36. Forward Commitment Fee Note
PROMISSORY NOTE
(FORWARD COMMITMENT FEE)
As of December 15, 2023
FOR VALUE RECEIVED, VISTA BREEZE, LTD., a Florida limited partnership (the
“Maker”), having an address at c/o Atlantic Pacific Communities, 161 NW 6th Street, Suite
1020, Miami, Florida 33136, promises to pay to the order of CITIBANK, N.A., a national
banking association, having an address at 388 Greenwich Street, Trading 4th Floor, New York,
New York 10013 (together with its successors and assigns, the “Holder”), the Forward
Commitment Fee (as hereinafter defined), plus interest, if any, from time to time outstanding at
the rate set forth in this Promissory Note (the “Note”).
1. Permanent Financing Commitment. This Note is entered into in connection with that
certain Forward Purchase Agreement dated as of December 1, 2023, by and among Maker, Bank
of America, N.A., a national banking association (“Construction Lender”) and Holder (the
“Forward Purchase Agreement”), pursuant to which Holder has committed, upon fulfillment
of the conditions set forth in the Forward Purchase Agreement, to purchase that certain loan in
the maximum original principal amount of up to $11,875,000 (the “Loan”) upon the terms and
subject to the conditions set forth in the Forward Purchase Agreement. All capitalized terms used
in this Note which are not otherwise defined in this Note shall have the meanings given to them
in the Forward Purchase Agreement.
2. Forward Commitment Fee. In consideration of the commitment of the Holder to make
the Loan, the Maker has agreed to pay the Holder a fee (the “Forward Commitment Fee”),
calculated as follows:
(a) In the event that the Permanent Period Amount which is funded, as determined by
Holder in accordance with the Forward Purchase Agreement, is less than ninety percent (90%) of
the Maximum Permanent Period Amount, a fee shall be payable which is equal to the greater of
(i) the amount calculated pursuant to Schedule A on the amount that is less than ninety percent
(90%) of the Maximum Permanent Period Amount, and (ii) one percent (1%) of the amount that
is less than ninety percent (90%) of the Maximum Permanent Period Amount.
(b) In addition, if the Permanent Period Amount, as determined by Holder in
accordance with the Forward Purchase Agreement is not funded, if the Conditions to Conversion
are not satisfied, or if Holder terminates the Forward Purchase Agreement in accordance with its
terms, and in each case, the Forward Purchase Agreement is not funded, a yield maintenance
premium shall be payable which is equal to the greater of (i) the amount calculated pursuant to
Schedule A on the Maximum Permanent Period Amount, and (ii) two percent (2%) of the
Maximum Permanent Period Amount.
The Maker has executed and delivered this Note to evidence the Maker's obligation and
agreement to pay the Forward Commitment Fee in accordance with the requirements of the
Forward Purchase Agreement.
Forward Commitment Fee Note 2 Vista Breeze
3. Maturity; Cancellation of Note. This Note shall be due and payable in full on the date
(the “Termination Date”) which is the earlier to occur of (i) the Conversion Date or (ii) such
earlier date on which the Forward Purchase Agreement terminates in accordance with its terms.
Notwithstanding the foregoing, this Note shall be cancelled (and at the request of Maker, the
Note shall be returned to by Holder to Maker) if (i) any required Forward Commitment Fee is
paid on or before the Conversion Date, or (ii) otherwise the Conditions of Conversion are
satisfied and the Permanent Period Amount is funded.
4. Default. The failure of the Maker to pay when due any principal on this Note (subject to
any notice and cure rights hereunder or under the Forward Purchase Agreement) or the
occurrence of an Event of Default under the Security Instrument (as hereinafter defined) shall
constitute a default under this Note (a “Default”). On the occurrence and during the continuance
of a Default, the Holder may, at its option, declare the amounts due under this Note immediately
due and payable, and may exercise any and all rights and remedies available to it under this Note
and/or under the Forward Commitment Fee Multifamily Leasehold Mortgage, Assignment of
Rents, Security Agreement and Fixture Filing (Florida), dated as of December 1, 2023, executed
by the Maker for the benefit of Holder (the “Security Instrument”), as security for the payment
of this Note, which encumbers the Maker’s leasehold interest in the premises to be known as
Vista Breeze in the City of Miami Beach, Miami-Dade County, Florida.
5. Default Interest Only. This Note shall bear no interest unless and until the occurrence
of a Default, after which this Note shall bear interest at the per annum rate of four percent (4%)
over the Prime Rate. For purposes of this Note, the term “Prime Rate” shall mean the highest
prime rate published on the applicable date in the “Money Rates” column of The Wall Street
Journal. Changes in the rate of interest payable on this Note shall be effective on the first day of
each calendar month, based on the Prime Rate published on such date (or the Prime Rate
published on the first business day immediately preceding the first day of the calendar month in
the event the first calendar day of the month falls on a weekend or on another day on which The
Wall Street Journal is not published). If The Wall Street Journal remains unpublished for more
than one full calendar month, ceases to publish a prime rate or ceases to exist, the Holder shall
choose a substitute index in good faith, and such substitute shall thereafter be the index for the
Prime Rate. Interest under this Note shall be computed on the basis of a 360-day year consisting
of twelve 30-day months. Except where otherwise specifically provided, any reference in this
Note to a period of “days” means calendar days, not Business Days.
6. Miscellaneous. Each right, power and remedy of the Holder under this Note or under
applicable laws shall be cumulative and concurrent, and the exercise of any one or more of them
shall not preclude the simultaneous or later exercise by the Holder of any or all such other rights,
powers or remedies. No failure or delay by the Holder to insist upon the strict performance of
any one or more provisions of this Note or to exercise any right, power or remedy consequent
upon a breach of this Note or a Default under this Note shall constitute a waiver thereof or
preclude the Holder from exercising any such right, power or remedy. No modification, change,
waiver or amendment of this Note shall be deemed to be made unless in writing signed by the
party to be charged. The Maker hereby waives demand, presentment for payment, protest, notice
of dishonor and notice of protest. This Note shall inure to the benefit of and be binding upon the
parties and their respective successors and assigns. The invalidity, illegality or unenforceability
Forward Commitment Fee Note 3 Vista Breeze
of any provision of this Note shall not affect or impair the validity, legality or enforceability of
any other provision.
7. Subordination; Standstill. This Note and all of the rights of Holder and obligations of
Maker are subject and subordinate to the obligations of Maker to, and rights of, Senior Lenders
(as defined in the Forward Commitment Fee Security Instrument) under the Permitted Debt (as
defined in the Forward Commitment Fee Security Instrument), the Original Security Instrument
and the other Permitted Debt. Until such time as any of the Original Security Instrument has
been released and discharged, Holder shall not without the prior written consent of Seller, which
may be withheld in Seller’s sole and absolute discretion, exercise any Holder’s remedies under
this Note (including, without limitation, the commencement of any judicial or non-judicial action
of proceeding (a) to have a receiver appointed to collect any monies payable to Maker; or (b) to
foreclose the lien(s) created by the Forward Commitment Fee Security Instrument; or (c) to file
or join in the filing of any involuntary Bankruptcy Proceeding (as defined in the Forward
Commitment Fee Security Instrument) against Maker or any person or entity which owns a direct
or indirect interest in Maker). Each Senior Lender shall be a third party beneficiary of this
Section 7.
8. Governing Law. This Note shall be governed by and enforced in accordance with the
laws of the State of Florida (the “Property Jurisdiction”), without giving effect to the choice of
law principles of the Property Jurisdiction that would require the application of the laws of a
jurisdiction other than the Property Jurisdiction.
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Forward Commitment Fee Note A-1 Vista Breeze
Schedule A
FORWARD COMMITMENT FEE
The Forward Commitment Fee shall be the greater of:
(a) If the prepayment is made at any time after the date of this Note (the “Yield
Maintenance Period End Date”) the prepayment premium shall be the greater
of:
(i) 1% of the amount of the Maximum Permanent Period Amount; or
(ii) The product obtained by multiplying:
(A) the Maximum Permanent Period Amount,
by
(B) the difference obtained by subtracting from the Underwriting Rate
(as defined in the Forward Purchase Agreement) the Yield Rate (as
defined below), on the twenty-fifth Business Day preceding the
Termination Date,
by
(C) the present value factor calculated using the following formula:
1 - (1 + r)-n/12
r
r = Yield Rate
n = the number of months remaining between (1) the
Termination Date and (2) the Yield Maintenance Period
End Date
For purposes of this clause (ii), the “Yield Rate” means the yield
calculated by interpolating the yields for the immediately shorter
and longer term U.S. “Treasury constant maturities” (as reported in
the Federal Reserve Statistical Release H.15 Selected Interest
Rates (the “Fed Release”) under the heading “U.S. government
securities”) closest to the Yield Maintenance Period End Date, as
follows (rounded to three decimal places):
[ ( (a – b) ÷ (x – y) ) × (z – y) ] + b
Forward Commitment Fee Note A-2 Vista Breeze
a = the yield for the longer U.S. Treasury constant maturity
b = the yield for the shorter U.S. Treasury constant maturity
x = the term of the longer U.S. Treasury constant maturity
y = the term of the shorter U.S. Treasury constant maturity
z = “n” (as defined in the present value factor calculation
above) divided by 12.
(b) Notwithstanding any provision to the contrary, if “z” equals a term reported under
the U.S. “Treasury constant maturities” subheading in the Fed Release, the yield for such term
shall be used, and interpolation shall not be necessary. If publication of the Fed Release is
discontinued by the Federal Reserve Board, Holder shall determine the Yield Rate from another
source selected by Holder. Any determination of the Yield Rate by Holder will be binding
absent manifest error.
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