Subordination Agreement (HACMB Mortgage) 232.3- 3Zo3"7
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This instrument prepared by and returned to:
Rafael A. Paz,City Attorney
Office of the City Attorney
1700 Convention Center Drive,4th Floor
Miami Beach,Florida 33139
ABOVE SPACE RESERVED FOR
RECORDING PURPOSES ONLY
SUBORDINATION AGREEMENT
(HACMB MORTGAGE)
THIS SUBORDINATION AGREEMENT (HACMB MORTGAGE) (this "Agreement") is
effective as of December 15, 2023 by and among(i) CITY OF MIAMI BEACH, FLORIDA, a Florida
municipal corporation(the"Senior Lender"),having its principal office at 1700 Convention Center Drive,
Miami Beach, Florida 33139, (ii) HOUSING AUTHORITY OF THE CITY OF MIAMI BEACH, a
public body corporate and politic established pursuant to Chapter 421 of the Florida Statutes("Subordinate
Lender")(which term as used in every instance shall include Subordinate Lender's successors and assigns),
having its principal office at 200 Alton Road, Miami Beach, Florida 33139, and (iii) VISTA BREEZE,
LTD.,a Florida limited partnership("Borrower"),having its principal office located at 161 NW 6th Street,
Suite 1020,Miami,Florida 33136.
RECITALS
A. The Senior Lender made a loan to Borrower in the original principal amount of FIVE
HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00), as evidenced by that certain
Promissory Note dated as of September 21, 2023, by Borrower, as maker, and Senior Lender, as payee,
which is secured by that certain Leasehold Mortgage, Security Agreement and Fixture Filing dated as of
September 21, 2023,given by Borrower in favor of Senior Lender and recorded in Official Records Book
33902, Page 1175 of the public records of Miami-Dade County, Florida and an additional future advance
loan in the amount of FIVE HUNDRED THREE THOUSAND NINE HUNDRED SIXTY-NINE AND
NO/100 DOLLARS ($503,969.00), which total indebtedness of Borrower to Lender is evidenced by that
certain Amended, Restated, Renewal and Consolidated Promissory Note in the principal amount of ONE
MILLION THREE THOUSAND NINE HUNDRED SIXTY NINE AND NO/100 DOLLARS
($1,003,969.00)(the"Senior Note")dated December 15,2023 and due in full on thirty(30)years after the
completion of construction,as further described in the Senior Note, estimated as December 31,2055 (the
"Senior Loan"),which Senior Loan is secured by that certain Amended and Restated Leasehold Mortgage,
Security Agreement and Fixture Filing of even date herewith made by Borrower in favor of Senior Lender
to be recorded in the public records of Miami-Dade County, Florida(the"Senior Security Instrument"),
which Senior Security Instrument encumbers that certain real property in Miami-Dade County, Florida
known as"Vista Breeze"(the"Property,"which is more fully described in Exhibit"A"attached hereto);
that certain a HOME Program Development Agreement dated as of September 21, 2023 by and between
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Subordination Agreement to HACMB Mortgage
(VISTA BREEZE/CONSTRUCTION INFLATION RESPONSE VIABILITY FUNDING/RFA 2023-211/2023-260V)
(VISTA BREEZE/SAIL/ELI/NHTF/RFA 2021-205/2022-159SN)
Borrower and Senior Lender, as amended and restated as of the date hereof pursuant to that certain
Amended and Restated HOME Program Development Agreement (collectively, the "Senior HOME
Agreement"); and that certain Declaration of Restrictive Covenants dated as of September 21, 2023
("Original Declaration"), and recorded on September 27, 2023, in Official Records Book 33902, at Page
1195, of the Public Records of Miami-Dade County, Florida, as amended and restated by that certain
Amended and Restated Declaration of Restrictive Covenants dated the date hereof,given by Borrower and
owner of the fee simple interest in the Property in favor of Senior Lender and to be recorded in the public
records of Miami-Dade County, Florida(the"Senior Declaration"and together with the Senior Note,the
Senior Security Instrument,the Senior HOME Agreement and all other documents governing, evidencing
and securing the Senior Loan,the"Senior Loan Documents").
B. Contemporaneously herewith,Borrower is executing and delivering to Subordinate Lender
a promissory note dated as of the date hereof(the "Subordinate Note") evidencing a total debt owed to
Subordinate Lender in the maximum principal amount of EIGHT MILLION EIGHT HUNDRED
THOUSAND AND NO/100 DOLLARS($8,800,000)(the"Subordinate Obligation"). The Subordinate
Obligation is (i) evidenced by the Subordinate Note, (ii) subject to the terms and conditions of a Note
Covenant Agreement dated the date hereof by and between Borrower and Subordinate Lender (the
"HACMB Agreement"), and (iii) secured by that certain Open-End Leasehold Mortgage and Security
Agreement dated as of the date hereof,given by Borrower in favor of Subordinate Lender and to be recorded
in the public records of Miami-Dade County, Florida (the "Subordinate Mortgage", and together with
the Subordinate Note,the HACMB Agreement and all other documents governing,evidencing and securing
the Subordinate Obligation,the"Subordinate Documents").
C. The Senior Lender has agreed to permit the Subordinate Lender to make the Subordinate
Obligation and to place an eighth subordinate mortgage lien against the Property subject to all of the conditions
contained in this Agreement.
NOW,THEREFORE,in order to induce the Senior Lender to permit the Subordinate Lender to make
the Subordinate Obligation to Borrower and to place a subordinate mortgage lien against the Property,and in
consideration thereof,the Senior Lender,the Subordinate Lender,and the Borrower agree as follows:
1. Definitions.
In addition to the terms defined in the Recitals to this Agreement, for purposes of this Agreement
the following terms have the respective meanings set forth below:
"Affiliate"means,when used with respect to a Person,any corporation,partnership,joint venture,
limited liability company, limited liability partnership, trust or individual controlled by, under common
control with, or which controls such Person(the term"control" for these purposes shall mean the ability,
whether by the ownership of shares or other equity interests, by contract or otherwise, to elect a majority
of the directors of a corporation, to make management decisions on behalf of, or independently to select
the managing partner of, a partnership, or otherwise to have the power independently to remove and then
select a majority of those individuals exercising managerial authority over an entity, and control shall be
conclusively presumed in the case of the ownership of 50%or more of the equity interests).
"Borrower" means the Person named as such in the first paragraph of this Agreement and any
other Person(other than the Senior Lender and Subordinate Lender)who acquires title to the Property after
the date of this Agreement.
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Subordination Agreement to HACMB Mortgage
"Business Day"means any day other than Saturday, Sunday,or a day on which the Senior Lender
is not open for business.
"Default Notice"means: (a)a copy of the written notice from the Senior Lender to the Borrower
stating that a Senior Loan Default has occurred under the Senior Loan; or(b)a copy of the written notice
from the Subordinate Lender to the Borrower stating that a Subordinate Obligation Default has occurred
under the Subordinate Obligation. Each Default Notice shall specify the default upon which such Default
Notice is based.
"Person" means an individual, estate, trust, partnership, corporation, limited liability company,
limited liability partnership, governmental department or agency or any other entity which has the legal
capacity to own property.
"Senior Lender" means the Person named as such in the first paragraph on page one of this
Agreement and any other Person who becomes the legal holder of the Senior Note after the date of this
Agreement.
"Senior Loan Default" means the occurrence of an"Event of Default" as that term is defined in
the Senior Loan Documents.
"Senior Loan Documents"means the Senior Note, the Senior Security Instrument and all other
documents, evidencing, securing or otherwise executed and delivered in connection with the Senior
Loan.
"Subordinate Documents"means the Subordinate Note,the Subordinate Security Instrument,and
all other documents evidencing, securing, or otherwise executed and delivered in connection with the
Subordinate Obligation.
"Subordinate Lender"means the Person named as Subordinate Lender in the first paragraph on
page one of this Agreement and any other Person who becomes the legal holder of any of the Subordinate
Note after the date of this Agreement.
"Subordinate Note" means the promissory note in the original principal amount of EIGHT
MILLION EIGHT HUNDRED THOUSAND AND NO/100 DOLLARS ($8,800,000)made by Borrower
to Subordinate Lender,or order,to evidence the Subordinate Obligation.
"Subordinate Obligation Default" means a default by the Borrower in performing or observing
any of the terms,covenants or conditions in the Subordinate Documents to be performed or observed by it,
which continues beyond any applicable period provided in the Subordinate Documents for curing the
default.
"Subordinate Security Instrument" collectively means the Subordinate Mortgage and any
subordinate financing statement, encumbering the Property as security for the Subordinate Obligation,
which the Subordinate Lender will cause to be recorded among the applicable land records.
2. Permission to Place Mortgage Lien Against Property.
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 Lender to record the Subordinate Security Instrument and other recordable Subordinate
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Subordination Agreement to HACMB Mortgage
Documents against the Property (which are subordinate in all respects to the lien of the Senior Security
Instrument and the Senior Declaration,other than as set forth herein)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 Obligation. Such permission is subject
to the condition that each of the representations and warranties made by the Borrower and the Subordinate
Lender in Section 3 is true and correct on the date of this Agreement and on the date on which the proceeds
of the Subordinate Obligation are disbursed to the Borrower. If any of the representations and warranties
made by the Borrower and the Subordinate Lender in Section 3 are not true and correct on both of those
dates, the provisions of the Senior Loan Documents applicable to unpermitted liens on the Property shall
apply with respect to the Subordinate Obligation.
3. Borrower and Subordinate Lender Representations and Warranties.
The Borrower and the Subordinate Lender each make the following representations and warranties
to the Senior Lender:
(a) The Borrower makes the following representations and warranties to the Senior Lender:
(1) Subordinate Note. The Subordinate Note shall be deemed to contain and
incorporate the following provision as if the same had been included in the original Subordinate
Note:
"The indebtedness evidenced by this Note is and shall be subordinate in right of
payment to the prior payment in full of the indebtedness evidenced by that certain
Amended, Restated, Renewal and Consolidated Promissory Note in the original
principal amount of$1,003,969.00(the"Senior Note")dated December 15,2023
issued by VISTA BREEZE,LTD.,a Florida limited partnership(the"Borrower")
and payable to the City of Miami Beach, Florida,a Florida municipal corporation
(the"Senior Lender"), or order, to the extent and in the manner provided in that
certain Subordination Agreement dated as of December 15, 2023, between and
among the Senior Lender,Borrower,and Housing Authority of the City of Miami
Beach (the "Subordination Agreement"). The Open-End Leasehold Mortgage
and Security Agreement securing this Note is and shall be subject and subordinate
in all respects to the liens, terms, covenants and conditions of the Senior Loan
Documents,as more fully set forth in the Subordination Agreement.The rights and
remedies of the Subordinate Lender and each subsequent holder of this Note under
the Open-End Leasehold Mortgage and Security Agreement securing this Note are
subject to the restrictions and limitations set forth in the Subordination Agreement.
Each subsequent holder of this Note shall be deemed, by virtue of such holder's
acquisition of this Note, to have agreed to perform and observe all of the terms,
covenants, and conditions to be performed or observed by the "Subordinate
Lender"under the Subordination Agreement."
(2) Relationship of Borrower to Subordinate Lender and Senior Lender. The
Subordinate Lender is not an Affiliate of the Borrower.
(3) Subordinate Obligation Terms. The term of the Subordinate Note does not end
before the term of the Senior Note.
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Subordination Agreement to HACMB Mortgage
(4) Subordinate Documents. The final and executed Subordinate Documents are
substantially in the same forms as those submitted to, and approved by, Senior Lender prior to the
date of this Agreement. Upon execution and delivery of the Subordinate Documents, Borrower
shall deliver to Senior Lender an executed copy of each of the Subordinate Document,certified to
be true, correct,and complete.
(b) The Subordinate Lender makes the following representations and warranties to the Senior
Lender with respect to the Subordinate Note and Subordinate Documents:
(1) Subordinate Note. The Subordinate Note shall be deemed to contain and
incorporate the following provision as if the same had been included in the original Subordinate
Note:
"The indebtedness evidenced by this Note is and shall be subordinate in right of
payment to the prior payment in full of the indebtedness evidenced by that certain
Amended, Restated, Renewal and Consolidated Promissory Note in the original
principal amount of S1,003,969.00(the"Senior Note")dated December 15, 2023
issued by VISTA BREEZE, LTD.,a Florida limited partnership(the"Borrower")
and payable to the City of Miami Beach, Florida, a Florida municipal corporation
(the"Senior Lender"), or order, to the extent and in the manner provided in that
certain Subordination Agreement dated as of December 15, 2023, between and
among the Senior Lender,Borrower,and Housing Authority of the City of Miami
Beach(the"Subordination Agreement").The Open-End Leasehold Mortgage and
Security Agreement securing this Note is and shall be subject and subordinate in
all respects to the liens, terms, covenants and conditions of the Senior Loan
Documents,as more fully set forth in the Subordination Agreement.The rights and
remedies of the Subordinate Lender and each subsequent holder of this Note under
the Open-End Leasehold Mortgage and Security Agreement securing this Note are
subject to the restrictions and limitations set forth in the Subordination Agreement.
Each subsequent holder of this Note shall be deemed, by virtue of such holder's
acquisition of this Note, to have agreed to perform and observe all of the terms,
covenants, and conditions to be performed or observed by the "Subordinate
Lender"under the Subordination Agreement."
(2) Subordinate Obligation Terms. The term of the Subordinate Note does not
end before the term of the Senior Note.
(3) Subordinate Documents. The executed Subordinate Documents are
substantially in the same forms as those submitted to, and approved by, Senior Lender prior to
the date of this Agreement.
4. Terms of Subordination.
(a) Agreement to Subordinate. The Senior Lender and the Subordinate Lender agree
that: (i)the indebtedness evidenced by the Subordinate Documents is and shall be subordinated in right of
payment, to the extent and in the manner provided in this Agreement to the prior payment in full of the
indebtedness evidenced by the Senior Loan Documents, and(ii)the Subordinate Security Instrument and
the other Subordinate Documents are and shall be subject and subordinate in all respects to the liens,terms,
covenants and conditions of the Senior Security Instrument and the other Senior Loan Documents and to
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Subordination Agreement to HACMB Mortgage
all advances heretofore made or which may hereafter be made pursuant to the Senior Security Instrument
and the other Senior Loan Documents (including but not limited to,all sums advanced for the purposes of
(1)protecting or further securing the lien of the Senior Security Instrument,curing defaults by the Borrower
under the Senior Loan Documents or for any other purpose expressly permitted by the Senior Security
Instrument or the Senior Declaration, or (2) constructing, renovating, repairing, furnishing, fixturing or
equipping the Property).
(b) Subordination of Subrogation Rights. The Subordinate Lender agrees that if,by reason
of the advance payment by Subordinate Lender of real estate taxes, casualty insurance premiums or other
monetary obligations of the Borrower to protect the Property, the Subordinate Lender, by reason of its
exercise of any other right or remedy under the Subordinate Documents, acquires by right of subrogation
or otherwise a lien on the Property which would(but for this subsection)be senior to the lien of the Senior
Security Instrument,then, in that event, such lien shall be subject and subordinate to the lien of the Senior
Security Instrument, only to the extent of the amount advanced, provided that Subordinate Lender gives
Senior Lender prior written notice of its intent to advance sums for real property taxes and/or casualty
insurance.
(c) Payments Before Senior Loan Default. Until the Subordinate Lender receives a Default
Notice of a Senior Loan Default from the Senior Lender,the Subordinate Lender shall be entitled to retain
for its own account all payments made under or pursuant to the Subordinate Documents as they come due
and provided,however,that no such payment is made more than thirty(30)days in advance of the due date
thereof.
(d) Payments After Senior Loan Default. The Borrower agrees that, after it receives
notice(or otherwise acquires knowledge) of a Senior Loan Default, it will not make any payments under
or pursuant to the Subordinate Documents (including but not limited to principal, interest, additional
interest,late payment charges,default interest,attorney's fees,or any other sums secured by the Subordinate
Security Instrument) without the Senior Lender's prior written consent excluding, however, such sums
which were due and owing and received by the Subordinate Lender prior to receipt of said notice or the
time it otherwise acquires knowledge of the Senior Loan Default. The Subordinate Lender agrees that,after
it receives a Default Notice from the Senior Lender with written instructions directing the Subordinate
Lender not to accept payments from the Borrower on account of the Subordinate Obligation, it will not
accept any payments under or pursuant to the Subordinate Documents (including but not limited to
principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other
sums secured by the Subordinate Security Instrument)without the Senior Lender's prior written consent.If
the Subordinate Lender receives written notice from the Senior Lender that the Senior Loan Default which
gave rise to the Subordinate Lender's obligation not to accept payments has been cured, waived, or
otherwise suspended by the Senior Lender, the restrictions on payment to the Subordinate Lender in this
Section 4 shall terminate, and the Senior Lender shall have no right to any subsequent payments made to
the Subordinate Lender by the Borrower prior to the Subordinate Lender's receipt of a new Default Notice
from the Senior Lender in accordance with the provisions of this Section 4(d).
(e) Remitting Subordinate Obligation Payments to Senior Lender. If, after the
Subordinate Lender receives a Default Notice from the Senior Lender in accordance with subsection (d)
above, the Subordinate Lender receives any payments under the Subordinate Documents,the Subordinate
Lender agrees that such payment or other distribution will be received and held in trust for the Senior Lender
and unless the Senior Lender otherwise notifies the Subordinate Lender in writing, will be promptly
remitted in kind to the Senior Lender,properly endorsed to the Senior Lender,to be applied to the principal
of,interest on and other amounts due under the Senior Loan Documents in accordance with the provisions
of the Senior Loan Documents.By executing this Agreement, the Borrower specifically authorizes the
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Subordination Agreement to HACMB Mortgage
Subordinate Lender to endorse and remit any such payments to the Senior Lender,and specifically
waives any and all rights to have such payments returned to the Borrower or credited against the
Subordinate Loan. Borrower and Senior Lender acknowledge and agree that payments received by the
Subordinate Lender, and remitted to the Senior Lender under this Section 4(e), shall not be applied or
otherwise credited against the Subordinate Obligation, nor shall the tender of such payment to the Senior
Lender waive any Subordinate Obligation Default which may arise from the inability of the Subordinate
Lender to retain such payment or apply such payment to the Subordinate Obligation.
(fj Agreement Not to Commence Bankruptcy Proceeding. The Subordinate Lender agrees
that during the term of this Agreement, it will not commence, or join with any other creditor in
commencing, any bankruptcy reorganization, arrangement, insolvency or liquidation proceedings with
respect to the Borrower,without the Senior Lender's prior written consent.
5. Default Under Subordinate Documents.
(a) Notice of Default and Cure Rights. The Subordinate Lender shall deliver to the Senior
Lender a Default Notice within five (5) Business Days in each case where the Subordinate Lender
has given a Default Notice to the Borrower. Failure of the Subordinate Lender to send a Default Notice
to the Senior Lender shall not prevent the exercise of the Subordinate Lender's rights and remedies
under the Subordinate Documents, subject to the provisions of this Agreement. The Senior Lender shall
have the right,but not the obligation,to cure any Subordinate Obligation Default within 60 days following
the date of such notice provided,however that the Subordinate Lender shall be entitled,during such 60-day
period,to continue to pursue its rights and remedies under the Subordinate Documents. All amounts paid
by the Senior Lender in accordance with the Senior Loan Documents 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 Security Instrument.
(b) Subordinate Lender's Exercise of Remedies After Notice to Senior Lender. If a
Subordinate Default occurs and is continuing, the Subordinate Lender agrees that,without the Senior
Lender's prior written consent,it will not commence foreclosure proceedings with respect to the Property
under the Subordinate Loan Documents or exercise any other rights or remedies it may have under the
Subordinate Documents, including but not limited to accelerating the Subordinate Obligation, collecting
rents, appointing (or seeking the appointment of) a receiver or exercising any other rights or remedies
thereunder unless and until it has given the Senior Lender at least 60 days'prior written notice;during such
60-day period, however, the Subordinate Lender shall be entitled to exercise and enforce all other
rights and remedies available to the Subordinate Lender under the Subordinate Loan Documents
and/or under applicable laws,including without limitation, rights to enforce covenants and agreements of
the Borrower relating to income, rent, or affordability restrictions contained in the Subordinate
Loan Documents.
(c) Cross Default. The Borrower and the Subordinate Lender agree that a Subordinate
Loan Default shall constitute a Senior Loan Default under the Senior Loan Documents and the Senior
Lender shall have the right to exercise all rights or remedies under the Senior Loan Documents in the same
manner as in the case of any other Senior Loan Default. If the Subordinate Lender notifies the Senior
Lender in writing that any Subordinate Obligation Default of which the Senior Lender has received a
Default Notice has been cured or waived, as determined by the Subordinate Lender in its sole discretion,
then provided that Senior Lender has not conducted a sale of the Property pursuant to its rights under the
Senior Loan Documents, any Senior Loan Default under the Senior Loan Documents arising solely from
such Subordinate Obligation Default shall be deemed cured, and the Senior Loan shall be reinstated,
provided,however,that the Senior Lender shall not be required to return or otherwise credit for the benefit
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Subordination Agreement to HACMB Mortgage
of the Borrower any default rate interest or other default related charges or payments received by the Senior
Lender during such Senior Loan Default.
6. Default Under Senior Loan Documents.
(a) Notice of Default and Cure Rights. The Senior Lender shall deliver to the Subordinate
Lender a Default Notice within five (5) Business Days in each case where the Senior Lender has given a
Default Notice to the Borrower. Failure of the Senior Lender to send a Default Notice to the Subordinate
Lender shall not prevent the exercise of the Senior Lender's rights and remedies under the Senior Loan
Documents, subject to the provisions of this Agreement. The Subordinate Lender shall have the right,but
not the obligation,to cure any such Senior Loan Default within 60 days following the date of such notice;
provided,however,that the Senior Lender shall be entitled during such 60-day period to continue to pursue
its remedies under the Senior Loan Documents. Subordinate Lender may have up to 90 days from the date
of the Default Notice to cure a non-monetary default if during such 90-day period Subordinate Lender keeps
current all payments required by the Senior Loan Documents. In the event that such a non-monetary default
creates an unacceptable level of risk relative to the Property, or Senior Lender's secured position relative
to the Property, as determined by Senior Lender in its sole discretion, then Senior Lender may exercise
during such 90-day period all available rights and remedies to protect and preserve the Property and the
rents, revenues and other proceeds from the Property. All amounts paid by the Subordinate Lender to the
Senior Lender to cure a Senior Loan Default shall be deemed to have been advanced by the Subordinate
Lender pursuant to, and shall be secured by the lien of,the Subordinate Security Instrument.
(b) Cross Default. The Subordinate Lender agrees that, notwithstanding any contrary
provision contained in the Subordinate Documents, a Senior Loan Default shall not constitute a default
under the Subordinate Documents if no other default occurred under the Subordinate Documents until either
(i) the Senior Lender has accelerated the maturity of the Senior Loan,or(ii) the Senior Lender has taken
affirmative action to exercise its rights under the Senior Security Instrument to collect rent,to appoint(or
seek the appointment of)a receiver or to foreclose on(or to exercise a power of sale contained in)the Senior
Security Instrument. At any time after a Senior Loan Default is determined to constitute a default under
the Subordinate Documents, the Subordinate Lender shall be permitted to pursue its remedies for default
under the Subordinate Documents, subject to the restrictions and limitations of this Agreement. If at any
time the Borrower cures any Senior Loan Default to the satisfaction of the Senior Lender,as evidenced by
written notice from the Senior Lender to the Subordinate Lender, any default under the Subordinate
Documents arising from such Senior Loan Default shall be deemed cured and the Subordinate Obligation
shall be retroactively reinstated as if such Senior Loan Default had never occurred.
7. 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 Documents, the
Subordinate 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 Security Instrument and the Subordinate Security Instrument,
respectively; and (c) solely as between the Senior Lender and the Subordinate Lender, the notice
requirements,cure rights,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 Obligation Default,as the case may be; give the Borrower the right to
notice of any Senior Loan Default or Subordinate Obligation Default,as the case may be other than that, if
any, provided, respectively under the Senior Loan Documents or the Subordinate Obligation Documents;
or create any other right or benefit for Borrower as against Senior Lender or Subordinate Lender.
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Subordination Agreement to HACMB Mortgage
8. Rights and Obligations of the Subordinate Lender under the Subordinate Documents
and of the Senior Lender under the Senior Loan Documents.
Subject to each of the other terms of this Agreement,all of the following provisions shall supersede
any provisions of the Subordinate Documents covering the same subject matter:
(a) Protection of Security Interest. The Subordinate Lender shall not, without the prior
written consent of the Senior Lender in each instance, take any action which has the effect of increasing
the indebtedness outstanding under, or secured by, the Subordinate Loan Documents,except that the
Subordinate Lender shall have the right,after ten(10)business days' notice to Senior Lender,to advance
funds to cure Senior Loan Defaults pursuant to Section 6(a) above and advance funds pursuant to the
Subordinate Security Instrument for the purpose of paying real estate taxes and insurance premiums,
making necessary repairs to the Property and curing other defaults by the Borrower under the Subordinate
Documents.
(b) Condemnation or Casualty. In the event of a taking or threatened taking by
condemnation or other exercise of eminent domain of all or a portion of the Property by an entity
other than the Subordinate Lender in its governmental capacity(collectively,a"Taking"),or the occurrence
of a fire or other casualty resulting in damage to all or a portion of the Property(collectively,a"Casualty"),
at any time or times when the Senior Security Instruments remain a lien on the Property, the following
provisions shall apply:
(1) The Subordinate Lender hereby agrees that its rights (under the Subordinate
Documents or otherwise) to participate in any proceeding or action relating to a Taking
and/or a Casualty, or to participate or join in any settlement of, or to adjust, any claims
resulting from a Taking or a Casualty shall be and remain subordinate in all respects to
the Senior Lender's rights under the Senior Loan Documents with respect thereto,and the
Subordinate Lender shall be bound by any settlement or adjustment of a claim resulting
from a Taking or a Casualty made by the Senior Lender;provided,however,this subsection
and/or anything contained in this Agreement shall not limit the rights of the Subordinate
Lender to file any pleadings,documents,claims or notices with the appropriate court with
jurisdiction over the proposed Taking and/or Casualty;and
(2) All proceeds received or to be received on account of a Taking or a Casualty, or both,
shall be applied(either to payment of the costs and expenses of repair and restoration or to
payment of the Senior Loan) in the manner set forth in the Senior Security Instrument;
provided, however, that if the Senior Lender elects to apply such proceeds to payment of
the principal of,interest on and other amounts payable under the Senior Loan,any proceeds
remaining after the satisfaction in full of the principal of, interest on and other amounts
payable under the Senior Loan shall be paid to, and may be applied by, the Subordinate
Lender in accordance with the applicable provisions of the Subordinate Documents,
provided however,the Senior Lender agrees to consult with the Subordinate Lender in
determining the application of Casualty proceeds,provided further however that in the
event of any disagreement between the Senior Lender and the Subordinate Lender over
the application of Casualty proceeds, the decision of the Senior Lender, in its sole
discretion, shall prevail.
(c) No Modification of Subordinate Documents. The Borrower and the Subordinate Lender
each agrees that, until the principal of, interest on and all other amounts payable under the Senior Loan
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Subordination Agreement to HACMB Mortgage
Documents have been paid in full,it will not,without the prior written consent of the Senior Lender in each
instance,increase the amount of the Subordinate Obligation, increase the required payments due under the
Subordinate Obligation, decrease the terms of the Subordinate Obligation, increase the interest rate on the
Subordinate Obligation, or otherwise amend the terms of the Subordinate Obligation in a manner that
creates an adverse effect upon the Senior Lender under the Senior Loan Documents. Any unauthorized
amendment of the Subordinate Documents or assignment of the Subordinate Lender's interest in the
Subordinate Obligation without the Senior Lender's consent shall be void ab initio and of no effect
whatsoever.
9. Modification or Refinancing of Senior Loan. The Subordinate Lender consents to any
agreement or arrangement in which the Senior Lender waives,postpones,extends,reduces or modifies any
provisions of the Senior Loan Documents,including any provision requiring the payment of money,without
the prior approval of Subordinate Lender; provided,however,in no event shall any waiver,postponement,
reduction, modification or amendment to or of any provision of the Senior Loan Documents increase the
amount of the Senior Note (except for increases resulting from sums advanced for the purposes of(1)
protecting or further securing the lien of the Senior Security Instrument, curing defaults by the Borrower
under the Senior Loan Documents or for any other purpose expressly permitted by the Senior Security
Instrument, or (2) constructing, renovating, repairing, furnishing, fixturing or equipping the Property),
decrease the term of the Senior Loan,increase the interest rate on the Senior Loan,or otherwise amend the
terms of the Senior Loan in a manner that creates a material adverse effect upon the Subordinate Lender
under the Subordinate Loan Documents. Any unauthorized amendment of the Senior Loan Documents or
assignment of the Senior Lender's interest in the Senior Obligation without the Subordinate Lender's
written consent shall be void ab initio and of no effect whatsoever.
10. Default by the Subordinate Lender or Senior Lender. If the Subordinate Lender or
Senior Lender defaults in performing or observing any of the terms, covenants, or conditions to be
performed or observed by it under this Agreement,the other, non-defaulting lender shall have the right to
all available legal and equitable relief.
11. 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 Senior Lender or the Subordinate Lender 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 FedEx (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 Lender: City of Miami Beach
1700 Convention Center Drive
Miami Beach,Florida 33139
Attention: City Manager
Telephone: (305)673-7000 Ext. 26486
Email: AlinaHudak@miamibeachfl.gov
10
Subordination Agreement to HACMB Mortgage
with a copy to: City of Miami Beach
Office of Housing&Community Services
1700 Convention Center Drive
Miami Beach,FL 33139
Attention:Director
Telephone: (305)673-7491
Email: AlbaTarre(dimiamibeachfl.gov
with a copy to: City of Miami Beach
1700 Convention Center Drive
Miami Beach,FL 33139
Attention:Rafael Paz,City Attorney
Servicer: AmeriNat®
5130 Sunforest Drive,Suite 150
Tampa,Florida 33634
Attention:Mark Fredericks
Telephone: (866)269-1777
Email: mfredericks@amerinatls.com
Borrower: Vista Breeze,Ltd.
3 Miami Central
161 NW 6th Street,Suite 1020
Miami,Florida 33136
Attention:Kenneth Naylor
Telephone: (305)357-4700
Email: knaylor@apcompanies.com
with a copy to: Stearns Weaver Miller Weissler Alhadeff& Sitterson,P.A.
150 W.Flagler Street,Suite 2200
Miami,Florida 33130
Attention: Brian McDonough,Esq.
Telephone: (305)789-3350
Email: BMcDonough@,stearnsweaver.com
with a copy to: Klein Hornig LLP
1325 G Street NW,Suite 770
Washington,District of Columbia 20005
Attention:Chris Horning,Esq.
Telephone: (202)926-3402
Email:CHornig(7a,kleinhornig.com
Co-General Partner: Vista Breeze HACMB,Inc.
200 Alton Road
Miami Beach,Florida 33139
Attention:Miguell Del Campillo
Telephone:(305)532-6401
Email:miguell@,hacmb.org
11
Subordination Agreement to HACMB Mortgage
with a copy to: Fox Rothschild
BNY Mellon Center
500 Grant Street, Suite 2500
Pittsburgh, Pennsylvania 15219
Attention: Alec Stone,Esq.
Telephone: (412)391-2523
Email: aistone(difoxrothschild.com
Subordinate Lender: Housing Authority of the City of Miami Beach
200 Alton Road
Miami Beach, Florida 33139
Attention: Miguell Del Campillo
Telephone: (305) 532-6401
Email: miguell(c hacmb.org
with a copy to: Fox Rothschild
BNY Mellon Center
500 Grant Street, Suite 2500
Pittsburgh,Pennsylvania 15219
Attention: Alec Stone, Esq.
Telephone: (412)391-2523
Email: aistone@foxrothschild.com
Servicer: AmeriNat®
5130 Sunforest Drive, Suite 150
Tampa, Florida 33634
Attention:Mark Fredericks
Telephone: (866)269-1777
Email: mfredericks@amerinatls.com
Any 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.
12. General
(a) Assignment/Successors. This Agreement shall be binding upon the Borrower,the Senior
Lender, and the Subordinate Lender and shall inure to the benefit of the respective legal successors and
assigns of the Senior Lender and the Subordinate Lender.
(b) No Partnership or Joint Venture. The Senior Lender's permission for the placement
of the Subordinate Documents does not constitute the Senior Lender as a joint venturer or partner of the
Subordinate Lender. Neither party hereto shall hold itself out as a partner,agent,or Affiliate of the other
party hereto.
(c) Senior Lender's and Subordinate Lender's Consent. Wherever the Senior Lender's
consent or approval is required by any provision of this Agreement, such consent or approval may be
granted or denied by the Senior Lender in its sole and absolute discretion,unless otherwise expressly
provided in this Agreement. Wherever the Subordinate Lender's consent or approval is required by any
12
Subordination Agreement to HACMB Mortgage
provision of this Agreement,such consent or approval may be granted or denied by the Subordinate Lender
in its sole and absolute discretion,unless otherwise expressly provided in this Agreement.
(d) Further Assurances. The Subordinate Lender,the Senior Lender and the Borrower each
agree, at the Borrower's expense, to execute and deliver all additional instruments and/or documents
reasonably required by any other party to this Agreement in order to evidence that the Subordinate Security
Instrument are subordinate to the lien, covenants and conditions of the Senior Security Instrument, or to
further evidence the intent of this Agreement; provided that any such additional instruments or documents
shall be subject to approval by the Subordinate Lender,Senior Lender and Borrower,which approvals shall
not be unreasonably withheld.
(e) Amendment. This Agreement shall not be amended except by written instrument signed
by all parties hereto.
(f) Governing Law and Venue. This Agreement shall be governed by the laws of the State
of Florida. Any dispute arising under, in connection with or related to this Agreement or related to any
matter which is the subject of this Agreement shall be subject to the exclusive jurisdiction of the state and/or
federal courts in Miami-Dade County,Florida.
(g) Severable Provisions. If any provision of this Agreement shall be invalid or
unenforceable to any extent, then the other provisions of this Agreement shall not be affected thereby and
shall be enforced to the greatest extent permitted by law.
(h) WAIVER OF TRIAL BY JURY. BY ENTERING INTO THIS AGREEMENT,THE
SUBORDINATE LENDER,SENIOR LENDER AND BORROWER EACH EXPRESSLY WAIVES
ANY RIGHTS SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION
RELATED TO OR ARISING OUT OF THIS AGREEMENT.
(i) Term. The term of this Agreement shall commence on the date hereof and shall continue
until the earliest to occur of the following events: (i)the payment of all of the principal of, interest on and
other amounts payable under the Senior Loan Documents; (ii) the payment of all of the principal of,
interest on and other amounts payable under the Subordinate Loan Documents,other than by reason
of payments which the Subordinate Lender are obligated to remit to the Senior Lender pursuant to Section
4 hereof; (iii) the acquisition by the Senior Lender of title to the Property pursuant to a foreclosure or a
deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the Senior Security
Instrument; or (iv) the acquisition by the Subordinate Lender of title to the Property pursuant to a
foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in,
the Subordinate Security Instruments, but only if such acquisition of title does not violate any of
the terms of this Agreement.
(j) Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be considered an original for all purposes; provided, however, that all such counterparts shall
together constitute and the same instrument.
[COUNTERPART SIGNATURE PAGES TO FOLLOW]
13
Subordination Agreement to HACMB Mortgage
COUNTERPART SIGNATURE PAGE TO
SUBORDINATION AGREEMENT(HACMB MORTGAGE)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and
year first written above.
WITNESSES: SENIOR LENDER:
DEC f 4 2023 CITY OF MIAMI BEACH,FLORIDA,
73//
a Florida municipal corporation
Print: Rafael E. Granado, City Clerk
//—/'--- By: 07,:e_. Huda G
Name: Alina T.
Print: KEILA MENA Title: City Manager \P�,�i. g.si
N. cy,
\qicnionii%))
STATE OF FLORIDA .,`'
COUNTY OF MIAMI-DADE
The foregoing instriment was acknowledged before me by means ofhysical presence or ❑
online notarization,this / day of December 2023,byliklin&T. Huda ,as ity, aAa err o1�h$CITY
OF MIAMI BEACH, FLORIDA, a Florida municipal corporation, onN€ha OPt etity. Said person is
personally known to me or has produced a valid drive ' icense as identification.
[SEAL] /6
%/x4kd
Public; S to of lorida
nt Name: . 6'I b 4L VPL (' ds
., . a .. commission Expires: 9 . 8' -4..2
j uR."•••., GUADALUPE C.RAMOS Commission No.: ���* .9 37�
AMY COMMISSION 8 GG 985873
,, •, EXPIRES:September 8,2024
s±•.B440"* Bonded Ttnu*toy Pubic Underwdws,
—Ow—
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
.— 1 -Ia-"? S-1
��/` City Attorney Dote
COUNTERPART SIGNATURE PAGE TO
SUBORDINATION AGREEMENT(HACMB MORTGAGE)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and
year first written above.
SUBORDINATE LENDER:
HOUSING AUTHORITY OF THE CITY OF
MIAMI BEACH, a public body corporate and politic
established pursuant to Chapter 421 of the Florida
Statut
By:
Name: /1 j.- ell l&/ Cc."f,I/.
Title: Exec.l-ri.re I.reC-ibr
STATE OF FLORIDA )
COUNTY OF MIAMI DADE )
The foregoinn str ent was acknowledged before me by means of 'physical presence or 0 online
notarization,this/-2fi ay of G � ! 72 2023 byre_l1(ttZG� �ifA.�'g5te:)b p7IE"..zi
of HOUSING AUTHORITY OF THE CITY OF MIAMI BEACH,a public body corporate and politic
established pursuant to Chapter 421 of the Florida Statutes, on behalf of the housing authority. Said person
is personally known to me or has produced a valid driver's license as identification.
[SEAL]
...,�. Notary Public; of Florida
+ �Pv ROBERTO DIAZ Print Name: / ��iiZ
_`,; i*= MY COMMISSION 8 HH 313355 Commission Expires: : /.Zak
,i
'.;t;::,?": EXPIRES:October 30,2026 Commission No.: 3>32SS'
S-2
COUNTERPART SIGNATURE PAGE TO
SUBORDINATION AGREEMENT(HACMB MORTGAGE)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and
year first written above.
WITNESSES: BORROWER:
0 VISTA BREEZE,LTD.,a Florida limited partnership
Print:ll ebu,c.. ar r p By: APC Vista Breeze, LLC,a Florid imited liability
company,its managing ene I
By:
Print: V•C f ;a Cot" OV-Qt, eth N lor,V e sident
STATE OF FLORIPA )
COUNTY OF Mt 0 r%i .DcLa )
The foregoing instrument was acknowledged before me by means of ✓physical presence or
online notarization this I Z- day of t)e bee- , 2023, by Kenneth Naylor, as Vice
President of APC Vista Breeze, LLC,a Florida limited liability company,the managing general partner of
VISTA I}REEZE,LTD.,a Florida limited partnership,on behalf of the limited partnership. Who is
personally known to me or has produced a as
identification.
[SEAL]
Notary Public
Print NamerRcbcc.a L ci, r eye.7
Commission Expires: ► 114-12-t*
+.`Notary Public State of Florida ► Commission No.: I-I i4 Zt 3 Cool
Rebeca Martinez
My Commission ►
"'unit HH 213601
Exp. 114/2026
S-3
EXHIBIT"A"
LEGAL DESCRIPTION
That leasehold estate created by that Second Amended and Restated Ground Lease, by and
between Vista Breeze, Ltd., a Florida limited partnership, and the Housing Authority of The City
of Miami Beach, a public body corporate and politic, as evidenced by that Amended and Restated
Memorandum of Lease to be recorded over the following described lands:
PARCEL 1:
LOT 3, 4 and 5, Block 55, OF NORMANDY GOLF COURSE, ACCORDING TO THE PLAT
THEREOF, AS RECORDED IN PLAT BOOK 44, AT PAGE 62, OF THE PUBLIC RECORDS
OF MIAMI-DADE COUNTY, FLORIDA.
PARCEL 2:
LOTS 6, 7 and 8, BLOCK 56, NORMANDY GOLF COURSE SUBDIVISION, ACCORDING
TO THE PLAT THEREOF RECORDED IN PLAT BOOK 44, PAGE 62, OF THE PUBLIC
RECORDS OF MIAMI-DADE COUNTY, FLORIDA.
4853-4971-5093,v.5
Exhibit A
Subordination Agreement to HACMB Mortgage