Resolution 2016-01 RESOLUTION NO. 0)6I6-"I
A RESOLUTION OF THE HERITAGE BAY COMMUNITY
DEVELOPMENT DISTRICT ACCEPTING A PROPOSAL
OF CNLBANK TO PROVIDE THE DISTRICT WITH A
LOAN IN ORDER TO FINANCE CERTAIN CAPITAL
IMPROVEMENTS OF THE DISTRICT; APPROVING THE
FORM OF A LOAN AGREEMENT; AUTHORIZING THE
ISSUANCE OF A PROMISSORY NOTE PURSUANT TO
SUCH LOAN AGREEMENT IN THE AGGREGATE
PRINCIPAL AMOUNT OF NOT TO EXCEED $250,000.00
IN ORDER TO EVIDENCE SUCH LOAN; AUTHORIZING
THE REPAYMENT OF SUCH NOTE FROM A
COVENANT TO BUDGET AND APPROPRIATE
LEGALLY AVAILABLE NON-AD VALOREM
REVENUES; DELEGATING CERTAIN AUTHORITY TO
THE CHAIRMAN, DISTRICT MANAGER AND OTHER
OFFICERS OF THE DISTRICT FOR THE
AUTHORIZATION, EXECUTION AND DELIVERY OF
THE LOAN AGREEMENT, PROMISSORY NOTE AND
VARIOUS OTHER DOCUMENTS WITH RESPECT
THERETO; AND PROVIDING FOR AN EFFECTIVE
DATE.
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF
SUPERVISORS OF THE HERITAGE BAY COMMUNITY DEVELOPMENT
DISTRICT,AS FOLLOWS:
SECTION 1. AUTHORITY FOR THIS RESOLUTION. This Resolution
is adopted pursuant to the provisions of the Florida Constitution, Chapter 190, Florida
Statutes and other applicable provisions of law.
SECTION 2. DEFINITIONS. When used in this Resolution, capitalized
terms not otherwise defined herein shall have the meanings set forth in the Loan Agreement
(as defined herein),unless the context clearly indicates a different meaning.
"Board" shall mean the Board of Supervisors of the District.
"Chairman" shall mean the Chairman of the Board of the District and in her or his
absence or unavailability,the Vice Chairman of the District and such other person as may
be duly authorized to act on his or her behalf.
"District" shall mean the Heritage Bay Community Development District, a local
unit of special purpose government duly organized and validly existing under the laws of
the State of Florida.
"District Manager"shall mean the District Manager of the District and such other
person as may be duly authorized to act on his or her behalf.
"Loan Agreement" shall mean the Loan Agreement to be executed between the
Noteholder and the District, which shall be substantially in the form attached hereto as
Exhibit B.
"Non-Ad Valorem Revenues" shall have the meaning assigned such term in the
Loan Agreement.
"Noteholder" shall mean CNLBank, and its successors and assigns.
"Project" shall mean improvements to bridge retaining walls to be financed with
the proceeds of the Series 2015 Note.
"Series 2015 Note"shall mean the Heritage Bay Community Development District
Special Obligation Revenue Note, Series 2015, as such Series 2015 Note is 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 2015 Note by the Noteholder,
the provisions of this Resolution shall be a part of the contract of the District with the
Noteholder, and shall be deemed to be and shall constitute a contract between the District
and the Noteholder. The provisions, covenants and agreements in this Resolution set forth
to be performed by or on behalf of the District shall be for the benefit, protection and
security of the Noteholder.
SECTION 4. FINDINGS. It is hereby ascertained,determined and declared
that:
(A) The District has various capital improvement and acquisition needs and
requirements in order to improve and maintain the health,safety and welfare of the District
and its inhabitants.
(B) The most efficient and cost-effective method of refinancing the District's
costs of the Project is through the issuance of the Series 2015 Note pursuant to the Loan
Agreement.
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(C) The District obtained proposals from various financial institutions to provide
a loan to fund the Project.
(D) The Noteholder submitted its proposal to provide the District with a line of
credit loan to finance costs of the Project,which proposal was the most favorable proposal
received by the District.
(E) The Series 2015 Note shall be repaid solely from the Non-Ad Valorem
Revenues in the manner and to the extent set forth herein and in the Loan Agreement and
the ad valorem taxing power of the District will never be necessary or authorized to pay
said amounts.
(F) Due to the potential volatility of the market for obligations such as the Series
2015 Note and the complexity of the transactions relating to such Series 2015 Note,it is in
the best interest of the District to issue the Series 2015 Note by a negotiated sale to the
Noteholder, allowing the District to sell and issue the Series 2015 Note at the most
advantageous time,rather than at a specified advertised date,thereby permitting the District
to obtain the best possible price,terms and interest rate for the Series 2015 Note.
SECTION 5 ACCEPTANCE OF PROPOSAL. The District hereby
accepts the proposal of the Noteholder to provide the District with a line of credit loan to
finance costs of the Project, a copy of which proposal is attached hereto as Exhibit A. The
District Manager is hereby authorized to execute and deliver any documents required to
formally accept such proposal and the terms thereof. All actions taken by such officer or
his designees with respect to such proposal prior to the date hereof are hereby authorized
and ratified. To the extent of any conflict between the provisions of this Resolution or the
Loan Agreement and the proposal, the provisions of this Resolution and the Loan
Agreement shall prevail.
SECTION 6. APPROVAL OF FORM OF LOAN AGREEMENT AND -
SERIES 2015 NOTE. The District hereby approves a line of credit loan from the
Noteholder in the principal amount ofnot to exceed$250,000.00. 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
District hereby authorizes the Chairman to execute and deliver, and the District Manager
to attest, the Loan Agreement substantially in the form attached hereto as Exhibit B, with
such changes,insertions and additions as the Chairman may approve,his execution thereof
being conclusive evidence of such approval. In order to evidence the loan under the Loan
Agreement, it is necessary to provide for the execution of the Series 2015 Note. The
Chairman and the District Manager are authorized to execute and deliver the Series 2015
Note substantially in the form attached to the Loan Agreement as Exhibit A with such
changes, insertion and additions as they may approve, their execution thereof being
evidence of such approval.
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SECTION 7. LIMITED OBLIGATION. The obligation of the District to
repay the Series 2015 Note is a limited and special obligation payable from Non-Ad
Valorem Revenues solely in the manner and to the extent set forth in the Loan Agreement
and shall not be deemed a pledge of the faith and credit or taxing power of the District and
such obligation shall not create a lien on any property whatsoever of or in the District. The
Non-Ad Valorem Revenues shall consist of legally available non-ad valorem revenues
budgeted and appropriated by the Board to pay debt service on the Series 2015 Note, all in
the manner and to the extent described in the Loan Agreement.
SECTION S. GENERAL AUTHORIZATION. The Chairman and the
District Manager are authorized to execute and deliver such documents, instruments and
contracts, whether or not expressly contemplated hereby; and the District's attorney and
other employees or agents of the District are hereby authorized and directed to do all acts
and things required hereby or thereby as may be necessary for the full, punctual and
complete performance of all the terms, covenants, provisions and agreements herein and
therein contained, or as otherwise may be necessary or desirable to effectuate the purpose
and intent of this Resolution.
SECTION 9. 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 10. EFFECTIVE DATE. This Resolution shall become effective
immediately upon its adoption.
ADOPTED AT A REGULAR BOARD MEETING THIS I Sr DAY OF
Dclobe_R, 2015.
HERITAGE BAY COMMUNITY
DEVELOPMENT DISTRICT
Attest:
Secretary Chairman,Board of Supervisors
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EXHIBIT A
CNLBank Proposal
EXHIBIT B
Form of Loan Agreement
LOAN AGREEMENT
BETWEEN
HERITAGE BAY COMMUNITY DEVELOPMENT DISTRICT
R:TT7
CNLBANK
Dated as of September___, 2015
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITION OF TERMS
SECTION 1.01. DEFINITIONS ........................................................ ..............................2
SECTION 1.02. INTERPRETATION ................................................ ..............................3
SECTION 1.03. TITLES AND HEADINGS ....................................... ..............................3
ARTICLE II
REPRESENTATIONS WARRANTIES AND COVENANTS; SECURITY FOR SERIES 2015 NOTE
SECTION 2.01.
REPRESENTATIONS BY THE DISTRICT ............. ..............................4
SECTION 2.02.
GENERAL REPRESENTATIONS WARRANTIES AND COVENANTS
OF THE NOTEHOLDER .................................. ..............................4
SECTION 2.03.
SERIES 2015 NOTE SHALL NOT BE INDEBTEDNESS OF THE
DISTRICTOR STATE ...................................... ..............................4
SECTION 2.04.
COVENANT TO BUDGET AND APPROPRIATE NON -AD VALOREM
REVENUES..................................................... ..............................5
SECTION 2.05.
PAYMENT COVENANT ......................................... ..............................5
SECTION 2.06.
NO ADDITIONAL COVENANT TO BUDGET AND APPROPRIATE
DEBT.............................................................. ............................... 5
ARTICLE III
DESCRIPTION OF SERIES 2015 NOTE, TERMS; OPTIONAL PREPAYMENT
SECTION 3.01.
DESCRIPTION OF THE SERIES 2015 NOTE ....... ..............................6
SECTION 3.02.
OPTIONAL PREPAYMENT .................................... ..............................7
ARTICLE IV
CONDITIONS FOR ISSUANCE OF THE SERIES 2015 NOTE
SECTION 4.01.
CONDITIONS FOR ISSUANCE ............................. ..............................8
ARTICLE V
EVENTS OF DEFAULT; REMEDIES
SECTION 5.01.
EVENTS OF DEFAULT .......................................... ..............................9
SECTION5.02.
REMEDIES ........................................................... ............................... 9
ARTICLE VI
MISCELLANEOUS
SECTION 6.01.
AMENDMENTS CHANGES OR MODIFICATIONS TO THE
AGREEMENT................................................. .............................10
SECTION6.02.
COUNTERPARTS ................................................ .............................10
SECTION 6.03.
SECTION 6.04.
SEVERABILITY .................................................... .............................10
TERM OF AGREEMENT ...................................... .............................10
SECTION 6.05.
NOTICE OF CHANGES IN FACT ......................... .............................10
SECTION6.06.
NOTICES .............................................................. ..•..........................10
SECTION 6.07.
NO THIRD -PARTY BENEFICIARIES .................... .............................10
SECTION 6.08.
APPLICABLE LAW ............................................... .............................10
SECTION 6.09.
WAIVER OF JURY TRIAL ..................................... .............................10
SECTION 6.10.
INCORPORATION BY REFERENCE .................... .............................10
SECTION 6.11.
FINANCIAL STATEMENTS ................................... .............................10
EXHIBIT A - FORM OF SERIES 2015 NOTE
This LOAN AGREEMENT (the "Agreement") is made and entered into as of September
2015, by and between HERITAGE BAY COMMUNITY DEVELOPMENT DISTRICT, a local
unit of special - purpose government duly organized and validly existing under the laws of the State of
Florida, and its successors as may be provided by law (the "District "), and CNLBANK, a Florida
banking corporation duly organized and existing under the laws of the State of Florida, and its
successors and assigns (the " Noteholder");
WIT NESSETH:
WHEREAS, the District is authorized by provisions of the Florida Constitution, Chapter 190,
Florida Statutes and other applicable provisions of law (collectively, the "Act") to, among other things,
finance, fund, plan, establish, acquire, construct or reconstruct, enlarge or extend, equip, operate and
maintain systems, facilities and basic infrastructures as provided in the Act and to borrow money to
finance and refinance the acquisition, construction, equipping and maintenance of the foregoing; and
WHEREAS, the District desires to make improvements to the bridge retaining walls (the
"Project"); and
WHEREAS, in order to finance costs of the Project through the issuance of debt the District
Manager has obtained financing proposals on behalf of the District from various financial institutions
to provide a loan to the District to refinance costs of the Project; and
WHEREAS, the proposal submitted by the Noteholder was the most favorable proposal
received by the District; and
WHEREAS, the Noteholder is willing to make a loan to the District, and the District is willing to
incur such loan, pursuant to the terms and provisions of this Agreement in an aggregate principal
amount of $250,000.00 to pay the cost 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:
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ARTICLE I
DEFINITION OF TERMS
SECTION 1.01. DEFINITIONS, The terms defined in this Article I shall, for all purposes
of this Agreement, have the meanings in this Article I specified, unless the context clearly otherwise
requires.
"Act" shall mean the Florida Constitution, the Uniform Community Development District Act
of 1980, as amended, Chapter 190, Florida Statutes and other applicable provisions of law.
"Agreement" shall mean this Loan Agreement between the District and the Noteholder and
any and all modifications, alterations, amendments and supplements hereto made in accordance with
the provisions hereof.
"Business Day" shall mean any day other than a Saturday, Sunday or a day on which the
Noteholder is authorized or required to be closed.
"Board" shall mean the Board of Supervisors of the District.
"Debt" means at any date (without duplication) all of the following to the extent that they are
secured by or payable in whole or in part from any Non -Ad Valorem Revenues (A) all obligations of
the District for borrowed money or evidenced by bonds, debentures, notes or other similar instruments;
(B) all obligations of the District to pay the deferred purchase price of property or services, except
trade accounts payable under normal trade terms and which arise in the ordinary course of business;
(C) all obligations of the District as lessee under capitalized leases; and (D) all indebtedness of other
Persons to the extent guaranteed by, or secured by, Non-Ad Valorem Revenues of the District.
"District" shall mean Heritage Bay Community Development District, a local unit of special -
purpose government organized and existing in accordance with the Act.
"District Manager" shall mean any acting, interim or permanent District Manager of the
District, any assistant District Manager of the District, or any of their duly authorized designees.
"Fiscal Year" shall mean the 12 -month period commencing on October 1 of any year and
ending on September 30 of the immediately succeeding year.
"Governmental Funds" shall mean all of the "governmental funds" of the District as described
and identified in the annual audited financial statements of the District for the applicable Fiscal Year
but specifically excluding any and all non -ad valorem assessments levied by the District to secure
repayment of the $17,450,000.00 Heritage Bay Community Development District Capital Improvement
Revenue Refunding Bonds, Series 2014 ( "Series 2014 Bonds ") and any and all other funds of the
District related to, or otherwise securing, repayment of the Series 2014 Bonds.
"Governmental Funds Revenues" shall mean total revenues of the District derived from any
source whatsoever and that are allocated to and accounted for in the Governmental Funds as shown
in the annual audited financial statements of the District for the applicable Fiscal Year.
"Interest Rate" shall mean a fixed interest rate equal to 4.00% per annum.
"Maturity Date" shall mean September , 2020.
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"Chairman" shall mean the Chairman of the Board and in her or his absence or unavailability,
the Vice Chairman of the Board and such other person as may be duly authorized to act on his or her
behalf.
"Non -Ad Valorem Revenues" shall mean all Governmental Funds Revenues other than
revenues generated from ad valorem taxation on real or personal property which are legally available
to make the payments required herein.
"Noteholder" shall mean CNLBank, and its successors and assigns.
"Person" shall mean an individual, a corporation, a partnership, an association, a joint stock
company, a trust, any unincorporated organization, governmental entity or other legal entity.
"Project" shall mean the Improvements to the bridge retaining walls to be financed with the
proceeds of the Series 2015 Note.
"Resolution" shall mean Resolution No. adopted by the District on , 2015,
which among other things authorized the execution and delivery of this Loan Agreement and the
issuance of the Series 2015 Note.
"Series 2015 Note" shall mean the Heritage Bay Community Development District Special
Obligation Revenue Note, Series 2015, authorized to be issued by the Resolution and more
particularly described in Article III hereof.
"State" shall mean the State of Florida.
SECTION 1.02. INTERPRETATION. Unless the context clearly requires otherwise,
words of masculine 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.
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.
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ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS;
SECURITY FOR SERIES 2015 NOTE
SECTION 2.01. REPRESENTATIONS BY THE DISTRICT. The District represents,
warrants and covenants that:
(a) The District is a local unit of special- purpose government organized and existing in
accordance with the Act. Pursuant to the Resolution, the District has duly authorized the execution
and delivery of this Agreement, the performance by the District of all of its obligations hereunder, and
the issuance of the Series 2015 Note in the aggregate principal amount of $250,000.00.
(b) The District has complied in all material respects 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 2015 Note, and to
perform all of its obligations hereunder and under the Series 2015 Note and, to the best knowledge of
the District, 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 District is a
party or by which the District Is bound.
(c) The District is duly authorized and entitled to issue the Series 2015 Note and enter into
the Agreement and, when executed and delivered, the Series 2015 Note and the Agreement will each
constitute a legal, valid and binding obligation of the District enforceable in accordance with its
respective terms, subject as to enforceability to bankruptcy, insolvency, moratorium, reorganization or
other similar laws affecting creditors' rights generally and the rights of Florida governmental entities
specifically, 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
District, threatened against or affecting the District, at law or in equity, or before or by any governmental
authority, that, if adversely determined, would materially impair the ability of the District to perform the
District's obligations under this Agreement or under the Series 2015 Note.
(e) The District will furnish to the Noteholder within 210 days after the close of each Fiscal
Year a copy of the annual audited financial statements of the District, prepared by a certified public
accountant. The District shall also provide the Noteholder with a copy of the annual budget of the
District each year and any amendments thereto within 30 days of the final adoption of such budget.
With reasonable promptness the District shall provide such other data and information as may be
reasonably requested in writing by the Noteholder from time to time.
SECTION 2.02. GENERAL REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE NOTEHOLDER. The Noteholder hereby represents, warrants and agrees that
it is a banking corporation duly organized and existing under the laws of the State, 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 incorporation or bylaws. Pursuant to the
terms and provisions of this Agreement, the Noteholder agrees to provide a line of credit loan to the
District as evidenced hereby and by the Series 2015 Note for the purpose of financing costs of the
Project and paying costs relating to the issuance of the Series 2015 Note.
SECTION 2.03. SERIES 2015 NOTE SHALL NOT BE INDEBTEDNESS OF THE
DISTRICT OR STATE. The Series 2015 Note, when delivered by the District pursuant to the terms
of this Agreement, shall not be or constitute an indebtedness of the District, the State of Florida or any
political subdivision or agency thereof, within the meaning of any constitutional, statutory or charter
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limitations of indebtedness, but shall be payable solely as herein provided. The Noteholder shall never
have the right to compel the exercise of the ad valorem taxing power of the District, or taxation in any
form on any property therein to pay the Series 2015 Note or the interest thereon. The Series 2015
Note is a special and limited obligation secured by and payable as to principal and interest from the
Non -Ad Valorem Revenues, to the extent and in the manner provided herein.
SECTION 2.04. COVENANT TO BUDGET AND APPROPRIATE NON -AD
VALOREM REVENUES. The District covenants and agrees to budget and appropriate in its annual
budget for each Fiscal Year in which any amounts due hereunder, or with respect to the Series 2015
Note remain unpaid or outstanding, by amendment, if necessary, Non -Ad Valorem Revenues amounts
sufficient to pay principal of and interest on. the Series 2015 Note when due. Such covenant and
agreement on the part of the District to budget and appropriate such amounts of Non -Ad Valorem
Revenues shall be cumulative to the extent not paid, and shall continue until such Non -Ad Valorem
Revenues or other legally available funds in amounts sufficient to make all such required payments
shall have been budgeted, appropriated and actually paid. Notwithstanding the foregoing covenant of
the District, the District does not covenant to maintain any services or programs, now provided or
maintained by the District, 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 District from pledging in the future Its Non -Ad
Valorem Revenues, nor does it require the District to levy and collect any particular Non -Ad Valorem
Revenues, nor does it give the Noteholder a prior claim on the Non-Ad Valorem Revenues as opposed
to claims of general creditors of the District. 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 the Series
2015 Note and other debt instruments). However, the covenant to budget and appropriate for the
purposes and in the manner stated herein shall have the effect of making available for the payment of
the Series 2015 Note, in. the manner described herein, Non -Ad Valorem Revenues and placing on the
District a positive duty to appropriate and budget, by amendment, if necessary, amounts sufficient to
meet its obligations hereunder; subject, however, to the payment of services and programs which are
for essential public purposes affecting the health, safety and welfare of the inhabitants of the District
or which are legally mandated by applicable law.
SECTION 2.05. PAYMENT COVENANT. The District covenants that it shall duly and
punctually pay from the Non -Ad Valorem Revenues in accordance herewith, the principal of and
interest on the Series 2015 Note at the dates and place and in the manner provided herein and in the
Series 2015 Note according to the true intent and meaning thereof and all other amounts due under
this Agreement.
SECTION 2.05. NO ADDITIONAL COVENANT TO BUDGET AND APPROPRIATE
DEBT. During such time as the Series 2015 Note is outstanding hereunder or any amounts due
hereunder or with respect to the Series 2015 Note remain unpaid or outstanding, the District agrees
and covenants with the Noteholder that it will not incur any Debt for which it has covenanted to budget
and appropriate Non -Ad Valorem Revenues to satisfy debt service payments on such Debt, whether
or not it has secured such Debt with a lien on or pledge of any Non -Ad Valorem Revenues, excepting
debt to Noteholder.
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ARTICLE 111
DESCRIPTION OF SERIES 2015 NOTE; PAYMENT TERMS;
OPTIONAL PREPAYMENT
SECTION 3.01. DESCRIPTION OF THE SERIES 2015 NOTE. (a) The District hereby
authorizes the issuance and delivery of the Series 2015 Note to the Noteholder which Note shall be in
an amount equal to TWO HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($250,000.00) and
shall be designated as the "Heritage Bay Community Development District Special Obligation
Revenue Note, Series 2015." The text of the Series 2015 Note shall be substantially in the form
attached hereto as Exhibit A, with such omissions, insertions and variations as may be necessary and
desirable to reflect the particular terms of the Series 2015 Note. The provisions of the form of the
Series 2015 Note are hereby incorporated in this Agreement.
(b) The Series 2015 Note shall be dated the date of its delivery. The Series 2015 Note
shall be executed in the name of the District by the manual signature of the Chairman and the official
seal of the District shall be affixed thereto and attested by the manual signature of the District Manager.
In case any one or more of the officers, who shall have signed or sealed the Series 2015 Note, shall
cease to be such officer of the District before the Series 2015 Note so signed and sealed shall have
been actually delivered, such Series 2015 Note may nevertheless be delivered as herein provided and
may be issued as if the person who signed or sealed such Series 2015 Note had not ceased to hold
such office.
(c) The Series 2015 Note shall bear interest from its date of issuance at the Interest Rate
(calculated on an actual /360 day count basis). Beginning on October , 2015 and continuing on
the same day of each month thereafter for nine (9) months, the District shall make interest only
payments. Beginning on July , 2016, the District shall make principal and interest payments
monthly for fifty one (51) consecutive months, in amount calculated by Noteholder, based the
outstanding principal balance of the Series 2015 Note on June , 2016 and a fifty one (51) month
amortization period. The unpaid principal balance of this Series 2015 Note, together with all accrued
interest and charges owing in connection therewith, shall be due and payable on the Maturity Date.
All prepayments received by the Noteholder for application to this Series 2015 Note may be applied
to the District's obligations under this Series 2015 Note in such order as determined by the Noteholder.
Payments shall be made by auto debit from District's account. The District Manager is authorized to
establish the final debt service schedule with the agreement of the Noteholder.
(d) All payments of principal of and interest on the Series 2015 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 Noteholder in immediately available funds. 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. The District shall maintain books and records with
respect to the identity of the holders of the Note, including a complete and accurate record of any
assignment of this Agreement and the Series 2015 Note as provided in Section 3.01(f).
(e) The Noteholder's right, title and interest in and to this Agreement, the Series 2015 Note
and any amounts payable by the District hereunder may be assigned and reassigned in whole only
without the necessity of obtaining the consent of the District; provided, that any such assignment,
transfer or conveyance shall be made only to an entity which is a "qualified institutional buyer" as
defined in Rule 144A(a)(1) promulgated under the Securities Act of 1933, as amended, and is
purchasing this Agreement and the Series 2015 Note for its own account with no present intention to
resell or distribute this Agreement and the Series 2015 Note, subject to each investor's right at any
time to dispose of or assign the Agreement and the Series 2015 Note as it determines to be in its best
interests. No assignment, transfer or conveyance permitted by this Section 3.01(f) shall be effective
until the District shall have received a written notice of assignment that discloses the name and
address of such assignee. If the Noteholder notifies the District of its intent to assign and sell its right,
title and interest in and to this Agreement and the Series 2015 Note as herein provided, the District
agrees that it shall execute and deliver to the assignor Noteholder a notice and acknowledgement of
assignment in form and substance satisfactory to the assignor Noteholder within 10 Business Days
after its receipt of such request.
SECTION 3.02. OPTIONAL PREPAYMENT. The Series 2015 Note may be prepaid at
any time prior to the Maturity Date, at the option of the District, from any moneys legally available
therefor, upon notice as provided herein, in whole or in part, by paying to the Noteholder the principal
amount to be prepaid, together with the unpaid interest accrued on the amount of principal so prepaid
to the date of such prepayment, without penalty or premium.
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ARTICLE IV
CONDITIONS FOR ISSUANCE OF THE SERIES 2015 NOTE
SECTION 4.01. CONDITIONS FOR ISSUANCE. In connection with the issuance of
the Series 2015 Note, the Noteholder shall not be obligated to purchase the Series 2015 Note pursuant
to this Agreement unless at or prior to the issuance thereof the District delivers to the Noteholder the
following items in form and substance acceptable to the Noteholder:
(a) Such certificates, instruments and other documents as the Noteholder may deem
reasonably necessary or appropriate.
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ARTICLE V
EVENTS OF DEFAULT; REMEDIES
SECTION 5.01. EVENTS OF DEFAULT. An "Event of Default' shall be deemed to
have occurred under this Agreement if.
(a) The District shall fail to make timely payment of principal or interest when due with
respect to the Series 2015 Note;
(b) Any representation or warranty of the District contained in Article 11 of this Agreement
shall prove to be untrue in any material respect when made;
(c) Any covenant of the District contained in this Agreement shall be breached or violated
for a period of 30 days after the District receives notice from the Noteholder of such breach or violation,
unless the Noteholder shall agree in writing, in its sole discretion, to an extension of such time prior to
its expiration;
(d) There shall occur the termination, dissolution or liquidation of the District, or the filing
by the District of a voluntary petition in bankruptcy, or the commission by the District of any act of
bankruptcy, or adjudication of the District as a bankrupt, or assignment by the District for the benefit
of its creditors, or appointment of a receiver for the District, or the entry by the District into an
agreement of composition with its creditors, or the approval by a court of competent jurisdiction of a
petition applicable to the District 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) Any default by District in any other obligation to Noteholder.
SECTION 5.02. REMEDIES. If any event of default shall have occurred and be
continuing following ten (10) days from the date the District receives written notice thereof as to any
default which may be cured by the payment of money, or following thirty (30) days from the date the
District receives written notice thereof as to any default which cannot be cured by the payment of
money, the Noteholder or any trustee or receiver acting for the Noteholder may either at law or in
equity, by suit, action, mandamus or other proceedings in any court of competent jurisdiction, protect
and enforce any and all rights under the Laws of the State of Florida, or granted and contained in this
Agreement, and may enforce and compel the performance of all duties required by this Agreement or
by any applicable statutes to be performed by the District or by any officer thereof, including, but not
limited to, specific performance. No remedy herein conferred upon or reserved to the Noteholder is
intended to be exclusive of any other remedy or remedies, and each and every such remedy shall be
cumulative, and shall be in addition to every other remedy given hereunder or now or hereafter existing
at law or in equity or by statute.
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9
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 Noteholder and the District.
SECTION 6.02. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which, when so executed and delivered, shall be an original; but such
counterparts shall together constitute but one and the same Agreement, and, in making proof of this
Agreement, it shall not be necessary to produce or account for more than one such counterpart.
SECTION 6.03. SEVERABILITY. If any clause, provision or section of this Agreement
shall be held illegal or invalid by any court, the invalidity of such provisions or sections shall not affect
any other provisions or sections hereof, and this Agreement shall be construed and enforced to the
end that the transactions contemplated hereby be effected and the obligations contemplated hereby
be enforced, as if such illegal or invalid clause, provision or section had not been contained herein.
SECTION 6.04. TERM OF AGREEMENT. This Agreement shall be in full force and
effect from the date hereof and shall continue in effect as long as the Series 2015 Note is outstanding.
SECTION 6.05. NOTICE OF CHANGES IN FACT. Promptly after the District becomes
aware of the same, the District will notify the Noteholder of (a) any change in any material fact or
circumstance represented or warranted by the District in this Agreement or in connection with the
issuance of the Series 2015 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 District 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 Heritage Bay Community Development District, c/o Severn Trent Services, 210 N.
University Drive, Suite 702, Coral Springs, Florida 33071, and to the Noteholder, CNLBank, 9160 Bonita
Beach Road, Bonita Springs, Florida 34135 Attention: William McDonald, Vice President, or at such
other address as shall be furnished in writing by any such party to the other, and shall be deemed to
have been given as of the date so delivered or deposited in the United States mail.
SECTION 6.07. NO THIRD -PARTY BENEFICIARIES. This Agreement is for the
benefit of the District and the Noteholder and their respective successors and assigns, and there shall
be no third -party beneficiary with respect thereto.
SECTION 6.08. APPLICABLE LAW. The substantive laws of the State of Florida shall
govern this Agreement.
SECTION 6.09. WAIVER OF JURY TRIAL. To the extent permitted by law, each party
waives, to the fullest extent permitted by applicable law, any. right it may have to a trial by jury in
respect of any proceedings relating to this Agreement.
SECTION 6.10. INCORPORATION BY REFERENCE. All of the terms and obligations
of the Resolution are hereby incorporated herein by reference as if said Resolution was fully set forth
in this Agreement and the Series 2015 Note.
10
SECTION 6.11. FINANCIAL STATEMENTS. The District shall provide to Noteholder
a copy of its audited financial statement annually on the earlier of its availability of 210 days from each
fiscal year end.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed
as of the date first set forth herein.
ATTEST:
By:
Calvin Teague, Secretary
HERITAGE BAY COMMUNITY DEVELOPMENT
DISTRICT
By:
Edwin B. Hubbard, Chairman, Board of Supervisors
CNLBANK
By:
William McDonald, Vice President
11
EXHIBIT A
$250,000.00
UNITED STATES OF AMERICA
STATE OF FLORIDA
HERITAGE BAY COMMUNITY DEVELOPMENT DISTRICT
SPECIAL OBLIGATION REVENUE NOTE,
SERIES 2015
Interest Final
Rate Date of Issuance Maturity Date
4.00% September___, 2015 September , 2020
KNOW ALL MEN BY THESE PRESENTS, that Heritage Bay Community Development
District (the "District "), for value received, hereby promises to pay, solely from the Non -Ad Valorem
Revenues described in the within mentioned Agreement, to the order of CNLBANK, a Florida
corporation,or its successors or assigns (the "Noteholder "), the principal sum of TWO HUNDRED
FIFTY THOUSAND AND 00/100 DOLLARS ($250,000.00) pursuant to that certain Loan Agreement
by and between the Noteholder and the District, dated as of the date hereof (the "Agreement "), and to
pay interest on such the outstanding principal amount hereof from the Date of Issuance set forth
above, or from the most recent date to which interest has been paid, at the fixed Interest Rate of 4.00%
per annum (calculated on an actual/360 day count basis. Beginning on October , 2015 and
continuing on the same day of each month thereafter for nine (9) consecutive months, District shall
make interest only payments on the outstanding principal balance. Beginning on July , 2016, the
District shall make principal and interest payments monthly for fifty one (51) consecutive months, in
amount calculated by Noteholder, based the outstanding principal balance of this Note on June ,
2016 and a fifty one (51) month amortization period. The unpaid principal balance of this Note, together
with all accrued interest and charges owing in connection therewith, shall be due and payable on the
Maturity Date. All payments received by the Noteholder for application to this Note may be applied to
the District's obligations under this Note in such order as determined by the Noteholder. Payments
shall be made by auto debit from District's account 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. If any required payment is more than 10 days late, then at
Noteholder's option, Noteholder will assess a late payment charge of 5.000% of the amount of the
regularly scheduled payment then past due.
This Note evidences a non - revolving line of credit. Once the total amount of principal has been
advanced or upon the expiration of a nine (9) month draw period beginning on the date of this Note,
District is not entitled to further loan advances. Advances under this Note may be requested in writing
by District or as provided in this paragraph. All communications, instructions, or directions to Noteholder
are to be directed to Noteholder's office shown above. The following person or persons are authorized
to request advances and authorize payments during the construction loan phase under this Note until
Noteholder receives from District, at Noteholder's address as follows: c/o Severn Trent Services, 210
N. University Drive, Suite 702, Coral Springs, Florida 33071, written notice of revocation of such
authority: Calvin Teague of Severn Trent Management Services or Edwin B. Hubbard, Chairman of the
District. District agrees to be liable for all sums either: (A) advanced in accordance with the instructions
of an authorized person or (B) credited to any of District's accounts with Noteholder. The unpaid
principal balance owing on this Note at any time may be evidenced by endorsements on this Note or
by Noteholder's internal recording, including daily computer printouts.
The District and Noteholder agree that the District may borrow up to the maximum amount of principal
only one time. Subject to the terms of this Note and all of the related agreements, advances under this Note
are obligatory. Regardless of the obligatory nature of this Note, principal advances will not be made to the
District if any of the following conditions exist:
The maximum amount on this Note has been reached or is outstanding.
• District has breached any of the terms, provisions, representations, requirements or promises
contained in this Note or any other agreement.
• District makes a request for an advance after a date nine (9) months from the date of the
Note.
• The Note or any other agreement relating to the extension of credit is in default.
• The Noteholder is precluded by law from making the advance.
Advances under this Note may only be requested in writing by the District or by an authorized person.
The total of any advance requested and unpaid principal cannot exceed the available principal amount. The
available principal amount refers to the principal amount minus the aggregate amount of outstanding advances.
All advances will be charged to a loan account in Districts name on Noteholder's books, and the
Noteholder shall debit in such account the amount of each advance made to, and credit to such account
the amount of each repayment made by District.
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 190, Florida Statutes and other
applicable provisions of law, and Resolution No. duly adopted by the District on ,
2015 (the "Resolution "), as such Resolution may be amended and supplemented from time to time,
and is subject to all terms and conditions of the Resolution and the Agreement. Any capitalized term
used in this Note and not otherwise defined shall have the meaning ascribed to such term in the
Agreement.
This Note is being issued to finance improvements to the bridge retaining walls as set forth in
the Loan Agreement. This Note is payable from the Non -Ad Valorem Revenues in the manner and to
the extent provided and described in the Agreement.
This Note shall bear interest at the Interest Rate identified above on an actual /360 day count
basis.
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 District hereon shall apply first to fees, costs, late charges and
accrued interest, and then to the principal amount then due on this Note.
This Note may be prepaid prior to its Maturity Date identified above, at the option of the District,
from any moneys legally available therefor, upon notice as provided herein, in whole or in part, by
paying to the Noteholder the principal amount to be prepaid, together with the unpaid interest accrued
on the amount of principal so prepaid to the date of such prepayment, without penalty or premium.
Any prepayment of this Note shall be made on such date as shall be specified by the District
in an irrevocable notice delivered to the Noteholder not less than 10 days prior thereto specifying the
principal amount of this Note to be prepaid (which shall be the total aggregate principal amount to be
outstanding on such prepayment date) and the date that shall be the date of such prepayment, all in
accordance with the provisions of the Agreement.
This Note, when delivered by the District pursuant to the terms of the Agreement and the
Resolution, shall not be or constitute an indebtedness of the District or of the State of Florida, within
the meaning of any constitutional, statutory or charter limitations of indebtedness, but shall be payable
from the Non -Ad Valorem Revenues, in the manner and to the extent provided in the Agreement and
the Resolution. The Noteholder shall never have the right to compel the exercise of the ad valorem
taxing power of the District or the State, or taxation in any form of any property therein to pay the Note
or the interest thereon.
This Note shall be and have all the qualities and incidents of a negotiable instrument under
the commercial laws and the Uniform Commercial Code of the State of Florida, subject to the
immediately succeeding paragraph and any provisions for registration and transfer contained in the
Agreement. So long as any of this Note shall remain outstanding, the District shall maintain and keep
books for the registration and transfer of this Note.
The Noteholder's right, title and interest in and to this Note and any amounts payable by the
District hereunder may be assigned and reassigned in whole only without the necessity of obtaining
the consent of the District; provided, that any such assignment, transfer or conveyance shall be made
only to an entity which is a "qualified institutional buyer" as defined in Rule 144A(a)(1) promulgated
under the Securities Act of 1933, as amended, and is purchasing this Note for its own account with no
present intention to resell or distribute this Note, subject to each investors right at any time to dispose
of or assign the Note as it determines to be in its best interests. No assignment, transfer or conveyance
permitted by the Resolution shall be effective until the District shall have received a written notice of
assignment that discloses the name and address of such assignee.
IN WITNESS WHEREOF, the District caused this Note to be signed by the manual signature
of the Chairman of the Board of Supervisors and the seal of the District to be affixed hereto or imprinted
or reproduced hereon, and attested by the manual signature of the District Manager, and this Note to
be dated the Date of Issuance set forth above.
HERITAGE BAY COMMUNITY DEVELOPMENT
DISTRICT
By.
Edwin B. Hubbard, Chairman, Board of Supervisors