Resolution 2007-147
RESOLUTION NO. 2007-147
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF
COLLIER COUNTY, FLORIDA APPROVING THE REISSUANCE AND
MODIFICATIONS OF REVENUE BONDS BY THE COLLIER COUNTY
INDUSTRIAL DEVELOPMENT AUTHORITY, AS REQUIRED BY
SECTION 147(1) OF THE INTERNAL REVENUE CODE, AS AMENDED;
PROVIDING FOR OTHER RELATED MATTERS.
Whereas, the Collier County Industrial Development Authority (the "Authority") is a
body corporate and politic of Collier County, Florida ("Collier County") created by Collier
County Resolution No. 79-34 duly adopted by the Board of County Commissioners on February
27, 1979 pursuant to Part III of Chapter 159, Florida Statutes, as amended, with the power to
issue revenue bonds for the purposes of financing a "project" as defined in Part II of Chapter
159, Florida Statutes, as amended; and
Whereas, as set forth in the resolution of the Authority described below, Community
School of Naples, Inc., a Florida not for profit corporation, with certain facilities located witbin
the boundaries of Collier County, Florida, (the "Corporation") has requested the Authority to
approve modifications to its Educational Facilities Revenue Bonds (Community School of
Naples, Inc, Project) Series 2004 and the issuance of a New Bond in a principal amount not to
exceed $3,700,000 (the "New Bond") for the benefit of the Corporation and to loan all or a
portion of the proceeds thereof to the Corporation to finance the costs of the Project; and
Whereas, Section I 47(f) of the Internal Revenue Code of 1986, as amended (the "Code"),
provides that the elected legislative body of the governmental unit which has jurisdiction over the
area in which the facility financed with the proceeds of tax exempt bonds is located is to approve
the issuance of such bonds after a public hearing; and
Whereas, the Board of County Commissioners of Collier County, Florida (the "Board") is
the elected legislative body of the County; and
Whereas, the Authority caused notice of a public hearing to consider approval oftbe
requested modifications and issuance of the New Bond to be published on May 16, 2007 in tbe
Naples Daily News, a newspaper of general circulation in the County, and a copy of said notice
is attached as Exhibit A (the "Notice") to the Authority Resolution described below; and
Whereas, the Authority held a public hearing on May 31,2007, pursuant to the Notice
and adopted a resolution (the "Authority Resolution") authorizing the modifications to the Bonds
and the issuance of a New Bond as defined in the Authority Resolution, a copy of which is
attached as Exhibit A, and has recommended to the Board that it approve the issuance of the New
Bond in accordance with Section 147(f) ofthc Code; and
Whereas, for the reasons set forth above, the Board desires to approve the issuance of
such Bonds for the purposes of Section I 47(f) of the Code.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that
Section I. Approval of Issuance of the Bonds. This Board hereby approves the
issuance of the New Bond as described in the Authority Resolution attached hereto as Exhibit A
by the Authority for the purposes of Section I 47(f) of the Code.
The New Bond shall not constitute a debt, liability or obligation of Collier County, its
Board of County Commissioners, officers, agents or employees, or the State of Florida or any
political subdivision thereof, but shall be payable solely from the revenues provided therefor, and
neither the faith and credit nor any taxing power of Collier County or the State of Florida or any
political subdivision thereof is pledged to the payment of the prineipal of, premium, if any, and
interest on the Bonds. No member of the Board of County Commissioners of Collier County or
any officer or employee thereof shall be liable personally on the Bonds by reason of their
issuance.
This approval shall in no way be deemed to abrogate any regulations of Collier County
applieable to the project and the projeet shall be subject to all such regulations, including, but not
limited to, the Collier County Growth Management Plan, all concurrency requirements contained
therein, and the Collier County Land Development Code.
Section 2. Severability. If any seetion, paragraph, clause or provision of this
Resolution shall be held to be invalid or ineffective for any reason, the remainder of this
Resolution shall continue in full force and effect, it being expressly hereby found and declared
that the remainder of this Resolution would have been adopted despite the invalidity or
ineffecti veness of such section, paragraph, clause or provision.
Section 3. Affective Date. This Resolution shall take effect immediately upon its
adoption, and any provisions of any previous resolutions in conflict with the provisions hereof
are hereby superseded.
PASSED and Adopted this 12th day of June, 2007.
ATTEST:
Dwight E. Brock, Clerk
COLLIER COUNTY, FLORIDA BY
ITS BOARD OF COUNTY
CON~
Jam oletta, Chairman
~~{blo-~~I~L
DeJ'utlt Clerk
AtteSl.t;s to:' Ch4lnJl4n s
[SEA!ynfttur~Olll '
.
2
Approved as to form and legal sufficiency:
3
RESOLUTION NO. 2007-1
A RESOLUTION OF THE COLLIER COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY AUTHORIZING
MODIFICATIONS TO THE AUTHORITY'S EDUCATIONAL
FACILITIES REVENUE BONDS, SERIES 2004A
(COMMUNITY SCHOOL OF NAPLES, INC. PROJECT);
APPROVING THE FORM OF AND AUTHORIZING THE
EXECUTION OF A FIRST AMENDMENT TO BOND
PURCHASE AGREEMENT; AUTHORIZING THE MEMBERS
OF THE AUTHORITY TO TAKE CERTAIN ACTION IN
CONNECTION WITH THE ISSUANCE OF THE BONDS;
MAKING CERTAIN OTHER COVENANTS AND
AGREEMENTS IN CONNECTION WITH THE ISSUANCE
OF THE BONDS; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, in 2004, pursuant to the authority of its Resolution No. 2004-02 (the
"Bond Resolution") the Collier County Industrial Development Authority (the "Issuer") issued
its Educational Facilities Revenue Bonds, Series 2004A (Community School of Naples, Inc.
Project) (the "Original Bonds") and loaned the proceeds of the Bonds to Community School of
Naples, Inc. (the "Borrower"); and
WHEREAS, the Issuer has received a request from the Borrower and Bank of America,
N.A. (the "Bank"), as owner of the Original Bonds, to make certain modifications to the Bonds
and to the Bond Purchase Agreement entered into by the Issuer, the Borrower and the Bank at
the time of issuance of the Original Bonds (the "Bond Purchase Agreement"); and
WHEREAS, it is necessary and desirable to approve the form of and authorize the
execution of a Modified Educational Faeilities Revenue Bonds, Series 2004A (Community
School of Naples, Inc. Project) (the "New Bonds") and a First Amendment to Bond Purchase
Agreement and to conduct a public hearing in connection therewith;
NOW, THEREFORE, BE IT RESOLVED BY THE COLLIER COUNTY
INDUSTRIAL DEVELOPMENT AUTHORITY:
SECTION 1. AUTHORIZATION OF NEW BOND.
The Issuer conducted a public hearing on May 31, 2007 concerning the issuance of the New
Bond. A copy of the affidavit of publication of the notice of the hearing is attached as Exhibit
A.
In replacement of and in exchange for the Original Bond, the Issuer is authorized to and shall
execute and deliver to the Bank the New Bond. The New Bond shall have such terms and
conditions, and shall be in the form of, the New Bond attached hereto as Exhibit B, with such
changes, alterations and corrections as may be approved by the Chairman or Vice-Chairman of
the Issuer (the "Chairman"), such approval to be conclusively presumed by the execution
thereof by the ChairmAn Thp New Rond shall be executed bv the Chairman who shall deliver
EXHIBIT A TO COUNTY RESOLUTION
the same to the Bank in exchange for the Old Bond. The New Bond shall be issued on such
date as shall be mutually agreed upon by the Bank, the Borrower and the Chairman, Upon such
exchange, the New Bond shall be deemed to be one of the Bonds under the Bond Resolution
and the Bond Documents referenced therein, and shall be subject to all terms and conditions
thereof the same as the Original Bond.
SECTION 2. AUTHORIZATION OF FIRST AMENDMENT TO BOND PURCHASE
AGREEMENT. The First Amendment to Bond Purchase Agreement in the form thereof
attached hereto as Exhibit C, with such changes, alterations and corrections as may be
approved by the Chairman, such approval to be conclusively presumed by the execution
thereof by the Chairman, is hereby approved by the Issuer, and the Issuer hereby authorizes
and directs the Chairman to execute such documents, simultaneous with the issuance of the
New Bond, and to deliver the First Amendment to Bond Purchase Agreement to the Borrower.
SECTION 3. NO THIRD PARTY BENEFICIARIES. Except as herein or in the
documents herein mentioned otherwise expressly provided, nothing in this Resolution or in
such documents, express or implied, is intended or shall be construed to confer upon any
Person other than the Issuer, the Bank and the Borrower any right, remedy or claim, legal or
equitable, under and by reason of this Resolution or any provision hereof or of such
documents; this Resolution and such documents being intended to be and being for the sole and
exclusive benefit of such parties.
SECTION 4. GENERAL AUTHORITY. The Chairman and the other members of the
Issuer are hereby authorized to do all acts and things required of them by this Resolution and
the other Bonds Documents or desirable or consistent with the requirements hereof or thereof,
for the full punctual and eomplete performance of all terms, covenants and agreements
contained in the Bonds, this Resolution and the other Bond Documents.
SECTION 5. REPEALER. All resolutions or ordinances or parts thereof of the Issuer
in conflict with the provisions herein contained are, to the extent of any such conflict, hereby
superseded and repealed.
SECTION 6. EFFECTIVE DATE. This Resolution shall take effect immediately upon
its passage and adoption.
SECTION 7. LIMITED APPROVAL. The approval given herein shall not be construed
as (i) an endorsement of the creditworthiness of the Borrower or the financial viability of the
Project, (il) a recommendation to any prospective purchaser of the Bonds, (iii) an evaluation of
the likelihood of the repayment of the debt service on the Bonds, or (iv) any necessary
governmental approval relating to the Project, and the Issuer shall not be construed by reason
of its adoption of this resolution to have made any such endorsement, finding or
recommendation or to have waived any of the Issuer's rights or estopping the Issuer from
asserting any rights or responsibilities it may have in that regard.
2
Passed and adopted this 31 st day of May, 2007.
COLLIER COUNTY INDUSTRIAL
DEVELOPMENT AUTHORIT
f
AiZ~'
Donald A. Pickworth, Esq.
N;:\ples Dai 1 y Newf;
r-l.lple~, FL 3410~
Affidavit uf Publication
N~ples Dully News
r!.(_'\{i'10RTH, DCUALD P.A.
5150 T~MTAMI TRL N #502
Hr'?'JES FL 3.n03
r\8FERt:~.rCE; 010'784
593955615
NOTICE OF MEETHJG AN
S~ate of Florida
County of Collier
Before the undersigned authority, personally
appeared B. Lamb, who on oath says that she serves
as Assistant Cor~orate Secretary of the Naples
Daily News, a da~ly newspaper published at Naples,
in Collier Count{, Florida: that the attached
copy of advertis~ng was published in said
newspaper on dates listed.
Affiant further says th~t the said NAples Daily
Nc'....s is a newspaper -,?ublished at Naples, in said
('oIlier Cotlnty, Flor1da. and th3.t the said
news~aper has heretofore been continuously
publ~shed in said Collier County, Florida, each
day and has been entered as second class mail
matter at the post office in Naples, in said
Collier County, Florida, for a period of 1 year
next preceding the first publication of the
attached copy of advertisement; and affiant
further says that she has neither paid nor
promised any person, firm or corporation any
discount, rebate, commission or refund inr the
pur\,ose of securing this advertisement for
pub ication in the said newspaper.
PUBLISHED ON, OS!lG OS/lG
AD SPACE,
FILED ON,
.+.. -. - - - - - - - - - --
184.000 INCH
05/16/07
- - - - - - ---- - --- - -- - --- - - - - - -"- - -----~ - - - ----- - - -- - -+-----
Signature of Affiant I. - c.
Sworn to and Subscribed before me this 2l day of ,'\ \-, 20~
if. \~
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EXHIBIT A TO AUTHORITY
RESOLUTION
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COLLIER COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
MODIFIED EDUCATIONAL FACILITIES REVENUE BOND, SERIES 2004A
(COMMUNITY SCHOOL OF NAPLES, INC. PROJECT)
June _, 2007
$3,684,958.56
Collier County Industrial Development Authority, a publie body corporate and politic and
an industrial development authority of the State of Florida (the "Issuer"), for value reeeived,
hereby promises to pay to Bank of America, N.A. (together with its suceessors and assigns as
registered owner hereof, the "Bank"), but solely from the sources as hereafter provided and not
otherwise, the principal sum of $5,900,000.00 or such lesser amount as shall be outstanding
hereunder, and to pay interest on the principal sum outstanding hereunder from the date hereof,
but solely from the sourees as hereafter provided and not otherwise, at the rate per annum set
forth below (as the same may be adjusted, the "Interest Rate on the Bond") payable monthly in
arrears on the 12th day of eaeh month, beginning July 12, 2007, until payment of such principal
sum in full.
Subject to adjustment as herein provided, the Interest Rate on the Bond will be for each
Interest Period, the sum of (i) 63.702% of the LIBOR Rate plus (ii) 1.82% percent per annum (as
such terms are hereinafter defined). "Interest Period" means each period commencing on the
12th day (or if not a Business Day, the next day whieh is a Business Day) of eaeh month and
ending on, but not including, the 12th day (or if not a Business Day, the next day which is a
Business Day) of the next month, provided that the first Interest Period shall commence on and
include the date of this Bond and end on but not include July 12, 2007. "LIBOR Rate" means,
for each Interest Period, the offered rate for deposits in United States Dollars in the London
Interbank Market for a thirty day period which appears on the Telerate sereen, page 3750 (as of
I I :00 a.m. London time) on the day that is two London banking days preceding the first day of
the Interest Period. Ifat least two such offered rates appear on the Telerate screen page 3750, the
rate will be the arithmetic mean of such offered rates. The Bank may, in its discretion, use any
other comparable publicly available index or reference rates showing rates for United States
dollar deposits in the London Interbank Market as of the applicable date. The Interest Rate on
the Bond will be calculated on the basis of a 360-day year for the actual number of days elapsed.
The Issuer shall pay the Bank payments of principal in such amounts, if any, as shall
reduce the outstanding principal balance hereof on the dates set forth below to not more than the
amounts set forth below. All outstanding principal, together with accrued and unpaid interest
thereon, shall be uneonditionally due and payable by the Issuer on January 12, 2017 (the
"Maturity Date").
EXHIBIT B TO AUTHORITY
RESOLUTION
Maximum Principal
Date Outstanding
01112/2008 $3,200,00
0]/]2/2009 0.00
01112/2010 2,700,000.
01112/201 ] 00
01112/2012 2,4]2,000.
01112/2013 00
01112/2014 2,1 ]2,000.
011]2/20]5 00
01/12/2016 ],798,000.
00
1,470,000.
00
],]27,000.
00
768,000.0
0
392,000.0
0
The principal of and interest on this Bond is payable in any coin or eurrency of the
United States of America whieh at the time of such payment is legal tender for public and private
debts, at sueh place as the registered owner hereof may designate to the Issuer and the Borrower
(hereinafter defined) in writing. All payments by the Issuer on this Bond shall apply first to
accrued interest, then to other charges due the Bank, and the balanee thereof shall apply to the
principal sum due.
Upon the occurrence of a Determination of Taxability (hereinafter defined), the Interest
Rate on the Bond shall be adjusted to a rate per annum equal to 154% of the rate otherwise borne
hereby (the "Adjusted Interest Rate"), as of and from the date such determination would be
applieable with respect to this Bond (the "Accrual Date") and (i) the Issuer shall, from the
sources hereinafter provided and not otherwise, immediately pay on demand to the registered
owner hereof, or any former registered owner hereof, as may be appropriately allocated, an
amount equal to the sum of (1) the difference between (A) the total interest that would have
accrued on this Bond at the Adjusted Interest Rate from the Accrual Date to the date of the
Determination of Taxability, and (B) the actual interest paid by the Issuer on this Bond from the
Accrua] Date to the date of Determination of Taxability, but then only to the extent such owner
or owners include (through amended tax return, agreement with the Internal Revenue Service or
otherwise) such actual interest in such owner's or owners' gross income for federal income tax
purposes, and (2) any loss, cost, charge or expense suffered by such owner and/or former owner
arising out of the Determination of Taxability, including without limitation amounts of interest
and penalties required to be paid as a result of any additional state and federal income taxes by
such owner and former owner arising as a result of such Determination of Taxability; and (ii)
from and after the date of the Determination of Taxability, this Bond shall continue to bear
interest at the Adjusted Interest Rate for the period such determination continues to be applicable
with respect to this Bond. The adjustment provided for in this paragraph shall survive the
2
payment of this Bond until the expiration of the statute of limitations under which the interest on
this Bond could be required to be included in the gross income of the registered owner thereof
for federal ineome taxes purposes.
If the Maximum Corporate Tax Rate (hereinafter defined) decreases from thirty-five
percent (35%), the interest rate otherwise borne by this Bond shall be increased to the product
obtained by multiplying the interest rate otherwise borne by this Bond by a fraction, (i) the
numerator of which is equal to one (1) minus the Maximum Corporate Tax Rate in effect as of
the date of adjustment, and the denominator of which is .65. The interest rate otherwise borne by
this Bond shall be adjusted automatically as of the effeetive date of each change in the Maximum
Corporate Tax Rate based upon the foregoing calculations.
As used in this Bond,
(I) "Code" means the Internal Revenue Code of 1986, as amended; and
(2) "Determination of Taxability" shall mean interest on this Bond is required to
be included in the gross income of the Bank for federal income tax purposes.
(3) "Maximum Corporate Tax Rate" shall mean the highest marginal rate of
United States federal income tax applicable to the taxable income of corporations, without regard
to any increase in tax designed to normalize the rate for all income at the highest marginal tax
rate, which rate on the date hereof is 35%.
The principal of this Bond may be prepaid at the option of the Borrower exereised on
behalf of the Issuer at any time and in whole or in part. The principal of this Bond shall be
prepaid by the Issuer, from amounts prepaid by the Borrower pursuant to the Note and Loan
Agreement hereinafter deseribed, at the times and in the amounts provided for in the hereinafter
deseribed Loan Agreement.
This Bond is issued pursuant to and in full eompliance with Part II of Chapter 159,
Florida Statutes, and other applicable provisions of law (the "Aet") and Resolutions (jointly, the
"Resolution") adopted by the Issuer on April 26, 2004 and May 31, 2007. Pursuant to law and
the proceedings under which this Bond is issued, this Bond is payable solely out of revenues and
receipts derived from the Note (hereinafter defined) and a Loan Agreement, dated May 12,2004
(the "Loan Agreement"), between the Issuer and Community School of Naples, Inc., a Florida
not-for-profit corporation (the "Borrower"), pursuant to which the Issuer has loaned money to the
Borrower to finance capital expenditures with respect to the existing private school facility
owned and operated by the Borrower and to pay a portion of the expenses incurred in connection
with the issuance of the Bond. Pursuant to the Loan Agreement, the Borrower has agreed to
make payments directly to the Bank in such amounts and at such times as are required to provide
for timely payment of the principal of and interest on this Bond. As evidence of its indebtedness
under the Loan Agreement, the Borrower has executed and delivered to the Issuer its Promissory
Note ("Note"), dated May 12, 2004 and its Mortgage, Assignment of Rents and Security
Agreement dated May 12,2004 (the "Mortgage and Security Agreement," and together with the
Loan Agreement and the Note, the "Assigned Doeuments").
3
Pursuant to an Assignment of Loan Agreement, Mortgage, Promissory Note and Other
Collateral, the Issuer has assigned the Issuer's rights under the Assigned Doeuments, including
all its rights, title and interest to receive the Note and the repayments on the Loan (subject to the
reservation of certain rights of the Issuer, including all its rights to notices, payment of certain
expenses and indemnity), to the Bank.
Reference is made to the Loan Agreement, the Bond Purehase Agreement and the
Resolution for a more complete statement of the provisions thereof and of the rights of the Issuer
and the Bank. Terms used herein in eapitalized form and not otherwise defined herein have the
meanings ascribed thereto in the aforementioned documents. This Bond is subject to all terms
and eonditions ofthe Loan Agreement, the Bond Purchase Agreement and the Resolution, and by
the purchase and acceptanee of this Bond, the registered owner hereof signifies assent to all of
the provisions of the aforementioned documents.
This Bond shall bear interest on any overdue installment of principal and (to the extent
permitted by law) interest at the Default Rate (as defined in the Loan Agreement). As further
described in the Resolution and the Loan Agreement, upon the occurrence of an Event of
Default, the Bank may declare all unpaid prineipal hereof immediately due and payable, and
upon such declaration of acceleration, the principal amount hereof, together with interest to the
date of payment, shall be and become immediately due and payable.
Should the Issuer fail to pay from the sources provided herein the installments of interest
or prineipal (if applicable) within seven (7) days after the due date provided herein (after the
expiration of any applicable grace period), the Issuer further promises to pay, solely from the
sources provided herein, a late payment charge equal to four percent (4%) of the amount of the
unpaid installment as liquidated compensation to the Bank for the extra expense to the Bank to
proeess and administer the late payment, the Issuer agreeing, by execution hereof, that any other
measure of compensation for a late payment is speculative and impossible to compute. This
provision for late charges shall not be deemed to extend the time for payment or be a "graee
period" or "cure period" that gives the Issuer a right to cure a Default. Imposition of late charges
is not contingent upon the giving of any notice or lapse of any eure period provided for in the
Bond Documents and shall not be deemed a waiver of any right or remedy of the Bank including
without limitation, acceleration of this Bond.
This Bond is transferable by the registered owner, but only in the manner, subject to the
limitations and upon payment of the charges provided in the Resolution, and upon surrender and
cancellation of this Bond. Upon such transfer a new fully registered Bond will be issued to the
transferee in exchange therefor. The Issuer may deem and treat the registered owner hereof as
the absolute owner hereof for the purpose of receiving payment of or on account ofprineipal and
interest due hereon and for all other purposes, and the Issuer shall not be affected by any notice
to the contrary.
No recourse under or upon any obligation, eovenant or agreement contained in the
Resolution or in this Bond, or under any judgment obtained against the Issuer or by the
enforcement of any assessment or by any legal or equitable proeeeding by virtue of any
eonstitution or statute or otherwise or under any circumstances, under or independent of
the Resolution, shall be had against any officer or member, as sueh, past, present or future,
4
of the Issuer, either direetly or through the Issuer or otherwise, for the payment for or to
the Issuer or any receiver thereof or for or to the owner of this Bond or otherwise, of any
sum that may be due and unpaid by the Issuer upon this Bond. Any and all personal
liability of every nature, whether at common law or in equity, or by statute or by
eonstitution or otherwise, of any such officer or member, as such, to respond by reason of
any act or omission on his part or otherwise for the payment for or to the Issuer or for or to
the owner of this Bond or otherwise, of any sum that may remain due and unpaid upon this
Bond, is hereby expressly waived and released as a condition of and consideration for the
execution and the issuance of this Bond.
All of the rights, remedies, powers and privileges (together, "Rights") of the Bank
provided for in this Bond and in any other Bond Document are eumulative of each other and of
any and all other Rights at law or in equity. The resort to any Right shall not prevent the
concurrent or subsequent employment of any other appropriate Right. No single or partial
exercise of any Right shall exhaust it, or preclude any other or further exercise thereof, and every
Right may be exercised at any time and from time to time. No failure by the Bank to exercise,
nor delay in exercising any Right, including but not limited to the right to accelerate the maturity
of this Note, shall be construed as a waiver of any Default or as a waiver of the Right. Without
limiting the generality of the foregoing provisions, the acceptance by the Bank from time to time
of any payment under this Bond which is past due or which is less than the payment in full of all
amounts due and payable at the time of such payment shall not (i) constitute a waiver of or
impair or extinguish the right of the holder hereof to accelerate the maturity of this Bond or to
exercise any other Right at the time or at any subsequent time, or nullifY any prior exercise of
any such Right, or (ii) constitute a waiver of the requirement of punctual payment and
performanee or a novation in any respect.
If the Bank retains an attorney in connection with any Default to collect, enforce or
defend this Bond or any other Bond Document in any lawsuit, at trial, or in any appellate,
probate, reorganization, bankruptcy or other proceeding, or if the Issuer sues the Bank in
connection with this Bond or any other Bond Document and does not prevail, then the Issuer
agrees to pay to the Bank, solely from the sources provided herein, in addition to principal,
interest and any other sums owing to the Bank under the Bond Documents, all reasonable costs
and expenses incurred by the Bank in trying to collect this Bond or in any such suit or
proceeding, including without limitation reasonable attorneys' fees, paralegals' fees and costs.
In no event (including but not limited to prepayment, default, demand for payment, or
acceleration of maturity) shall the interest taken, reserved, contracted for, charged or received
under this Bond or under any of the other Bond Documents or otherwise, exceed the maximum
nonusurious amount permitted by applicable law (the "Maximum Amount"). If, from any
possible construction of any document, interest would otherwise be payable in excess of the
Maximum Amount, then ipso facto, such document shall be reformed and the interest payable
reduced to the Maximum Amount, without necessity of execution of any amendment or new
document. If the holder hereof ever receives interest in an amount which apart from this
provision would exceed the Maximum Amount, the excess shall, without penalty, be refunded to
the Issuer, or at the option of the Issuer, be applied to the unpaid principal of this Bond in order
of maturity of installments and not to the payment of interest. The Bank does not intend to
charge or receive unearned interest on acceleration. All interest paid or agreed to be paid to the
5
holder hereof shall be spread throughout the full term (including any renewal or extension) of the
debt so that the amount of interest does not exceed the Maximum Amount.
At the request of the Issuer or the Bank, any controversy or claim between the Issuer and
the Bank, whether arising in contract, tort or by statute, and arising out of or relating to this Bond
or any of the Bond Documents (a "Claim") shall be resolved by binding arbitration in accordance
with the Federal Arbitration Act (Title 9, U. S. Code) (the "Arbitration Act").
Arbitration proceedings will be determined in accordance with the Arbitration Act, the
rules and procedures for the arbitration of financial services disputes of J.A.M.S./Endispute or
any successor thereof ("J.A.M.S."), and the terms of this Bond. In the event of any
inconsistency, the terms of this Bond shall control.
The arbitration shall be administered by J.A.M.S. and conducted in the City of Naples,
Florida. All Claims shall be determined by one arbitrator; however, if Claims exceed
$5,000,000, upon the request of any party, the Claims shall be decided by three arbitrators. All
arbitration hearings shall commence within 90 days of the demand for arbitration and close
within 90 days of commencement and the award of the arbitrator(s) shall be issued within 30
days of the close of the hearing. However, the arbitrator(s), upon a showing of good eause, may
extend the eommencement of the hearing for up to an additional 60 days. The arbitrator(s) shall
provide a concise written statement of reasons for the award. The arbitration award may be
submitted to any court having jurisdiction to be confirmed and enforced.
The arbitrator(s) will have the authority to decide whether any Claim is barred by the
statute of limitations and, if so, to dismiss the arbitration on that basis. For purposes of the
application of the statute of limitations, the service on J.A.M.S. under applicable J.A.M.S. rules
of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute coneerning this
arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrator(s).
The arbitrator( s) shall have the power to award legal fees pursuant to the terms of this Bond.
This paragraph does not limit the right of the Issuer or the Bank to: (i) exercise self-help
remedies, such as but not limited to, setoff; (ii) initiate judicial or nonjudicial foreclosure against
any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv)
act in a court oflaw to obtain an interim remedy, such as but not limited to, injunctive relief, writ
of possession or appointment of a receiver, or additional or supplementary remedies.
By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right
they may have to a trial by jury in respect of any Claim. Furthermore, without intending in any
way to limit the agreement herein to arbitrate, to the extent any Claim is not arbitrated, the
parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of
such Claim.
THIS BOND SHALL NEVER CONSTITUTE AN INDEBTEDNESS OF THE ISSUER
WITHIN THE MEANING OF ANY STATE CONSTITUTIONAL PROVISION OR
STATUTORY LIMITATION AND SHALL NEVER CONSTITUTE NOR GIVE RISE TO A
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PECUNIARY LIABILITY OF THE ISSUER OR A CHARGE AGAINST ITS GENERAL
CREDIT. THE FULL FAITH AND CREDIT OF THE ISSUER ARE NOT PLEDGED TO THE
PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THIS BOND. THE OWNER OF
THIS BOND SHALL NOT HAVE THE RIGHT TO COMPEL ANY EXERCISE OF THE AD
VALOREM TAXING POWER OF THE STATE OF FLORIDA OR OF ANY POLITICAL
SUBDIVISION OF SAID STATE TO PAY THIS BOND OR THE INTEREST THEREON.
THIS BOND IS NOT A DEBT OF THE STATE OF FLORIDA OR OF ANY POLITICAL
SUBDIVISION OF SUCH STATE OTHER THAN THE ISSUER, LIMITED AS AFORESAID,
AND NEITHER SAID STATE NOR ANY SUCH POLITICAL SUBDIVISION THEREOF
OTHER THAN THE ISSUER, LIMITED AS AFORESAID, SHALL BE LIABLE HEREON.
THIS BOND AND ALL PAYMENTS TO BE MADE BY THE ISSUER HEREUNDER OF
ANY NATURE WHATSOEVER ARE PAYABLE SOLELY FROM THE SOURCES
PROVIDED THEREFOR IN THE HEREINAFTER DESCRIBED RESOLUTION (I.E.,
PAYMENTS MADE BY THE BORROWER OR DERIVED FROM THE EXERCISE OF
REMEDIAL RIGHTS AGAINST THE BORROWER AND THE SECURITY PROVIDED
FOR THIS BOND AND NOT ANY OTHER FUNDS OF THE ISSUER).
IT IS HEREBY CERTIFIED, RECITED AND DECLARED by the Issuer that all acts,
conditions and things required to exist, to happen and to be performed precedent to and in the
issuance of this Bond do exist, have happened and have been performed in due time, form and
manner and by the appropriate parties as required by law.
IN WITNESS WHEREOF, the Issuer has caused this Bond to be signed in its name and
on its behalfby its Chairman as of June _,2007.
COLLIER COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
By:
Chairman
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EXHIBIT B
FORM OF FIRST AMENDMENT TO BOND PURCHASE AGREEMENT
FffiST AMENDMENT TO BOND PURCHASE AGREEMENT
The undersigned, Bank of America, N.A. (the "Bank"), Collier County Industrial Development
Authority (the "Issuer") and Community School of Naples, Inc. (the "Borrower") hereby enter into this
First Amendment to Bond Purchase Agreement (theis "Amendment"), dated June _' 2007, relating to the
Bond Purchase Agreement (the "Original Agreement"), dated May 12, 2004, between the parties.
Section I. Section 7.4 of the Original Agreement is amended to provide:
Section 7.4 CamoaillIl Account. The Borrower agrees to establish and maintain an account (the
"Campaign Account") at the Bank for the sole pUIpose of this section. The Campaign Account shall be
subject to the Bank Pledge Agreement. The Borrower shall deposit all proceeds of Campaign Pledges into
the Campaign Account promptly upon receipt. The Borrower may not withdraw funds from the Campaign
Account. Amounts in the Campaign Account shall be applied monthly, on the 12th day of each month, to
(i) pay the accrued interest on the Note, and thus on the Bonds, and then to (ii) prepay the principal of the
Note and thus of the Bonds, and then to (iii) any of the other obligations of the Borrower under this Bond
Purchase Agreement. Amounts in the Campaign Account shall be invested at the direction of the
Borrower in investments permitted pursuant to Section 7.1 (d) hereof and investment earnings and losses
shaH be credited or debited to the Borrower. The Borrower hereby assigns to and grants the Bank a
security interest in the Campaign Account to secure the Borrower's obligations hereunder. The Bank may,
and the Borrower hereby authorizes the Bank to, withdraw from the Campaign Account to pay itself such
amounts as are needed to satisfy the Borrower's obligations on the Bonds, the Note or to the Bank
hereunder or under the Related Documents.
Section 2. The Borrower agrees to pay the fee of counsel to the Issuer in the amount of
$ , the fee of the Issuer in the amount of $ , the ree of the Bank in the
amount of $5,527.44 and the fee of counsel to the Bank in the amount of $ upon the
execution hereof.
Section 3. lbis Amendment may be executed in several counterparts, each of which shall be an
original and all of which shaH constitute but one and the same instrument. lbis Amendment shaH be
governed by and construed in accordance with the laws of the State of Florida.
BANK OF AMERICA, N.A.
By:
Its Senior Vice-President
COMMUNITY SCHOOL OF NAPLES, INe.
By:
Its President
COLLIER COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
By:
Its Chairman
EXHIBIT C TO AUTHORITY
RESOLUTION