Resolution 2009-195
CRA RESOLUTION NO.1 95
A RESOLUTION OF THE COLLIER COUNTY
COMMUNITY REDEVELOPMENT AGENCY
ACCEPTING THE PROPOSAL OF FIFTH THIRD BANK
TO PROVIDE THE AGENCY WITH A $13,500,000 TERM
LOAN TO REFINANCE ALL AMOUNTS
OUTSTANDING UNDER AN EXISTING REVOLVING
LINE OF CREDIT WITH W ACHOVIA BANK,
NA TIONAL ASSOCIATION AND FINANCE VARIOUS
CAP IT AL IMPROVEMENT PROJECTS WITHIN THE
BA YSHORE/GA TEW A Y TRIANGLE COMMUNITY
REDEVELOPMENT AREA; APPROVING THE FORM OF
A LOAN AGREEMENT WITH FIFTH THIRD BANK;
APPROVING THE FORM OF A NOTE EVIDENCING
SUCH TERM LOAN; AUTHORIZING THE REPAYMENT
OF SUCH TERM LOAN FROM INCREMENT TAX
REVENUES DERIVED WITHIN THE
BA YSHORE/GATEW A Y TRIANGLE COMMUNITY
REDEVELOPMENT AREA AND OTHER LEGALLY
AVAILABLE MONEYS OF THE AGENCY;
DELEGATING CERT AIN AUTHORITY TO THE
CHAIRMAN; AUTHORIZING THE EXECUTION AND
DELIVERY OF OTHER DOCUMENTS IN CONNECTION
THEREWITH; AND PROVIDING FOR AN EFFECTIVE
DATE FOR THIS RESOLUTION.
BE IT RESOL VED BY THE COLLIER COUNTY COMMUNITY
REDEVELOPMENT AGENCY:
SECTION 1. AUTHORITY FOR THIS RESOLUTION. This Resolution is
adopted pursuant to the provisions of the Florida Constitution, Chapter 163, Part III, Florida
Statutes, and other applicable provisions oflaw.
SECTION 2. DEFINITIONS. When used in this resolution, terms not otherwise
defined herein shall have the meanings set forth in the hereinafter defined Loan Agreement,
unless the context clearly indicates a different meaning.
"Agency" shall mean the Collier County Community Redevelopment Agency, a
community redevelopment agency duly created and validly existing under the laws of the State
of Florida.
"Bank" shall mean Fifth Third Bank, and its successors and assigns.
"Chairman" shall mean the Chairman of the Governing Body, or in his absence or
unavailability, the Vice-Chairman of the Governing Body.
"Community Redevelopment Area" shall mean the Bayshore/Gateway Triangle
Redevelopment Area identified by the County pursuant to Resolution No. 2000-82, adopted on
March 14,2000.
"Community Redevelopment Trust Fund" shall mean the Community Redevelopment
Trust Fund established by the County pursuant to Ordinance 2000-42, adopted on June 13, 2000.
"County" shall mean Collier County, Florida, a political subdivision of the State of
Florida.
"Governing Body" shall mean the Board of County Commissioners of Collier County,
Florida, acting in its capacity as the Governing Body ofthe Agency.
"Increment Tax Revenues" shall mean all of the increment tax revenues that are
derived within the Community Redevelopment Area and received by the Agency, all in
accordance with Chapter 163, Part III, Florida Statutes, and Ordinance No. 2000-42 of the
County, as it may be amended and supplemented from time to time.
"Loan Agreement" shall mean the Loan Agreement to be executed between the Bank
and the Agency, which shall be substantially in the form attached hereto as Exhibit B.
"Secretary" shall mean Clerk of the Circuit Court of Collier County, Florida and Ex-
Officio Clerk to the Board of Commissioners of Collier County, Florida, acting in his capacity as
Secretary to the Agency, or his duly authorized designee.
"Series 2009 Note" shall mean the Collier County Community Redevelopment Agency
Taxable Note (Fifth Third Bank), Series 2009, as more particularly described in the Loan
Agreement.
The words "herein," "hereunder," "hereby," "hereto," "hereof," and any similar terms
shall refer to this Resolution.
Words importing the singular number include the plural number, and vice versa.
SECTION 3. RESOLUTION TO CONSTITUTE CONTRACT. In
consideration of the purchase and acceptance of the Series 2009 Note by the Bank, the provisions
of this Resolution shall be a part of the contract of the Agency with the Bank, and shall be
deemed to be and shall constitute a contract between the Agency and the Bank. The pledge made
in this Resolution and the provisions, covenants and agreements herein set forth to be performed
by or on behalf of the Agency shall be for the benefit, protection and security of the Bank.
SECTION 4.
FINDINGS. It is hereby ascertained, determined and declared:
(A) That the Agency has and shall have from time to time certain community
redevelopment capital improvement needs and requirements within the Community
Redevelopment Area which must be acquired and constructed.
(B) That on July 26,2006, the Agency entered into a $7,000,000 revolving line of credit
arrangement with Wachovia Bank, National Association (the "Line of Credit" pursuant to which
$5,901,000 principal amount is currently outstanding.
(C) That the Bank has submitted its proposal to provide the Agency with a $13,500,000
term loan (the "Loan") to (i) refinance the amounts outstanding under the Line of Credit, and (ii)
finance the acquisition of certain land within the Community Redevelopment Area, all as more
particularly described in the Loan Agreement.
(D) That the Loan shall be repaid solely from the Increment Tax Revenues and certain
other legally available moneys of the Agency in the manner and to the extent set forth in the
Loan Agreement and the ad valorem taxing power of neither the Agency nor the County will
ever be necessary or authorized to pay said amounts.
SECTION 5. ACCEPTANCE OF PROPOSAL. The Agency hereby accepts
the proposal of the Bank to provide the Agency with the Loan in the form attached hereto as
Exhibit A (the "Proposal"). The execution and delivery of the Proposal to the Bank is hereby
approved and ratified and all of the terms and provisions of the Proposal are hereby approved.
SECTION 6. APPROVAL OF FORM OF LOAN AGREEMENT. The
repayment of the Loan by the Agency shall be pursuant to the terms and provisions of the Loan
Agreement. The terms and provisions of the Loan Agreement in substantially the form attached
hereto as Exhibit B are hereby approved, with such changes, insertions and additions as the
Chairman may approve. The Agency hereby authorizes and directs the Chairman to execute and
deliver, and the Secretary to attest, on behalf of the Agency the Loan Agreement substantially in
the form attached hereto as Exhibit B, with such changes, insertions and additions as the
Chairman may approve, his execution thereof being evidence of such approval.
SECTION 7. LIMITED OBLIGATION. The obligation of the Agency to
repay amounts on the Loan is a limited and special obligation payable from Increment Tax
Revenues and other legally available moneys of the Agency described in the Loan Agreement
solely in the manner and to the extent set forth in the Loan Agreement and shall not be deemed a
pledge of the faith and credit or taxing power of either the Agency or the County and such
obligation shall not create a lien on any property whatsoever of or moneys.
SECTION 8. APPROVAL OF SERIES 2009 NOTE. The Chairman is
authorized and directed to execute and deliver, and the Secretary is authorized and directed to
attest, the Series 2009 Note substantially in the form attached to the Loan Agreement as Exhibit
A, with such changes, insertions and additions as the Chairman may approve, his execution
thereof being evidence of such approval.
SECTION 9. GENERAL AUTHORIZATION. The Chairman, the Secretary
and the Executive Director for the Agency are authorized to execute and deliver such documents,
instruments and contracts, whether or not expressly contemplated hereby, and the County
Attorney, Bond Counsel to the County and the Agency and other employees or agents of the
Agency and the County are hereby authorized and directed to do all acts and things required
hereby or thereby as may be necessary for the full, punctual and complete performance of all the
tenus, covenants, provisions and agreements herein and therein contained, or as otherwise may
be necessary or desirable to effectuate the purpose and intent of this Resolution.
SECTION 10. REPEAL OF INCONSISTENT DOCUMENTS. All ordinances,
resolutions or parts thereof in conflict herewith are hereby superseded and repealed to the extent
of such conflict.
SECTION 11. EFFECTIVE DATE. This Resolution shall become effective
immediately upon its adoption.
DULY ADOPTED this 28th day of July, 2009.
COLLIER COUN
REDEVELOP
(SEAL)
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oVVlGkr E. BROCK, Cl~K
By:
Jim Coletta, Chairman
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APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
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~hton-CiCkO
Assistant County Attorney
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EXHIBIT A
Proposal of Fifth Third Bank
EXHIBIT B
Form of Loan Agreement
TO BE PROVIDED BY NABORS GIBLIN AT A LATER DATE
EXHIBIT A
Proposal of Fifth Third Bank
FlFI'H THIRD BANK'
June 15, 2009
Mr. David Jackson
Executive Director
Bayshore Gateway Triangle
Community Redevelopment Agency
4069 Bayshore Drive
Naples, Florida 34112
Mr. Jackson:
Please find below an updated Term Sheet for Fifth Third Bank's proposal to provide a
$13,500,000 Term Loan to the Bayshore Gateway Triangle Community Redevelopment
Agency to refinance the existing Line of Credit with Wachovia Bank and finance the
acquisition of land associated with the Gateway triangle Project.
Updated Term Sheet
Borrower:
Bayshore Gateway Triangle Community Redevelopment Agency ("CRAU)
Guarantor:
N/A
Request:
$13,500,000 Term Loan
Purpose:
(1)
(2)
Refinance existing revolving Line of Credit debt with Wachovia
Bank; and
Acquisition of land associated with the Gateway Triangle Project
Term: Five (5) Year Term
Amortization: Fifteen (15) Years
Rate:
(1)
Taxable Variable Rate Option
Taxable rate of 30-Day LIBOR plus 3.75%; for illustrative purposes,
the rate as of June 15,2009, is 4.07%.
(2) Taxable Fixed Rate Alternative
Fifth Third Bank would be pleased to offer an interest rate hedged in
the form of an interest rate swap. As of June 15, 2009, the indicative
market rate of interest for a 5-year swap (including the Borrower's
option to cancel the swap at any month after the second year) would
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FlFI'H THIRD BANK"
be an indicative all-in fixed rate of interest of 6.80%. This rate is
subject to changing market conditions until execution of a swap
agreement via a recorded phone line.
The CRA may hedge the rate of interest of the proposed credit facility
via the execution of an interest rate swap with a counterparty deemed
acceptable by Fifth Third Bank. Under the interest rate swap
agreement, the CRA would receive the proposed variable rate index
and pay a fixed rate to the swap provider. The variable rate received
by the eRA would oftset the proposed credit facility's variable rate
index. The proposed effective all-in fixed rate of interest to be paid by
the Borrower would be the fixed rate paid under the swap agreement
plus the proposed credit spread over the variable rate index.
Repayment:
(1)
(2)
Monthly principal plus interest;
Monthly principal plus interest (similar to a IS-year mortgage
style amortization)
Fees:
$800 Loan Documentation Fee plus Borrower is responsible for all legal and
out of pocket expenses associated with the proposed financing. If the
Borrower elects to execute a swap agreement, there will be a $750 Swap
Documentation fee. All documents shall be prepared by CRA bond counsel
and documents and opinions shall be acceptable to the Bank and it's cOWlsel.
Collateral:
The loans will be secured by tax increment revenues and a covenant to budget
and appropriate from all legally available CRA non-ad valorem revenues.
Prepayment: There are no prepayment penalties. However, if the Borrower fixes the
interest fate via the execution of a swap agreement, the Borrower is subject to
a mark to market adjustment at the time the swap is terminated.
Contingencies
and
Covenants:
1) During the term of the facility, the CRA agrees to budget and appropriate
from tax incremental revenues an amount equal to or greater than the
projected Annual Debt Service on the respective credit facilities.
2) The CRA will maintain Debt Service Coverage equal to or greater than
1.25:1.0. The calculation shall be determined by using the average of
actual receipts and cash carried forward (reserves) for the prior fiscal year
based on the CRA's annual audit.
3) The CRA agrees to maintain a Debt Reserve Fund equal to or great than:
o Annual principal and interest debt service for the Term Loan
FIFTH THIRD SANte
4) If any land is purchased by the CRA with Fifth Third Bank loan proceeds
and subsequently sold, the sale proceeds will be required to be applied
against the principal amount outstanding.
5) If any land already purchased by the CRA under the Wachovia Line of
Credit is sold, the sale proceeds will be required to be applied against the
principal amount outstanding.
6) Quarterly financial statements shall be submitted within 45-days of
quarter end.
7) Audited annual financial statements shall be submitted within 120-days of
year-end.
8) The operating Budget for the eRA shall be submitted within 45 days of
adoption.
9) The CRA is prohibited from incurring any additional debt without the
written consent of Fifth Third Bank.
10) Final credit approval required by Fifth Third Bank.
Representations and
Warranties:
Usual and customary for transactions of this type.
Events of Default:
Usual and customary for transactions of this type.
Indemnification:
Usual and customary for transactions of this type.
Governing Laws:
State of Florida
Documents:
Any potential transaction is subject to the CRA agreeing to execute
documents and provide any other documentation that the Bank deems
necessary to close the Loan facility and maintain its security interests
in the future.
Mr. Jackson, our entire Fifth Third Bank team is excited about the opportunity to partner
with the Bayshore Gateway Triangle Community Redevelopment Agency. If you have any
questions or require additional information, please feel free to contact me at 239.591.6461 or
via email atLorLBuhs@53.com.
Respectfully Submitted,
~
Lori T. Bubs
Vice President
Fifth Third Bank
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FlFTH THIRD BANK'
Financing Proposal Accepted on June 23, 2009 By:
A TIESt:
DWIGHT ~" "8~FK
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Approved as to form
and legal sufficiency
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Steven T. Williams
Assistant County Attorney
COLLIER COUNTY COMMUNITY
REDEVEL~~~ENT A ENCY
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JIM COLETI A. CHAIRMAN
EXHIBIT B
Form of Loan Agreement
LOAN AGREEMENT
BETWEEN
COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY
AND
FIFTH THIRD BANK
Dated as of September 1,2009
SECTION 1.0 l.
SECTION 1.02.
SECTION 1.03.
TABLE OF CONTENTS
Pae:e
ARTICLE I
DEFINITION OF TERMS
DEF IN I TIONS ......................................................................... .......... 2
I NTERPRET A TI ON .............. .................. ..... ............ ......................... 4
l'rrLES AND HEADINGS ... ............. .... ......................... ......... ......... 5
ARTICLE II
REPRESENT A TIONS, WARRANTIES AND COVENANTS; SECURITY FOR
NOTES
SECTION 2.0 I.
SECTION 2.02.
SECTION 2.03.
SECTION 2.04.
SECTION 2.05.
SECTION 2.06.
SECTION 2.07.
SECTION 2.08.
SECTION 2.09.
SECTION 2.10.
SECTION 2.11.
REPRESENTATIONS BY THE AGENCy...................................... 6
GENERAL REPRESENT A TIONS, WARRANTIES AND
COVENANTS OF THE BANK................................................... 7
SERIES 2009 NOTE NOT TO BE INDEBTEDNESS OF THE
AGENCY, COUNTY OR STATE ............................................... 7
SECURl TY. ............. ......... ................. ...... ...................... .................... 7
COVENANT TO BUDGET AND APPROPRIATE NON-AD
VALOREM REVENUES.............................................................7
P A YMEN1' COVENANT ........ ............. ............... .................... ......... 8
NO IMPAIRMENT; RECEIPT OF INCREMENT TAX
RE VEN U ES ...................................................... ..................... ...... 8
ISSUANCE OF ADDITIONAL AGENCY DEBT. .......................... 8
DEBT SER VICE COVERAGE RATIO............................................ 9
DEBT SERVICE RESERVE FUND. ................................................ 9
PURCHASE AND SALE OF LAND. ............................................... 9
ARTICLE 111
DESCRIPTION OF SERIES 2009 NOTE; PAYMENT TERMS; OPTIONAL
PREPA YMENT
SECTION 3.01. DESCRIPTION OF THE SERIES 2009 NOTE.............................. 10
SECTION 3.02. OPTIONAL PREPAYMENT .......................................................... II
ARTICLE IV
CONDITIONS FOR ISSUANCE OF THE SERIES 2009 NOTE
SECTION 4.0 I. CONDITIONS FOR ISSUANCE .................................................... 12
ARTICLE V
EVENTS OF DEF AUL T; REMEDIES
SECTION 5.0 I. EVENTS OF DEFAULT ..................... ............... ............................. 14
SECTION 5.02. REM EDI E S ................ ..... ......... ........ ......... ....................... ...... .......... 14
ARTICLE VI
MISCELLANEOUS
SECTION 6.01 .
SECTION 6.02.
SECTION 6.03.
SECTION 6.04.
SECTION 6.05.
SECTION 6.06.
SECTION 6.07.
SECTION 6.08.
AMENDMENTS, CHANGES OR MODIFICATIONS TO
THE AGREEMENT ....... ................. .............................. .... ......... 15
COUN'fE RP AR 1.S............... ................................ ..... ....................... 15
SEVERA BI LITY ............ ......... .................. .................. .......... .......... 15
TERM OF AGREEMENT ............................................................... 15
NOTICE OF CHANGES IN FACT................................................. 15
NOTICES..... ......... ....... .... ................... .................................. ........... 15
A PPLI CA BLE LA W .............. ...... ............. ................... ............... ..... 16
INCORPORATION BY REFERENCE........................................... 16
EXHIBITS
EXHIBI T A - GENERAL DESCRIPTION OF THE PROJECT ................................... A-I
EXHI81T 8 - FORM OF SERIES 2009 NOTE.............................................................. 8-1
11
This LOAN AGREEMENT (the "Agreement") is made and entered into as of
September 1, 2009, by and between the COLLIER COUNTY COMMUNITY
REDEVELOPMENT AGENCY, FLORIDA, a community redevelopment agency duly
organized and validly existing under the laws of the State of Florida, and its successors
and assigns (the "Agency"), and FIFTH THIRD BANK, a Michigan banking
corporation authorized to do business in the State of Florida and its successors and
assigns (the "Bank");
WIT N E SSE T H:
WHEREAS, the Agency is authorized by provisions of the Chapter 163, Part III,
Florida Statutes, Chapter 125, Florida Statutes, and other applicable provisions of law
(collectively, the "Act") to, among other things, acquire, construct, equip, own, sell,
lease, operate and maintain various capital improvements and public facilities to promote
the purposes of the Act and the welfare and economic prosperity of the residents of
Collier County, Florida (the "County") and to borrow money to finance and refinance the
acquisition, construction, equipping and maintenance of such capital improvements and
public facilities; and
WHEREAS, the Agency finds it necessary and in the best interests of the Agency
to finance the costs of the acquisition of certain land within the Community
Redevelopment Area (as defined herein), as generally described in Exhibit A hereto and
more particularly described in the plans and specifications on file with the Agency, and
all incidental costs relating thereto (the "Project"); and
WHEREAS, the Agency finds it necessary and in the best interests of the Agency
to refinance the amounts outstanding under a revolving line of credit arrangement entered
into with Wachovia Bank, National Association on July 26, 2006 (the "Line of Credit");
and
WHEREAS, the Agency finds that refinancing the Line of Credit and financing
costs of the Project will serve a public purpose under the Act; and
WHEREAS, the Bank is willing to make a tenn loan available to the Agency, and
the Agency is willing to incur such loan pursuant to the terms and provisions of this
Agreement in an aggregate principal amount of $13,500,000 to refinance the amounts
outstanding under the Line of Credit and finance the costs of the Project.
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
That the parties hereto, intending to be legally bound hereby and in consideration
of the mutual covenants hereinafter contained, DO HEREBY AGREE as follows:
ARTICLE I
DEFINITION OF TERMS
SECTION l.Ol. DEFINITIONS. The terms defined in this Article I shall, for
all purposes of this Agreement, have the meanings in this Article I specified, unless the
context clearly otherwise requires.
"Act" shall mean the Florida Constitution, Chapter 163, Part III, Florida Statutes,
Chapter 125, Florida Statutes, and other applicable provisions of law.
"Agency" shall mean the Collier County Community Redevelopment Agency, a
community redevelopment agency duly created and validly existing under the laws of the
State of Florida.
"Agency Debt" shall mean any indebtedness of the Agency secured by or payable
from, in whole or in part, any pol1ion of the Pledged Funds, including but not limited to
the loan made hereunder.
"Agreement" shall mean this Loan Agreement, dated as of September 1,2009, by
and between the Agency and the Bank and any and all modifications, alterations,
amendments and supplements hereto made in accordance with the provisions hereof.
"Annual Debt Service" shall mean the aggregate amount in the applicable Fiscal
Year of principal and interest required to be paid on outstanding Agency Debt during
such Fiscal Year.
"Authorized Officer" shall mean the Chairman of the Governing Body or his or
her duly authorized designee.
"Bank" shall mean Fifth Third Bank, and its successors and assigns.
"Bond Counsel" shall mean Nabors, Giblin & Nickerson, P.A., Tampa, Florida
or any other attorney at law or firm of attorneys, of nationally recognized standing in
matters pertaining to the federal tax exemption of interest on obligations issued by states
and political subdivisions, and duly admitted to practice law before the highest court of
any state of the United States of America.
"Business Day" shall mean any day other than a Saturday, Sunday or a day on
which the Bank is authorized or required to be closed.
2
"Chairman" shall mean the Chairman of the Governing Body, or in his or her
absence or unavailability, the Vice-Chairman of the Governing Body.
"Community Redevelopment Area" shall mean the Bayshore/Gateway Triangle
Redevelopment Area identified by the County pursuant to Resolution No. 2000-82,
adopted on March 14,2000 and Ordinance 2000-42, adopted on June 13,2000.
"Community Redevelopment Trust Fund" shall mean the Community
Redevelopment Trust Fund established by the County pursuant to Ordinance 2000-42,
adopted on June 13,2000.
"County" shall mean Collier County, Florida, a political subdivision of the State
of Florida.
"Debt Service Reserve Fund" shall mean the fund created pursuant to Section
2.10 hereof.
"Debt Service Coverage Ratio" shall mean, as of any date of calculation thereof,
a fraction, the numerator of which is equal to the sum of actual Increment Tax Revenues,
Non-Ad Valorem Revenues and cash carried forward (reserves) for the prior Fiscal Year
based on the Agency's annual audit, and the denominator of which is the Annual Debt
Service for such Fiscal Year.
"Final Maturity Date" shall mean September 1,2014.
"Fiscal Year" shall mean the 12-month period commencing on October I of any
year and ending on September 30 of the immediately succeeding year.
"Governing Body" shall mean the Board of County Commissioners of Collier
County, Florida, acting in its capacity as the Governing Body of the Agency.
"Increment Tax Revenues" shall mean all of the increment tax revenues that are
derived within the Community Redevelopment Area and received by the Agency, all in
accordance with Chapter 163, Part Ill, Florida Statutes, and Ordinance No. 2000-42 of
the County, as it may be amended and supplemented from time to time.
"Interest Payment Date" shall have the meaning ascribed thereto in Section
3.01(c) hereof.
"Interest Rate" shall mean the L1BOR Rate plus three hundred seventy-five
(375) basis points (3.75%), which Rate shall be adjusted as provided in Section 3.01(c)
hereof.
"LIBOR Rate" shall mean the rate for deposits in U.S. dollars with a 30-day
maturity that appears on Telcratc Page 3750 (or such other page as may rcplace that page
3
on that service, or such other service as may be nominated by the British Bankers'
Association, for the purpose of displaying London interbank offered rates for U.S. dollar
deposits) as of 11 :00 a.m., London time, on the first day of each month. This rate shall
be used by the Bank in computing the Interest Rate.
"Line of Credit" shall have the meaning ascribed to such term in the recitals
hereof.
"Non-Ad Valorem Revenues" shall mean all revenues of the Agency derived
from any source whatsoever other than the Increment Tax Revenues and other ad
valorem taxation on real or personal property, which are legally available to make the
payments required herein.
"Pledged Funds" shall mean, collectively, (I) the Increment Tax Revenues, and
(2) such legally available Non-Ad Valorem Revenues of the Agency budgeted and
appropriated pursuant to Section 2.05 hereof.
"Project" shall have the meaning ascribed to such term in the recitals hereof.
"Reserve Requirement" shall mean $1,560,000.00.
"Resolution" shall mean the Resolution adopted by the Agency on July 28, 2009,
which among other things authorized the execution and delivery of this Loan Agreement
and the issuance of the Series 2009 Note.
"Secretary" shall mean Clerk of the Circuit Court of Collier County, Florida and
Ex-Officio Clerk to the Board of Commissioners of Collier County, Florida, acting in his
capacity as Secretary to the Agency, or his duly authorized designee.
"Series 2009 Note" shall mean the Collier County Community Redevelopment
Agency Taxable Note (Fifth Third Bank), Series 2009 authorized by the Resolution and
more particularly described in Article I (J hereof.
"State" shall mean the State of Florida.
SECTION 1.02. INTERPRET A TION. 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 terms used in this Agreement not herein defined shall have the meaning
ascribed to such terms in the Resolution. This Agreement and all the terms and
provisions hereof shall be construed to effectuate the purpose set forth herein and to
sustain the validity hereof.
4
SECTION 1.03. TITLES AND HEADINGS. The titles and headings of the
articles and sections of this Agreement, which have been inserted for convenience of
reference only and are not to be considered a part hereof: shall not in any way modify or
restrict any of the terms and provisions hereof, and shall not be considered or given any
effect in construing this Agreement or any provision hereof or in ascertaining intent, if
any question of intent should arise.
[Remainder of page intentionally left blank]
5
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS;
SECURITY FOR NOTES
SECTION 2.01. REPRESENTATIONS BY THE AGENCY. The Agency
represents, warrants and covenants that:
(a) The Agency is a community redevelopment agency duly organized and
validly existing under the laws of the State. Pursuant to the Resolution, the Agency has
duly authorized the execution and delivery of this Agreement, the performance by the
Agency of all of its obligations hereunder, and the issuance of the Series 2009 Note in the
aggregate principal amount of$13,500,000.
(b) The Agency has complied with all of the provisions of the constitution and
laws of the State, including the Act, and has full power and authority to enter into and
consummate all transactions contemplated by this Agreement or under the Series 2009
Note, and to perform all of its obligations hereunder and under the Series 2009 Note and,
to the best knowledge of the Agency, the transactions contemplated hereby do not
conflict with the terms of any statute, order, rule, regulation, judgment, decree,
agreement, instrument or commitment to which the Agency is a party or by which the
Agency is bound.
(c) The Agency is duly authorized and entitled to issue the Series 2009 Note
and enter the Agreement and, when issued in accordance with the terms of this
Agreement, the Series 2009 Note and the Agreement will each constitute legal, valid and
binding obligations of the Agency enforceable in accordance with their respective terms,
subject as to enforceability to bankruptcy, insolvency, moratorium, reorganization or
other similar laws affecting creditors' rights generally, or by the exercise of judicial
discretion in accordance with general principles of equity.
(d) There are no actions, suits or proceedings pending or, to the best knowledge
of the Agency, threatened against or affecting the Agency, at law or in equity, or before
or by any governmental authority, that, if adversely determined, would materially impair
the ability of the Agency to perform the Agency's obligations under this Agreement or
under the Series 2009 Note.
(e) The Agency will furnish to the Bank a copy of the annual audited financial
statements of the County, including financial information concerning the Agency, and all
standard statements for a Comprehensive Annual financial Report, prepared by a
certified public accountant acceptable to the Bank, within 180 days of the close of each
fiscal Year or as soon as such items become available, which report shall show the
Increment Tax Revenues collected and Non-Ad Valorem Revenues for such fiscal Year.
6
Within 45 days of the close of each quarter, the Agency will furnish to the Bank a copy
of the unaudited quarterly financial statements of the Agency, which report shall show
the Increment Tax Revenues and Non-Ad Valorem Revenues collected for such quarter.
The Agency shall also provide the Bank with a copy of the annual budget of the Agency
each year within 45 days of the final adoption of such budget.
(f) As of the date hereof, no outstanding indebtedness of the Agency exists
other than the Line of Credit and any interest accrued thereon.
SECTION 2.02. GENERAL REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE BANK. The Bank hereby represents, warrants and agrees that
it is a Michigan banking corporation authorized to execute and deliver this Agreement
and to perform its obligations hereunder, and such execution and delivery will not
constitute a violation of its charter, articles of association or bylaws. Pursuant to the
terms and provisions of this Agreement, the Bank agrees to provide the loan evidenced
by the Series 2009 Note to the Agency for the purpose of refinancing the amounts
outstanding under the Line of Credit and financing the costs of Project.
SECTION 2.03. SERIES 2009 NOTE NOT TO BE INDEBTEDNESS OF
THE AGENCY, COUNTY OR STATE. The Series 2009 Note, when delivered by the
Agency pursuant to the terms of this Agreement, shall not be or constitute an
indebtedness of the Agency, the County, the State of Florida or any political subdivision
or agency thereof, within the meaning of any constitutional, statutory or charter
limitations of indebtedness, but shall be payable solely from the Pledged Funds, as herein
provided. The Bank shall never have the right to compel the exercise of the ad valorem
taxing power of the Agency or the County, or taxation in any form on any property
therein to pay the Series 2009 Note or the interest thereon. The Series 2009 Note is a
special and limited obligation payable as to principal and interest solely from the Pledged
Funds.
SECTION 2.04. SECURITY. The Series 2009 Note shall be secured by and
payable from the Pledged Funds. The Agency does hereby irrevocably pledge the
Pledged Funds to the payment of the principal of and interest on the Series 2009 Note in
accordance with the provisions hereof.
SECTION 2.05. COVENANT TO BUDGET AND APPROPRIATE NON-
AD VALOREM REVENUES. To the extent the Increment Tax Revenues are
insufficient to pay Annual Debt Service on the Series 2009 Note for any Fiscal Year, the
Agency covenants and agrees to appropriate in its annual budget, by amendment, if
necessary, from Non-Ad Valorem Revenues lawfully available in each Fiscal Year,
amounts which shall be sufficient to pay the Annual Debt Service on the Series 2009
Note. Such covenant and agreement on the part of the Agency to budget and appropriate
such amounts of Non-Ad Valorem Revenues shall be cumulative to the extent not paid,
and shall continue until such Non-Ad Valorem Revenues or other legally available funds
7
in amounts sufficient to make all such required payments shall have been budgeted,
appropriated and actually paid. Notwithstanding the foregoing covenant of the Agency,
the Agency does not covenant to maintain any services or programs, now provided or
maintained by the Agency, which generate Non-Ad Valorem Revenues.
Such covenant to budget and appropriate does not create any lien upon or pledge
of such Non-Ad Valorem Revenues, nor does it preclude the Agency from pledging in
the future its Non-Ad Valorem Revenues, nor does it require the Agency to levy and
collect any particular Non-Ad Valorem Revenues, nor does it give the Bank a prior claim
on the Non-Ad Valorem Revenues as opposed to claims of general creditors of the
Agency. Such covenant to appropriate Non-Ad Valorem Revenues is subject in all
respects to the payment of obligations secured by a pledge of such Non-Ad Valorem
Revenues heretofore or hereafter entered into (including the payment of debt service on
other debt instruments). However, the covenant to budget and appropriate in its annual
budget for the purposes and in the manner stated herein shall have the effect of making
available for the payment of debt service on the Series 2009 Note in the manner
described herein and in the Resolution Non-Ad Valorem Revenues and placing on the
Agency a positive duty to appropriate and budget, by amendment, if necessary, amounts
sufficient to meet its obligations hereunder.
SECTION 2.06. PA YMENT COVENANT. The Agency covenants that it
shall duly and punctually pay from the Pledged Funds the principal of and interest on the
Series 2009 Note at the dates and place and in the manner provided herein and in the
Series 2009 Note according to the true intent and meaning thereof and all other amounts
due under this Agreement.
SECTION 2.07. NO IMPAIRMENT; RECEIPT OF INCREMENT TAX
REVENUES. The pledging of the Increment Tax Revenues in the manner provided
herein shall not be subject to repeal, modification or impairment by any subsequent
ordinance, resolution, agreement or other proceedings of the Agency or the County. The
Agency covenants to do all things necessary or required on its part by the Act, or other
applicable provisions of the law, to maintain the levy, collection and receipt of the
Increment Tax Revenues. The Agency shall exercise all legally available remedies to
enforce such levy, collection and receipt now or hereafter available under law. The
Agency will not take any action, or enter into any agreement that shall result in reducing
the level of Increment Tax Revenues received by the Agency from that level prevailing at
the time the Agency takes such action or enters into such agreement. Without limiting
the generality of the foregoing, the Agency agrees not to calise or allow the boundaries of
the Community Redevelopment Area to be decreased or the Agency to cease to exist
without the prior written consent of the Bank.
SECTION 2.08. ISSUANCE OF ADDITIONAL INDEBTEDNESS. The
Agency shall not issue any indebtedness without the written consent of the Bank unless
8
upon the issuance of such indebtedness the Series 2009 Note shall be paid in full and no
longer outstanding hereunder.
SECTION 2.09. DEBT SERVICE COVERAGE RATIO. The Agency
agrees to maintain a Debt Service Coverage ratio of 1.25 so long as the Series 2009 Note
is outstanding.
SECTION 2.10. DEBT SERVICE RESERVE FUND. The Agency shall
establish and maintain so long as the Series 2009 Note is outstanding a separate fund to
be known as the "Debt Service Reserve Fund - Series 2009 Note." Moneys on deposit in
the Debt Service Reserve Fund shall be used only to pay the Annual Debt Service on the
Series 2009 Note to the extent the Pledged Funds are insufficient therefor.
Except as otherwise provided in this Section 2.10, moneys in the Debt Service
Reserve Fund are required to be maintained in an amount equal to the Reserve
Requirement. The investments in the Debt Service Reserve Fund shall be valued at their
market value annually as of September 30 of each Fiscal Year. If at the time of any
valuation the amount on deposit in the Debt Service Reserve Fund is less than the
Reserve Requirement as a result of a decline in the market value of investments in the
Debt Service Reserve Fund, the Agency shall deposit to the Debt Service Reserve Fund
from the Pledged Funds the amount necessary to restore the amount on deposit in the
Debt Service Reserve Fund to the Reserve Requirement within 120 days following the
date on which the Agency determines such deficiency. If the amount on deposit in the
Debt Service Reserve Fund is less than the Reserve Requirement as a result of the Debt
Service Reserve Fund having been drawn upon to pay any principal or interest on the
Series 2009 Note, the Agency shall deposit in the Debt Service Reserve Fund the amount
which was withdrawn in not more than 12 substantially equal monthly payments
beginning with the first day of the first month after the month in which such draw
occurred.
SECTION 2.11. PURCHASE AND SALE OF LAND. In the event that any
land is purchased by the Agency with the proceeds of the loan issued by the Bank
hereunder and is subsequently sold, or, any land previously purchased by the Agency
with proceeds drawn under the Line of Credit is subsequently sold, all of the net proceeds
of the sale of such land shall be applied to the optional prepayment of the principal
outstanding under the Series 2009 Note within 30 days of the receipt of such sales
proceeds pursuant to Section 3.02 hereof:
[Remainder of page intentionally left blan k]
9
ARTICLE III
DESCRIPTION OF SERIES 2009 NOTE; PAYMENT TERMS;
OPTIONAL PREPAYMENT
SECTION 3.01. DESCRIPTION OF THE SERIES 2009 NOTE. (a) The'
Agency hereby authorizes the issuance and delivery of the Series 2009 Note to the Bank
which Note shall be in an amount equal to THIRTEEN MILLION FIVE HUNDRED
THOUSAND AND 00/100 DOLLARS ($13,500,000) and shall be designated as the
"Collier County Community Redevelopment Agency Taxable Note (Fifth Third Bank),
Series 2009." The text of the Series 2009 Note shall be substantially in the form attached
hereto as Exhibit B, with such omissions, insertions and variations as may be necessary
and desirable to reflect the particular terms of the Series 2009 Note. The provisions of
the form of the Series 2009 Note are hereby incorporated in this Agreement.
(b) The Series 2009 Note shall be dated the date of its delivery. The Series
2009 Note shall be executed in the name of the Agency by the manual signature of the
Chairman and attested by the manual signature of the Secretary. I n case anyone or more
of the officers, who shall have signed the Series 2009 Note, shall cease to be such officer
of the Agency before the Series 2009 Note so signed shall have been actually delivered,
such Series 2009 Note may nevertheless be delivered as herein provided and may be
issued as if the person who signed such Series 2009 Note had not ceased to hold such
office.
(c) The Series 2009 Note shall bear interest from its date of issuance at the
Interest Rate (calculated on the basis of a 360-day year consisting of twelve 30-day
months), which Interest Rate shall be adjusted as of the first day of each month based
upon changes in the L1BOR Rate. Interest on the Series 2009 Note shall be payable on
the first day of each month, commencing October I, 2009 (each an "I nterest Payment
Date") so long as any amount under the Series 2009 Note remains outstanding. Principal
of the Series 2009 Note shall be payable on the first day of each month. commencing
October I, 2009 (each a "Principal Payment Date"), through and including the Final
Maturity Date, and shall be in equal amounts based on a fifteen (15) year amortization,
with a balloon payment due and payable on the Final Maturity Date. The full outstanding
principal balance of the Series 2009 Note shall become due and payable on the Final
Maturity Date. The scheduled principal payments shall be set forth in the Series 2009
Note.
(d) All payments of principal of and interest on the Series 2009 Note shall be
payable in any coin or currency of the United States which, at the time of payment, is
legal tender for the payment of public and private debts and shall be made to the Bank (i)
in immediately available funds, (ii) by delivering to the Bank no later than the payment
date a check or draft of the Agency, or (iii) in such other manner as the Agency and the
10
Bank shall agree upon in writing. If any Interest Payment Date or Principal Payment
Date is not a Business Day, the corresponding payment shall be due on the next
succeeding Business Day.
(e) The Agency agrees to pay a loan documentation fee to the Bank equal to
$800, plus any legal fees or out-of-pocket expenses of the Bank associated with the
issuance of the Series 2009 Note, which fees and expenses shall not exceed $5,000. The
Bank shall pay for all of its costs relating to servicing the term loan.
SECTION 3.02. OPTIONAL PREPAYMENT. The Series 2009 Note may
be prepaid at any time prior to the Final Maturity Date, at the option of the Agency, from
any moneys legally available therefor, upon notice as provided herein, in whole or in part
at any time or from time to time, without a prepayment premium, by paying to the Bank
all or a part of the principal amount of the Series 2009 Note to be prepaid, together with
the unpaid interest accrued on the amount of principal so prepaid to the date of such
prepayment.
Any prepayment shall be made on such date and in such principal amount as shall
be specified by the Agency in a written notice provided to the Bank not less than ten (10)
days prior thereto by first class mail. Notice having been given as aforesaid, the amount
of principal of the Series 2009 Note stated in such notice or the whole thereof, as the case
may be, shall become due and payable on the date of prepayment stated in such notice,
together with interest accrued and unpaid to the date of prepayment on the principal
amount then bei ng paid. I f on the date of prepayment moneys for the payment of the
principal amount to be prepaid on the Series 2009 Note, together with interest to the date
of prepayment on such principal amount shall have been paid to the Bank as above
provided, then from and after the date of prepayment, interest on such prepaid principal
amount of the Series 2009 Note shall cease to accrue. If said money shall not have been
so paid on the date of prepayment, such principal amount of the Series 2009 Note shall
continue to bear interest until payment thereof at the Interest Rate.
The Bank shall make appropriate notations in its records indicating the amount
and date of any such prepayment and shall promptly transmit an acknowledgment to the
Agency indicating the amount and date of such prepayment.
[Remainder of page intentionally left blank]
II
ARTICLE IV
CONDITIONS FOR ISSUANCE OF THE SERIES 2009 NOTE
SECTION 4.01. CONDITIONS FOR ISSUANCE. (a) In connection with
the issuance of the Series 2009 Note, the Bank shall not be obligated to purchase the
Series 2009 Note pursuant to this Agreement unless at or prior to the issuance thereof the
Agency delivers to the Bank the following items in form and substance acceptable to the
Bank and Bond Counsel:
(i) An opinion of Bond Counsel in form and substance to the effect that
the Series 2009 Note has been duly authorized by the Agency and is an
enforceable obligation in accordance with its terms (enforceability of it may be
subject to standard bankruptcy exceptions and the like); and
(ii) Such additional certificates, opinions, instruments and other
documents as the Bank or Bond Counsel may deem necessary Of appropriate.
(b) The Agency shall apply the proceeds of the Series 2009 Note to finance or
refinance, or reimburse itself for prior expenditures incurred for, the costs of the Project,
which shall include, but not be limited to:
(i) The costs of architectural and engineering services related to the
Project, including, without limitation, the costs of preparation of studies, surveys,
reports, tests, plans and specifications;
(ii) The costs of legal, accounting, marketing and other special services
related to the Project;
(iii) Costs and fees incurred in connection with the issuance of the Series
2009 Note;
(iv) Fees and charges incurred in connection with applications to federal,
state and local governmental agencies for any requisite approval or permits
regarding the acquisition of the Project;
(v) Costs incurred in connection with the acquisition of the sites for the
Project, including any necessary rights-of-way, easements or other interests in real
or personal property;
(vi) Interest on the Series 2009 Note accruing prior to the completion
date of the Project;
12
(vii) To the extent pennitted by law, other costs and expenses relating to
the Project which are incurred for the purpose of providing for the Project,
including the administrative and maintenance costs associated with the
management of the Project, and other faci Iities functionally related and
subordinate thereto; and
(viii) The costs relating to refinancing amounts outstanding under the Line
of Credit.
[Remainder of page intentionally left blank]
13
ARTICLE V
EVENTS OF DEFAULT; REMEDIES
SECTION 5.0t. EVENTS OF DEFAULT. An "Event of Default" shall be
deemed to have occurred under this Agreement if:
(a) The Agency shall fail to make timely payment of principal or interest then
due on any amounts drawn against the Series 2009 Note;
(b) Any representation or warranty of the Agency contained in Article 11 of this
Agreement or any certificate provided the Bank under Article IV shall prove to be untrue
in any material respect;
(c) Any covenant of the Agency contained in Article .1 of this Agreement shall
be breached or violated for a period of sixty (60) days after the Agency's notice of such
breach or violation, unless the Bank shall agree in writing, in its sole discretion, to an
extension of such time prior to its expiration;
(d) There shall occur the dissolution or liquidation of the Agency, or the filing
by the Agency ofa voluntary petition in bankruptcy, or the commission by the Agency of
any act of bankruptcy, or adjudication of the Agency as a bankrupt, or assignment by the
Agency for the benefit of its creditors, or appointment of a receiver for the Agency, or the
entry by the Agency into an agreement of composition with its creditors, or the approval
by a court of competent jurisdiction of a petition applicable to the Agency in any
proceeding for its reorganization instituted under the provisions of the Federal
Bankruptcy Act, as amended, or under any similar act in any jurisdiction which may now
be in effect or hereafter amended.
(e) There shall occur an event of default under any Agency Debt (other than
the Series 2009 Note).
SECTION 5.02. REMEDIES. If any event of default shall have occurred and
be continuing, the Bank or any trustee or receiver acting for the Bank may either at law or
in equity, by suit, action, mandamus or other proceedings in any court of competent
jurisdiction, protect and enforce any and all rights under the Laws of the State of Florida,
or granted and contained in this Agreement, and may enforce and compel the
performance of all duties required by this Agreement or by any applicable statutes to be
performed by the Agency or by any officer thereof. No remedy herein conferred upon or
reserved to the Bank is intended to be exclusive of any other remedy or remedies, and
each and every such remedy shall be cumulative, and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by statute.
Upon any default hereunder, the Bank may declare the entire amount of the Series 2009
Note and all interest accrued thereon to be immediately due and payable.
14
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. AMENDMENTS, CHANGES OR MODIFICATIONS TO
THE AGREEMENT. This Agreement shall not be amended, changed or modified
without the prior written consent of the Bank and the Agency.
SECTION 6.02. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which, when so executed and delivered, shall be an
original; but such counterparts shall together constitute but one and the same Agreement,
and, in making proof of this Agreement, it shall not be necessary to produce or account
for more than one such counterpart.
SECTION 6.03. SEVERABILITY. (fany 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
2009 Note is outstanding.
SECTION 6.05. NOTICE OF CHANGES IN FACT. Promptly after the
Agency becomes aware of the same, the Agency will notify the Bank of (a) any change in
any material fact or circumstance represented or warranted by the Agency in this
Agreement or in connection with the issuance of the Series 2009 Note, and (b) any
default or event which, with notice or lapse of time or both, could become a default under
the Agreement, specifying in each case the nature thereof and what action the Agency has
taken, is taking and/or proposed to take with respect thereto.
SECTION 6.06. NOTICES. Any notices or other communications required
or permitted hereunder shall be sufficiently given if delivered personally or sent
registered or certified mail, postage prepaid, to Collier County Community
Redevelopment Agency, Bayshore/Gateway Triangle Community Redevelopment Area,
4069 Bayshore Drive, Naples, Florida 34112, Attention: Executive Director, with a copy
to County Administrator, Collier County Government Complex, 330 I East Tamiami
Trail, Building F, Naples, Florida 34) 12, and to the Bank, Fifth Third Bank, 999
Vanderbilt Beach Road, MD B9997C, Naples, Florida 34108, Attention: Lori T. Buhs, or
<it such other address as shall be furnished in writing by any such party to the other, and
shall be deemed to have been given as of the date so delivered or deposited in the United
States mai I.
15
SECTION 6.07. APPLICABLE LAW. The substantive laws of the State of
Florida shall govern this Agreement.
SECTION 6.08. INCORPORA TION BY REFERENCE. All of the tenus
and obligations of the Resolution are hereby incorporated herein by reference as if said
Resolution was fully set forth in this Agreement.
[Remainder of page intentionally left blank]
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first set forth herein.
COLLIER COUNTY COMMUNITY
REDEVELOPMENT AGENCY
By:
Jim Coletta, Chairman
ATTEST:
By:
Secretary
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
Legal Counsel
FIFTH THIRD BANK
By:
Lori T. Buhs, Vice President
17
EXHIBIT A
GENERAL DESCRIPTION OF THE PROJECT
The Project includes the acquisition of seven (7) parcels of land totaling
approximately 6.29 acres located in the Triangle Lake Subdivision within the Community
Redevelopment Area, as more particularly described in the plans and specifications on
tile with the Agency.
A-I
EXHIBIT B
FORM OF SERIES 2009 NOTE
UNITED STATES OF AMERICA
STATE OF FLORIDA
COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY
TAXABLE NOTE (FIFTH THIRD BANK), SERIES 2009
Interest
Rate
Date of Issuance
Final
Maturitv Date
Variable
September t, 2009
September I, 2014
COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY,
FLORIDA (the "Agency"), for value received, hereby promises to pay, solely from the
Pledged Funds described in the within mentioned Agreement, to the order of Fifth Third
Bank, or its successors or assigns (the "Bank"), the principal sum of THIRTEEN
MILLION FIVE HUNDRED THOUSAND AND 00/100 DOLLARS ($13,500,000)
pursuant to that certain Loan Agreement by and between Fifth Third Bank, and the
Agency, dated as of September I, 2009 (the "Agreement"), and to pay interest on the
outstanding principal amount hereof from the Date of Issuance set forth above, or from
the most recent date to which interest has been paid, at the Interest Rate (as defined in the
Agreement), subject to adjustment as provided in the Agreement (each an "Interest
Payment Date"), commencing October 1, 2009, so long as any amount under this Note
remains outstanding; provided, however, if such Interest Payment Date is not a Business
Day (as defined in the Agreement), then such payment shall be due and payable on the
next succeeding Business Day. Principal of this Note shall be payable on the first day of
each month, commencing October I, 2009, in the amounts set forth on Appendix I
attached hereto through the Final Maturity Date set forth above. The full outstanding
principal balance of this Note shall become due and payable on the Final Maturity Date.
The principal and interest on this Note is payable in any coin or currency of the United
States of America which, at the time of payment, is legal tender for the payment of public
and private debts.
This Note is issued under the authority of and in full compliance with the
Constitution and statutes of the State of Florida, including, particularly, Chapter 163, Part
III, Florida Statutes, Chapter 125, Florida Statues, and other applicable provisions of law,
a resolution duly adopted by the Agency on July 28, 2009 (the "Resolution"), as such
Resolution may be amended and supplemented from time to time, and is subject to all
B-1
terms and conditions of the Resolution and the Agreement. Any term used in this Note
and not otherwise defined shall have the meaning ascribed to such term in the
Agreement.
This Note is being issued to finance the costs of acquiring certain land within the
Community Redevelopment Area (as defined in the Agreement) and refinance the
amount outstanding under an existing revolving line of credit as described in the
Agreement. This Note is secured by and shall be payable from the Pledged Funds as
described in the Agreement.
This Note shall be secured by and payable from the Pledged Funds as described
and provided for in the Agreement. The Agency has irrevocably pledged the Pledged
Funds to the payment of the principal of and interest on this Note in accordance with the
provisions of the Agreement.
This Note shall bear interest at the Interest Rate identified above on the basis of a
360-day year consisting of twelve 30-day months. Such Interest Rate is subject to
adjustment as of the first day of each month as provided in the Agreement.
Notwithstanding any provision in this Note to the contrary, in no event shall the
interest contracted for, charged or received in connection with this Note (including any
other costs or considerations that constitute interest under the laws of the State of Florida
which are contracted for, charged or received) exceed the maximum rate of interest
allowed under the State of Florida as presently in effect.
All payments made by the Agency hereon shall apply first to accrued interest, and
then to the principal amount then due on this Note.
The Agency may prepay this Note as a whole or in part, at any time or from time
to time, by paying to the Bank all or part of the outstanding principal amount thereof,
together with the unpaid interest accrued on the amount of principal so prepaid to the date
of such prepayment, without prepayment premium. Each prepayment of the Note shall
be made on such date and in such principal amount as shall be specified by the Agency in
a written notice delivered to the Bank not less than ten (10) days prior thereto, all in
accordance with the provisions of the Agreement. All of the prepayment provisions
contained in Section 3.02 of the Agreement shall apply with respect to this Note.
This Note, when delivered by the Agency pursuant to the terms of the Agreement
and the Resolution, shall not be or constitute an indebtedness of the Agency, Collier
County or of the State of Florida, within the meaning of any constitutional, statutory or
charter limitations of indebtedness, but shall be payable solely from the Pledged Funds,
as provided in the Agreement and the Resolution. The Bank shall never have the right to
compel the exercise of the ad valorem taxing power of the Agency or the State, or
taxation in any form of any property therein to pay the Note or the interest thereon.
B-2
All acts, conditions and things required to happen, exist and be performed
precedent to and in the issuance of this Note have happened, exist and have been
performed as so required.
IN WITNESS WHEREOF, the Agency caused this Note to be signed by the
manual signature of the Chairman of its Governing Body and attested by the manual
signature of the Secretary to the Agency, and this Note to be dated the Date of Issuance
set forth above.
COLLIER COUNTY COMMUNITY
REDEVELOPMENT AGENCY
By:
Jim Coletta, Chairman
ATTEST:
By:
Secretary
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
Legal Counsel
B-3
APPENDIX I
PRINCIPAL REPAYMENT SCHEDULE
~ Princioal Amount ~ Principal Amount
10/1/09 $ 75,000.00 4/1/12 $ 75,000.00
11/1/09 75,000.00 5/1/12 75,000.00
12/1109 75,000.00 6/1/12 75,000.00
1/lltO 75,000.00 7/1/12 75,000.00
2/1/1 0 75,000.00 8/1/12 75,000.00
3/1/1 0 75,000.00 9/1/12 75,000.00
4/1/10 75,000.00 10/1/12 75,000.00
5/1/1 0 75,000.00 11/1/12 75,000.00
6/1/1 0 75,000.00 12/1/12 75,000.00
7/1/10 75,000.00 1/l/13 75,000.00
8/1/10 75,000.00 21 III 3 75,000.00
9/1/10 75,000.00 3/1/13 75,000.00
1011 I I 0 75,000.00 4/l/13 75,000.00
11/1/10 75,000.00 5/1/13 75,000.00
12/1/10 75,000.00 6/1/13 75,000.00
I 11111 75,000.00 7/1/13 75,000.00
2/1/11 75,000.00 81 l/13 75,000.00
3/1/11 75,000.00 9/1/13 75,000.00
4/1/11 75,000.00 10/ Ilt3 75,000.00
5/1/11 75,000.00 11/1/13 75,000.00
6/1/11 75,000.00 12/1/13 75,000.00
7/1/11 75,000.00 1/1/14 75,000.00
8/1111 75,000.00 2/1114 75,000.00
9/1/11 75,000.00 3/1/14 75,000.00
lOll/II 75,000.00 4/1/14 75,000.00
II I 1/11 75,000.00 5/1/14 75,000.00
12/ I11I 75,000.00 6/1/14 75,000.00
111/12 75,000.00 7/1/14 75,000.00
2/1 /12 75,000.00 8/1/14 75,000.00
3/1/12 75,000.00 9/1/14 9,075,000.00
B-I-I