Subordination Agreement 3rd & 5thaooy- a7UX~)
THIS I1~'STRUMENT PREPARED
BY AND RETURN T0:
Jan Albanese Carpenter, Esq.
Shuffield, Lowman & Wilson. P.A.
P.O. Box 1010
Orlando. Florida 32802-1010
SUBORDINATION AGREEMENT
(3rd & Sth Mortgages)
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ABOVE SPACE RESERVED FOR
RECORDING PURPOSES ONLY
(Villa Maria Apartments / SHADP / 2007-009FHSH)
THIS SUBORDINATION AGREEMENT (this "Agreement") is made and entered into
as of July 27, 2009, by and among (i) FLORIDA HOUSING FINANCE CORPORATION, a
public corporation and a public body corporate and politic duly created and existing under the
laws of the State of Florida (the "Senior Mortgagee") (which term as used in every instance shall
include Senior Mortgagee's successors and assigns); (ii) the CITY OF MIAMI BEACH, a
municipal corporation of the State of Florida, acting solely in its capacity as third mortgage
lender of those certain HOME Investment Partnerships Program funds as defined in Paragraph A
below ("Third Mortgagee") and as fifth mortgage lender of those certain additional HOME
Investment Partnerships Program funds as defined in Paragraph C below ("Fifth Mortgagee",
and together with the Third Mortgagee referred to collectively herein as the "Subordinate
Mortgagee"); and (iii) MBCDC: VILLA MARIA, LLC, a Florida limited liability company (the
"Borrower").
RECITALS
A. Borrower executed and delivered to the Third Mortgagee a Promissory Note dated
September 18, 2008 (the "Third Mortgage Note") in the original principal amount of $3,200,000
evidencing a loan of HOME Investment Partnerships Program funds (the "Third Mortgage
Loan") secured by that certain Mortgage and Security Agreement dated September 19, 2008 and
recorded September 23, 2008 in Official Records Book 26579, Page 280, of the Public Records
of Miami-Dade County, Florida. The aforesaid Mortgage encumbers Borrower's interest in the
real property described in Exhibit "A" attached hereto and made a part hereof, the improvements
thereon, and certain personal property relating thereto (collectively, the "Development"). The
aforesaid Third Mortgage Note and the Mortgage in favor of the Third Mortgagee are
collectively referred to as the "Third Mortgage."
B. Borrower executed and delivered to MIAMI-DADE COUNTY, a political
subdivision of the State of Florida (the "Fourth Mortgagee") a Promissory Note dated July 16,
Subordination Agt (3rd + 5th)
Villa Maria (SIIADP)
2009 (the "Fourth Mortgage Note") in the original principal amount of $1,000,000 evidencing a
loan of Surtax funds (the "Fourth Mortgage Loan") secured by that certain Mortgage and
Security Agreement and Assignment of Leases, Rents and Profits dated July 16, 2009, to be
recorded in the public records of Miami-Dade County, Florida, which Mortgage also encumbers
the Development. The aforesaid Fourtl-r Mortgage Note and the Mortgage in favor of the Fourth
Mortgagee are collectively referred to as the "Fourth Mortgage."
C. Borrower executed and delivered to the Fifth Mortgagee a Promissory Note dated
on or about June 2, 2009 (the "Fifth Mortgage Note") in the original principal amount of
$185,273 evidencing an additional loan of HOME Investment Partnerships Program funds (the
"Fifth Mortgage Loan") secured by that certain Mortgage and Security Agreement dated June 2,
2009, to be recorded in the public records of Miami-Dade County, Florida, which Mortgage also
encumbers the Development. The aforesaid Fifth Mortgage Note and the Mortgage in favor of
the Fifth Mortgagee are collectively referred to as the "Fifth Mortgage." Hereinafter, the Third
Mortgage Note and the Fifth Mortgage Note are collectively referred to as the "Subordinate
Note," the Third Mortgage Loan and the Fifth Mortgage Loan are collectively referred to as the
"Subordinate Loan," and the Third Mortgage and the Fifth Mortgage are collectively referred to
as the "Subordinate Mortgage."
D. Borrower executed and delivered to Senior Mortgagee a Promissory Note dated
July 27, 2009 (the "Senior Note") in the original principal amount of $2,000,000, evidencing a
loan under the Special Housing Assistance and Development Program (the "Senior Loan")
secured by a Mortgage and Security Agreement dated as of July 27, 2009, to be recorded in the
public records of Miami-Dade County, Florida, which Mortgage also encumbers the
Development. Hereinafter, the aforesaid Senior Note and the Mortgage in favor of Senior
Mortgagee are collectively referred to as the "Senior Mortgage."
E. Senior Mortgagee will not make the Senior Loan unless it is secured by a
mortgage upon and security interest in the Development, second in priority only to that certain
Mortgage and Security Agreement in favor of INTERNATIONAL FINANCE BANK ("First
Mortgagee"), in the original principal amount of $2,737,500, dated as of September 19, 2008 and
recorded September 23, 2008 in Official Records Book 26579, Page 257, of the Public Records
of Miami-Dade County, Florida, as may be amended or modified from time to time (the "First
Mortgage").
F. The effect of this Agreement is to establish that the Senior Mortgage is senior in
priority to the Third Mortgage, which Third Mortgage is senior in priority to the Fourth
Mortgage, which Fourth Mortgage is senior in priority to the Fifth Mortgage.
G. To induce Senior Mortgagee to make the Senior Loan, the Subordinate Mortgagee
is willing to subordinate the Subordinate Mortgage to the Senior Mortgage.
AGREEMENT
NOW, THEREFORE, in consideration of the sum of TEN AND NO/100 DOLLARS
($10.00) and other good and valuable consideration, from one to the other paid, the receipt and
Subordination Agt (3rd + Sth) 2
Villa Maria (SHARP)
sufficiency whereof is hereby acknowledged, and to induce Senior Mortgagee to make the Senior
Loan, the parties do hereby agree:
1. Recitals. The Recitals are true and correct and are made a part hereof.
2. Subordination.
(a) The Subordinate Mortgage is now and forever hereafter made subordinate
and inferior to the Senior Mortgage and to all debt evidenced or secured thereby including
principal, interest (if applicable), costs and expenses, and to any and all extensions,
modifications, amendments or renewals thereof or any enlargements or future advances made
thereunder by Senior Mortgagee to protect the Development or the priority of its lien. Further,
the terms of the Subordinate Mortgage and all rights and remedies of the Subordinate Mortgagee
available to the Subordinate Mortgagee pursuant to the Subordinate Mortgage, including but not
limited to the right to claim or receive any insurance or condemnation awards or proceeds, are
hereby expressly subordinate to the terms of the Senior Mortgage and the rights and remedies of
Senior Mortgagee under the Senior Mortgage.
(b) The indebtedness of Borrower, and any other obligor pursuant to the
Subordinate Note, and any and all other indebtedness and other obligations of Borrower to
Subordinate Mortgagee related to the Subordinate Loan, and the Subordinate Mortgage and all
other liens, encumbrances and security interests given to secure the payment of the Subordinate
Note and any other obligations of payment or performance of Borrower to Subordinate
Mortgagee, whether now existing or hereafter created or acquired related to the Subordinate
Loan, shall be and hereby are subordinated in lien, priority and payment of principal and interest
(if applicable) and all other charges and fees, including, without limitation, taxes and insurance
premiums paid by Senior Mortgagee and interest accruing after any default or petition in
bankruptcy, to the indebtedness of Borrower pursuant to the Senior Note, and all liens,
encumbrances and security interests given to secure the payment thereof, whether now existing
or hereafter created or acquired, including, without limitation, the Senior Mortgage and to any
and all other loans, advances, extensions of credit, or other accommodations to or for the account
of Borrower as Senior Mortgagee may elect to make from time to time, and any and all other
indebtedness of Borrower to Senior Mortgagee, whether now existing or hereafter created or
acquired, and any and all liens, encumbrances, and security interests given to secure the
repayment or payment thereof, whether now existing or hereafter created or acquired, and to
such renewals and extensions thereof as Senior Mortgagee may elect to make from time to time.
3. Conditions Precedent to Remedial Action. If a default occurs under the
Subordinate Mortgage (a "Subordinate Loan Default") and is continuing, the Subordinate
Mortgagee agrees that, without Senior Mortgagee's prior written consent, it will not commence
foreclosure proceedings with respect to the Development under the Subordinate Mortgage or
exercise any other rights or remedies it may have under the Subordinate Mortgage, including but
not limited to accelerating the Subordinate Loan (and enforcing any "due on sale" provision
included in the Subordinate Mortgage), collecting rents, appointing (or seeking the appointment
of) a receiver or exercising any other rights or remedies thereunder, unless and until it has given
Senior Mortgagee at least thirty (30) days' prior written notice. Senior Mortgagee shall have the
Subordination Agt (3rd + 5th) 3
Villa Maria (SHADP)
right; but not the obligation, to cure any Subordinate Loan Default within the same time period
for curing a default which is given to the Borrower under the Subordinate Loan Documents,
except that Senior Mortgagee's time period for cure shall begin on the date on which it receives
notice of the Subordinate Loan Default. All amounts advanced or expended by Senior
Mortgagee to cure a Subordinate Loan Default shall be deemed to have been advanced by Senior
Mortgagee pursuant to, and shall be secured by the lien. of, the Senior Mortgage.
4. Insurance, Condemnation. In the event of partial or total destruction of the
Development which results in the payment of insurance proceeds, or in the event of a
condemnation or similar proceeding which results in the payment of an award, the proceeds or
award shall be applied in accordance with the relevant provisions of the Senior Mortgage.
5. Modifications to Subordinate Mort~a~e. Borrower agrees that it will not
modify the Subordinate Mortgage without the prior written consent of Senior Mortgagee.
6. Notices. Each notice, request, demand, consent, approval or other
communication (hereinafter in this section referred to collectively as "notices" and referred to
singly as a "notice") which the parties hereto are required or permitted to give to the other party
pursuant to this Agreement shall be in writing and shall be deemed to have been duly and
sufficiently given if: (a) personally delivered with proof of delivery thereof (any notice so
delivered shall be deemed to have been received at the time so delivered); or (b) sent by Federal
Express (or other similar national overnight courier) designating early morning delivery (any
notice so delivered shall be deemed to have been received on the next Business Day following
receipt by the courier); or (c) sent by United States registered or certified mail, return receipt
requested, postage prepaid, at a post office regularly maintained by the United States Postal
Service (any notice so sent shall be deemed to have been received two (2) days after mailing in
the United States), addressed to the respective parties as follows:
Senior Mortgagee: Florida Housing Finance Corporation
227 North Bronough Street, Suite 5000
Tallahassee, Florida 32301-1329
Attention: Executive Director
Phone: (850) 488-4197
Fax: (850) 488-9809
with a copy to: Shuffield, Lowman & Wilson, P.A.
1000 Legion Place, Suite 1700
Orlando, Florida 32801
Attention: Jan Albanese Carpenter, Esq.
Phone: (407) 581-9800
Fax: (407) 581-9801
Subordination Agt (3rd + 5th) 4
Villa Maria (SHARP)
Subordinate
Mortgagee: City of Miami Beach
Office of Real Estate, Housing & Community Development
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Anna Parekh, Director
Phone: (306) 673-7000
Fax: (305) 673-7772
with a copy to: Office of the City Attorney
City of Miami Beach
l 700 Convention Center Drive
Miami Beach, Florida 33139
Phone: (305) 673-7470
Fax: (305) 673-7002
Borrower: MBCDC: Villa Maria, LLC
c/o Miami Beach Community Development Corporation, Inc.
945 Pennsylvania Avenue
Miami Beach, Florida 33139
Attention: Roberto Datorre
Phone: (305) 538-0090
Fax: (305) 538-2863
with a copy to: Shutts & Bowen LLP
1500 Miami Center
201 South Biscayne Blvd.
Miami, Florida 33131
Attention: Gary Cohen, Esq.
Phone: (305) 347-7308
Fax: (305) 347-7808
Either party may, by notice given pursuant to this Section, change the person or persons
and/or address or addresses, or designate an additional person or persons or an additional address
or addresses for its notices, but notice of a change of address shall only be effective upon receipt.
7. No Waiver. The giving of consent by Senior Mortgagee to the giving of the
Subordinate Mortgage is not and shall not be deemed a waiver of Senior Mortgagee's rights to
prohibit any other junior mortgage on the Development. No delay on the part of Senior
Mortgagee or Subordinate Mortgagee in the exercise of any right or remedy hereunder or under
the Senior Mortgage or Subordinate Mortgage, respectively, shall operate as a waiver of any
right hereunder.
8. Counterparts. The parties hereto agree that this Subordination Agreement >nay
be executed in two or more counterparts, each of which shall be an original, but all. of which
shall constitute one and the same instrument.
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Villa Maria (SHADP)
9. Costs of Enforcement. Should suit be brought to enforce the provisions of this
Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees incurred
both at trial and on appeal.
10. Paragraph Headings. The headings of the various paragraphs of this
Subordination Agreement have been inserted only for the purposes of convenience, and are not
part of this Subordination Agreement and shall not be deemed in any manner to modify, explain
or restrict any of the provisions of this Subordination Agreement.
1 L Choice of Law. This Agreement shall be construed, interpreted, enforced and
governed by and in accordance with the laws of the State of Florida, excluding the principles
thereof governing conflicts of law. If any provision shall be held prohibited or invalid under
applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity
without invalidating any other provision of this Agreement.
12. Binding Effect. This Agreement shall be binding upon the Borrower and the
Subordinate Mortgagee and their respective successors and assigns, and shall inure to the benefit
of Senior Mortgagee; its successors and assigns.
[COUNTERPART SIGNATURE PAGES TO FOLLOW]
Subordination A~ (3rd + 5th) 6
Villa Maria (SHARP)
COUNTERPART SIGNATURE PAGE TO
SUBORDINATION AGREEMENT
(3rd & Sth Mortgages)
(Villa Maria Apartments /SHADP / 2007-009FHSH)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first written above.
SENIOR MORTGAGEE:
WITNESSES:
FLORIDA HOUSING FINANCE
CORPORATION
By:
e h~ P. Auger
Ex utive Director
Address: 227 N. Bronough Street, Suite 5000
Tallahassee, Florida 32301-1329
[SEAL]
STATE OF FLORIDA
COUNTY OF LEON
The foregoing instrument was acknowledged before me this ~ day of July, 2009, by
STEPHEN P. AUGER, as Executive Director of the FLORIDA HOUSING FINANCE
CORPORATION, a public corporation and a public body corporate and politic duly created and
existing under the laws of the State of Florida, on behalf of Florida Housing. Said person is
personally known to me or has produced a valid driver's license as identification.
I~7"otary Public; tai of >:,
Print Name: ~
My Commission Expires
My Commission No.:~
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EXPIRtS: January28, 2011
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Subordination Agt (3rd + 5th) S_ 1
Villa Maria (SHADP)
COUNTERPART SIGNATURE PAGE TO
SUBORDINATION AGREEMENT
(3rd c~ Sth Mortgages)
(Villa Maria Apartments /SHADP / 2007-009FHSH)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first written above.
SUBORDINATE MORTGAGEE:
ATTEST:
CITY OF MIAMI BEACH,
a municipal corporation of the State of Florida
,,
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Print: R o ~ c~2 r !~ -' Print c~ ~ '
Title: City Clerk Title: (~,~ T~~/~
Address: 1700 Convention Center Drive
Miami Beach, Florida 33139
[SEAL]
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this ~~ day of July, 2009, by
c~U,e~ ~ G a ti.' ~ r9t-E Z as (~l`Ty /77 /~-ic,'A ~" ~ and by
~ C~ ~~'~~/~ as City Clerk, of the CITY OF MIAMI BEACH, a
municipal corporation of the State of Florida, on behalf of the City of Miami Beach. Said
persons are personally known to me or have each produced a valid driver's license as
identification.
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
Notary Pu ':e State c
Print Na e: ~e r r
My Commission Exp:
My Commission No.:
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Subordination Agt (3rd + 5th)
Villa Maria (SHADP)
I ~~;Y;'a;;~., KERRYHERNANDEZ
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EXPIRES: May 3, 2011
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S-2
COUNTERPART SIGNATURE PAGE TO
SUBORDINATION AGREEMENT
(3rd & Sth Mortgages)
(Villa Maria Apartments / SHADP / 2007-009FHSH)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first written above.
BORROWER:
WITNESSES:
MBCDC: VILLA MARIA, LLC,
a Florida limited liability company
By: MIAMI BEACH COMMUNITY
DEVELOPMENT CORPORATION, INC.,
a Florida non-profit corporation,
its sole member and manager
By:
Rob orre
President
Address: 945 Pennsylvania Avenue
Miami Beach, Florida 33139
[CORPORATE SEAL]
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this ~ day of July, 2009, by
ROBERTO DATORRE, as President of MIAMI BEACH COMMUNITY DEVELOPMENT
CORPORATION, INC., a Florida non-profit corporation, the sole member and manager of
MBCDC: VILLA MARIA, LLC, a Florida limited liability company, on behalf of the
corporation and the limited liability company. Said person is personally known to me or has
produced a valid driver's license as identification.
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Subordination Agt (3rd + 5th) S_3
Villa Maria (SI IADP)
L_.~~T ~`t=t~E
EXHIBIT "A"
LEGAL DESCRIPTION
(Villa Maria Apartments)
Lots 1 and 2, Block 10, Amended Map of the Ocean Front Property of the Miami Beach
Improvement Company, according to the plat thereof, as recorded in Plat Book 5, Page 7, of the
Public Records of Miami-Dade County, Florida.
Subordination Agt (3rd + 5th)
Villa Maria (SHADP)