06. Receipt for Construction Phase Borrower Loan Note - Vista Breeze
4858-2944-2951.3
4858-2944-2951.3
RECEIPT FOR CONSTRUCTION PHASE PROJECT BORROWER LOAN NOTE
December 15, 2023
RECEIPT IS HEREBY ACKNOWLEDGED, by delivery thereof to the undersigned,
of the Construction Phase Project Loan Note for Vista Breeze, in the principal amount of
$32,500,000, maturing on July 1, 2057, a copy of which is attached hereto.
[Remainder of page intentionally left blank]
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., as Fiscal Agent
[Signature Page | Receipt for Construction Phase Project Loan Note (Vista Breeze)] 4858-2944-2951.2
SPECIMENThis secured note in the original principal sum of $32,500,000.00 arises out of or is given to
secure the repayment of a loan issued in connection with the financing of a housing
development and is exempt from documentary stamp and intangible tax pursuant to Section
159.621 of the Florida Statutes.
CONSTRUCTION PHASE PROJECT LOAN NOTE
$32,500,000.00 December 15, 2023
FOR VALUE RECEIVED, VISTA BREEZE, LTD., a Florida limited partnership
(“Borrower”), hereby promises to pay to the order of HOUSING FINANCE AUTHORITY OF
MIAMI-DADE COUNTY, FLORIDA, a public body corporate and politic organized and
existing under the laws of the State of Florida (together with any and all of its successors and
assigns and/or any other holder of this promissory note, “Governmental Lender”), without offset,
in immediately available funds in lawful money of the United States of America, at Miami, Florida,
or at such other place as the holder of this Construction Phase Project Loan Note (this “Note”)
may from time to time designate in writing, the principal sum of THIRTY-TWO MILLION FIVE
HUNDRED THOUSAND AND 00/100 ($32,500,000.00) (or the unpaid balance of all principal
advanced against this Note, if that amount is less), together with interest on the unpaid principal
balance of this Note from day to day outstanding as hereinafter provided.
This Note is being delivered pursuant to that certain Construction Phase Borrower Loan
Agreement dated as of December 1, 2023, among the Governmental Lender, The Bank of New
York Mellon Trust Company, N.A., a national banking association, organized and operating under
the laws of the United States of America, having a corporate trust office in Jacksonville, Florida,
as Fiscal Agent (the “Fiscal Agent”) and Borrower (together with any and all amendments,
modifications, supplements and restatements, the “Construction Phase Project Loan
Agreement”) pursuant to which the Governmental Lender has made a loan in the principal amount
of this Note to Borrower (the “Construction Phase Project Loan”), and this Note is entitled to
the benefits of the Construction Phase Project Loan Agreement and is subject to the terms,
conditions and provisions thereof. The Construction Phase Project Loan was funded from the
separate loan (the “Funding Loan”) incurred by the Governmental Lender pursuant to the Funding
Loan Agreement dated as of December 1, 2023 (the “Funding Loan Agreement”) by and among
Bank of America, N.A., as the initial funding lender (the “Initial Funding Lender”), the
Governmental Lender and the Fiscal Agent.
The Initial Funding Lender, pursuant to the terms of (i) the Funding Loan Agreement and
(ii) that certain Construction Disbursement Agreement executed by and between Borrower and
Initial Funding Lender of even date herewith (the “Construction Disbursement Agreement”),
has agreed to originate and fund the Funding Loan to Governmental Lender and Governmental
Lender has agreed to pledge all of Governmental Lender’s right, title and interest in the Funding
Loan to the Fiscal Agent, for the benefit of Initial Funding Lender. Initial Funding Lender shall
fund the Funding Loan to Governmental Lender on a draw-down basis.
Terms not otherwise defined herein shall have the meanings ascribed to them in the
Construction Disbursement Agreement, the Construction Phase Project Loan Agreement or the
Funding Loan Agreement, as applicable.
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Section 1. Payment Schedule and Forward Commitment Maturity Date. During
the period commencing on the Delivery Date (as defined in the Funding Loan Agreement) and
concluding on the Conversion Date (as defined in the Funding Loan Agreement), accrued and
unpaid interest shall be calculated from and including the first (1st) calendar day of each month
(or, in the case of the initial interest computation period, the date of the initial advance of the
Construction Phase Project Loan) through and including the last calendar day of such month, and
shall be due and payable in arrears on the first (1st) day of the succeeding calendar month. The
entire principal balance of this Note then unpaid, together with all accrued and unpaid interest and
all other amounts payable hereunder and under the other Construction Phase Project Loan
Documents (as hereinafter defined), shall be due and payable in full on June 15, 2026 (the
“Forward Commitment Maturity Date”), the final maturity of this Note, subject to Section 1A.
Section 1A. Forward Commitment Maturity Date Extension Option. Initial Funding
Lender shall grant a request by Borrower to extend the Forward Commitment Maturity Date (the
“Extension”) of this Note to December 15, 2026 (the “Extended Forward Commitment
Maturity Date”), upon and subject to the following terms and conditions:
(a) Basic Conditions. Unless otherwise agreed by Initial Funding Lender in writing:
(i) Borrower shall request the extension, if at all, by written notice to Initial
Funding Lender not more than one hundred twenty (120) days, and not less than sixty (60) days,
prior to the Forward Commitment Maturity Date.
(ii) At the time of the request, the Construction of the Improvements (as defined
in the Security Instrument) shall have been completed in accordance with the requirements of the
Construction Phase Project Loan Documents, the leasing of Units in accordance with the
Construction Phase Project Loan Documents shall have been achieved, and all conditions to the
final disbursement shall have been satisfied.
(iii) At the time of the request, and at the time of the extension, there shall not
exist any Event of Default, nor any condition or state of facts which after notice and/or lapse of
time would constitute an Event of Default.
(iv) All financial statements and other information as may be required under the
Construction Phase Project Loan Documents regarding Borrower, Guarantor and the Property,
shall have been submitted promptly to Initial Funding Lender, and there shall not have occurred,
in the reasonable opinion of Initial Funding Lender, any material adverse change in the business
or financial condition of Borrower or Guarantor or any tenant of the Property, or in the Property
or in any other state of facts submitted to Governmental Lender and the Initial Funding Lender in
connection with the Construction Phase Project Loan Documents, from that which existed on the
date of this Note.
(v) Whether or not the extension becomes effective, Borrower shall pay all out-
of-pocket costs and expenses incurred by Governmental Lender and/or Initial Funding Lender in
connection with the proposed extension (pre- and post-closing), including appraisal fees,
environmental audit and reasonable attorneys’ fees actually incurred by Governmental Lender
and/or Initial Funding Lender; all such costs and expenses incurred up to the time of Initial Funding
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Lender’s written agreement to the extension shall be due and payable prior to Initial Funding
Lender’s execution of that agreement (or if the proposed extension does not become effective, then
upon demand by Initial Funding Lender), and any future failure to pay such amounts shall
constitute a default under the Construction Phase Project Loan Documents.
(vi) All applicable regulatory requirements, including appraisal requirements,
shall have been satisfied with respect to the extension. Without limitation of the foregoing, not
later than the Forward Commitment Maturity Date, Initial Funding Lender shall have received
evidence acceptable to Initial Funding Lender that none of the Improvements are located in an area
identified by the Federal Emergency Management Agency as having special flood hazards, or, if
any portion of the Improvements is located within such an area, Borrower shall have provided a
flood insurance policy acceptable to Initial Funding Lender.
(vii) Not later than the Forward Commitment Maturity Date, (A) the extension
shall have been consented to and documented to Initial Funding Lender’s reasonable satisfaction
by Borrower, Guarantor, Governmental Lender, and all other parties deemed necessary by Initial
Funding Lender (such as any permitted subordinate lienholders, and permanent lenders (if any)),
which documentation shall include a release of claims against Initial Funding Lender; (B) as
reasonably required by Initial Funding Lender, Initial Funding Lender shall have been provided
with an updated title report and judgment and lien searches, and appropriate title insurance
endorsements shall have been issued as required by Initial Funding Lender; and (C) Borrower shall
have paid to Initial Funding Lender a non-refundable renewal fee in the amount of $81,250 (i.e.
twenty-five hundredths percent (0.25%) of the committed facility amount hereunder) (the
“Extension Fee”), which shall be paid as follows: (i) on or before the Forward Commitment
Maturity Date, Borrower shall pay to Initial Funding Lender one hundred twenty-five thousandths
of one percent (0.125%) of the committed amount of the Construction Phase Project Loan and (ii)
the balance of the Extension Fee of one hundred twenty-five thousandths of one percent (0.125%)
of the committed amount of the Construction Phase Project Loan shall be due and payable to Initial
Funding Lender on or before September 16, 2026.
(viii) Intentionally Omitted.
(ix) Borrower shall have demonstrated to Initial Funding Lender that (a) the
Project is leased in accordance with the Construction Disbursement Agreement (as reasonably
determined by Initial Funding Lender based upon actual rents then being paid by tenants after the
expiration of any free rent or other rental abatement period) pursuant to Leases executed in
accordance with the terms of the Construction Disbursement Agreement, as demonstrated to Initial
Funding Lender’s reasonable satisfaction and as reflected on the most recent certified rent roll for
the Project and (b) it will be able to repay the Construction Phase Project Loan by the Extended
Forward Commitment Maturity Date.
(x) There exists no “Events of Default” or “Defaults”, beyond the expiration of
any grace, notice and cure periods, under the Subordinate Loan Documents.
(xi) Borrower shall agree to any rate adjustment and pay any fees related to the
extension of any of the subordinate loans or any financing commitments and pay any amounts due
to revise any rate lock, if applicable.
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(xii) Initial Funding Lender shall be reasonably satisfied that the projections
made by Borrower in the Pro Forma Schedule attached to the Construction Disbursement
Agreement have been fully met up to that time and that such projections will continue to be
accurate prospectively, or in the alternative, Borrower shall have provided a new Project Schedule
reasonably satisfactory to Initial Funding Lender.
(xiii) Initial Funding Lender shall have received evidence reasonably satisfactory
to Initial Funding Lender that all co-construction loans mature or are extended concurrent with or
beyond the Extended Forward Commitment Maturity Date;
(xiv) Initial Funding Lender shall have received evidence reasonably satisfactory
to Initial Funding Lender that all takeout and/or permanent loan commitments, if any, have been
extended, along with confirmation and, if required by the terms of the Partnership Agreement,
consent from the Investor Limited Partner that the terms and conditions of the Partnership
Agreement have been amended, as appropriate, to be consistent with the Extended Forward
Commitment Maturity Date.
(xv) Initial Funding Lender shall have received evidence reasonably satisfactory
to Initial Funding Lender that the Borrower has executed a rate adjustment or made a fee payment,
as appropriate, to cover the cost of revising the forward rate lock, if any.
(xvi) Initial Funding Lender shall have received evidence reasonably satisfactory
to Initial Funding Lender that all of the buildings constituting Improvements have been “placed in
service” within the meaning of Section 42 of the Code.
(xvii) The Construction Phase Project Loan is “in balance” as determined in
accordance with the terms and conditions of the Construction Disbursement Agreement, including,
without limitation, having sufficient funds available to fund and maintain an interest reserve at
such level as required by Initial Funding Lender, or that revenues from the Property will be
sufficient to pay such interest as calculated by Initial Funding Lender in its sole discretion.
(xviii) Initial Funding Lender is satisfied in its sole but reasonable discretion that
all Conditions to Conversion (as defined in the Funding Loan Agreement) will be satisfied by the
Extended Forward Commitment Maturity Date and the Permanent Lender will purchase the
Funding Loan in full no later than the Extended Forward Commitment Maturity Date.
(xix) All conditions set forth in the Forward Purchase Agreement with respect to
the extension of the Forward Commitment Maturity Date have been satisfied.
If all of the foregoing conditions are not satisfied strictly in accordance with their terms,
the extension shall not be or become effective.
(b) Changes in Loan Terms. All terms and conditions of the Construction Phase
Project Loan Documents shall continue to apply to the extended term except to the extent changed
as indicated below (such changes to be effective on and after the Forward Commitment Maturity
Date, if the extension becomes effective as provided herein):
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The Forward Commitment Maturity Date shall mean the Extended Forward
Commitment Maturity Date.
Section 2. Security; Construction Phase Project Loan Documents. The security for
this Note includes a first priority Leasehold Mortgage, Assignment of Rents, Security Agreement
and Fixture Filing (as the same may from time to time be amended, restated, modified or
supplemented, the “Security Instrument”) of even date herewith from Borrower to Governmental
Lender and assigned by Governmental Lender to Fiscal Agent, conveying and encumbering certain
real and personal property more particularly described therein (the “Property”). This Note, the
Security Instrument, the Construction Phase Project Loan Agreement, the Construction
Disbursement Agreement, and all other documents now or hereafter securing, guaranteeing or
executed in connection with the Construction Phase Project Loan, as the same may from time to
time be amended, restated, modified or supplemented, are herein sometimes called individually a
“Construction Phase Project Loan Document” and together the “Construction Phase Project
Loan Documents.”
Section 3. Interest Rate.
(a) Daily SOFR Rate; Borrowings; Computations. The unpaid principal balance of
this Note from day to day outstanding which is not past due, shall bear interest at the sum of Daily
SOFR for that day plus the SOFR Margin (the “Daily SOFR Rate”). Notwithstanding anything
else herein, if at any time Daily SOFR or the Successor Rate as so determined would otherwise be
less than one-half of one percent (0.50%), such interest rate will be deemed to be one-half of one
percent (0.50%) for the purposes of this Note and the other Construction Phase Project Loan
Documents.
Each Daily SOFR Advance shall be made upon Borrower’s irrevocable notice to Lender,
which may be given by a Draw Request and backup documentation to the extent required by the
Construction Phase Project Loan Documents.
All computations of interest for the Base Rate (to the extent applicable and as hereinafter
defined) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual
days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day
year and actual days elapsed (which results in more fees or interest, as applicable, being paid than
if computed on the basis of a 365-day year). Interest shall accrue on each advance of the
Construction Phase Project Loan for the day on which the advance is made, and shall not accrue
on an advance, or any portion thereof, for the day on which the advance or such portion is paid,
provided that any advance that is repaid on the same day on which it is made shall, subject to
Section 9, bear interest for one (1) day. Each determination by the Initial Funding Lender of an
interest rate or fee hereunder or under the Construction Phase Project Loan Documents shall be
conclusive and binding for all purposes, absent manifest error. With respect to SOFR or any
Successor Rate, Initial Funding Lender will have the right to make Conforming Changes from time
to time and, notwithstanding anything to the contrary herein or in any other Construction Phase
Project Loan Document, any amendments implementing such Conforming Changes will become
effective without any further action or consent of any other party to the Note or any other
Construction Phase Project Loan Document; provided that, with respect to any such amendment
effected, Initial Funding Lender shall deliver each such amendment implementing such
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Conforming Changes to Borrower reasonably promptly after such amendment becomes effective.
Initial Funding Lender does not warrant, nor accept responsibility, nor shall Initial Funding Lender
have any liability with respect to the administration, submission or any other matter related to any
reference rate referred to herein or with respect to any rate (including, for the avoidance of doubt,
the selection of such rate and any related spread or other adjustment) that is an alternative or
replacement for or successor to any such rate (including any Successor Rate) or the effect of any
of the foregoing, or of any Conforming Changes. Initial Funding Lender and its affiliates or other
related entities may engage in transactions or other activities that affect any reference rate referred
to herein, or any alternative, successor or replacement rate (including any Successor Rate) (or any
component of any of the foregoing) or any related spread or other adjustments thereto, in each
case, in a manner adverse to Borrower. Initial Funding Lender may select information sources or
services in its reasonable discretion to ascertain any reference rate referred to herein or any
alternative, successor or replacement rate (including any Successor Rate) (or any component of
any of the foregoing), in each case pursuant to the terms of this Note, and shall have no liability to
Borrower or any other person or entity for damages of any kind, including direct or indirect,
special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort,
contract or otherwise and whether at law or in equity), for any error or other action or omission
related to or affecting the selection, determination, or calculation of any rate (or component
thereof) provided by any such information source or service.
(b) Illegality. If Initial Funding Lender determines that any Law has made it unlawful,
or that any Governmental Authority (as defined in Section 7) has asserted it is unlawful, for Initial
Funding Lender to make, maintain or fund Construction Phase Project Loan advances whose
interest is determined by reference to SOFR, or any Governmental Authority has imposed material
restrictions on the authority of Initial Funding Lender to engage in reverse repurchase of U.S.
Treasury securities transactions of the type included in the determination of SOFR, or to determine
or charge interest rates based upon SOFR, then, upon notice thereof by Initial Funding Lender to
Borrower, any obligation of Initial Funding Lender to make or maintain Daily SOFR Advances
shall be suspended, in each case until Initial Funding Lender notifies Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt of such notice,
Borrower shall, upon demand from Initial Funding Lender, convert all Daily SOFR Principal owed
to Initial Funding Lender to Base Rate Principal, provided, however, if and to the extent Initial
Funding Lender has determined that a Law has made it unlawful to convert all such Daily SOFR
Principal to Base Rate Principal, or any Governmental Authority has asserted that such a
conversion is unlawful, Borrower shall, upon demand from Initial Funding Lender, prepay all such
Daily SOFR Principal owed to Initial Funding Lender. Upon any such prepayment or conversion,
Borrower shall also pay accrued interest on the amount so prepaid or converted.
(c) Inability to Determine Rate. If (i) Initial Funding Lender determines (which
determination shall be conclusive absent manifest error) that (A) no Successor Rate for Daily
SOFR has been determined in accordance with Subsection (d) below and the circumstances under
clauses (i) or (ii) of Subsection (d) below or the Scheduled Unavailability Date has occurred (as
applicable) with respect to SOFR, or (B) adequate and reasonable means do not exist for
determining SOFR for any determination date(s) or requested payment period, as applicable, with
respect to any proposed or existing advance of the Construction Phase Project Loan; or (ii) Initial
Funding Lender determines that for any reason that Daily SOFR for any determination date(s) does
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not adequately and fairly reflect the cost to Initial Funding Lender of funding any requested
advance of the Construction Phase Project Loan, Initial Funding Lender will promptly so notify
Borrower. Thereafter, the obligation of Initial Funding Lender to make or maintain Daily SOFR
Advances shall be suspended, in each case until Initial Funding Lender revokes such notice. Upon
receipt of such notice, (x) Borrower may revoke any pending request for a borrowing at the Daily
SOFR Rate (to the extent of the affected Construction Phase Project Loan advances), or failing
that, will be deemed to have converted such request into a request to borrow the amount specified
therein at the Base Rate if no election is made by Borrower by the date that is three (3) Business
Days after receipt by Borrower of such notice, and (y) all amounts from day to day outstanding
which are not past due, shall bear interest at the Base Rate.
(d) Replacement of SOFR or Successor Rate. Notwithstanding anything to the
contrary in this Note or any other Construction Phase Project Loan Document, if Initial Funding
Lender determines (which determination shall be conclusive absent manifest error), or Borrower
notifies Initial Funding Lender that Borrower has determined, that:
(i) adequate and reasonable means do not exist for ascertaining SOFR because
SOFR is not available or published on a current basis and such circumstances are unlikely
to be temporary; or
(ii) the Applicable Authority has made a public statement identifying a specific
date after which SOFR shall or will no longer be made available, or permitted to be used
for determining the interest rate of loans denominated in U.S. Dollars executed in the
United States, or shall or will otherwise cease, provided that, in each case, at the time of
such statement, there is no successor administrator that is satisfactory to Initial Funding
Lender, that will continue to provide SOFR (the latest date on which SOFR is no longer
available permanently or indefinitely, the “Scheduled Unavailability Date”);
or if any of the events or circumstances of the type described in clauses (i) or (ii) above
have occurred with respect to the Successor Rate then in effect, then, Initial Funding Lender and
Borrower may amend this Note solely for the purpose of replacing SOFR or any then current
Successor Rate in accordance with this Subsection (d) with an alternative benchmark rate giving
due consideration to any evolving or then existing convention for similar U.S. Dollar-denominated
bilateral portfolio commercial real property loans for such alternative benchmark, and, in each
case, including any mathematical or other adjustments to such benchmark giving due consideration
to any evolving or then existing convention for similar U.S. Dollar-denominated bilateral portfolio
commercial real property loans for such benchmark. For the avoidance of doubt, any such
proposed rate and adjustments, shall constitute a “Successor Rate”.
Initial Funding Lender will promptly (in one or more notices) notify Borrower of the
implementation of any Successor Rate.
Any Successor Rate shall be applied in a manner consistent with market practice; provided
that to the extent such market practice is not administratively feasible for Initial Funding Lender,
such Successor Rate shall be applied in a manner as otherwise reasonably determined by Initial
Funding Lender.
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Notwithstanding anything else herein, if at any time any Successor Rate as so determined
would otherwise be less than one-half of one percent (0.50%), the Successor Rate will be deemed
to be one-half of one percent (0.50%) for the purposes of this Note and the other Construction
Phase Project Loan Documents.
(e) Defined Terms. In addition to other terms defined herein, as used herein the
following terms shall have the meanings indicated, unless the context otherwise requires:
“Applicable Authority” means with respect to SOFR, the SOFR Administrator or any
governmental authority having jurisdiction over Initial Funding Lender or the SOFR
Administrator.
“Base Rate” means, on any day, the Base Rate Margin plus the highest of: (a) the Federal
Funds Rate for that day plus ½ of 1%, (b) the rate of interest in effect for such day as publicly
announced from time to time by Initial Funding Lender as its “Prime Rate,” or (c) one percent
(1.00%). The “Prime Rate” is a rate set by Initial Funding Lender based upon various factors
including Initial Funding Lender’s costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in such Prime Rate announced by Initial Funding Lender
shall take effect at the opening of business on the day specified in the public announcement of
such change.
“Base Rate Advance” means an advance of the Construction Phase Project Loan that bears
interest at the Base Rate.
“Base Rate Margin” means ninety-five (95) basis points per annum.
“Base Rate Principal” means, at any time, the Principal Debt minus the portion, if any, of
such Principal Debt which is Daily SOFR Principal.
“Conforming Changes” means, with respect to the use, administration of or any
conventions associated with SOFR or any proposed Successor Rate or Term SOFR, as applicable,
any conforming changes to the definition of “Base Rate” and/or “SOFR,” timing and frequency of
determining rates and making payments of interest and other technical, administrative or
operational matters (including, for the avoidance of doubt, the definition of “Business Day,” the
definition of “U.S. Government Securities Business Day,” timing of borrowing requests or
prepayment, conversion or continuation notices and length of lookback periods) as may be
appropriate, in the discretion of Initial Funding Lender, to reflect the adoption and implementation
of such applicable rate(s), and to permit the administration thereof by Initial Funding Lender in a
manner substantially consistent with market practice (or, if Initial Funding Lender determines that
adoption of any portion of such market practice is not administratively feasible or that no market
practice for the administration of such rate exists, in such other manner of administration as Initial
Funding Lender determines is reasonably necessary in connection with the administration of this
Note and any other Construction Phase Project Loan Document).
“Daily Simple SOFR” with respect to any applicable determination date means the SOFR
published on the second (2nd) U.S. Government Securities Business Day preceding such date on
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the Federal Reserve Bank of New York’s website (or any successor source); provided, however,
that if such determination date is not a U.S. Government Securities Business Day, then Daily
Simple SOFR means such rate that applied on the first (1st) U.S. Government Securities Business
Day immediately prior thereto.
“Daily SOFR” means the rate per annum equal to Daily Simple SOFR determined for any
day pursuant to the definition thereof plus the SOFR Adjustment. Any change in Daily SOFR
shall be effective from and including the date of such change without further notice.
“Daily SOFR Advance” means an advance of the Construction Phase Project Loan by
Initial Funding Lender to Borrower or any portion of the Construction Phase Project Loan held by
Initial Funding Lender which bears interest at an applicable Daily SOFR Rate at the time in question.
“Daily SOFR Principal” means any portion of the Principal Debt which bears interest at an
applicable Daily SOFR Rate at the time in question.
“Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal
Reserve Bank of New York based on such day’s federal funds transactions by depository
institutions (as determined in such manner as the Federal Reserve Bank of New York shall set
forth on its public website from time to time) and published on the next succeeding Business Day
by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the
Federal Funds Rate as so determined would be less than zero, such rate shall be deemed to be zero
for purposes of this Note.
“Principal Debt” means the aggregate unpaid principal balance of the Construction Phase
Project Loan at the time in question.
“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal
Reserve Bank of New York, or a committee officially endorsed or convened by the Federal
Reserve Board and/or the Federal Reserve Bank of New York.
“SOFR” means the Secured Overnight Financing Rate as administered by the SOFR
Administrator
“SOFR Adjustment” means 0.10% (10 basis points) .
“SOFR Administrator” means the Federal Reserve Bank of New York, as the
administrator of SOFR, or any successor administrator of SOFR designated by the Federal Reserve
Bank of New York or other Person acting as the SOFR Administrator at such time.
“SOFR Margin” means one hundred ninety-five (195) basis points per annum.
“U.S. Government Securities Business Day” means any Business Day, except any
Business Day on which any of the Securities Industry and Financial Markets Association, the New
York Stock Exchange or the Federal Reserve Bank of New York is not open for business because
such day is a legal holiday under the federal laws of the United States or the laws of the State of
New York, as applicable.
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Section 4. Prepayment. No prepayment of the Construction Phase Project Loan may
be made which in Initial Funding Lender’s judgment would contravene or prejudice funding under
any applicable permanent loan commitment or tri-party agreement or the like. Subject to the
foregoing, Borrower may, upon notice to Initial Funding Lender, at any time or from time to time
voluntarily prepay any outstanding advances of the Construction Phase Project Loan, in whole or
in part without premium or penalty, provided that (a) such notice must be in a form acceptable to
Initial Funding Lender and be received by Initial Funding Lender not later than 11:00 a.m. on the
date of prepayment of any Daily SOFR Advances or Base Rate Advances; (b) any prepayment of
Daily SOFR Advances or Base Rate Advances shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount
thereof then outstanding. If such notice is given by Borrower, Borrower shall make such
prepayment and the payment amount specified in such notice shall be due and payable on the date
specified therein. Each such notice shall specify the date and amount of such prepayment and the
types of advances to be prepaid, whether Daily SOFR Advances or Base Rate Advances. Any
prepayment of the Construction Phase Project Loan shall be accompanied by all accrued interest
on the amount prepaid, together with any other sums which have become due to Initial Funding
Lender under the Construction Phase Project Loan Documents on or before the date of prepayment
but have not been paid. If this Note is prepaid in full, any commitment of Initial Funding Lender
for further advances shall automatically terminate
Section 5. Late Charges. If Borrower shall fail to make any payment under the terms
of this Note (other than the payment due at the Forward Commitment Maturity Date, as may be
extended pursuant to the terms of this Note) within fifteen (15) days after the date such payment
is due, Borrower shall pay to Initial Funding Lender on demand a late charge equal to four percent
(4%) of the amount of such payment. Such fifteen (15) day period shall not be construed as in any
way extending the due date of any payment. The “late charge” is imposed for the purpose of
defraying the expenses of Governmental Lender incident to handling such delinquent payment.
This charge shall be in addition to, and not in lieu of, any other remedy Governmental Lender may
have and is in addition to any fees and charges of any agents or attorneys which Governmental
Lender may employ upon the occurrence of an Event of Default, whether authorized herein or by
Law.
Section 6. Default Rate. After the occurrence and during the continuance of an Event
of Default (including the expiration of any applicable cure period), Initial Funding Lender, in
Initial Funding Lender’s sole discretion and without notice or demand, may raise the rate of interest
accruing on the outstanding principal balance of this Note by three hundred (300) basis points
above the rate of interest otherwise applicable (the “Default Rate”), independent of whether Initial
Funding Lender elects to accelerate the outstanding principal balance of this Note.
Section 7. Increased Costs. If any Change in Law shall:
(a) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account of, or
credit extended by, Initial Funding Lender (which shall include, for purposes of this Section, any
corporation Controlling Lender) (excluding any reserve requirement already reflected in the
calculation of the interest rate in this Note);
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(b) subject Initial Funding Lender to any taxes (other than taxes imposed on or
measured by net income, however denominated, franchise taxes or branch profits taxes) on its
loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves,
other liabilities or capital attributable thereto; or
(c) impose on Initial Funding Lender or the London interbank eurodollar market any
other condition, cost or expense affecting this Note or any outstanding amount of the Construction
Phase Project Loan;
and the result of any of the foregoing shall be to increase the cost to Initial Funding Lender,
of providing, continuing or maintaining the Construction Phase Project Loan, or to reduce the
amount of any sum received or receivable by Initial Funding Lender hereunder (whether of
principal, interest or any other amount) then, within ten (10) days after request by Governmental
Lender or Initial Funding Lender, on Initial Funding Lender’s behalf, Borrower will pay to Initial
Funding Lender such additional amount or amounts as will compensate Initial Funding Lender for
such additional costs incurred or reduction suffered. Such additional costs and/or reduction shall
be allocated to this Note or any outstanding amount of the Construction Phase Project Loan as
determined by Initial Funding Lender, using any reasonable method. No failure by Governmental
Lender or Initial Funding Lender to immediately demand payment of any amounts hereunder shall
constitute a waiver of Initial Funding Lender’s right to demand payment of such amounts at any
subsequent time. Notwithstanding the foregoing, Borrower shall not be required to compensate
Initial Funding Lender for any such increased costs incurred or reduction suffered more than nine
(9) months before Initial Funding Lender’s request for compensation hereunder, provided that if
the applicable Change in Law is retroactive, the nine (9)-month period will be extended to include
the period of retroactive effect thereof. Nothing herein contained shall be construed or shall operate
to require Borrower to pay any interest, fees, costs or charges greater than is permitted by
applicable Law.
“Change in Law” means the occurrence, after the date of this Note, of any of the following:
(a) the adoption or taking effect of any Law, (b) any change in any Law or in the administration,
interpretation, implementation or application thereof by any Governmental Authority, or (c) the
making or issuance of any request, rule, guideline, or directive (whether or not having the force of
Law) by any Governmental Authority; provided that notwithstanding anything herein to the
contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests,
rules, guidelines or directives thereunder or issued in connection therewith or in the
implementation thereof and (y) all requests, rules, guidelines, or directives promulgated by the
Bank for International Settlements, the Basel Committee on Banking Supervision (or any
successor or similar authority), or the United States or foreign regulatory authorities, in each case
pursuant to Basel III, shall in each case be deemed to be a “Change in Law,” regardless of the
date enacted, adopted, issued or implemented.
“Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European
Central Bank).
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Section 8. Capital Requirements. If Initial Funding Lender (which shall include, for
purposes of this Section, any corporation Controlling Lender) determines that any Change in Law
affecting Initial Funding Lender, regarding capital or liquidity requirements has or would have the
effect of reducing the rate of return on Governmental Lender’s capital, as allocated to this Note or
the Construction Phase Project Loan, or to Governmental Lender’s commitments under this Note
or the Construction Phase Project Loan, to a level below that which Governmental Lender could
have achieved but for such Change in Law (taking into consideration Governmental Lender’s
policies with respect to capital adequacy), then from time to time Borrower will pay to
Governmental Lender, within ten (10) days after request by Governmental Lender or Initial
Funding Lender, on behalf of Governmental Lender, such additional amount or amounts as will
compensate Governmental Lender for any such reduction suffered. The allocation shall be made
as determined by Governmental Lender, using any reasonable method. No failure by
Governmental Lender or Initial Funding Lender to immediately demand payment of any amounts
hereunder shall constitute a waiver of Governmental Lender’s right to demand payment of such
amounts at any subsequent time. Notwithstanding the foregoing, Borrower will not be required to
compensate Governmental Lender for any such increased costs incurred or reduction suffered
more than nine (9) months before Governmental Lender’s or Initial Funding Lender’s request for
compensation hereunder, provided that if the applicable Change in Law is retroactive, the nine (9)-
month period will be extended to include the period of retroactive effect thereof. Nothing herein
contained shall be construed or shall operate to require Borrower to pay any interest, fees, costs or
charges greater than is permitted by applicable Law.
Section 9. Certain Provisions Regarding Payments. All payments made under this
Note shall be applied, to the extent thereof, to late charges, to accrued but unpaid interest (including
interest at the Default Rate), to unpaid principal, and to any other sums due and unpaid to
Governmental Lender under the Construction Phase Project Loan Documents, in such manner and
order as Initial Funding Lender may elect in its sole discretion, any instructions from Borrower or
anyone else to the contrary notwithstanding. Remittances shall be made without offset, demand,
counterclaim, deduction, or recoupment (each of which is hereby waived) and shall be accepted
subject to the condition that any check-or draft may be handled for collection in accordance with
the practice of the collecting bank or banks. Acceptance by Governmental Lender of any payment
in an amount less than the amount then due on any indebtedness shall be deemed an acceptance
on account only, notwithstanding any notation on or accompanying such partial payment to the
contrary, and shall not in any way (a) waive or excuse the existence of an Event of Default (as
hereinafter defined), (b) waive, impair or extinguish any right or remedy available to
Governmental Lender or Initial Funding Lender hereunder or under the other Construction Phase
Project Loan Documents, or (c) waive the requirement of punctual payment and performance or
constitute a novation in any respect. Payments received after 2:00 p.m. shall be deemed to be
received on, and shall be posted as of, the following Business Day. Whenever any payment under
this Note or any other Construction Phase Project Loan Document falls due on a day which is not
a Business Day, such payment may be made on the next succeeding Business Day.
Section 10. Events of Default. The occurrence of any one or more of the following
shall constitute an “Event of Default” under this Note:
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(a) Borrower fails to pay when and as due and payable, subject to any applicable grace
and cure period, any amounts payable by Borrower to Governmental Lender under the terms of
this Note.
(b) Any covenant, agreement or condition in this Note is not fully and timely
performed, observed or kept, subject to any applicable grace or cure period.
(c) An Event of Default (as defined or otherwise described therein) occurs under any
of the Construction Phase Project Loan Documents other than this Note (subject to any applicable
grace or cure period).
Section 11. Remedies. Upon the occurrence and during the continuance of an Event of
Default, Governmental Lender may at any time thereafter exercise any one or more of the
following rights, powers and remedies:
(a) Governmental Lender may accelerate the maturity of the Construction Phase
Project Loan and declare the unpaid principal balance and accrued but unpaid interest on this Note,
and all other amounts payable hereunder and under the other Construction Phase Project Loan
Documents, at once due and payable, and upon such declaration the same shall at once be due and
payable.
(b) Governmental Lender may set off the amount owed by Borrower to Governmental
Lender, whether or not matured and regardless of the adequacy of any other collateral securing
this Note, against any and all accounts, credits, money, securities or other property now or hereafter
on deposit with, held by or in the possession of Governmental Lender to the credit or for the
account of Borrower, without demand of, or notice to, or the consent of Borrower (any such
demand, notice, or consent being expressly waived by Borrower). ANY AND ALL RIGHTS TO
REQUIRE GOVERNMENTAL LENDER TO EXERCISE ITS RIGHTS OR REMEDIES
WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE
CONSTRUCTION PHASE PROJECT LOAN WHICH IS EVIDENCED BY THIS NOTE
PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH
DEPOSITS, CREDITS OR OTHER PROPERTY OF BORROWER OR ANY
GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY
WAIVED.
(c) Governmental Lender may foreclose or otherwise realize upon any liens or security
interests securing payment hereof.
(d) Governmental Lender may exercise any of its other rights, powers and remedies
under the Construction Phase Project Loan Documents or at law or in equity.
Without limitation of the foregoing, upon the occurrence of an actual or deemed entry of
an order for relief with respect to Borrower under the Bankruptcy Code (Title 11 of the United
States Code, as in effect from time to time), any obligation of Governmental Lender to make
advances shall automatically terminate, and the unpaid principal amount of the Construction Phase
Project Loan outstanding and all interest and other amounts payable hereunder and under the other
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Construction Phase Project Loan Documents shall automatically become due and payable, in each
case without further act of Governmental Lender.
Notwithstanding anything to the contrary contained in the Construction Phase Project Loan
Documents, Governmental Lender hereby agrees that the Investor Limited Partner shall have the
right, but not the obligation, to cure any defaults of the Borrower hereunder and under any of the
Construction Phase Project Loan Documents, and the Governmental Lender agrees to accept cures
tendered by the Investor Limited Partner on behalf of the Borrower within the applicable cure
periods set forth therein.
Section 12. Remedies Cumulative. All of the rights and remedies of Governmental
Lender under this Note and the other Construction Phase Project Loan Documents are cumulative
of each other and of any and all other rights at law or in equity, and the exercise by Governmental
Lender of any one or more of such rights and remedies shall not preclude the simultaneous or later
exercise by Governmental Lender of any or all such other rights and remedies. No single or partial
exercise of any right or remedy shall exhaust it or preclude any other or further exercise thereof,
and every right and remedy may be exercised at any time and from time to time. No failure by
Governmental Lender to exercise, nor delay in exercising, any right or remedy, including but not
limited to the right to accelerate the maturity of this Note, shall operate as a waiver of such right
or remedy or as a waiver of any Event of Default. Without limiting the generality of the foregoing
provisions, the acceptance by Governmental Lender from time to time of any payment under this
Note which is past due or which is less than the payment in full of all amounts due and payable at
the time of such payment, shall not (i) constitute a waiver of or impair or extinguish the right of
Governmental Lender to accelerate the maturity of this Note or to exercise any other right or
remedy under this Note and/or any other Construction Phase Project Loan Document at the time
or at any subsequent time, or nullify any prior exercise of any such right or remedy, or (ii)
constitute a waiver of the requirement of punctual payment and performance or a novation in any
respect. Any judgment rendered on this Note shall bear interest at the maximum rate permitted
pursuant to Chapter 687, Florida Statutes.
Section 13. Costs and Expenses of Enforcement. Borrower agrees to pay to
Governmental Lender on demand all costs and expenses incurred by Governmental Lender in
seeking to collect this Note or to enforce any of Governmental Lender’s rights and remedies under
the Construction Phase Project Loan Documents, including court costs and reasonable attorneys’
fees and expenses.
Section 14. Service of Process.
Borrower hereby consents to process being served in any suit, action, or proceeding
instituted in connection with this Note by (a) the mailing of a copy thereof by certified mail,
postage prepaid, return receipt requested, to Borrower and (b) serving a copy thereof upon Howard
D. Cohen, c/o Atlantic | Pacific Communities, 161 NW 6th Street, Suite 1020, Miami, Florida
33136, the agent hereby designated and appointed by Borrower as Borrower’s agent for service of
process. Borrower irrevocably agrees that such service shall be deemed to be service of process
upon Borrower in any such suit, action, or proceeding. Nothing in this Note shall affect the right
of Governmental Lender to serve process in any manner otherwise permitted by Law and nothing
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in this Note will limit the right of Governmental Lender otherwise to bring proceedings against
Borrower in the courts of any jurisdiction or jurisdictions.
Section 15. Heirs, Successors and Assigns. The terms of this Note and of the other
Construction Phase Project Loan Documents shall bind and inure to the benefit of the heirs,
devisees, representatives, successors and assigns of the parties. The foregoing sentence shall not
be construed to permit Borrower to assign the Construction Phase Project Loan except as otherwise
permitted under the Construction Phase Project Loan Documents.
Section 16. General Provisions. Time is of the essence with respect to Borrower’s
obligations under this Note. If more than one Person executes this Note as Borrower, all of said
parties shall be jointly and severally liable for payment of the indebtedness evidenced hereby.
Borrower and each party executing this Note as Borrower hereby severally (a) waives demand,
presentment for payment, notice of dishonor and of nonpayment, protest, notice of protest, notice
of intent to accelerate, notice of acceleration and all other notices (except any notices which are
specifically required by this Note or any other Construction Phase Project Loan Document), filing
of suit and diligence in collecting this Note or enforcing any of the security herefor; (b) agrees to
any substitution, subordination, exchange or release of any such security or the release of any party
primarily or secondarily liable hereon; (c) agrees that Governmental Lender shall not be required
first to institute suit or exhaust its remedies hereon against Borrower or others liable or to become
liable hereon or to perfect or enforce its rights against them or any security herefor; (d) consents
to any extensions or postponements of time of payment of this Note for any period or periods of
time and to any partial payments, before or after maturity, and to any other indulgences with
respect hereto, without notice thereof to any of them; and (e) waives the benefit of all homestead
and similar exemptions as to this Note; (f) agrees that Borrower’s liability under this Note shall
not be affected or impaired by any determination that any title, security interest or lien taken by
Governmental Lender to secure this Note is invalid or unperfected; and (g) hereby subordinates to
the Construction Phase Project Loan and the Construction Phase Project Loan Documents any and
all rights against Borrower and any security for the payment of this Note, whether by subrogation,
agreement or otherwise, until this Note is paid in full. A determination that any provision of this
Note is unenforceable or invalid shall not affect the enforceability or validity of any other provision
and the determination that the application of any provision of this Note to any Person or
circumstance is illegal or unenforceable shall not affect the enforceability or validity of such
provision as it may apply to other Persons or circumstances. This Note may not be amended except
in a writing specifically intended for such purpose and executed by the party against whom
enforcement of the amendment is sought. Captions and headings in this Note are for convenience
only and shall be disregarded in construing it. This Note and its validity, enforcement and
interpretation shall be governed by the Laws of the State of Florida (without regard to any
principles of conflicts of laws) and applicable United States federal Law. Whenever a time of day
is referred to herein, unless otherwise specified such time shall be the local time of the place where
payment of this Note is to be made. The term “Business Day” means any day other than a Saturday,
Sunday or other day on which commercial banks are authorized to close under the Laws of, or are
in fact closed in, the state where Initial Funding Lender’s office is located. The words “include”
and “including” shall be interpreted as if followed by the words “without limitation.”
Section 17. Notices; Time. Any notice, request, or demand to or upon Borrower or
Governmental Lender shall be deemed to have been properly given or made when delivered in
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accordance with the terms of the Funding Loan Agreement or Construction Disbursement
Agreement, as applicable, regarding notices.
Section 18. No Usury. It is expressly stipulated and agreed to be the intent of Borrower
and Governmental Lender at all times to comply with applicable state Law or applicable United
States federal Law (to the extent that it permits Governmental Lender to contract for, charge, take,
reserve, or receive a greater amount of interest than under state Law) and that this Section shall
control every other covenant and agreement in this Note and the other Construction Phase Project
Loan Documents. If applicable state or federal Law should at any time be judicially interpreted so
as to render usurious any amount called for under this Note or under any of the other Construction
Phase Project Loan Documents, or contracted for, charged, taken, reserved, or received with
respect to the Construction Phase Project Loan, or if Governmental Lender’s exercise of the option
to accelerate the maturity of the Construction Phase Project Loan, or if any prepayment by
Borrower results in Borrower having paid any interest in excess of that permitted by applicable
Law, then it is Governmental Lender’s express intent that all excess amounts theretofore collected
by Governmental Lender shall be credited on the principal balance of this Note and all other
indebtedness secured by the Security Instrument, and the provisions of this Note and the other
Construction Phase Project Loan Documents shall immediately be deemed reformed and the
amounts thereafter collectible hereunder and thereunder reduced, without the necessity of the
execution of any new documents, so as to comply with the applicable Law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder or thereunder. All sums paid or
agreed to be paid to Governmental Lender for the use, forbearance, or detention of the Construction
Phase Project Loan shall, to the extent permitted by applicable Law, be amortized, prorated,
allocated, and spread throughout the full stated term of the Construction Phase Project Loan until
payment in full so that the rate or amount of interest on account of the Construction Phase Project
Loan does not exceed the maximum lawful rate from time to time in effect and applicable to the
Construction Phase Project Loan (the “Maximum Rate”) for so long as the Construction Phase
Project Loan is outstanding. Governmental Lender may, in determining the Maximum Rate, take
advantage of: (i) the rate of interest permitted by Florida Statutes, Chapter 658, by reason of both
Section 687.12 Florida Statutes (“Interest rates parity among licensed lenders or creditors”)
and 12 United States Code, Sections 85 and 86, and (ii) any other Florida or United States federal
law, rule, or regulation on effect from time to time, available to Governmental Lender which
exempts Governmental Lender from any limit upon the rate of interest it may charge or grants to
Governmental Lender the right to charge a higher rate of interest than that allowed by Florida
Statutes, Chapter 687.
Section 19. Lost Note. Upon receipt of an affidavit of an officer of Governmental
Lender as to the loss, theft, destruction or mutilation of this Note or any other security document
which is not of public record, and, in the case of any such loss, theft, destruction or mutilation,
upon cancellation of this Note or other security document, Borrower will issue, in lieu thereof, a
replacement note or other security document in the same principal amount thereof and otherwise
of like tenor.
Section 20. WAIVER OF JURY TRIAL. AS FURTHER PROVIDED IN THE
CONSTRUCTION DISBURSEMENT AGREEMENT, EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
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LEGAL PROCEEDING OR ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS NOTE, THE CONSTRUCTION DISBURSEMENT
AGREEMENT, THE SECURITY INSTRUMENT, OR ANY OTHER DOCUMENT
EXECUTED IN CONNECTION HEREWITH OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY).
EACH PARTY HERETO HEREBY:
(a) CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY OF
ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER;
(b) ACKNOWLEDGES THAT THIS WAIVER AND THE PROVISIONS OF
THIS SECTION WERE A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING
INTO THE CONSTRUCTION PHASE PROJECT LOAN DOCUMENTS;
(c) CERTIFIES THAT THIS WAIVER IS KNOWINGLY, WILLINGLY, AND
VOLUNTARILY MADE;
(d) AGREES AND UNDERSTANDS THAT THIS WAIVER CONSTITUTES A
WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH
PROCEEDING OR ACTION, INCLUDING CLAIMS AGAINST PARTIES WHO ARE
NOT’ PARTIES TO THIS NOTE, AND FURTHER AGREES THAT SUCH PARTY
SHALL NOT SEEK TO CONSOLIDATE ANY SUCH PROCEEDING OR ACTION WITH
ANY OTHER PROCEEDING OR ACTION IN WHICH A JURY TRIAL CANNOT BE OR
HAS NOT BEEN WAIVED;
(e) AGREES THAT BORROWER AND GOVERNMENTAL LENDER ARE
EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY
PROCEEDING OR ACTION AS CONCLUSIVE EVIDENCE OF THIS WAIVER OF
JURY TRIAL; AND
(f) REPRESENTS AND WARRANTS THAT SUCH PARTY HAS BEEN
REPRESENTED IN THE SIGNING OF THIS NOTE AND IN THE MAKING OF THIS
WAIVER BY INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE OPPORTUNITY
TO BE REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS
OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS
WAIVER WITH COUNSEL.
Section 21. Jurisdiction and Venue. BORROWER AGREES THAT ANY SUIT
FOR THE ENFORCEMENT OF THIS NOTE OR ANY OF THE OTHER
CONSTRUCTION PHASE PROJECT LOAN DOCUMENTS MAY BE BROUGHT IN
THE COURTS OF THE STATE OF FLORIDA OR ANY FEDERAL COURT SITTING
THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH
COURT. BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR
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HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT
OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT FORUM.
THE CONSTRUCTION PHASE PROJECT LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES.
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ALLONGE
(CONSTRUCTION PHASE PROJECT LOAN NOTE)
Pay to the order of THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a
national banking association, organized and operating under the laws of the United States of
America, having a corporate trust office in Jacksonville, Florida, as Fiscal Agent without recourse
or warranty. This Allonge is attached to that certain Construction Phase Project Loan Note dated
as of December 15, 2023 made by VISTA BREEZE, LTD., a Florida limited partnership, to the
order of HOUSING FINANCE AUTHORITY OF MIAMI-DADE COUNTY, FLORIDA, a public
body corporate and politic organized and existing under the laws of the State of Florida.
December 15, 2023
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