Subordination Agreement 0 2T �q 77
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 July 15, 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 r ecorded 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 Match 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 convent 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
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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.
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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
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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 rig_ ht 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]
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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: GR T FLORIDA BANK
Great Florida Batik
15050 N.W. 70 "' Court, Suite 200
Miami Lakes, Florida 33016. B)
Attention: Lo /.W
Title:
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI -DADS )
The foregoing instrument was acknowledged before me this clay of September,
2011 by i'n ,<.,tlle ( 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
LOURDES ALFONSO
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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
By: ,
Nam _ e e 6v�u
Title: C; �,,, a.c�• --
STATE OF FLORIDA }
SS:
COUNTY OF MIAMI -DADE )
keg—
The foregoing instrument was acknowledged before me this day of September,
2011, by sc Hsu. (p 7 -, the ,, of The City of Miami Beach, a Florida municipal
corporation Cr and on behalf of said agency.
Personally ✓ OR Produced Identification
Tyne of Identification Produced "X
D . `n '
rint or Stamp N c ie: 0 oc d �:, #D
Notary Public State of Florida at Large
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My Commission Expires:
APPROVED AS TO
FORM & LANGUAGE
& FOR,EXECUTION
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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 Wtorre, President
STATE OF FLORIDA )
)SS:
COUNTY OF MIAMI -DADE )
The 'foregoing instrtunent was acknowledged before me this ,day 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
i
Type of Identification Produced
o�Y v�� Notary Publlc State of Florida {
Andrea Dian i t
My Comm138101) EE0e3385
Print or Stamp Name: �4'0r�°� Explras 0411218016
Notary Public, State of Florida, at Large
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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
point; thence run in a Southwesterly direction along a line parallel to an 225 feet distant Westerly
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 in 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 R.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.
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