37. Subordination Agreement (City)THIS INSTRUMENT PREPARED
BY AND RETURN TO:
Holland & Knight LLP
31 West 52nd Street, 14th Floor
New York, NY 10019
Attention: Kathleen M. Furey, Esq�
� 211391-7 'SL
OR BY, 34013 Pgs 3022-3038 (17Pss)
REC:OROE.O 12/ 18,'21 J23 14 ^ 33' 20
AlAIJ FERNA0EZ BAROL)DI
CI..ERK OF THE COURT & COhlFFROLI_.ER
i1Ir=NI-De@E COUNTY? FL.
ABOVE SPACE RESERVED FOR
RECORDING PURPOSES ONLY
SUBORDINATION AGREEMENT
(CITY OF MIAMI BEACH, FLORIDA)
This SUBORDINATION AGREEMENT (this "Agreement") is made and entered into as of 1 1
December 15, 2023, by and between CITY OF MIAMI BEACH, FLORIDA, a political subdivision of
the State of Florida (the "Subordinate Lender") and BANK OF AMERICA, N.A., a national banking
association ("Bank of America"); and acknowledged and agreed to by VISTA BREEZE, LTD., a Florida
limited partnership (the "Borrower") and THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., a national banking association (the "Fiscal Agent").
WITNESSETH:
WHEREAS, Borrower is the owner of a leasehold interest in certain real property located at 175 S.
Shore Drive and 280 S. Shore Drive, Miami, Florida 33141 (the "Land"). 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 (the "Governmental Lender"), determined to make a mortgage loan to Borrower in
the maximum aggregate principal amount of Thirty -Two Million Five Hundred Thousand and 00/100
Dollars ($32,500,000.00) (the "Construction Phase Protect Loan") to provide for the financing of the
construction of a 119-unit multifamily rental housing development project (the "Protect"), to be known as
"Vista Breeze," on the Land. The Borrower has agreed to use the proceeds of the Construction Phase Project
Loan to finance the construction of the Project and to pay certain closing costs with respect to the
Construction Phase Project Loan; and
WHEREAS, the Construction Phase Project Loan will be made pursuant to that certain
Construction Phase Borrower Loan Agreement (as amended from time to time, the "Construction Phase
Proiect Loan Agreement") dated as of the date hereof, by and among Governmental Lender, Borrower,
and Fiscal Agent. The Construction Phase Project Loan will be evidenced by that certain Construction
Phase Project Loan Note (as amended from time to time, the "Construction Phase Project Loan Note")
dated as of even date herewith made by Borrower, as maker, payable to the order of Governmental Lender.
To secure the Borrower's obligations under and in connection with the Construction Phase Project Loan,
the Construction Phase Project Loan Agreement, the Construction Project Loan Note and the other
Construction Phase Project Loan Documents (as hereinafter defined), the Borrower has executed and
delivered, or will execute and deliver, to the Governmental Lender that certain Leasehold Mortgage,
Assignment of Rents, Security Agreement and Fixture Filing (as amended from time to time, the "Security
Instrument"), dated as of even date herewith, naming Borrower, as mortgagor, and Governmental Lender,
its successor and assigns, as mortgagee, and encumbering, among other collateral, the Borrower's leasehold
interest in the Land (the "Leasehold Interest") and the Project. The Security Instrument will be duly
recorded with the Clerk of the Courts, Miami -Dade County, Florida (the "Recording Office"). As used
herein, the term "Construction Phase Protect Loan Documents" shall mean, collectively, any and all
agreements, documents and instruments which now or hereafter evidence, secure, guaranty or otherwise
#231768912 A
govern payment and/or performance of any and all obligations and liabilities of Borrower under and in
connection with the Construction Phase Project Loan, including, without limitation, the Construction Phase
Project Loan Agreement, the Tax Regulatory Agreement, the Construction Phase Project Loan Note, the
Security Instrument and this Agreement (collectively, the "Construction Phase Project Loan
Obligations"), as amended, restated, supplemented or otherwise modified; and
WHEREAS, Governmental Lender, in order to obtain the funds necessary to enable it to make the
Construction Phase Project Loan to the Borrower, has determined to obtain a loan (the "Funding Loan")
from Bank of America in the maximum aggregate principal amount of Thirty -Two Million Five Hundred
Thousand and 00/100 Dollars ($32,500,000.00). The Funding Loan will be made by Bank of America to
Governmental Lender pursuant to that certain Funding Loan Agreement (as amended from time to time,
the "Funding Loan Agreement") dated as of December 1, 2023, by and among Bank of America, the
Governmental Lender, and the Fiscal Agent. The Funding Loan will be evidenced by, among other things,
that certain Housing Finance Authority of Miami -Dade County, Florida Multifamily Housing Revenue
Note, Series 2023 (Vista Breeze), dated as of even date herewith, made by Governmental Lender, as maker,
payable to the order of Bank of America. Bank of America, pursuant to the terms and subject to the
conditions of the Funding Loan Agreement and that certain Construction Disbursement Agreement
executed by and between Borrower and Bank of America and dated as of even date herewith (the
"Construction Disbursement Agreement" and, collectively, with the Construction Phase Project Loan
Documents, are herein, collectively, referred to as the "Senior Loan Documents"), has agreed to fund the
proceeds of the Funding Loan to the Governmental Lender on a draw -down basis, which proceeds of the
Funding Loan will in turn be used by the Governmental Lender to fund the Construction Phase Project
Loan to the Borrower. In order to secure the repayment of the Funding Loan, Governmental Lender has
pledged to Fiscal Agent, in trust for the benefit of Bank of America, pursuant to the terms and conditions
of the Funding Loan Agreement and the Assignment (as hereinafter defined), all of Governmental Lender's
right, title and interest in, to and under the Construction Phase Project Loan, the Construction Phase Project
Loan Obligations, and all of the other Construction Phase Project Loan Documents (other than certain
"Unassigned Rights" (as defined in the Funding Loan Agreement)). To further evidence and perfect such
pledge, Governmental Lender, substantially concurrently herewith, has duly endorsed the Construction
Phase Project Loan Note to the order of Fiscal Agent, and executed and delivered to Fiscal Agent that
certain Assignment of Mortgage and Collateral Loan Documents (the "Assignment") dated as of even date
herewith, assigning to Fiscal Agent, among other items, all of Governmental Lender's right, title and
interest under the Security Instrument and Construction Phase Project Loan Agreement. The Assignment
shall be recorded in the Recording Office substantially concurrently with the recordation of the Security
Instrument; and
WHEREAS, Subordinate Lender has made a loan in a principal amount of Five Hundred Thousand
and 00/100 Dollars ($500,000.00) to Borrower, as evidenced by that certain Promissory Note dated as of
September 21, 2023, by Borrower, as maker, and Subordinate Lender, as payee, and has agreed to make an
additional future advance loan in the amount of Five Hundred Three Thousand Nine Hundred Sixty -Nine
and 00/100 Dollars ($503,969.000) for a total indebtedness from Borrower to Subordinate Lender in an
amount not to exceed One Million Three Thousand Nine Hundred Sixty -Nine and 00/100 Dollars
($1,003,969.00) (collectively, the "HOME Loan" or "Subordinate Loan"). The HOME Loan is
evidenced by that certain Amended, Restated, Renewal and Consolidated Promissory Note, dated as of the
date hereof, executed by the Borrower and payable to Subordinate Lender (the "HOME Loan Note" or
"Subordinate Note"). The HOME Loan is secured by (i) that certain Leasehold Mortgage, Security
Agreement and Fixture Filing dated as of September 21, 2023, given by Borrower in favor of Subordinate
Lender and recorded in the Recording Office on September 27, 2023 as CFN: 20230688178, Book 33902,
Page 1175 (the "Original HOME Mortgage"), (ii) that certain Amended and Restated Leasehold
Mortgage, Security Agreement and Fixture Filing dated of even date herewith, given by Borrower in favor
of Subordinate Lender and recorded in the Recording Office (together with the Original HOME Mortgage,
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Subordination Agreement (City)
collectively, the "HOME Mortgage" or "Subordinate Mortgage"), (iii) that certain Declaration of
Restrictive Covenants dated as of September 21, 2023, made by Borrower and the Housing Authority of
the City of Miami Beach in favor of Subordinate Lender and recorded in the Recording Office on September
27, 2023 as CFN: 20230688179, Book 33902, Page 1195 (the "Original HOME Declaration"), and (iv)
that certain Amended and Restated Declaration of Restrictive Covenants dated of even date herewith, made
by Borrower and the Housing Authority of the City of Miami Beach in favor of Subordinate Lender and
recorded in the Recording Office (together with the Original HOME Declaration, collectively, the "HOME
Declaration", and together with the HOME Loan Note, the HOME Mortgage, and all other documents
governing, evidencing and securing the HOME Loan, the "Subordinate Loan Documents"); and
WHEREAS, the Senior Loan Documents and the Subordinate Loan Documents are sometimes,
collectively, referred to herein as the "Loan Documents"; and the Construction Phase Project Loan and
Subordinate Loan, are sometimes, collectively, referred to herein as the "Loans"; and
WHEREAS, the Subordinate Mortgage is subordinate and inferior to the Security Instrument in all
respects; and
WHEREAS, in connection with the making of the Construction Phase Project Loan evidenced by
the Construction Phase Project Loan Note, and secured by the Security Instrument, the Subordinate Lender
has agreed to subordinate and make inferior: (i) the right, title, lien and interest created by the Subordinate
Mortgage to the right, title, lien, and interest of the Security Instrument; and (ii) to the extent and in the
manner provided for in this Agreement, Subordinate Lender's rights to receive any payments under or on
account of the Subordinate Loan Documents to Bank of America's rights to receive payments under or on
account of the Senior Loan Documents.
NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00), the mutual covenants
hereinafter set forth and other good and valuable consideration, the receipt, adequacy, and sufficiency of
all of which are hereby acknowledged, Bank of America and Subordinate Lender each hereby covenants
and agrees as follows:
Recitals Incorporated; Definitions.
(a) Recitals Incorporated. The recitals set forth hereinabove are incorporated herein by
reference to the same extent and with the same force and effect as if fully set forth hereinbelow, provided,
however, that such recitals shall not be deemed to modify the express provisions hereinafter set forth.
(b) Definitions. Capitalized terms used herein, but not otherwise defined herein shall have the
meanings assigned to such terms in the Construction Disbursement Agreement. The following terms, when
used in this Agreement (including, as appropriate, when used in the above recitals), will have the following
meanings:
i) `Bankruptcy Proceeding" means any bankruptcy, reorganization, insolvency,
composition, restructuring, dissolution, liquidation, receivership, assignment for
the benefit of creditors, or custodianship action or proceeding under any federal or
state law with respect to Borrower, any guarantor of any of the Senior Indebtedness
(as defined herein), any of their respective properties, or any of their respective
partners, members, officers, directors, or shareholders.
ii) "Enforcement Action" means any of the following actions taken by or at the
direction of Subordinate Lender: the acceleration of all or any part of the
Subordinate Indebtedness, the advertising of or commencement of any foreclosure
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Subordination Agreement (City)
or trustee's sale proceedings, the exercise of any power of sale, the acceptance of
a deed or assignment in lieu of foreclosure or sale, the collecting of rents, the
obtaining of or seeking of the appointment of a receiver, the seeking of default
interest, the taking of possession or control of the Leasehold Interest, the
commencement of any suit or other legal, administrative, or arbitration proceeding
based upon the Subordinate Loan Documents, the exercising of any banker's lien
or rights of set-off or recoupment, or the exercise of any other remedial action
against Borrower, any other party liable for any of the Subordinate Indebtedness
or obligated under any of the Subordinate Loan Documents, or the Leasehold
Interest.
iii) "Enforcement Action Notice" means a written Notice from Subordinate Lender
to Bank of America, given following one or more Subordinate Mortgage Default(s)
and the expiration of any Notice or cure periods provided for such Subordinate
Mortgage Default(s) in the Subordinate Loan Documents, setting forth in
reasonable detail the Subordinate Mortgage Default(s) and the Enforcement
Actions proposed to be taken by Subordinate Lender.
iv) "Senior Mortgage Default" means any act, failure to act, event, condition, or
occurrence which constitutes, or which with the giving of Notice or the passage of
time, or both, would constitute an "Event of Default" as defined in the Senior Loan
Documents
v) "Subordinate Mortgage Default" means any act, failure to act, event, condition,
or occurrence which allows (but for any contrary provision of this Agreement), or
which with the giving of Notice or the passage of time, or both, would allow (but
for any contrary provision of this Agreement), Subordinate Lender to take an
Enforcement Action.
2. Subordination. Subordinate Lender, for itself, its successors, and assigns (including,
without limitation, all subsequent holders of the Subordinate Note and the Subordinate Mortgage) does
hereby subordinate (a) the Subordinate Mortgage, (b) the HOME Declaration, (c) all of the indebtedness
now or hereafter secured by the Subordinate Mortgage, and (d) all of its right, title, lien, and interest in and
to the Property and the rents, issues, and profits therefrom, to (i) the Security Instrument, (ii) all of the
indebtedness now or hereafter secured by the Security Instrument not to exceed the maximum aggregate
principal amount of Thirty -Two Million Five Hundred Thousand and 00/100 Dollars ($32,500,000.00)
(except for increases resulting from protective advances made by Bank of America and increases approved
in writing by Subordinate Lender in its sole discretion), (iii) all of the right, title, lien and interest held by
Bank of America, its successors, and assigns (including, without limitation, all subsequent holders of the
Construction Phase Project Loan Note and the Security Instrument), in and to the Project and the rents,
issues, and profits therefrom, under and pursuant to (X) the Construction Phase Project Loan Note, (Y) the
Security Instrument, and (Z) all of the other Senior Loan Documents, and any and all extensions, renewals,
modifications, and replacements thereof which do not increase the principal balance secured thereby in
excess of the maximum aggregate principal amount of Thirty -Two Million Five Hundred Thousand and
00/100 Dollars ($32,500,000.00) (except for increases resulting from protective advances made by Bank of
America and increases approved in writing by Subordinate Lender in its sole discretion), and (iv) the Land
Use Restriction Agreement made and entered into as of even date herewith by and among Governmental
Lender, Borrower, and Fiscal Agent. From and after the date hereof, all of the documents, indebtednesses,
right, title, lien, and interest described in clauses (a), (b) and (c) hereinabove shall be subject and subordinate
to all of the documents, indebtednesses, right, title, lien, and interest described in clauses (i), (ii) and (iii)
hereinabove.
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Subordination Agreement (City)
Subordinate Lender, for itself, its successors, and assigns (including, without limitation, all
subsequent holders of the Subordinate Note and the Subordinate Mortgage) does hereby agree that,
notwithstanding anything provided in the Subordinate Loan Documents to the contrary, so long as the
indebtedness evidenced by the Construction Phase Project Loan Note and the other Senior Loan Documents
in the maximum aggregate principal amount of Thirty -Two Million Five Hundred Thousand and 00/100
Dollars ($32,500,000.00) (the "Bank of America Obligations") remains outstanding and Bank of America
has notified Subordinate Lender in writing that a Senior Mortgage Default exists, then unless Bank of
America shall consent in writing: (A) all of the Bank of America Obligations shall be paid and satisfied in
full before any payment is made on account of the indebtedness evidenced by the Subordinate Note and the
other Subordinate Loan Documents (the "Subordinate Lender Obligations"); and (B) no prepayment of
the Subordinate Lender Obligations shall be made. In the event that any payment is made to Subordinate
Lender on account of the principal, interest, fees, or other amounts on or with respect to the Subordinate
Lender Obligations which is not permitted hereunder, such payment shall be held by Subordinate Lender
in trust for the benefit of Bank of America and shall be paid forthwith over and delivered to Bank of America
for application to the payment of all of the Bank of America Obligations remaining unpaid.
For the avoidance of doubt, Subordinate Lender shall be permitted to receive and retain for its own
account all payments made in accordance with the Subordinate Loan Documents at all times prior to receipt
of written notice of the occurrence of a Senior Mortgage Default.
Amendments to the Subordinate Loan Documents.
(a) Subordinate Lender hereby agrees that, notwithstanding anything provided in the
Subordinate Loan Documents to the contrary, so long as the Bank of America Obligations remain
outstanding, unless Bank of America shall consent in writing, which consent shall not be unreasonably
withheld, Subordinate Lender shall not amend or modify the provisions of the Subordinate Note or the
Subordinate Mortgage in a manner that creates a material adverse effect upon Bank of America under the
Senior Loan Documents.
(b) For purposes of Section 2(v) of the HOME Declaration, any "sale, conveyance or transfer"
contemplated therein shall not include any transfer pursuant to foreclosure or deed or assignment in lieu of
foreclosure of any mortgage or the exercise of remedies by Bank of America pursuant to (i) the Security
Instrument, (ii) that certain Collateral Assignment and Pledge of Partnership Interests and Security
Agreement (APC Vista Breeze, LLC), dated of even date herewith, by and between APC Vista Breeze,
LLC, a Florida limited liability company, and Bank of America, or (iii) that certain Collateral Assignment
and Pledge of Partnership Interests and Security Agreement (Vista Breeze HACMB, Inc.), dated of even
date herewith, by and between Vista Breeze HACMB, Inc., a Florida nonprofit corporation, and Bank of
America.
4. Bankruptcy. 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 Bank of America's prior
written consent.
5. Continuing Benefits. No right of Bank of America or any present or future holder of the
Bank of America Obligations to enforce the subordination as provided herein shall at any time in any way
be prejudiced or impaired by any act or failure to act on the part of Borrower or any other party, whether
borrower, guarantor or otherwise, or by any act or failure to act, in good faith, by the holder of the Bank of
America Obligations, or by any noncompliance by Borrower or any borrower, guarantor or otherwise with
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Subordination Agreement (City)
the terms of the Construction Phase Project Loan Note or any of the other Senior Loan Documents
regardless of any knowledge thereof which such holder may have or be otherwise charged with.
6. Default Under Loan Documents; Standstill.
(a) Bank of America will have the right, but not the obligation, to cure any Subordinate
Mortgage Default during the Subordinate Lender Standstill Period, as defined in Section 6(c). Bank of
America will not be subrogated to the rights of Subordinate Lender under the Subordinate Loan Documents
by reason of Bank of America having cured any Subordinate Mortgage Default. However, Subordinate
Lender acknowledges that protective advances made by Bank of America in accordance with the Senior
Loan Documents or amounts advanced or expended to cure a Subordinate Mortgage Default will be added
to and become a part of the Construction Phase Project Loan Obligations and will be secured by the lien of
the Security Instrument.
(b) Bank of America will deliver to Subordinate Lender a copy of any notice sent by Bank of
America to Borrower of a Senior Mortgage Default within five (5) Banking Days of sending such notice to
Borrower. Failure of Bank of America to send notice to Subordinate Lender will not prevent the exercise
of Bank of America's and remedies under the applicable Senior Loan Documents, subject to the provisions
of this Agreement. Subordinate Lender will have the right, but not the obligation, to cure any monetary
Senior Mortgage Default within thirty (30) days following the date of such notice; provided, however, that
Bank of America will be entitled during such 30-day period to continue to pursue its remedies under the
Senior Loan Documents.
Subordinate Lender will have the right, but not the obligation, within ninety (90) days after the date
of the notice, to cure a non -monetary Senior Mortgage Default if during such 90-day period, Subordinate
Lender keeps current all payments required by the Senior Loan Documents. If such a non -monetary Senior
Mortgage Default creates an unacceptable level of risk relative to the Leasehold Interest, or Bank of
America's secured position relative to the Leasehold Interest, as determined by Bank of America in its sole
discretion, then during such 90-day period Bank of America may exercise all available rights and remedies
to protect and preserve the Leasehold Interest and the rents, revenues and other proceeds from the Leasehold
Interest. Subordinate Lender will not be subrogated to the rights of Bank of America under the Senior Loan
Documents by reason of Subordinate Lender having cured any Senior Mortgage Default. However, Bank
of America acknowledges that all amounts paid by Subordinate Lender to Bank of America to cure a Senior
Mortgage Default will be deemed to have been advanced by Subordinate Lender pursuant to, and will be
secured by the lien of, the Subordinate Mortgage. Notwithstanding anything in this Section 6(b) to the
contrary, Subordinate Lender's right to cure any Senior Mortgage Default will terminate immediately upon
the occurrence of any Bankruptcy Proceeding.
(c) In the event of a Subordinate Mortgage Default, Subordinate Lender will not commence
any Enforcement Action until (i) after Subordinate Lender has delivered to Bank of America an
Enforcement Action Notice with respect to such Enforcement Action, and (ii) Bank of America has
delivered to Subordinate Lender Bank of America's written consent to such Enforcement Action, provided
that Bank of America (x) is diligently and in good faith pursuing its remedies under the Senior Loan
Documents and/or a workout of the Senior Loan with Borrower and (y) endeavors to keep Subordinate
Lender reasonably apprised of the status of such pursuit (the "Standstill Conditions"). Notwithstanding
the foregoing, at all times, Subordinate Lender shall be entitled to exercise and enforce all applicable laws,
restrictive covenants and agreements relating to income, rent, or affordability restrictions contained in the
Subordinate Loan Documents, subject to Bank of America's right to cure a Subordinate Mortgage Default
set forth in this Agreement. Bank of America will advise Subordinate Lender whether Bank of America
consents to the Enforcement Action by Subordinate Lender within ninety (90) days following Bank of
America's receipt of the Enforcement Action Notice and failure of Bank of America to provide written
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Subordination Agreement (City)
consent to the Enforcement Action within such ninety (90) day period constitutes Bank of America's refusal
of such consent, in which case, Subordinate Lender shall not commence any Enforcement Action provided
that the Standstill Conditions are satisfied by Bank of America. Subordinate Lender acknowledges that
Bank of America may grant or refuse consent to Subordinate Lender's Enforcement Action in Bank of
America's sole and absolute discretion. Any Enforcement Action on the part of Subordinate Lender will
be subject to the provisions of this Agreement. Subordinate Lender acknowledges that the provisions of
this Section 6(c) are fair and reasonable under the circumstances, that Subordinate Lender has received a
substantial benefit from Bank of America having granted its consent to the applicable Subordinate
Mortgage, and that Bank of America would not have granted such consent without the inclusion of these
provisions in this Agreement.
(d) Bank of America may pursue all rights and remedies available to it under the Senior Loan
Documents, at law, or in equity, regardless of any Enforcement Action Notice or Enforcement Action by
Subordinate Lender. No action or failure to act on the part of Bank of America in the event of a Subordinate
Mortgage Default or commencement of an Enforcement Action will constitute a waiver on the part of Bank
of America of any provision of the Senior Loan Documents or this Agreement.
(e) If the Enforcement Action taken by Subordinate Lender is the appointment of a receiver
for the Leasehold Interest, all of the rents, issues, profits and proceeds collected by the receiver will be paid
and applied by the receiver to Subordinate Lender; however, in the event that Subordinate Lender receives
a written notification of a default by Borrower under the Senior Loan Documents, all of the funds collected
by the receiver shall be held by the Subordinate Lender for the benefit of Bank of America until the event
of default has been cured or the Construction Phase Project Loan Obligations will have been paid in full.
(f) Subordinate Lender consents to and authorizes the release by Bank of America of all or
any portion of the Leasehold Interest from the lien, operation, and effect of the Senior Loan Documents.
Subordinate Lender waives, to the fullest extent permitted by law, all equitable or other rights it may have
(i) in connection with the release of all or any portion of the Leasehold Interest, (ii) to require the separate
sale of any portion of the Leasehold Interest, (iii) to require Bank of America to exhaust its remedies against
all or any portion of the Leasehold Interest or any combination of portions of the Leasehold Interest or any
other collateral for the Construction Phase Project Loan Obligations, or (iv) to require Bank of America to
proceed against Borrower, any other party that may be liable for any of the Construction Phase Project Loan
Obligations (including any general partner of Borrower if Borrower is a partnership), all or any portion of
the Leasehold Interest or combination of portions of the Leasehold Interest or any other collateral, before
proceeding against all or such portions or combination of portions of the Leasehold Interest as Bank of
America determines. Subordinate Lender consents to and authorizes, at the option of Bank of America, the
sale, either separately or together, of all or any portion of the Leasehold Interest. Bank of America
acknowledges that without notice to Subordinate Lender and without affecting any of the provisions of this
Agreement, Bank of America may (i) extend the time for or waive any payment or performance under the
Senior Loan Documents; (ii) modify or amend in any respect any provision of the Senior Loan Documents;
and (iii) modify, exchange, surrender, release, and otherwise deal with any additional collateral for the
Construction Phase Project Loan Obligations. Notwithstanding the foregoing and as set forth in this
Agreement, Bank of America may not modify any provision of the Senior Loan Documents that increases
the Bank of America Obligations, except for increases in the Bank of America Obligations that result from
advances made by Bank of America to protect the security or lien priority of Bank of America under the
Senior Loan Documents or to cure defaults under the Subordinate Loan Documents.
(g) Subordinate Lender agrees that in the event Bank of America waives a Senior Mortgage
Default and continues to make advances under the Senior Loan Documents, Subordinate Lender will
continue to make advances of the Subordinate Loan notwithstanding such Senior Mortgage Default.
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7. Subordinate Loan Documents. Subordinate Lender hereby warrants and represents to Bank
of America that (a) the executed Subordinate Lender Documents are substantially in the same form as those
submitted to, and previously approved by, Bank of America prior to the date of this Subordination
Agreement, and (b) Subordinate Lender has no actual knowledge of any default or event of default under
the Subordinate Note, the Subordinate Mortgage or any other Subordinate Loan Documents which has not
been cured or waived. Subordinate Lender hereby warrants and represents that none of the documents and
instruments referred to in this Section have been modified or amended except as previously disclosed in
writing to Bank of America.
8. Representations. Warranties and Covenants of Subordinate Lender. Subordinate Lender
hereby covenants, agrees, warrants, represents, and certifies unto Bank of America that:
(a) Subordinate Lender is the owner and holder of the Subordinate Note, the Subordinate
Mortgage and the other Subordinate Loan Documents;
(b) Neither the Subordinate Note nor the Subordinate Mortgage have been extended, renewed,
amended, transferred, or otherwise modified except as set forth herein;
(c) This Agreement has been duly authorized by Subordinate Lender, the persons executing,
acknowledging, and delivering this Agreement on behalf of Subordinate Lender are fully authorized to do
so, and all of the terms and provisions of this Agreement are fully enforceable against Subordinate Lender
and its successors and assigns;
(d) All payments, installments, and charges due and payable under the Subordinate Note to
date have been paid and the total indebtedness evidenced by the Subordinate Note as of the date hereof is
$1,003,969.00;
(e) The indebtedness evidenced by the Subordinate Note is the only indebtedness secured by
the Subordinate Mortgage, as applicable;
(f) To the best actual knowledge of Subordinate Lender, but without further or independent
inquiry, there exists no default or event of default of any nature under the terms and provisions of the
Subordinate Note, the Subordinate Mortgage, any other Subordinate Loan Documents, or combination
thereof, and no condition which, with the giving of notice and/or the passage of time, would result in such
an event of default as of the date hereof;
(g) Subordinate Lender agrees and covenants that copies of all notices, communications, or
designations required or permitted under the Subordinate Note or the Subordinate Mortgage shall be sent
to Bank of America at the address specified in Section 14 hereof, or at such other address as Bank of
America shall furnish to Subordinate Lender in the manner provided in Section 14 hereof;
(h) In no event shall the terms and provisions of the Subordinate Note or the Subordinate
Mortgage be modified, amended, renewed, or extended in a manner that creates a material adverse effect
upon Bank of America under the Senior Loan Documents, unless Bank of America shall first consent in
writing to such modification, amendment, renewal, or extension, which consent shall not be unreasonably
withheld by Bank of America;
(i) In the event that on the date of this Agreement any default shall exist under the terms and
provisions of the Subordinate Note or the Subordinate Mortgage, neither Subordinate Lender nor its
successors or assigns shall exercise any of the remedies which, under the terms and provisions of the
8
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Subordinate Note or the Subordinate Mortgage, would be otherwise exercisable by them as a consequence
of the occurrence of such default; and
0) Subordinate Lender acknowledges and understands that Bank of America will rely upon
the certifications, warranties, representations, covenants, and agreements contained herein as a material
consideration and inducement in making, servicing, extending or modifying the Construction Phase Project
Loan or the Funding Loan (and making advances thereof), as applicable.
9. Dealings with Borrower. Bank of America may extend, renew, modify, or amend the terms
of the Bank of America Obligations and any of the Senior Loan Documents, or extend, renew, modify, or
amend the terms of any security therefor and release, transfer, assign, sell, or exchange such security and
otherwise deal freely with Borrower to the same extent as could any person, all without notice to or consent
of Subordinate Lender and without affecting the liabilities and obligations of Subordinate Lender, pursuant
to the provisions hereof; provided, however that so long as the Subordinate Loan remains outstanding, the
Senior Loan Documents may be extended, consolidated, modified or amended by Bank of America and
Borrower in any respect, provided that no such extension, consolidation, modification or amendment shall
increase the interest rate (except in the case of the cessation of SOFR (as defined in the Construction Phase
Project Loan Note)) or increase the principal amount of the Construction Phase Project Loan, except for
increases resulting from protective advances made by Bank of America and increases approved in writing
by Subordinate Lender in its sole discretion; and any security for the Bank of America Obligations may be
modified, exchanged, surrendered or otherwise dealt with or additional security may be pledged or
mortgaged for the Bank of America Obligations. Bank of America may extend the term o the Construction
Phase Project Loan in accordance with the terms expressly provided for in the Senior Loan Documents and
agrees that it will provide notice to Subordinate Lender for any extensions beyond what is contemplated in
the Senior Loan Documents. If, after the occurrence of a Senior Mortgage Default, Bank of America
acquires title to the Project pursuant to a completed mortgage foreclosure proceeding conducted in
accordance with applicable law, the lien, operation, and effect of the Subordinate Mortgage and other
Subordinate Loan Documents automatically shall terminate with respect to such Project upon Bank of
America's acquisition of title.
10. Assignment of the Bank of America Obligations. Bank of America may assign or transfer
any or all of the Bank of America Obligations and/or any interest therein or herein and, notwithstanding
any such assignment or transfer or any subsequent assignment or transfer thereof, such Bank of America
Obligations shall be and remain senior to the Subordinate Lender Obligations, and the Subordinate Lender
Obligations shall be and remain subject and subordinate to the Bank of America Obligations for the
purposes of this Agreement, and every immediate and successive assignee or transferee of any of the Bank
of America Obligations or of any interest therein or herein shall, to the extent of the interest of such assignee
or transferee in the Bank of America Obligations, be entitled to the benefits of this Agreement to the same
extent as if such assignee or transferee were Bank of America; provided, however, that, unless Bank of
America shall otherwise consent in writing, Bank of America shall have an unimpaired right, prior and
superior to that of any such assignee or transferee, to enforce this Agreement, for the benefit of Bank of
America, as to those portions of the Bank of America Obligations which Bank of America has not assigned
or transferred.
11. Waiver; Modification. No delay on the part of Bank of America or Subordinate Lender in
the exercise of such party's right or remedy shall operate as a waiver thereof, and no single or partial
exercise by Bank of America or Subordinate Lender of any right or remedy of such party shall preclude
other or further exercise thereof or the exercise of any other right or remedy of such party; nor shall any
modification or waiver of any of the provisions of this Agreement be binding upon Bank of America or
Subordinate Lender except as expressly set forth in a writing duly signed and delivered by or on behalf of
Bank of America and Subordinate Lender.
Vista Breeze
Subordination Agreement (City)
12. Waiver of Rights. Borrower hereby waives (a) notice of acceptance of this Agreement by
Bank of America, (b) notice of the existence or creation or nonpayment of all or any of the Bank of America
Obligations, and (c) all diligence in the collection or protection of or realization upon the Bank of America
Obligations or the collateral therefor.
13. Intentionally Omitted.
14. Notices. Any notice, demand, designation, or other communication which is required or
permitted to be given under the terms and provisions of this Agreement shall be deemed to by duly given
and received on the date the. same shall be personally delivered to the party to whom the same is addressed
at the address hereinbelow specified (including delivery by a professional overnight courier service), or on
the third day after the same shall be deposited in the United States mail, certified mail, return receipt
requested postage prepaid, addressed to the party to whom the same is addressed at the address hereinbelow
specified:
If to the Borrower:
Vista Breeze, LTD.
c/o Atlantic I Pacific Communities
161 NW 6th Street, Suite 1020
Miami, Florida 33136
Attention: Kenneth Naylor
with copies to:
Klein Hornig LLP
1325 G Street NW, Suite 770
Washington, D.C. 20005
Attention: Chris Hornig
and
Vista Breeze HACMB, Inc.
Housing Authority of the City of Miami Beach
200 Alton Road
Miami Beach, Florida 33139
Attention: Miguell Del Campillo
with copies to:
Fox Rothschild LLP
BNY Mellon Center
500 Grant Street, Suite 2500
Pittsburgh, Pennsylvania 15219
Attention: Michael H. Syme
If to Bank of America:
Bank of America, N.A.
Mail Code: FL6-812-18-02
10
Vista Breeze
Subordination Agreement (City)
401 East Las Olas Boulevard, 18th Floor
Fort Lauderdale, Florida 33301
Attention: Binyamin Rosenbaum
with copies to:
Bank of America, N.A.
NC 1-026-06-01
Gateway Village — 900 Building
900 W. Trade Street
Charlotte, NC 28255
Attention: Loan Administration Manager
and
Holland & Knight LLP
31 W 52nd Street
New York, New York 10019
Attention: Kathleen M. Furey, Esq.
If to Subordinate Lender:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Manager
with a copy to:
City of Miami Beach
Office of Housing & Community Services
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Director
and
City of Miami Beach
Office of Housing & Community Services
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Rafael A. Paz, City Attorney
Any party hereto may by written notice given to the others in the manner herein provided change
the address to which any such notice, demand, designation, or other communication shall be thereafter
given to it.
15. Priority. The priorities herein specified are applicable irrespective of the time of creation
of the Bank of America Obligations or the Subordinate Lender Obligations.
11
Vista Breeze
Subordination Agreement (City)
16. No Modification to Senior Loan Documents. This Agreement is not intended to modify
and shall not be construed to modify any term or provision of the Construction Phase Project Loan Note,
the Security Instrument or any other documents or instruments evidencing, securing, guaranteeing the
payment of, or otherwise relating to the indebtedness evidenced by the Construction Phase Project Loan
Note or the Funding Loan Note (as defined in the Construction Disbursement Agreement), as applicable,
or secured by the Security Instrument, or both.
17. Further Assurances. So long as the Security Instrument shall affect the Land or any portion
thereof, Subordinate Lender, its successors or assigns, or any other legal holder of the Subordinate
Mortgage, as the case may be, shall execute, acknowledge, and deliver upon the demand of Bank of
America, at any time or times, any and all further documents or instruments in recordable form for the
purpose of further confirming the subordination and the agreements herein set forth, subject to review and
approval of such documents or instruments by the parties, which approval shall not be unreasonably
withheld.
18. Estoppel Certificate. Subordinate Lender hereby agrees that within twenty (20) days after
written demand of Bank of America, it shall execute, acknowledge and deliver a certification setting forth
the total amount of indebtedness owed to it which shall be then secured by any portion of the Land, and any
and all such certifications shall be conclusive as to the matters set forth therein, and shall be fully binding
upon Subordinate Lender, its successors and assigns. Notwithstanding the foregoing, Subordinate Lender
shall not be obligated to give such a certification more frequently than once every calendar month.
19. Counterpart Signatures. This Agreement may be executed in several counterparts, and by
the parties hereto on separate counterparts, and each counterpart, when executed and delivered, shall
constitute an original agreement enforceable against all who signed it without production of or accounting
for any other counterpart, and all separate counterparts shall constitute the same agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGES TO FOLLOW]
12
Vista Breeze
Subordination Agreement (City)
IN WITNESS WHEREOF, Subordinate Lender and Bank of America have caused this instrument
to be executed by its duly authorized officer as of the day and year first above written.
WITNESS OR ATTEST:
STATE OF TEXAS
BANK OF AMERICA, N . A.
a national banking association
c
By:
Cassandra Silver ail
Senior Vice President
COUNTY OF HARRIS
Ve- - r-Gn (ac
The foregoing instru_Went was acknowledged before me by means of ahysical presence or ❑ online
notarization, this day of-2023 by Cassandra Silvernail, as Senior Vice President of
Bank of America, N.A., a national banking as 'atio , on be f said Bank.
o y Public, at exas
a e_lZ
Print, Type or Stamp Name
Personally Known or Produ ed Identific tion `�/
Type of Identification Produced `t-e-? !2c.
a
JONATHEN LOPEZ
Notary Public, State of TexasComm. Expires 09-23-2026 Notary ID 133982243
S-1
Vista Breeze
Subordination Agreement (City)
WITNESS OR ATTEST:
DEC I � 2023
Name: Rafael E. Granado, City Clerk
Name:
SUBORDINATE LENDER:
CITY OF MIAMI BEACH, FLORIDA,
a Florida municipal corporation
By:
Name: Afina T. Hudaq
Title: City Manager
KEILA MENA
�:•:.�
.NCORP GRATED:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE )
The foregoing inst
,gument was acknowledged before me by means of physical presence or [ ]
online notarization this/ d y of December, 2023, by Alina T. Hudak, as City Manager of the City of
Miami Beach, Florida, a Florida municipal corporation £~Ir Carp p�t.or I '1"v C Akj *kotvw,Ser r �Ov-
v.�i
GUADALUPE C. RAMOS N to Public, S/ to of lorida
A�'v"
MY COMMISSION # GG 985873
EXPIRES: September 8, 2024 U��
a P t Type or Stamp Name
•` Bonded Thru Notary Public Undoiwrlters Personally Known__Kor Produced Identificatio4m
Type of Identification Produced�A )1A
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
I � -1 ?) -J3
City Att hey Date
S-2
Vista Breeze
Subordination Agreement (City)
CONSENT OF BORROWER
Borrower acknowledges receipt of a copy of this Subordination Agreement, dated as of the date first written
above, by Bank of America, N.A. and the City of Miami Beach, Florida, and consents to the agreement of
the parties and the obligations and rights of Borrower as a third party beneficiary as set forth in this
Agreement.
WITNESS OR ATTEST.-
�Q
Nam e:=—Qe-cuQf
Name: t
STATE OF FLORIDA
COUNTY OF M t n, -Y; , -Dad-e)
VISTA BREEZE, LTD.,
a Florida limited partnership
By: APC Vista Breeze, LLC,
a Florida limited liability company,
its managing general partner
IM
/ //' t -
K th Nay or
V ce eside t /V
The foregoing instrument was acknowledged before me by means of ®-physical presence or ❑
online notarization, this %\ day of November, 2023 by Kenneth Naylor as Vice President of APC Vista
Breeze, LLC, a Florida limited liability company, the managing general partner of Vista Breeze, LTD., a
Florida limited partnership.
Notary Public,l Flo ' a
�QbPrC6 K, r`r1 n az
Print, Type or Stamp Name
Personally Known V-�®r Produced Identification
Type of Identification Produced
Notary Public State of Florida
Rebeca Martinez
My Commission
HH 213601
Exp. 1/4/2026
S-3
Vista Breeze
Subordination Agreement (City)
CONSENT OF FISCAL AGENT
Fiscal Agent acknowledges receipt of a copy of this Subordination Agreement, dated as of the date first
written above, by Bank of America, N.A. and the City of Miami Beach, Florida, and consents to the
agreement of the parties and the obligations and rights of Fiscal Agent as a third party beneficiary as set
forth in this Agreement.
THE BANK OF NEW YORK MELLON TRUST
COM ANY, N.A., a national banking association
By:
ame: Stephanie A. G ene-Matthews
Title: Vice President
STATE OF FLORIDA
COUNTY OF DUVAL
The foregoing instrument was acknowledged before me by means of ® physical presence or ❑
online notarization, this 27th day of November , 2023 by Stephanie A. Greene- Matthews as
Vice President of The Bank of New York Mello Trust Company, N.A., a national banking
association.
Notary Pu lic, §tate of Florida
Lori -Ann T. Soriano
Print, Type or Stamp Name
Personally Known X or Produced Identification
Type of Identification Produced
LON-ANN T. SORIANO
Notary Public
State of Florida
• e er Comm# HH434543
Expires 8/16/2027
S-4
Vista Breeze
Subordination Agreement (City)
L-ASS"' PAGE
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:
PARCELI:
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.
Ex A-1
Vista Breeze
Subordination Agreement (City)