debt (or a notional
amount) specified in such agreement during the period specified in such agreement.
"Hedge Payments" shall mean any amounts payable by the County on the debt or
the related notional amount under a Qualified Hedge Agreement; excluding, however, any
payments due as a penalty or by virtue of termination of a Qualified Hedge Agreement or
any obligation of the County to provide collateral.
"Impact Fee Proceeds" shall mean the proceeds of all impact fees levied by the
County that are allocated to and accounted for in the Capital Projects Funds as shown in
the County's annual audit.
"Interest Rate" shall mean a fixed interest rate equal to 2.74% per annum. The
Interest Rate is subject to adjustment pursuant to Section 3.03 hereof.
"Maturity Date" shall mean October 1, 2029.
"Maximum Annual Debt Service" shall mean the largest aggregate amount of the
annual debt service coming due on the Series 2019 Note in any Fiscal Year.
"Moody's" shall mean Moody's Investors Service, and any successor or assigns
thereto.
"MSTD Revenues" shall mean all revenues of the County derived from any source
whatsoever and that are allocated to and accounted for in the Unincorporated Area
Municipal Services Taxing District Fund as shown in the County's annual audit.
"Non-Ad Valorem Revenues" shall mean all General Fund Revenues and MSTD
Revenues, other than revenues generated from ad valorem taxation on real or personal
property, and all Impact Fee Proceeds, but only to the extent they are legally available to
make the payments required herein.
"Noteholder" or "Holder" or "holder" or any similar term, when used with
reference to a Note, shall mean TD Bank, N.A., and any successors or assigns thereto.
"Person" shall mean an individual, a corporation, a partnership, an association, a
joint stock company, a trust, any unincorporated organization, governmental entity or other
legal entity.
11.C.2
Packet Pg. 93 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
5
"Qualified Hedge Agreement" shall mean a Hedge Agreement with respect to
which the County has received written notice from at least two of the Rating Agencies that
the rating of the Counterparty is not less than "A."
"Rating Agencies" shall mean Fitch, Moody's and Standard and Poor's.
"Resolution" shall mean Resolution No. _________ adopted by the County on July
9, 2019, which, among other things, authorized the execution and delivery of this Loan
Agreement and the issuance of the Series 2019 Note.
"Series 2019 Note" shall mean the Collier County, Florida Taxable Special
Obligation Revenue Note, Series 2019, authorized to be issued by the Resolution and more
particularly described in Article III hereof.
"Standard and Poor's" shall mean S & P Global Ratings, a business of Standard
& Poor's Financial Services Inc., and any successors and assigns thereto.
"State" shall mean the State of Florida.
"Unincorporated Area Municipal Services Taxing District Fund" shall mean
the "Unincorporated Area Municipal Services Taxing District Fund" of the "Special
Revenue Funds" of the County as such Funds are described and identified in the County's
annual audit.
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 capitalized
term used in this Agreement not herein defined shall have the meaning ascribed to such
term 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]
11.C.2
Packet Pg. 94 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
6
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS;
SECURITY FOR SERIES 2019 NOTE
SECTION 2.01. REPRESENTATIONS AND COVENANTS BY THE
COUNTY. The County represents, warrants and covenants that:
(a) The County is a duly organized and validly existing political subdivision
under the Florida Constitution and other laws of the State. Pursuant to the Resolution, the
County has duly authorized the execution and delivery of this Agreement, the performance
by the County of all of its obligations hereunder, and the issuance of the Series 2019 Note
in the principal amount of $____________.
(b) The County 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 2019
Note, and to perform all of its obligations hereunder and under the Series 2019 Note, and
to the best knowledge of the County, 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 County is a party or by which the County is bound.
(c) The County is duly authorized and entitled to issue the Series 2019 Note and
enter this Agreement and, when executed and delivered, the Series 2019 Note and this
Agreement will each constitute a legal, valid and binding obligation of the County
enforceable in accordance with its 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 County, threatened against or affecting the County, at law or in equity, or before or
by any governmental authority, that, if adversely determined, would materially impair the
ability of the County to perform the County's obligations under this Agreement or under
the Series 2019 Note, or which would have a material adverse effect on the County
(financial or otherwise).
(e) The County will furnish to the Noteholder within 210 days after the close of
each Fiscal Year a copy of the annual audited financial statements of the County, prepared
by a certified public accountant. The County shall also provide the Noteholder with a copy
of the annual budget of the County each year and any material amendments thereto within
30 days of the final adoption of such budget or amendment. With reasonable promptness
the County shall provide such other data and information as may be reasonably requested
by the Noteholder from time to time.
11.C.2
Packet Pg. 95 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
7
SECTION 2.02. GENERAL REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE NOTEHOLDER. Pursuant to the terms and provisions of this
Agreement, the Noteholder agrees to provide a term loan to the County as evidenced hereby
and by the Series 2019 Note for the purpose of financing the County's acquisition of the
Property and paying costs relating to the issuance of the Series 2019 Note.
SECTION 2.03. SERIES 2019 NOTE SHALL NOT BE INDEBTEDNESS
OF THE COUNTY OR STATE. The Series 2019 Note, when delivered by the County
pursuant to the terms of this Agreement, shall not be or constitute an indebtedness of 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 as herein provided. The Noteholder shall never have the right to compel the
exercise of the ad valorem taxing power of the County, or taxation in any form on any
property therein to pay the Series 2019 Note or the interest thereon. The Series 2019 Note
is a special and limited obligation secured by and payable as to principal and interest from
the Non-Ad Valorem Revenues, to the extent and in the manner provided herein.
SECTION 2.04. COVENANT TO BUDGET AND APPROPRIATE NON-
AD VALOREM REVENUES. The County covenants and agrees to budget and
appropriate in its annual budget for each Fiscal Year in which any amounts due hereunder
or with respect to the Series 2019 Note remain unpaid or outstanding, by amendment, if
necessar y, from Non-Ad Valorem Revenues amounts sufficient to pay principal of and
interest on the Series 2019 Note when due. Such covenant and agreement on the part of
the County 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 County, the County does not covenant to maintain any services
or programs, now provided or maintained by the County, 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 County from pledging in the
future its Non-Ad Valorem Revenues, nor does it require the County to levy and collect
any particular Non-Ad Valorem Revenues, nor does it give the Noteholder a prior claim
on the Non-Ad Valorem Revenues as opposed to claims of general creditors of the County.
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 bonds and other debt
instruments). However, the covenant to budget and appropriate for the purposes and in the
manner stated herein shall have the effect of making available for the payment of the Series
2019 Note, in the manner described herein, Non-Ad Valorem Revenues and placing on the
County a positive duty to appropriate and budget, by amendment, if necessary, amounts
11.C.2
Packet Pg. 96 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
8
sufficient to meet its obligations hereunder; subject, however, in all respects to the
restrictions of Section 129.07, Florida Statutes, which generally provide that the governing
body of each county may only make appropriations for each fiscal year which, in any one
year, shall not exceed the amount to be received from taxation or other revenue sources;
and subject, further, to the payment of services and programs which are for essential public
purposes affecting the health, safety and welfare of the inhabitants of the County or which
are legally mandated by applicable law.
SECTION 2.05. PAYMENT COVENANT. The County covenants that it
shall duly and punctually pay from the Non-Ad Valorem Revenues in accordance with
Section 2.04 hereof, the principal of and interest on the Series 2019 Note at the dates and
place and in the manner provided herein and in the Series 2019 Note according to the true
intent and meaning thereof and all other amounts due under this Agreement.
SECTION 2.06. ANTI-DILUTION. During such time as the Series 2019 Note
is outstanding hereunder or any amounts due hereunder or with respect to the Series 2019
Note remain unpaid or outstanding, the County agrees and covenants with the Noteholder
that (1) Non-Ad Valorem Revenues shall cover projected Maximum Annual Debt Service
on the Series 2019 Note and maximum annual debt service on Debt by at least 1.5x; and
(2) projected Maximum Annual Debt Service on the Series 2019 Note and maximum
annual debt service for all Debt will not exceed 20% of the aggregate of General Fund
Revenues, MSTD Revenues and Impact Fee Proceeds exclusive of (a) ad valorem tax
revenues restricted to payment of debt service on any Debt and (b) any proceeds of the
Series 2019 Note or Debt. The calculations required by clauses (1) and (2) above shall be
determined using the average of actual Non-Ad Valorem Revenues, General Fund
Revenues, MSTD Revenues and Impact Fee Proceeds for the prior two Fiscal Years based
on the County’s annual audited financial statements. For purposes of the calculations
required by clauses (1) and (2) above, Maximum Annual Debt Service on the Series 2019
Note and maximum annual debt service on Debt shall be done on an aggregate basis
whereby the annual debt service for each is combined and the overall maximum is
determined.
For the purposes of the covenants contained in this Section 2.06, maximum annual
debt service on Debt means, with respect to Debt that bears interest at a fixed interest rate,
the actual maximum annual debt service, and, with respect to Debt which bears interest at
a variable interest rate, maximum annual debt service on such Debt shall be determined
assuming that interest accrues on such Debt at the current "Bond Buyer Revenue Bond
Index" as published in The Bond Buyer no more than two weeks prior to any such
calculation; provided, however, if any Debt, whether bearing interest at a fixed or variable
interest rate, constitutes Balloon Indebtedness, as defined in the immediately following
sentence, maximum annual debt service on such Debt shall be determined assuming such
Debt is amortized over 20 years from its original date of issuance on an approximately
level debt service basis. For purposes of the foregoing sentence, "Balloon Indebtedness"
11.C.2
Packet Pg. 97 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
9
means Debt, 25% or more of the original principal of which matures during any one Fiscal
Year. In addition, with respect to debt service on any Debt which is subject to a Qualified
Hedge Agreement, interest on such Debt during the term of such Qualified Hedge
Agreement shall be deemed to be the Hedge Payments coming due during such period of
time but only up to the notional amount of the Qualified Hedge Agreement . With respect
to debt service on any Debt with respect to which the County elects to receive or is
otherwise entitled to receive direct subsidy payments from the United States Department
of Treasury, when determining the interest on such Debt for any particular interest payment
date the amount of the corresponding subsidy payment shall be deducted from the amount
of interest which is due and payable with respect to such Debt on the interest payment date
and shall not be included in the determination of Non-Ad Valorem Revenues for purposes
of this Section 2.06, but only to the extent that the County reasonably believes that it will
be in receipt of such subsidy payment on or prior to such interest payment date.
[Remainder of page intentionally left blank]
11.C.2
Packet Pg. 98 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
10
ARTICLE III
DESCRIPTION OF SERIES 2019 NOTE; PAYMENT TERMS;
OPTIONAL PREPAYMENT
SECTION 3.01. DESCRIPTION OF THE SERIES 2019 NOTE. (a) The
County hereby authorizes the issuance and delivery of the Series 2019 Note to the
Noteholder which Series 2019 Note shall be in an amount equal to
_______________________ AND 00/100 DOLLARS ($____________) and shall be
designated as the "Collier County, Florida Taxable Special Obligation Revenue Note,
Series 2019." The text of the Series 2019 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 2019 Note. The provisions of the
form of the Series 2019 Note are hereby incorporated in this Agreement.
(b) The Series 2019 Note shall be dated the date of its delivery. The Series 2019
Note shall be executed in the name of the County by the manual signature of the Chairman
and the official seal of the County shall be affixed thereto and attested by the manual
signature of the Clerk. In case any one or more of the officers, who shall have signed or
sealed the Series 2019 Note, shall cease to be such officer of the County before the Series
2019 Note so signed and sealed shall have been actually delivered, such Series 2019 Note
may nevertheless be delivered as herein provided and may be issued as if the person who
signed or sealed such Series 2019 Note had not ceased to hold such office.
(c) The Series 2019 Note shall bear interest from its date of issuance at the
Interest Rate (calculated on a 30/360 day count basis) as the same may be adjusted pursuant
to Section 3.03 hereof. Interest on the Series 2019 Note shall be payable semi-annually on
October 1 and April 1 of each year, commencing October 1, 2019 (each an "Interest
Payment Date") so long as any amount under the Series 2019 Note remains outstanding.
Principal of the Series 2019 Note shall be payable annually on October 1 of each year,
commencing October 1, 2022 (each a "Principal Payment Date"), through and including
the Maturity Date. The aggregate annual principal and interest payments shall be set forth
in the Series 2019 Note.
(d) The Series 2019 Note shall be payable as to principal and interest by
automatic debit, or in such other manner as is agreed to between the County and the
Noteholder, to the Noteholder in whose name the Series 2019 Note shall be registered on
the registration books maintained by the County as of the close of business on the fifteenth
day (whether or not a Business Day) of the calendar month next preceding an Interest
Payment Date or Principal Payment Date; provided, that the Noteholder shall be required
to present and surrender the Series 2019 Note to the County only for the final payment of
the principal of the Series 2019 Note or shall otherwise provide evidence that such Series
2019 Note has been fully paid and cancelled. Principal of and interest on the Series 2019
Note shall be payable in any coin or currency of the United States of America, which at the
11.C.2
Packet Pg. 99 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
11
time of payment, is legal tender for the payment of public and private debts. The County
shall maintain books and records with respect to the identity of the Noteholders, including
a complete and accurate record of all assignments of this Agreement and the Series 2019
Note as provided in Section 3.04.
(e) Except as otherwise provided herein, the Noteholder shall pay for all of its
costs relating to servicing the Series 2019 Note. The County shall pay the fees of the
Noteholder's legal counsel in the amount of $8,500.00.
SECTION 3.02. OPTIONAL PREPAYMENT. (a) The Series 2019 Note may
be prepaid in whole or in part on any Business Day at a price equal to 100% of the principal
amount of the Series 2019 Note to be prepaid plus accrued interest thereon to the date of
prepayment, plus the payment of the Fixed Rate Prepayment Charge as determined by the
Noteholder and described in this Section 3.02. The Fixed Rate Prepayment Charge shall be
payable to the Noteholder and shall be computed as follows:
The Fixed Rate Prepayment Charge shall be based on the current cost of funds,
specifically the bond equivalent yield for United States Treasury securities (bills on a
discounted basis shall be converted to a bond equivalent yield) with a maturity date closest
to the Remaining Term ("Cost of Funds") subtracted from the stated interest rate on the
Series 2019 Note ("Stated Interest Rate"). If the result is zero or a negative number, there
shall be no Fixed Rate Prepayment Charge due and payable. If the result is a positive
number, then the resulting percentage shall be multiplied by the amount being prepaid
times the number of days in the Remaining Term (as defined below) and divided by
360. The resulting amount is the "Fixed Rate Prepayment Charge" due to the Noteholder
upon prepayment of all or a portion of the principal of the Series 2019 Note, plus any
accrued interest due as of the prepayment date and is expressed in the following
calculation:
"Fixed Rate Prepayment Charge" = Principal Amount Being Prepaid times (Stated
Interest Rate - Cost of Funds) times days in the Remaining Term/360 days.
"Remaining Term" as used herein shall mean the remaining term of the Series 2019
Note.
(b) Any prepayment of the Series 2019 Note shall be made on such Business
Day as shall be specified by the County in a notice delivered to the Noteholder not less
than thirty (30) days prior thereto specifying the principal amount of the Series 2019 Note
to be prepaid and the date that shall be the date of such prepayment. Notice having been
given as aforesaid, the amount of the outstanding principal of the Series 2019 Note to be
prepaid 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 plus the Fixed Rate Prepayment Charge, if any. If on the date of
prepayment moneys for the payment of the principal amount to be prepaid on the Series
11.C.2
Packet Pg. 100 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
12
2019 Note, together with interest to the date of prepayment on such principal amount plus
the Fixed Rate Prepayment Charge, if any, shall have been paid to the Noteholder as above
provided, then from and after the date of prepayment, interest on such prepaid principal
amount of the Series 2019 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 2019 Note shall
continue to bear interest until payment thereof at the then applicable Interest Rate. Any
such failure to pay the prepayment price shall not constitute an Event of Default hereunder.
Any prepayment in part shall be applied to the remaining principal payments in inverse
order unless otherwise agreed to between the County and the Noteholder.
SECTION 3.03. ADJUSTMENT TO INTEREST RATES. Upon the
occurrence and continuance of an Event of Default pursuant to Section 5.01 hereof, the
Noteholder may adjust the Interest Rate to the Default Rate which shall be effective until
such Event of Default has been cured.
SECTION 3.04. TRANSFER AND ASSIGNMENT. The Noteholder's right,
title and interest in and to the Series 2019 Note and any amounts payable by the County
thereunder may be assigned and reassigned in whole only by the Noteholder, without the
necessity of obtaining the consent of the County; provided, that any such assignment,
transfer or conveyance shall be made only to (a) an affiliate of the Noteholder or (b) a bank,
insurance company or their affiliate, provided that any such entity is purchasing the Series
2019 Note for its own account with no present intention to resell or distribute the Series
2019 Note, subject to each investor's right at any time to dispose of the Series 2019 Note
as it determines to be in its best interests or (c) a qualified institutional buyer. The
Noteholder shall notify the County of any such assignment on or prior to the effective date
of such assignment. If the Noteholder notifies the County of its intent to assign and sell its
right, title and interest in and to the Series 2019 Note as herein provided, the County agrees
that, if so requested, it shall execute and deliver to the assignee Noteholder, a Series 2019
Note in the principal amount so assigned, registered in the name of the assignee
Noteholder, executed and delivered by the County in the same manner as provided herein
and with an appendix attached thereto setting forth the amounts to be paid on each Principal
Payment Date with respect to such Series 2019 Note.
Nothing contained in this Section 3.04 shall be interpreted to prohibit the Noteholder
from selling participations in the Series 2019 Note to any investors meeting the conditions
set forth in the immediately preceding paragraph.
ARTICLE IV
CONDITIONS FOR ISSUANCE OF THE SERIES 2019 NOTE
SECTION 4.01. CONDITIONS FOR ISSUANCE. In connection with the
issuance of the Series 2019 Note, the Noteholder shall not be obligated to purchase the
Series 2019 Note pursuant to this Agreement unless at or prior to the issuance thereof the
11.C.2
Packet Pg. 101 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
13
County delivers to the Noteholder the following items in form and substance acceptable to
the Noteholder:
(a) An opinion of Bond Counsel addressed to the Noteholder (or addressed to
the County with a reliance letter addressed to the Noteholder including an opinion that the
Series 2019 Note is not subject to registration under the Securities Act of 1933 and this
Agreement is exempt from qualification under the Trust Indenture Act of 1939) in form
and substance to the effect that this Agreement and the Series 2019 Note have been duly
authorized, executed and delivered by the County and each is a valid, binding and
enforceable obligation against the County in accordance with its terms (enforceability of it
may be subject to standard bankruptcy exceptions and the like);
(b) an opinion of Counsel to the County in form and substance satisfactory to the
Noteholder; and
(c) Such additional certificates, instruments and other documents as the
Noteholder, Bond Counsel, or the County Attorney may deem necessary or appropriate.
[Remainder of page intentionally left blank]
11.C.2
Packet Pg. 102 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
14
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 County shall fail to make timely payment of principal or interest when
due with respect to the Series 2019 Note;
(b) Any representation or warranty of the County contained in Article II of this
Agreement shall prove to be untrue in any material respect when made;
(c) Any covenant of the County contained in this Agreement shall be breached
or violated for a period of thirty (30) days from the earlier of (a) when the County receives
notice from the Noteholder of such breach or violation or (b) when the County was aware
of such event and was required herein to notify the Noteholder pursuant to Section 6.05
hereof, unless the Noteholder 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 County, or the filing
by the County of a voluntary petition in bankruptcy, or the commission by the County of
any act of bankruptcy, or adjudication of the County as a bankrupt, or assignment by the
County for the benefit of its creditors, or appointment of a receiver for the County, or the
entry by the County into an agreement of composition with its creditors, or the approval
by a court of competent jurisdiction of a petition applicable to the County 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) All of the credit ratings on any of the County's bonds that are secured by a
covenant to budget and appropriate Non-Ad Valorem Revenues similar to the covenant of
the County set forth in Section 2.04 hereof fall below "BBB" (or equivalent rating).
Notwithstanding the foregoing, the County shall not be required to maintain any credit
ratings on such bonds, nor shall it be required to maintain a credit rating by each of the
Rating Agencies if a series of bonds is then rated by any Rating Agency and it shall not be
considered an Event of Default if the County does not maintain any such credit ratings so
long as such rating was not withdrawn or suspended, in either case, for credit reasons.
SECTION 5.02. REMEDIES. If any event of default shall have occurred and
be continuing, the Noteholder or any trustee or receiver acting for the Noteholder 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
11.C.2
Packet Pg. 103 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
15
performance of all duties required by this Agreement or by any applicable statutes to be
performed by the County or by any officer thereof, including, but not limited to, specific
performance. No remedy herein conferred upon or reserved to the Noteholder 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. Notwithstanding any other provision
hereof, no Noteholder, trustee or receiver shall have the right to declare the Series 2019
Note immediately due and payable. Upon the occurrence and continuance of an Event of
Default pursuant to Section 5.01 hereof, the Noteholder may adjust the Interest Rate to the
Default Rate which shall be effective until such Event of Default has been cured.
If any payment required to be made by the County hereunder is more than fifteen
(15) days past due, the County will pay to the Noteholder a late charge equal to six percent
(6%) of the payment amount which is past due.
[Remainder of page intentionally left blank]
11.C.2
Packet Pg. 104 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
16
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. AMENDMENTS, CHANGES OR MODIFICATIONS TO
THIS AGREEMENT. This Agreement shall not be amended, changed or modified
without the prior written consent of the Noteholder and the County. Notwithstanding the
foregoing, if, in connection with the issuance of any additional indebtedness of the County
that is secured by a covenant to budget and appropriate Non-Ad Valorem Revenues similar
to the covenant of the County set forth in Section 2.04 hereof, the County provides the
lender of such additional indebtedness acceleration rights as a remedy to any event of
default or provides the lender with an anti-dilution test that is more restrictive as to the
County then the anti-dilution test set forth in Section 2.06 hereof, then such covenants shall
be deemed to be incorporated by reference herein and upon the request of the Noteholder
the County and the Noteholder shall promptly amend this Agreement so as to provide the
Noteholder with the same provisions.
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 2019
Note is outstanding.
SECTION 6.05. NOTICE OF CHANGES IN FACT. Promptly after the
County becomes aware of the same, the County will notify the Noteholder of (a) any
change in any material fact or circumstance represented or warranted by the County in this
Agreement or in connection with the issuance of the Series 2019 Note, and (b) any default
or event which, with notice or lapse of time or both, could become a default under this
Agreement, specifying in each case the nature thereof and what action the County 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
11.C.2
Packet Pg. 105 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
17
certified mail, postage prepaid, to Collier County, Florida, 3301 East Tamiami Trail,
Building F, Naples, Florida 34112, Attention: County Manager, and to the Noteholder, TD
Bank, N.A., 301 East Pine Street, Suite 1000, Orlando, Florida 32801, Attention: James G.
Hanning, CPA, Director, 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.
SECTION 6.07. NO THIRD-PARTY BENEFICIARIES. This Agreement is
for the benefit of the County and the Noteholder and their respective successors and
assigns, and there shall be no third-party beneficiary with respect thereto.
SECTION 6.08. APPLICABLE LAW. The substantive laws of the State of
Florida shall govern this Agreement.
SECTION 6.09. WAIVER OF JURY TRIAL. Each party waives, to the
fullest extent permitted by applicable law, any right it may have to a trial by jury in respect
of any proceedings relating to this Agreement.
SECTION 6.10. 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 and the Series 2019 Note.
[Remainder of page intentionally left blank]
11.C.2
Packet Pg. 106 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first set forth herein.
(SEAL)
ATTEST:
By:________________________
Deputy Clerk
Approved as to Form and Legality:
__________________________
County Attorney
COLLIER COUNTY, FLORIDA
_______________________________
Chairman, Board of County Commissioners
TD BANK, N.A.
By:____________________________
Title: __________________________
11.C.2
Packet Pg. 107 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
A-1
EXHIBIT A
$_______________
UNITED STATES OF AMERICA
STATE OF FLORIDA
COLLIER COUNTY, FLORIDA
TAXABLE SPECIAL OBLIGATION REVENUE NOTE,
SERIES 2019
Interest Rate Date of Issuance Final Maturity Date
_______% July 18, 2019 October 1, 2029
KNOW ALL MEN BY THESE PRESENTS, that Collier County, Florida (the
"County"), for value received, hereby promises to pay, solely from the Non-Ad Valorem
Revenues described in the within mentioned Agreement, to the order of TD Bank, N.A.,
or its successors or assigns (the "Noteholder"), the principal sum of
_____________________________AND 00/100 DOLLARS ($______________)
pursuant to that certain Loan Agreement by and between the Noteholder and the County,
dated as of July 18, 2019 (the "Agreement"), and to pay interest on such 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 per annum (calculated on a 30/360
day count basis) identified above (subject to adjustment as provided in the Agreement) on
October 1 and April 1 of each year, commencing on October 1, 2019, so long as any amount
under this Note remains outstanding. Principal of this Note shall be payable on October 1
of each year, commencing on October 1, 2022, through and including the Final Maturity
Date identified above. The repayment schedule for this Note is set forth in definitive form
on Appendix I attached hereto. 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 125,
Florida Statutes, and other applicable provisions of law, and Resolution No. _______ duly
adopted by the County on July 9, 2019 (the "Resolution"), as such Resolution may be
amended and supplemented from time to time, and is subject to all terms and conditions of
the Resolution and the Agreement. Any capitalized 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 acquire certain real property, as generally described in
the Resolution. This Note is payable from the County's covenant to budget and appropriate
11.C.2
Packet Pg. 108 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
A-2
legally available Non-Ad Valorem Revenues in the manner and to the extent provided and
described in the Agreement.
This Note shall bear interest at the Interest Rate identified above on a 30/360 day
count basis. Such Interest Rate is subject to adjustment as provided in Section 3.03 of the
Agreement. The Noteholder shall provide to the County upon request such documentation
to evidence the amount of interest due with respect to the Series 2019 Note upon any such
adjustment.
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 County hereon shall apply first to fees, costs, late charges
and accrued interest, and then to the principal amount then due on this Note.
This Note may be prepaid in whole or in part on any Business Day (as defined in
the Resolution) at a price equal to 100% of the principal amount of this Note to be prepaid
plus accrued interest thereon to the date of prepayment, plus the payment of the Fixed Rate
Prepayment Charge as determined by the Noteholder and described below. The Fixed Rate
Prepayment Charge shall be payable to the Noteholder and shall be computed as follows:
The Fixed Rate Prepayment Charge shall be based on the current cost of funds,
specifically the bond equivalent yield for United States Treasury securities (bills on a
discounted basis shall be converted to a bond equivalent yield) with a maturity date closest
to the herein defined Remaining Term ("Cost of Funds") subtracted from the stated interest
rate on this Note ("Stated Interest Rate"). If the result is zero or a negative number, there
shall be no Fixed Rate Prepayment Charge due and payable. If the result is a positive
number, then the resulting percentage shall be multiplied by the amount being prepaid
times the number of days in the Remaining Term and divided by 360. The resulting amount
is the "Fixed Rate Prepayment Charge" due to the Noteholder upon prepayment of all or a
portion of the principal of this Note, plus any accrued interest due as of the prepayment
date and is expressed in the following calculation:
"Fixed Rate Prepayment Charge" = Principal Amount Being Prepaid times (Stated
Interest Rate - Cost of Funds) times days in the Remaining Term/360 days.
"Remaining Term" as used herein shall mean the remaining term of the Series 2019
Note.
Any prepayment of this Note shall be made on such Business Day as shall be
specified by the County in a notice delivered to the Noteholder not less than thirty (30)
11.C.2
Packet Pg. 109 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
A-3
days prior thereto specifying the principal amount of this Note to be prepaid and the date
that shall be the date of such prepayment. Notice having been given as aforesaid, the
amount of the outstanding principal of this Note to be prepaid 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 plus the Fixed
Rate Prepayment Charge, if any. If on the date of prepayment moneys for the payment of
the principal amount to be prepaid on this Note, together with interest to the date of
prepayment on such principal amount plus the Fixed Rate Prepayment Charge, if any, shall
have been paid to the Noteholder as above provided, then from and after the date of
prepayment, interest on such prepaid principal amount of this Note shall cease to accrue.
If said money shall not have been so paid on the date of prepayment, such principal amount
of this Note shall continue to bear interest until payment thereof at the then applicable
Interest Rate. Any such failure to pay the prepayment price shall not constitute an Event
of Default hereunder or under the Resolution. Any prepayment in part shall be applied to
the remaining principal payments in inverse order unless otherwise agreed to between the
County and the Noteholder.
This Note, when delivered by the County pursuant to the terms of the Agreement
and the Resolution, shall not be or constitute an indebtedness of the County or of the State
of Florida, within the meaning of any constitutional, statutory or charter limitations of
indebtedness, but shall be payable from the Non-Ad Valorem Revenues, in the manner and
to the extent provided in the Agreement and the Resolution. The Noteholder shall never
have the right to compel the exercise of the ad valorem taxing power of the County or the
State, or taxation in any form of any property therein to pay the Note or the interest thereon.
So long as any of this Note shall remain outstanding, the County shall maintain and
keep books for the registration and transfer of this Note.
The Noteholder's right, title and interest in and to this Note and any amounts payable
by the County hereunder may be assigned and reassigned in accordance with and subject
to the restrictions in the Agreement.
IN WITNESS WHEREOF, the County caused this Note to be signed by the
manual signature of the Chairman and the seal of the County to be affixed hereto or
11.C.2
Packet Pg. 110 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
A-4
imprinted or reproduced hereon, and attested by the manual signature of the County Clerk,
and this Note to be dated the Date of Issuance set forth above.
COLLIER COUNTY, FLORIDA
(SEAL)
By: ___________________________________
Chairman, Board of County Commissioners
ATTEST:
_______________________________
Crystal K. Kinzel, Clerk
Approved as to Form and Legality:
_________________________________
County Attorney
11.C.2
Packet Pg. 111 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
Appendix I
Repayment Schedule for the
COLLIER COUNTY, FLORIDA
TAXABLE SPECIAL OBLIGATION REVENUE NOTE,
SERIES 2019
Payment
Date Principal Interest Debt Service
Total Debt
Service
11.C.2
Packet Pg. 112 Attachment: EXHIBIT B - Loan Agreement (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
11.C.3
Packet Pg. 113 Attachment: EXHIBIT A - Proposal of TD Bank (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
11.C.3
Packet Pg. 114 Attachment: EXHIBIT A - Proposal of TD Bank (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
11.C.3
Packet Pg. 115 Attachment: EXHIBIT A - Proposal of TD Bank (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
11.C.3
Packet Pg. 116 Attachment: EXHIBIT A - Proposal of TD Bank (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
11.C.3
Packet Pg. 117 Attachment: EXHIBIT A - Proposal of TD Bank (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)
11.C.3
Packet Pg. 118 Attachment: EXHIBIT A - Proposal of TD Bank (9474 : Golden Gate Golf Course Taxable Special Obligation Revenue Note, Series 2019)