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The Allen LLC Agreement (Great Florida Bank) 7 /11i7 c.of /- 277 ,23 This instrument was prepared by: Bernardo A. Portuondo, Esq. Liebler, Gonzalez & Portuondo, P.A. Courthouse Tower, Suite 2500 44 West Flagler Street Miami, Florida 33130 SUBORDINATION AGREEMENT THIS AGREEMENT made as of September 2011, by (i) GREAT FLORIDA BANK, a Florida banking corporation (the "Senior Lender "), whose address is 15050 N.W. 79` Court, Suite 200, Miami Lakes, Florida 33016; (ii) THE CITY OF MIAMI BEACH, a Florida municipal corporation (the "Subordinate Lender "), whose post office address is 1700 Convention Center Drive, Miami Beach, FL 33139 and (iii) MBCDC: THE ALLEN, LLC, a Florida limited liability company (the "Borrower "), whose address is 945 Pennsylvania Avenue, Miami Beach, Florida 33139. RECITALS A. Borrower has received a loan from Subordinate Lender in the total principal amount of $1,024,708.00 (the "Subordinate Loan "). The Subordinate Loan is secured by a Mortgage and Security Agreement dated July 7, 2011, and recorded in Official Records Book 27747, at Page 3705 of the Public Records of Miami -Dade County, Florida (the "Subordinate Mortgage "). The Subordinate Mortgage constitutes an encumbrance on 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 "Property "). The term "Subordinate Loan Documents" means the Subordinate Note, the Subordinate Mortgage, and all other documents evidencing, securing or otherwise executed and delivered and /or recorded in connection with the Subordinate Loan. B. Contemporaneously with the execution of this Agreement, Borrower and Senior Lender shall enter into a Second Loan Modification Agreement, which further modifies the Construction Loan Agreement, dated as of September 15, 2008, between Borrower and Senior Lender, as modified by that certain Loan Modification Agreement dated as of March 15, 2009 among Borrower, Miami Beach Community Development Corporation, Inc., a Florida non - profit corporation (the "Guarantor ") and Senior Lender (as modified, the "Senior Loan Agreement "), pursuant to which Senior Lender has agreed to convert a construction loan made by Senior Lender to Borrower to a permanent loan in the principal amount of $263,300.00 (the "Senior Loan ") to be evidenced by an Amended and Restated Term Loan Renewal Promissory Note in like principal amount from Borrower to Senior Lender (as amended, the "Senior Note "). The Senior Note shall be secured by the Mortgage, Assignment of Rents and Security Agreement recorded on September 17, 2008 in Official Records Book 26572 at Page 0458 of the Public Records of Miami -Dade County, Florida, as modified by that certain Mortgage Modification Agreement dated as of March 15, 2009, recorded in Official Records Book 27075, Page 1422 of the Public Records of Miami - Dade County, Florida, as further modified by that certain Second Modification of Mortgage Agreement, of even date herewith, between Borrower and Senior Lender, to be recorded in the Public Records of Miami -Dade County, Florida (as modified, the "Senior Mortgage "), which Senior Mortgage encumbers the Property. The term "Senior Loan Documents" means the Senior Loan Agreement, the Senior Note, the Senior Mortgage and all other documents evidencing, securing or otherwise executed and delivered and /or recorded in connection with the Senior Loan. C. Lender will not convert the construction loan to a permanent loan unless it is secured by a first priority mortgage lien upon and security interest in the Property, and to induce the Senior Lender to make the Senior Loan, the Subordinate Lender is willing to subordinate its rights under the Subordinate Mortgage to the rights of the Senior Lender under 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 sufficiency of which are hereby acknowledged, and to induce Senior Lender 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 Senior Lender agrees, notwithstanding the prohibition against inferior liens on the Property contained in the Senior Loan Documents and subject to the provisions of this Agreement, to permit the Subordinate Mortgage to continue to encumber the Property (which is and will continue to be subordinate in all respects to the lien of the Senior Mortgage) to secure the Borrower's obligation to repay the Subordinate Note and all other obligations, indebtedness and liabilities of the Borrower to the Subordinate Lender under and in connection with the Subordinate Loan. So long as the Senior Mortgage remains outstanding, the Subordinate Lender agrees that the Subordinate Mortgage is and shall be subordinate and inferior to the Senior Mortgage and to all debt evidenced or secured thereby including principal, interest, costs and expenses, and to any and all extensions, modifications, amendments, enlargements or renewals thereof or future advances made thereunder. Further, the terms of the Subordinate Mortgage and all rights and remedies available to the Subordinate Lender pursuant to the Subordinate Mortgage, including but not limited to the right to receive the Property by conveyance or disposition, are hereby made expressly subordinate to the terms of the Senior Mortgage and the rights and remedies of Senior Lender under the Senior Mortgage. So long as the Senior Mortgage remains outstanding, Subordinate Lender expressly waives its rights to require the Borrower to convey the Property to Subordinate Lender at any time the Property is not used as an affordable housing project. (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 Lender, 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 Lender, whether now existing or hereafter created or acquired, shall be and hereby are subordinated in lien, priority and payment of principal and interest and all other charges and fees, including, without limitation, taxes and insurance premiums paid by Subordinate Lender and interest accruing after any default or petition in bankruptcy, to the indebtedness of Borrower pursuant to the Senior Mortgage, and all liens, encumbrances and security interests given to secure the payment thereof, whether now 2 existing or hereafter created or acquired, and any and all other indebtedness of Borrower to Senior Lender, 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 any and all other loans, advances, extensions of credit, or other accommodations to or for the account of Borrower as Senior Lender may elect to make from time to time to Borrower, for the following purposes: (a) advances expressly contemplated under the current provisions of the Senior Mortgage; (b) advances or expenditures for the payment of real estate taxes, insurance premiums or actions which, in Senior Lender's reasonable discretion, may be required to protect and preserve the Property or the first priority lien of the Senior Mortgage; or (c) advances, following the occurrence of an Event of Default, to the extent reasonably necessary to complete construction substantially in accordance with the plans and specifications for the applicable improvements, and to such renewals and extensions thereof. 3. Conditions Precedent to Remedial Action. If a default occurs under the Subordinate Loan or the Subordinate Mortgage (a "Subordinate Loan Default ") and is continuing, the Subordinate Lender agrees that, without the Senior Lender's prior written consent, it will not exercise its rights with respect to requiring a conveyance of the Property to Subordinate Lender under the Subordinate Loan or the Subordinate Mortgage or exercise any other rights or remedies it may have under the Subordinate Loan, the Subordinate Mortgage, or any other documents securing the Subordinate Loan, including, but not limited to accelerating the Subordinate Loan, collecting payment of principal due on the Subordinate Loan, rents, appointing (or seeking the appointment of) a receiver, enforcing the restrictive covenant provisions contained in the Subordinate Mortgage, or exercising any other rights or remedies thereunder unless and until it has given the Senior Lender at least 30 days' prior written notice. The Senior Lender shall have the right, but not the obligation, to cure any Subordinate Loan Default within the greater of (i) thirty (30) days from the date it receives notice of the Subordinate Loan Default or (ii) the same time period for curing a default which is given to the Borrower under the Subordinate Mortgage, except that the Senior Lender'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 the Senior Lender to cure a Subordinate Loan Default shall be deemed to have been advanced by the Senior Lender pursuant to, and shall be secured by the lien of, the Senior Mortgage. If a default occurs under the Senior Mortgage (a "Senior Loan Default ") and is continuing, the Senior Lender agrees that, without the Subordinate Lender's prior written consent, it will not exercise its rights with respect to commencing a foreclosure action against the Property under the Senior Mortgage or exercise any other rights or remedies it may have under the Senior Mortgage, including, but not limited to accelerating the Senior Loan, collecting payment of principal due on the Senior Loan, rents, appointing (or seeking the appointment of) a receiver or exercising any other rights or remedies thereunder unless and until it has given the Subordinate Lender at least 30 days' prior written notice. The Subordinate Lender shall have the right, but not the obligation, to cure any Senior Loan Default within the greater of (i) thirty (30) days from the date it receives notice of the Senior Loan Default or (ii) the same time period for curing a default which is given to the Borrower under the Senior Mortgage, except that the Subordinate Lender's time period for cure shall begin on the date on which it receives notice of the Senior Loan Default. 3 4. Restrictive Covenants. The Subordinate Lender acknowledges and agrees, notwithstanding anything to the contrary contained in the Subordinate Mortgage or Subordinate Loan Documents, upon foreclosure or sale of the Property or receipt of a deed in lieu of foreclosure by Senior Lender pursuant to a default under the Senior Mortgage, the restrictive covenants contained in the Subordinate Mortgage shall automatically terminate and shall be extinguished. 5. Insurance and Condemnation. In the event of partial or total destruction of the Property 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. 6. Notices. All notices hereunder shall be in writing and shall be deemed to have been sufficiently given or served for all purposes when delivered by hand or three (3) days after mailing when sent by registered or certified mail, return receipt requested, postage prepaid, to the addresses set forth above, or at such other address of which a party shall have notified the party giving such notice in writing. 7. No Waiver. Senior Lender's execution of this Agreement with respect to the Subordinate Mortgage is not and shall not be deemed a waiver of the Senior Lender's rights to prohibit any other junior mortgage of the Property. No delay on the part of Senior Lender in the exercise of any right or remedy hereunder or under the Senior Mortgage, shall operate as a waiver of any right hereunder. 8. Counterparts. The parties hereto agree that this Subordination Agreement may 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. 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. 11. 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 Lender and their respective heirs, successors and assigns and shall inure to the benefit of the Senior Lender, its successors and assigns. 13. Conflict. The Borrower, the Senior Lender and the Subordinate Lender each agrees that, in the event of any conflict or inconsistency between the terms of the Senior Loan 4 Documents, the Subordinate Loan Documents and the terms of this Agreement, the terms of this Agreement shall govern and control solely as to the following: (a) the relative priority of the security interests of the Senior Lender and the Subordinate Lender in the Property; (b) the timing of the exercise of remedies by the Senior Lender and the Subordinate Lender under the Senior Mortgage and the Subordinate Mortgage, respectively; and (c) solely as between the Senior Lender and the Subordinate Lender, the notice requirements, cure rights, rights to enforce their respective loan documents, and the other rights and obligations which the Senior Lender and the Subordinate Lender have agreed to as expressly provided in this Agreement. Borrower acknowledges that the terms and provisions of this Agreement shall not, and shall not be deemed to: extend Borrower's time to cure any Senior Loan Default or Subordinate Loan Default, as the case may be; give the Borrower the right to notice of any Senior Loan Default or Subordinate Loan Default, as the case may be other than that, if any, provided, respectively under the Senior Loan Documents or the Subordinate Loan Documents; or create any other right or benefit for Borrower as against Senior Lender or Subordinate Lender. [Signatures appear on following pages] 5 SIGNATURE PAGE FOR SUBORDINATION AGREEMENT IN WITNESS WHEREOF, Senior Lender has caused this Subordination Agreement to be duly executed as of the day and year first above written. Address: GREAT FLORIDA BANK Great Florida Bank 15050 N.W. 79 Court, Suite 200 Miami Lakes, Florida 33016 By: Attention: Name: Title: STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI -DADE ) The foregoing instrument was acknowledged before me this day of September, 2011 by , the of Great Florida Bank, a Florida banking corporation, for and on behalf of said banking corporation. Personally Known OR Produced Identification Type of Identification Produced Print or Stamp Name: Notary Public, State of Florida, at Large My Commission Expires: S -1 SIGNATURE PAGE FOR SUBORDINATION AGREEMENT IN WITNESS WHEREOF, Subordinate Lender has caused this Subordination Agreement to be duly executed as of the day and year first above written. THE CITY OF MIAMI BEACH, a Florida municipal corporation B Nam : ) J e eE'i D✓IZArtG�— Title: STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI -DADE ) The foregoing instrument was acknowledged before me this Q day of September, 2011, by Top - (p 7_, the 3 riy / ( , The City of Miami Beach, a Florida municipal corporation, for and on behalf of said agency. Personally Known OR Produced Identification X 1 titif io Type of Identification Produced ������ \PN BEA( ti.• MM1SSto, ••;7+ /�. G 029, ? o � ;'� ° • • • W• ' rint or Stamp NI e: ,L, 'f r/ ea cbq rnf '; y # 983701 ; • ,c . .� y ded its �: Notary Public, State of Florida, at Large % ,, A •. / /cUndec* :• * �Q My Commission Expires: 4%iltgO APPROVED AS TO FORM & LANGUAGE & Fn ) ELUTION � It arne ate v S -2 SIGNATURE PAGE FOR SUBORDINATION AGREEMENT IN WITNESS WHEREOF, Borrower has caused this Subordination Agreement to be duly executed as of the day and year first above written. MBCDC: THE ALLEN, LLC, a Florida limited liability company By: MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION, INC., a Florida non - profit corporation, its sole member By: Roberto Datorre, President STATE OF FLORIDA ) )SS: COUNTY OF MIAMI -DADE ) The foregoing instrument was acknowledged before me this aoday of September, 2011, by Roberto Datorre, President of Miami Beach Community Development Corporation, Inc., a Florida non -profit corporation, the sole member of MBCDC: The Allen, LLC, a Florida limited liability company, on behalf of said companies. Personally Known OR Produced Identification Type of Identification Produced .� ' P1 Notary Public State of Florida re. : ° : Andrea Diaz J ,� My Com mission EE083385 Print or Stamp Name: I' , I ' - MIAMI O. Expires 04/12/2016 Notary Public, State of Florida, at Large 1\-A tC \ DaGt - ftO , (1CW My Commission Expires: L- u - o \.5 S -3 EXHIBIT "A" LEGAL DESCRIPTION Commencing at the NE corner of Block G as shown on the Plat of the resubdivision of Blocks G, H, J and Triangular Tract as recorded in Plat Book 6, at Page 102, of the Public Records of Dade County, Florida, thence run Northwesterly along the Southerly line of 21st street 225 feet to a Southwesterly direction along a line parallel to an 225 feet distant Westerly thence run in a So y g p Y from the Westerly line of Sheridan (now Park) Avenue 124.91 feet at the point of beginning of the Tract of land herein described; thence continue along the last mentioned course a distance of 124.91 feet to the Northerly line of 20 street; thence run a Northwesterly direction along the Northerly line of 20th Street a distance of 31.29 feet of the point of curvature, P.C. of a circular curve; thence run along the arc of a circular curve deflecting to the right and having for its elements a central angle of 68.04 degrees and a radius of 30 feet a distance of 35.64 feet to the point of tangency P.T. of said circular curve, said P.T. being on the Easterly line of Washington Avenue; thence run tangent to the last mentioned circular curve along the Easterly line of Washington Avenue a distance of 114.4 feet to a point; thence run in a Southeasterly direction along a line parallel to and 124.91 feet distant Northerly from the Northerly line of 20th Street a distance of 101.85 feet to the point of beginning of the tract of land herein described.