69. Construction Loan Agreement - Vista Breeze (NHTF)Construction Loan Agt
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
CONSTRUCTION LOAN AGREEMENT
(VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN)
THIS CONSTRUCTION LOAN AGREEMENT (this “Agreement”), dated as of December 15,
2023, is made and entered into by and among VISTA BREEZE, LTD., a Florida limited partnership
(“Borrower”), FLORIDA HOUSING FINANCE CORPORATION, a public corporation and a public body
corporate and politic duly created and existing under the laws of the State of Florida (“Florida Housing”)
(which term as used in every instance shall include Florida Housing’s successors and assigns), and
AMERINAT®, LLC, a Minnesota limited liability company authorized to transact business in the State of
Florida (“Servicer”).
R E C I T A L S
A. Except as otherwise specified herein, capitalized terms used herein, including the following
recitals, shall have the meanings set forth in Paragraph 2 of this Agreement.
B. Borrower is the lessee of that certain real property located in Miami-Dade County, Florida
(the “County”), more particularly described in Exhibit “A” attached hereto and made a part hereof (the
“Land”).
C. Florida Housing has been created and organized pursuant to and in accordance with the
provisions of the Florida Housing Finance Corporation Act, Chapter 420, Part V, Fla. Stat., as amended
(the “Act”), for the purpose, among others, of financing the costs of residential developments that will
provide decent, safe and sanitary housing for persons or families of very low, low, moderate or middle
income in the State of Florida (the “State”).
D. The State has been designated by the United States Department of Housing and Urban
Development (“HUD”) as a participating jurisdiction for the receipt and use of funds as provided by the
National Housing Trust Fund Program governed by Title I of the Housing and Economic Recovery Act of
2008, Section 1131 (Public Law 110-289); 12 U.S.C. Section 4501 et seq., Chapter 420, Fla. Stat., and 24
C.F.R. Part 93 (the “NHTF Program”).
E. Florida Housing has been designated by the State as the allocating authority for NHTF
Program funds.
F. The Borrower has applied to Florida Housing and Florida Housing has agreed, under
certain conditions, to approve and administer a loan of NHTF Program funds under the Florida Housing
Finance Corporation Request for Applications 2021-205, in effect as of August 17, 2021 ("RFA"), and
governed by the rules of Florida Housing Finance Corporation, as codified at Chapter 67-48, Fla. Admin.
Code, in effect as of May 18, 2021, and Chapter 67-53, Fla. Admin. Code, in effect as of August 20, 2009
(collectively, including the RFA, the "Rule") in the original principal amount of ONE MILLION THREE
HUNDRED ONE THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($1,301,500) (the “Loan”)
for the construction, acquisition, and permanent financing a 119-unit development known as VISTA
BREEZE located on the Land. Borrower’s leasehold interest in the Land, the Improvements, the fixtures
and personal property and other amenities now or hereafter located on the Land are referred to collectively
hereafter as the “Development.”
G. HOUSING FINANCE AUTHORITY OF MIAMI-DADE COUNTY, FLORIDA (the
“Issuer”) has also agreed to finance a portion of the costs of the Improvements pursuant to a first leasehold
mortgage loan to the Borrower in the original principal amount of $32,500,000 (the “Initial First Mortgage
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Loan”), secured by a first leasehold mortgage (the “First Mortgage”), as assigned to THE BANK OF NEW
YORK MELLON TRUST COMPANY, N.A., as fiscal agent (the “Fiscal Agent” or), relating to the
issuance by Issuer of its Housing Finance Authority of Miami-Dade County Multifamily Housing Revenue
Note, Series 2023___ (Vista Breeze) in the amount of $32,350,000 (the “Governmental Lender
Note”)which is evidenced and secured by separate first leasehold mortgage loan documents. The Initial
First Mortgage Loan is funded by a funding loan from Bank of America, N.A. (“Initial First Mortgagee”)
intended to be satisfied and replaced after completion of construction by a permanent funding loan given
by CITIBANK, N.A. (“Permanent First Mortgagee” and collectively with the Initial First Mortgagee the
“First Mortgagee”) in an amount not to exceed $11,875,000 (subject to increase per “earn-out” provisions)
(the “Permanent First Mortgage Loan” and collectively with the Initial First Mortgage Loan the “First
Mortgage Loan”) and secured by a first leasehold mortgage (the “Permanent First Mortgage” and
collectively with the Initial First Mortgage the “First Mortgage”) and which is evidenced and secured by
separate first leasehold mortgage loan documents in favor of the Permanent First Mortgagee. Until such
time as the Initial Mortgage Loan is satisfied, the terms “First Mortgagee,” “First Mortgage Loan” and
“First Mortgage” shall refer to the Initial First Mortgagee, the Initial First Mortgage Loan and the Initial
First Mortgage. Following satisfaction of the Initial Mortgage Loan, the terms “First Mortgagee,” “First
Mortgage Loan” and “First Mortgage” shall refer to the Permanent First Mortgagee, the Permanent First
Mortgage Loan and the Permanent First Mortgage.
H. FLORIDA HOUSING (the “Viability Mortgagee”) has also agreed to finance a portion of
the costs of the Improvements pursuant to a second leasehold mortgage loan to the Borrower of
Construction Inflation Response Viability Funding (“Viability”) Program funds under the Florida Housing
Corporation Request for Application 2023-211 in effect as of May 1, 2023 (the “Viability RFA”) in the
original principal amount of $4,300,000 (the “Viability Mortgage Loan”), secured by a second leasehold
mortgage (the “Viability Mortgage”), and which is evidenced and secured by separate second leasehold
mortgage loan documents.
I. FLORIDA HOUSING (the “SAIL Mortgagee”) has also agreed to finance a portion of the
costs of the Improvements pursuant to a third leasehold mortgage loan to the Borrower of State Apartment
Incentive Loan (“SAIL”) Program funds under the RFA in the original principal amount of $3,000,000 (the
“SAIL Mortgage Loan”), secured by a third leasehold mortgage (the “SAIL Mortgage”), and which is
evidenced and secured by separate third leasehold mortgage loan documents.
J. FLORIDA HOUSING (the "ELI Mortgagee") has also agreed to finance a portion of the
costs of the Improvements pursuant to a fourth leasehold mortgage loan to the Borrower of Extremely Low
Income (“ELI”) Program funds under the RFA in the original principal amount of $600,000 (the "ELI
Mortgage Loan"), secured by a fourth leasehold mortgage (the "ELI Mortgage"), and which is evidenced
and secured by separate fourth leasehold mortgage loan documents.
The First Mortgagee, the Viability Mortgagee, the SAIL Mortgagee and the ELI Mortgagee are
sometimes hereinafter collectively referred to as the “Senior Mortgagee”; the First Mortgage, the Viability
Mortgage, the SAIL Mortgage and the ELI Mortgage are sometimes hereinafter collectively referred to as
the “Senior Mortgage”; and the First Mortgage Loan, the Viability Mortgage Loan, the SAIL Mortgage
Loan and the ELI Mortgage Loan are sometimes hereinafter collectively referred to as the “Senior Mortgage
Loan”.
K. MIAMI-DADE COUNTY (the "County Mortgagee") has also agreed to finance a portion
of the costs of the Improvements pursuant to a sixth leasehold mortgage loan to the Borrower in the original
principal amount of $5,950,000 (the "County Mortgage Loan"), secured by a sixth leasehold mortgage (the
"County Mortgage"), and which is evidenced and secured by separate sixth leasehold mortgage loan
documents.
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L. CITY OF MIAMI BEACH (the "City Mortgagee") has also agreed to finance a portion of
the costs of the Improvements pursuant to a seventh leasehold mortgage loan to the Borrower in the original
principal amount of $1,003,969 (the "City Mortgage Loan"), secured by a seventh leasehold mortgage (the
"City Mortgage"), and which is evidenced and secured by separate seventh leasehold mortgage loan
documents.
M. HOUSING AUTHORITY OF THE CITY OF MIAMI BEACH (the "HACMB
Mortgagee") has also agreed to finance a portion of the costs of the Improvements pursuant to an eighth
leasehold mortgage loan to the Borrower in the original principal amount of $8,800,000 (the "HACMB
Mortgage Loan"), secured by an eighth leasehold mortgage (the "HACMB Mortgage"), and which is
evidenced and secured by separate eighth leasehold mortgage loan documents.
The County Mortgagee, the City Mortgagee and the HACMB Mortgagee are sometimes hereinafter
collectively referred to as the “Subordinate Mortgagee”; the County Mortgage, the City Mortgage and the
HACMB Mortgage are sometimes hereinafter collectively referred to as the “Subordinate Mortgage”; and
the County Mortgage Loan, the City Mortgage Loan and the HACMB Mortgage Loan are sometimes
hereinafter collectively referred to as the “Subordinate Mortgage Loan”.
N. As a condition to Florida Housing making the Loan to the Borrower, and pursuant to the
requirements of the NHTF Program and the Rule, Florida Housing and the Borrower have executed a Land
Use Restriction Agreement, dated of even date herewith, the terms of which are incorporated herein by this
reference, setting forth certain terms and conditions relating to the acquisition of the Land and the
construction and operation of the Development and which sets forth various other covenants and
agreements that run with the Land on which the Development is located.
O. Borrower and Florida Housing have negotiated the terms and conditions of, and wish to
enter into, this Agreement in order to set forth the terms and conditions of the disbursement of the Loan.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, TEN
DOLLARS ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. INCORPORATION OF RECITALS. The above recitals are true and correct and are
incorporated into and made a part hereof.
2. DEFINITIONS. As used in this Agreement the terms listed below shall have the
following meanings unless otherwise required by the context:
Advance: A disbursement of a portion of the proceeds of the Loan to provide funds for the payment
of Construction Costs.
Architect: Brooks & Scarpa Architects, Inc., a Florida corporation, whose address is 3929 West
139th Street, Hawthorne, California 90250.
Assignment of Leases: That certain Assignment of Leases, Rents and Contract Rights, dated of
even date herewith, from the Borrower to Florida Housing.
Assignment of Permits: That certain Assignment of Permits, Agreements, Approvals, Fees and
Deposits dated of even date herewith, from the Borrower assigning to Florida Housing all contract rights,
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sewer tap rights, utility commitments, licenses and agreements pertaining directly or indirectly to the Land
and the development thereof, subject to the rights of the Senior Mortgagee.
City Loan Agreement: The agreement between the Borrower and the City Mortgagee setting forth
the requirements for and terms of disbursing the City Mortgage Loan.
Co-General Partner: Vista Breeze HACMB, Inc., a Florida not-for-profit corporation.
Cohen Trust: means the Howard Cohen Revocable Trust Under Agreement Dated 4/6/1993.
Completion Date. June 15, 2026.
Compliance Monitoring and Servicing Agreement: That certain Compliance Monitoring and
Servicing Agreement, dated of even date herewith, by and among Florida Housing, the Servicer and the
Borrower.
Construction Contract. The general construction contract between the Borrower and the General
Contractor for the installation and construction of the Improvements. The Construction Contract shall be
for a guaranteed maximum price including penalties and incentive bonuses.
Construction Costs: The actual cost of labor, materials, demolition, land improvements, utility
installation, architectural and engineering services, and other work to be performed and costs to be incurred
in connection with the construction, or rehabilitation of the Improvements in accordance with the Final
Plans and this Agreement, not to exceed the “Total Development Cost” described in the “Use of Proceeds
Schedule” attached hereto as Exhibit “B”. The actual “Hard Costs” shall be further broken down in the
“Contractor’s Cost Breakdown” to be received and approved by Florida Housing and the First Mortgagee
prior to the execution and delivery of this Agreement by Florida Housing. “Construction Costs” shall
include all hard and soft costs associated with the acquisition (if applicable), financing, improvement and
construction or rehabilitation of the Development consistent with the line items in the Use Proceeds
Schedule. Any amendments to the Use of Proceeds Schedule or any reallocation of the line items therein
must be approved by Florida Housing, the First Mortgagee and the Servicer.
Contractor or General Contractor: Atlantic Pacific Community Builders, LLC, a Delaware limited
liability company, whose address is 3 Miami Central, 161 NW 6th Street, Suite 1020, Miami, Florida 33136,
and any successor general contractor approved by Florida Housing in writing.
County Loan Agreement: The agreement between the Borrower and the County Mortgagee setting
forth the requirements for and terms of disbursing the County Mortgage Loan
CPI: The “Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City Average for
All Items, 1982-84=100” (unadjusted) as published monthly by the Bureau of Labor Statistics, United
States Department of Labor. If the CPI is discontinued or revised prior to the payment in full of the Loan,
such other government index or computation with which the “CPI” is replaced shall be used in order to
obtain substantially the same result as would be obtained if the CPI had not been discontinued or revised
as Florida Housing, in its sole discretion, may determine.
Developer: Collectively, APC Vista Breeze Development, LLC, a Florida limited liability
company, and HACMB Development, LLC, a Florida limited liability company.
ELI Loan Agreement: The agreement between the Borrower and the ELI Mortgagee setting forth
the requirements for and terms of disbursing the ELI Mortgage Loan.
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Environmental Indemnity: That certain Environmental Indemnity Agreement dated of even date
herewith, from the Borrower, the Managing General Partner, the Co-General Partner, the Developer,
Atlantic Pacific Communities, LLC, a Delaware limited liability company, Howard D. Cohen, individually,
and the Cohen Trust, for the benefit of Florida Housing.
Events of Default. As defined in Paragraph 15 of this Agreement.
Final Plans. The plans and specifications for the construction or rehabilitation of the Improvements
as prepared by the Architect and reviewed on behalf of Florida Housing by the Inspector prior to the first
Advance and all amendments and modifications thereto as approved by Florida Housing, the First
Mortgagee and the Servicer, to the extent approval is required.
First Loan Agreement: The agreement between the Borrower and the First Mortgagee setting forth
the requirements for and terms of disbursing the First Mortgage Loan.
Guarantees. Collectively, (i) that certain Completion and Operating Deficit Guaranty and (ii) that
certain Continuing, Absolute and Unconditional Guaranty of Recourse Obligations, both dated of even date
herewith, from Borrower, the Managing General Partner, the Co-General Partner, the Developer, Atlantic
Pacific Communities, LLC, a Delaware limited liability company, Howard D. Cohen, individually, and the
Cohen Trust, for the benefit of Florida Housing.
HACMB Loan Agreement: The agreement between the Borrower and the HACMB Mortgagee
setting forth the requirements for and terms of disbursing the HACMB Mortgage Loan.
Improvements: The Development shall be constructed or rehabilitated, operated and maintained,
as set forth in Exhibit "D" attached hereto and made a part hereof. The Development will comply with the
Federal Fair Housing Amendments Act, March 6, 1991, the Americans With Disabilities Act of 1990, the
Florida Americans With Disabilities Accessibility Implementation Act, and Section 504 of the
Rehabilitation Act of 1973.
Inspector: Any inspecting engineer or architect acceptable to Florida Housing from time to time in
its sole discretion, the costs of which shall be paid by the Borrower.
Investor Limited Partner: Bank of America, N.A., or an affiliate thereof, and its permitted
successors and assigns..
Land Use Restriction Agreement: That certain Land Use Restriction Agreement, dated of even
date herewith between the Borrower and Florida Housing, as may be amended, modified or supplemented
from time to time.
Loan Commitment. That certain loan commitment letter issued by Florida Housing dated
September 11, 2023, and accepted by the Borrower on September 15, 2023.
Loan Documents. The Note, the Mortgage, this Agreement, the Assignment of Leases, the
Assignment of Permits, the Land Use Restriction Agreement, the Environmental Indemnity, the
Guarantees, and all other documents evidencing, guaranteeing or securing the Loan.
Managing General Partner: APC Vista Breeze, LLC, a Florida limited liability company. The term
“Managing General Partner” shall continue to refer to APC Vista Breeze, LLC after its interest in the
Borrower is converted to a Class B Limited Partner interest as provided in the Partnership Agreement,
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which conversion is consented to by Florida Housing.
Mortgage. That certain Leasehold Mortgage and Security Agreement, dated of even date herewith,
from the Borrower to Florida Housing securing the Note in the principal amount of $1,301,500 and which
is a valid fifth leasehold mortgage lien on the Borrower’s leasehold interest in the Land, the Development,
the Improvements and all other improvements, fixtures and personal property owned by the Borrower to be
located on or used in connection with the Land.
Note. That certain Promissory Note dated as of the date hereof, in the principal amount of
$1,301,500 with the Borrower as payor and Florida Housing as payee thereunder, evidencing the Loan
pursuant to the Loan Documents, as may be amended, modified or supplemented from time to time.
Notice of Commencement. That certain Notice of Commencement required by Section 713.13,
Fla. Stat. executed by the Borrower to be recorded subsequent to the Mortgage.
Partnership Agreement: The Amended and Restated Agreement of Limited Partnership among the
Managing General Partner, the Co-General Partner, HACMB – Vista Breeze, LLC, a Florida limited
liability company, as the administrative general partner, the Investor Limited Partner, the Special Limited
Partner, and the Cohen Trust, as the withdrawing limited partner dated as of December 15, 2023, as
amended or modified from time to time.
SAIL Loan Agreement: The agreement between the Borrower and the SAIL Mortgagee setting
forth the requirements for and terms of disbursing the SAIL Mortgage Loan.
Servicer: AMERINAT®, LLC, a Minnesota limited liability company authorized to transact
business in the State of Florida, or any subsequent entity appointed by Florida Housing to provide services
specified in the Loan Documents.
Special Limited Partner: Banc of America CDC Special Holding Company, Inc., a North Carolina
corporation.
Subordination Agreement. The Subordination and Intercreditor Agreement (FHFC), dated
December 15, 2023, between Bank of America , N.A., as the initial holder of the Governmental Lender
Note, and Florida Housing, and joined in and consented to by Borrower and Fiscal Agent.
Title Company: Fidelity National Title Insurance Company or another title insurance company
accepted by Florida Housing in writing.
Title Insurance Policy. The Title Company’s Mortgagee’s Policy issued pursuant to the Title
Company’s Commitment Order No. 11389795, dated September 18, 2023, as may be updated, and all other
endorsements thereto issued as required by this Agreement as of the date of reference.
Use of Proceeds Schedule. The schedule attached hereto as Exhibit “B” and made a part hereof
describing in detail (i) the sources of funding for the Development and the uses to which each source of
funding will be applied, including a breakdown of all Construction Costs to be funded by the proceeds of
the Loan; (ii) all costs thereafter paid supported by paid invoices/receipts for said costs; and (iii) all
lending/equity sources for each cost category. The Borrower is obligated to utilize the proceeds of the Loan
committed as described in the Use of Proceeds Schedule, or as otherwise approved by the Servicer.
Viability Loan Agreement: The agreement between the Borrower and the Viability Mortgagee
setting forth the requirements for and terms of disbursing the Viability Mortgage Loan.
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Any term defined in the Rule, not otherwise defined in this Agreement, shall have the meaning set
forth in the Rule.
3. THE LOAN.
Florida Housing will make the Loan to the Borrower and will disburse proceeds of the Loan in one
or more Advances subject to the terms and conditions set forth herein, and the Borrower agrees to the Loan
and expressly agrees to comply with and perform all of the terms and conditions of this Agreement, the
Note, the Mortgage, the Land Use Restriction Agreement and the Loan Documents. The Loan shall be
evidenced by the Note and secured by the Mortgage and the other Loan Documents as herein provided.
The Borrower shall only utilize the proceeds of the Loan towards the Construction Costs.
4. CONSTRUCTION OF IMPROVEMENTS.
(a) Commencement and Completion. The Borrower shall obtain all necessary governmental
permits and approvals and shall cause construction of the Improvements to begin no later than the date
which is ninety (90) days after the closing of the Loan and only after the recording of the Notice of
Commencement, and shall cause such construction to be prosecuted with diligence and dispatch so that the
Improvements are completed in accordance with the Final Plans, in form and content acceptable to Florida
Housing, and ready for occupancy on or before the Completion Date, free and clear of all liens or claims
for materials, labor, services, or other items furnished in the construction of the Improvements, and in full
compliance with all building, zoning and other applicable local, state and federal ordinances and
regulations. The Completion Date shall be extended for Unavoidable Delays (as defined in Paragraph 15(c)
herein), but in no event for a period of time longer than sixty (60) cumulative days, unless such time period
is extended in writing by Florida Housing and the Servicer prior to the expiration of the 60-day period.
Completion of the Improvements shall be evidenced by issuance of a certificate of occupancy or completion
on all of the Improvements by the governmental authorities having jurisdiction over the Development and
a final certification by the Inspector that the Improvements have been completed in accordance with the
Final Plans and which is in form and content acceptable to Florida Housing.
(b) Compliance with and Changes to the Final Plans. A complete set of the Final Plans shall
be delivered to Florida Housing prior to beginning any work on the Improvements. All material changes
in the Final Plans, including without limitation, change orders (which require consent under Section 14(aa)
below) under the Construction Contract, require the prior written approval of Florida Housing which
consent may be subject to such conditions and qualifications as Florida Housing in its sole discretion may
prescribe, it being understood that Florida Housing at all times shall have the right to require compliance
with the original Final Plans, except where modified as herein provided.
(c) Right of Florida Housing to Inspect. Florida Housing, the Servicer, the Inspector, and any
other agent or representative of Florida Housing shall have the right to enter the Development during normal
business hours for the purpose of inspecting the construction and the Improvements. The Inspector shall
provide Florida Housing and the Servicer with periodic written reports at Florida Housing's expense. The
Borrower shall cause the General Contractor and all subcontractors and suppliers to cooperate with Florida
Housing, the Inspector and the Servicer and such agents and representatives in the exercise of their rights
and performance of their duties hereunder. This provision shall not impose on Florida Housing any
obligation to inspect or to correct any defects discovered or to notify any person with respect thereto.
5. CONDITIONS TO THE EXECUTION OF THIS AGREEMENT BY FLORIDA
HOUSING. The conditions listed below are conditions precedent to Florida Housing's execution hereof
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and shall be complied with in form and substance satisfactory to Florida Housing and its counsel prior to
Florida Housing's execution hereof:
(a) Title Insurance. On the date hereof, the Borrower shall deliver to Florida Housing a
marked-up title commitment issued by the Title Company, in an amount equal to the principal amount of
the Note, which title insurance commitment shall (i) commit to issue the Title Insurance Policy that will
insure that the Mortgage is a valid fifth leasehold mortgage lien on the Development, (ii) commit to issue
the Title Insurance Policy that will insure the Borrower’s leasehold interest in the Land is good and
marketable and free and clear of all liens, encumbrances, easements, exceptions, reservations and
restrictions except for the Permitted Encumbrances (as such term is defined in the Mortgage, including, but
not limited to those described on Exhibit “B” to the Mortgage), and those approved by Florida Housing and
its counsel (including, without limitation, the conversion of the First Mortgage Loan to permanent loan
status in accordance with the First Mortgage Loan documents), (iii) provide that the Title Insurance Policy
shall include a Florida Form 9 Endorsement and a Florida Survey Endorsement which shall insure that the
property depicted in the survey described below conforms to the property described in Exhibit “A” to this
Agreement, and an ALTA 8.1 Environmental Protection Lien Endorsement, and such other endorsements
as Florida Housing may require, and (iv) be “marked-up” to reflect, among other things, that all
requirements under Schedule B-I have been satisfied and all “standard” or “general” exceptions (including
the “gap” exception) under Schedule B-II have been deleted except for those approved by Florida Housing
and its counsel.
(b) Survey: The Borrower shall deliver to Florida Housing a current survey of the
Development, certified to Florida Housing and its counsel, the Borrower and its counsel, the Servicer and
the Title Company, and prepared by a surveyor acceptable to Florida Housing, showing the following:
i. the location of the perimeter of the Land by courses and distances and perimeter
footings in place, and by reference to township, range, section;
ii. the location of and the identification by reference to recording data of all
easements, rights-of-way, conditions and restrictions on or appurtenant to the Development;
iii. the location of all building setback lines;
iv. the lines of the streets abutting the Development and the width thereof;
v. all encroachments, and the extent thereof in feet and inches upon the Development;
vi. the Improvements, to the extent constructed, and the relation of the Improvements
by distances to the perimeter of the Development, the building setback lines and the street lines;
vii. if the Development is described as being on a filed map, a legend relating the plat
of survey to such map;
viii. flood zone certification; and
ix. any other requirements requested by Florida Housing or its counsel.
(c) Contracts. The Borrower shall deliver to Florida Housing an executed copy of the
Construction Contract, which Construction Contract shall specify a maximum price for all the
Improvements, and, if requested, executed copies of the General Contractor's contracts with all
subcontractors for the construction of the Improvements, and any amendments or change orders thereto.
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(d) Contractor's Agreement. A Contractor's Agreement in form and substance reasonably
satisfactory to Florida Housing shall be executed and delivered to Florida Housing whereby the General
Contractor agrees that, in the Event of Default by Borrower under the terms of this Agreement or the Loan
Documents, Contractor will, at the request of Florida Housing, continue performance pursuant to the
Construction Contract until completion of construction of the Improvements, provided Contractor is paid
for undisputed work;
(e) Assignment of Construction Contract: Borrower shall have delivered to Florida Housing
a Collateral Assignment of Construction Contract and Permits executed by Borrower, as well as a Consent
to such assignment executed by the Contractor, in form and substance acceptable to Florida Housing and
its counsel.
(f) Note. The Note shall be duly authorized, executed and delivered by the Borrower to
Florida Housing.
(g) Mortgage. The Mortgage shall be duly authorized, executed, acknowledged, delivered to
Florida Housing, and recorded in the public records of the County and shall be a valid fifth mortgage lien
on the Development and on all fixtures and personal property owned by the Borrower to be used in
connection with the Improvements.
(h) Assignments. The Assignment of Leases and the Assignment of Permits, in form and
substance acceptable to Florida Housing and its counsel, shall be duly authorized, executed, acknowledged,
recorded (if applicable) and delivered to Florida Housing.
(i) Loan Documents. The other Loan Documents shall be duly authorized, executed, delivered
to Florida Housing and acknowledged and recorded where required.
(j) Borrower's Affidavit. An affidavit of the Borrower shall be executed and delivered to
Florida Housing certifying that no liens exist on the Development (other than liens for taxes which are not
yet due and payable) and that no other parties are entitled to possession except for the Senior Mortgagee,
the Subordinate Mortgagee, residential tenants under unrecorded leases and as otherwise provided herein.
(k) Appraisal. An appraisal of the Improvements by an appraiser satisfactory to Florida
Housing shall have been delivered to the Servicer and approved by Florida Housing and the Servicer.
(l) Public Requirements. The Borrower shall deliver to Florida Housing:
i. letters from local utility companies or municipal authorities stating that electricity,
gas, telephone, sewer and water facilities will be available to the Development upon completion of
the Improvements, without the payment of additional hook-up or other fees or otherwise specifying
the fees payable in connection therewith;
ii. a letter from the appropriate department certifying as to compliance with all zoning
and land use regulations including but not limited to compliance with parking requirements, and a
copy of the applicable zoning ordinances certified by an appropriate official to be a complete and
accurate statement thereof, and an up-to-date zoning map similarly certified;
iii. evidence satisfactory to Florida Housing that all roads necessary for the full
utilization of the Improvements for their intended purposes have either been completed or the
necessary rights of way therefor have either been acquired by the appropriate governmental
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authorities or have been or will be dedicated by the Borrower to public use and accepted by such
governmental authorities and that all necessary steps have been taken by the Borrower and such
governmental authorities to assure the complete construction and installation thereof;
iv. copies of subdivision plats, restrictive covenants, plans of developments, and all
other documents required by the local zoning and subdivision ordinances, and such other
documents as are required by and satisfactory to Florida Housing; and evidence satisfactory to
Florida Housing and its counsel that the Final Plans conform to all federal, state, and local laws,
ordinances, rules and regulations, including, but not limited to, those of the State regulating air and
water pollution, land use, and growth management;
v. a satisfactory environmental report certified to Florida Housing, along with copies
of all necessary approvals from appropriate environmental regulatory agencies;
vi. satisfactory soil test report;
vii. evidence that the building permit(s) will be issued upon the payment by the
Borrower of all necessary fees (with no other conditions) together with a certificate or other
evidence from the public official issuing the building permit(s) that the Improvements will conform
to existing zoning laws and specified variances, if any; and
viii. all other authorizations, permits or approvals, if any, required by any governmental
authorities for the construction of the Improvements and operation of the Development for the
purposes contemplated by the Final Plans, which are presently procurable.
(m) Organizational Documents. To the extent applicable, the Borrower shall deliver to Florida
Housing the following documents:
i. The Articles of Incorporation of the Borrower, or, if the Borrower is a
limited partnership, the Certificate of Limited Partnership of the Borrower and all
amendments thereto, or, if the Borrower is a limited liability company, the Articles
of Organization of the Borrower and all amendments thereto, and the Articles of
Incorporation of any corporate general partners or managing members, as
applicable, of the Borrower certified by the appropriate official of the state of their
incorporation, together with a certificate of such official to the effect that each such
entity is in good standing therein;
ii. A good standing certificate of the Borrower from the Secretary of State of
the State of Florida;
iii. Articles of Incorporation and Bylaws of the Borrower, if a corporation,
certified by the Secretary of such corporation; or Limited Partnership Agreement
of the Borrower, if a limited partnership; or Articles of Organization and Operating
Agreement of the Borrower, if a limited liability company;
iv. Incumbency certificates identifying the officers and directors of the
Borrower or its General Partner, Managing General Partner, or its managing
member or its manager, as applicable, certified by the Secretary of such entity;
v. Certified resolutions of the Board of Directors of the Borrower or the
corporate general partners or managing members or manager of Borrower, as
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applicable, authorizing the execution and delivery of the Loan Documents, and all
other documents necessary or desirable for the consummation of the transactions
contemplated by this Agreement; and
vi. Certified resolutions of the Borrower or its General Partner, Managing
General Partner or its managing member or its manager, as applicable, authorizing
the execution and delivery of the Loan Documents, and all other documents
necessary or desirable for the consummation of the transactions contemplated by
this Agreement.
(n) Flood Insurance. Borrower shall deliver to Florida Housing evidence satisfactory
to Florida Housing either that the Development is not within a hazardous flood area as designated by the
Department of Housing and Urban Development and any other governmental authority, or if the
Development, upon completion of the Improvements, will be within such a hazardous area, evidence that
the Development is (or will be) covered by flood insurance coverage sufficient to meet the standards as
provided in the Rule and the Florida Housing Finance Corporation Insurance Guide, dated August 30, 2016,
as amended from time to time (the “Florida Housing Insurance Guide”). Should such policy be canceled
before the expiration date thereon, notice shall be delivered by the insurer to Florida Housing and Servicer.
Borrower agrees that it shall immediately notify Florida Housing and Servicer upon receiving notice of
cancellation, modification or non-renewal of any policy. Borrower agrees that Florida Housing shall have
the right to take any action necessary to continue said insurance in full force and effect including, but not
limited to, paying premiums. Any funds advanced to continue said policies in full force and effect shall be
considered as Advances hereunder and shall bear interest from the date of disbursement at the default rate
set forth under the Loan Documents and payment of said funds and interest shall be secured by the
Mortgage. Satisfactory evidence of flood area designation shall be a certification from the surveyor
appearing on the survey drawing;
(o) Opinion of Borrower's Counsel. At Loan closing, the Borrower shall deliver to Florida
Housing an opinion of counsel for the Borrower and addressed to Florida Housing, such opinion to be
reasonably satisfactory to Florida Housing, to the effect that:
i. this Agreement, the Loan Documents and all other instruments and documents
required to be delivered hereunder have been duly authorized, executed and delivered and are valid,
binding and enforceable in accordance with their terms, subject to any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally;
ii. that the Borrower is a corporation or a limited partnership or a limited liability
company, as applicable, in good standing under the laws of the State and has all the necessary
power and authority to undertake its obligations hereunder;
iii. that, to its knowledge, the Borrower is in compliance with all laws, regulations,
ordinances and orders of all governmental authorities, including, but not limited to, if applicable,
the Interstate Land Sales Full Disclosure Act, all applicable federal and state securities laws, and
all laws of the State applicable to the type of development contemplated hereunder;
iv. that there is no charter, document, agreement, resolution or bylaw of the Borrower
and no provision of any existing mortgage, indenture, contract or agreement known to such counsel
binding on the Borrower or affecting its property which would conflict with or in any way prevent
the execution, delivery and performance of this Agreement;
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v. that to counsel's knowledge and based upon a certificate of the Borrower, there are
no proceedings pending or threatened before any court or administrative agency which will
materially adversely affect the financial condition or operation of the Borrower or the Development
including, but not limited to, its organizational status, bankruptcy, reorganization or insolvency
proceedings or any other debtor-creditor proceedings under the United States Bankruptcy Code or
any similar statute, nor to counsel's knowledge are there any financial circumstances within
counsel's knowledge which could lead to such proceedings;
vi. that the Note and the interest provided for therein do not violate any usury or other
laws of the State; and
vii. such other opinions as may be reasonably required by Florida Housing or its
counsel in connection with the funding of the Loan.
(p) Expenses. The Borrower shall have paid all those fees and charges due and payable or
ordered paid by Florida Housing as provided herein under Paragraph 10 of this Agreement.
(q) Easements and Parking Agreements. All necessary drainage and ingress/egress easements
and cross parking agreements which have been approved in writing by Florida Housing shall have been
executed and recorded prior to recordation of the Mortgage.
(r) Insurance. Borrower shall deliver evidence satisfactory to Florida Housing of the existence
of public liability, builder's risk, permanent hazard/all risks, flood (if applicable) and worker's compensation
insurance and any other reasonable insurance coverage required by Florida Housing relating to the
Development, in form, amounts and issued by companies as provided in the Rule and the Florida Housing
Insurance Guide. Borrower agrees that it shall immediately notify Florida Housing and Servicer upon
receiving notice of cancellation, modification or non-renewal of any policy. Borrower agrees that Florida
Housing shall have the right to take any action necessary to continue said insurance in full force and effect
including, but not limited to, paying premiums. Any funds advanced to continue said policies in full force
and effect shall be considered as Advances hereunder and shall bear interest from the date of disbursement
at the default rate set forth under the Loan Documents and payment of said funds and interest shall be
secured by the Mortgage.
Notwithstanding the foregoing Section 5, the following provisions apply during the term
of the Loan. Borrower shall, at all times, comply with the Rule and Florida Housing Insurance Guide. For
so long as the Loan is not in the first lien priority position (i.e., there are one or more loans senior to the
loan), the Mortgagor shall comply with all insurance requirements of the First Mortgagee, for minimum
amounts, types of coverage, cancellation clauses, deductibles, insurance carrier ratings and terms. During
the term of this Mortgage, Borrower shall comply with such insurance requirements of the First Mortgagee,
and such policy or policies of insurance shall include Florida Housing as an additional insured, making all
loss or losses under such policy or policies payable to the Mortgagee as its interest may appear (subject to
the rights of the First Mortgagee).
(s) Other Documents. The Borrower shall deliver to Florida Housing such other documents
and information as Florida Housing may reasonably require.
(t) Notice of Commencement. The Notice of Commencement has or will be properly prepared
(naming, among others, the Servicer as an entity to receive copies of Notices to Owner), executed, recorded
and a certified copy thereof posted at the job site either prior to, or within thirty (30) days of, the
commencement of any work or construction on the Land and a recorded copy thereof furnished to Florida
Housing and the Servicer.
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(u) Representations and Warranties. The representations and warranties of the Borrower as
set forth in this Agreement and the Loan Documents shall be true and correct.
(v) Guarantees. Execution and delivery of the Guarantees.
(w) Environmental Indemnity. Execution and delivery of the Environmental Indemnity.
(x) Use of Proceeds Schedule. Receipt by Florida Housing and the Servicer of the final Use
of Proceeds Schedule.
(y) Payment and Performance Bonds/Letter of Credit. Receipt of satisfactory 100% payment
and performance bonds, issued by a bonding company, or a satisfactory letter of credit, listing Florida
Housing as co-obligee, to be drawn at Florida Housing's sole discretion. Florida Housing, its legal counsel
and the Servicer must approve the amount and terms, as well as the form, of such letter of credit or payment
and performance bonds.
(z) Final Plans Approval. The Final Plans shall have been reviewed and approved by the
Inspector on behalf of Florida Housing and the Servicer.
(aa) Construction Draw Schedule. The construction draw schedule shall have been reviewed
and approved by the Servicer.
6. CONDITIONS TO FLORIDA HOUSING'S OBLIGATION TO FUND INITIAL
ADVANCE AND SUBSEQUENT ADVANCES. The Advances hereunder shall be made on dates
mutually agreeable to Florida Housing, the Servicer, and the First Mortgagee and in accordance with the
Use of Proceeds Schedule upon compliance with the following conditions in form and substance
satisfactory to Florida Housing, as well as Paragraphs 7 and 9 hereof:
(a) Advances. Unless otherwise approved by Florida Housing or the Servicer, the Loan shall
be disbursed during the construction phase in an amount per draw on a pro-rata basis with all other financing
for the Development.
(b) Senior Mortgagee's Funding. The Senior Mortgagee and the Borrower shall have executed,
in form and substance satisfactory to Florida Housing, the Senior Mortgage Loan documents relative to
funding of the Senior Mortgage Loan, and any other documents required by the Senior Mortgagee to fund
the Senior Mortgage Loan. There shall be no defaults or events with which the passage of time could serve
as the basis for a default under the Senior Mortgage Loan.
(c) Subordinate Mortgagee’s Funding. The Subordinate Mortgagee and the Borrower shall
have executed, in form and substance satisfactory to Subordinate Mortgagee, the Subordinate Mortgage
Loan documents relative to funding of the Subordinate Mortgage Loan, and any other documents required
to fund the Subordinate Mortgage Loan. There shall be no defaults or events with which the passage of
time could serve as the basis for a default under the Subordinate Mortgage Loan.
(d) Additional Borrower Contribution. In the event the Total Development Cost described in
the Use of Proceeds Schedule increases, the Borrower shall be required to deposit Equity Funds (defined
in Paragraph 11 hereof) with Florida Housing or the Servicer in an amount and pursuant to the terms set
forth in Paragraph 11 hereof. There shall be at all times undisbursed funds (collectively available for such
purpose under the Loan, the Senior Mortgage Loan, the Subordinate Mortgage Loan, and any other Florida-
Housing approved sources, including equity committed by Investor Limited Partner, unsecured partner
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loans, and deferred developer fees) sufficient to complete the Development. Otherwise, Florida Housing
may elect to require the Borrower to deposit with Florida Housing or the Servicer such additional funds
pursuant to the terms set forth in Paragraph 11 hereof prior to any subsequent Advance hereunder.
The Borrower shall provide to Florida Housing, at Loan closing, evidence that Equity Funds are
available from the Investor Limited Partner in an amount that together with the Loan, the Senior Mortgage
Loan, and the Subordinate Mortgage Loan are sufficient to fund Construction Costs. The Equity Funds
will be pledged in a manner and form satisfactory to Florida Housing and the Servicer.
(e) Use of Proceeds Schedule. Borrower shall deliver to Florida Housing and the Servicer for
their approval the Use of Proceeds Schedule, Contractor’s Cost Breakdown, and the Final Plans;
(f) Retainage. Until such time as the construction of the Development is fifty percent (50%)
complete, the Servicer shall withhold from each Advance for "hard costs" a sum equal to ten percent (10%)
of the amount of the "hard costs" of each Advance as retainage (the "Retainage"), subject to a determination
by Florida Housing, the Inspector and the Servicer that there remain sufficient funds under the Loan, the
Senior Mortgage Loan, the Subordinate Mortgage Loan, the Equity Funds, and other approved sources, if
any, to complete construction of the Improvements and pay the Construction Costs. Upon fifty percent
(50%) completion of the Development, the Servicer shall not be required to withhold any Retainage from
each Advance. Notwithstanding the above, the Construction Contract may require higher Retainage to be
withheld and/or require such retainage to be withheld for a longer period of time, all of which shall be
acceptable to Florida Housing. The Retainage funds shall be held by the Servicer until final certificates of
occupancy are issued and all conditions to the final hard costs Advance have been satisfied; at that time,
the Retainage may be released to the Borrower. For purposes of this paragraph, Retainage shall not be
withheld for costs associated with General Liability Insurance or Payment & Performance Bonds.
(g) Cost Certification and Design Review. The Inspector shall certify costs and review the
Final Plans. Without limiting the generality of the foregoing, the Borrower shall satisfy all conditions and
deficiencies noted in that certain Plan and Cost Review performed by the Inspector.
(h) Advances and Change Orders. The Architect of record for the Development shall approve
and execute all Advances, the Final Hard Cost Advance and all change orders.
(i) Survey. After the foundation of each building comprising the Improvements is completed,
three copies of a certified survey of the Development acceptable to Florida Housing, and certified to Florida
Housing, the Servicer and the Title Company, shall be furnished to Servicer, as agent for Florida Housing,
showing the building to be within lot lines and building setback lines, and also showing easements, roads,
etc.
(j) Builder's Risk and Hazard Insurance. Borrower shall deliver to Florida Housing a copy of
the policies or certificates of insurance of Builder's Risk and Hazard Insurance coverage in the amount of
the full replacement value of the Improvements as completed, but which shall, in any case, include such
insurance coverage sufficient to meet the standards as provided in the Rule and the Florida Housing
Insurance Guide. Such certificates of insurance shall be issued by a company satisfactory to Florida
Housing, duly endorsed to show the interest of Florida Housing under a standard non-contributing
mortgagee clause (or as otherwise provided in the Insurance Guide) addressed to Florida Housing Finance
Corporation, 227 North Bronough Street, Suite 5000, Tallahassee, Florida 32301-1329, Attention:
Executive Director, or to Florida Housing’s designated Servicer. Borrower agrees that it shall immediately
notify Florida Housing and Servicer upon receiving notice of cancellation, modification or non-renewal of
any policy. Subject to the rights of the Senior Mortgagee, Borrower agrees that Florida Housing shall have
the right to take any action necessary to continue said insurance policies in full force and effect including,
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but not limited to, paying premiums. Any funds advanced to continue the policies in full force and effect
shall be considered as Advances hereunder and shall bear interest from the date of disbursement at the
default rate under the Loan Documents and payment of said funds and interest shall be secured by the
Mortgage.
(k) Public Requirements. Prior to the request for the initial Advance, the Borrower shall
deliver to Florida Housing:
i. a copy of the building permit(s) (or written confirmation from the relevant
governmental authorities that the building permits are ready to be issued subject only to payment
of applicable fees, with no other conditions) authorizing construction of the Improvements together
with a certificate or other evidence from the public official issuing the building permit(s) that the
Improvements will conform to existing zoning laws and specified variances, if any; and
ii. all other authorizations, permits or approvals, if any, required by any governmental
authorities for the construction of the Improvements and operation of the Development for the
purposes contemplated by the Final Plans, which are presently procurable; and
iii. a copy of the HUD Environmental Records Review.
(l) Certification. The Borrower and the Architect shall have each certified to the Servicer, as
agent for Florida Housing, that there will be sufficient funds to complete the Improvements.
(m) Request and Evidence of Construction and Payment. Ten (10) business days prior to each
Advance, the Borrower shall supply to the Servicer and Florida Housing a written request, in the form and
substance acceptable to Florida Housing and the Servicer, executed by the Borrower for an Advance, which
request shall set forth the amount sought and shall constitute a covenant and affirmation of the Borrower
that the warranties and representations in this Agreement are correct and true in all material respects, that
all the covenants, terms, and conditions of this Agreement are being complied with in all material respects,
and that no Event of Default has occurred as of the date of the Advance. Each request for an Advance shall
be accompanied by standard American Institute of Architects (“AIA”) documents G702 and G703 or a
substitute form approved by Florida Housing or the Servicer, fully executed, and such other evidence as
may be required by the Servicer, by Florida Housing or the Servicer. The request for an Advance shall
contain claims for labor and materials to the date of the last inspection by Inspector and not for labor and
materials rendered thereafter. On or about the 25th day of each month, the Inspector will inspect the
Development to determine the percentage of completion for purposes of the next request for an Advance.
(n) Section 3. The Development shall meet the Section 3 requirements of the Housing and
Urban Development Act of 1968 [12 U.S.C. 1701u and 24 CFR Part 135]. Section 3 applies to recipients
of funding exceeding $200,000 for activities involving housing construction, demolition, rehabilitation, or
other public construction, i.e. roads, sewers, community centers, etc. Contractors or subcontractors that
receive contracts in excess of $100,000 for Section 3 covered projects/activities are required to comply with
the Section 3 regulations in the same manner as direct recipients. Recipients of funding must ensure that
certain employment and economic opportunities are, to the greatest extent feasible, directed to Section 3
Residents and Section 3 Business Concerns.
(o) Subcontractors. If requested by Florida Housing or the Servicer, the Borrower shall furnish
copies, certified by the Borrower to be true and correct, of all subcontracts and purchase orders for the
provision of labor and materials for the construction of the Improvements, and statements from each
subcontractor and supplier:
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i. stating the amount of its contract and the amount paid to date; and
ii. acknowledging full payment (less Retainage as set forth herein) for all work done
and materials supplied through the date of the prior Advance.
(p) Title Insurance. The Servicer, as agent for Florida Housing, shall receive standard
construction loan endorsements to the policy of title insurance updating the status of title to the date of the
current Advance and increasing the insurance coverage to an amount equal to the sum of all prior Advances
and the current Advance, without additional exceptions or objections, except those specifically approved in
writing by Florida Housing.
(q) Proof of Availability of Materials. If requested by Florida Housing or the Servicer, the
Borrower shall furnish to Florida Housing evidence reasonably satisfactory to Florida Housing that the
Borrower and the General Contractor have obtained or can obtain all necessary materials as and when
required for the completion of the Improvements in accordance with the Final Plans. Florida Housing shall
be the sole but reasonable judge of the sufficiency of such evidence.
(r) Certificates. Certificates from the Inspector that the Improvements are being completed in
accordance with the Final Plans, in a good and workmanlike manner, and in accordance with all laws,
ordinances, rules and regulations of all governmental authorities having, or purporting to have jurisdiction
over the Development.
(s) Cost. A certificate from the Borrower stating the total Construction Costs.
(t) No Event of Default. The warranties and representations contained in this Agreement are
correct and true in all material respects, all the covenants, terms and conditions of this Agreement remain
satisfied in all material respects, all conditions contained in Paragraphs 4, 5 and 6 herein have been satisfied
in all material respects, and no Event of Default, or circumstances or events which upon the lapse of time,
the giving of notice, or both, could become an Event of Default, have occurred as of the date of the Advance.
(u) Other Documents. The Borrower shall deliver to Florida Housing such other documents
and information as Florida Housing may reasonably require.
(v) Representations and Warranties. The representations and warranties of the Borrower as
set forth in this Agreement and the Loan Documents shall continue to be true and correct in all material
respects, as of the date of the Advance.
7. RIGHT TO WITHHOLD FUNDS. In addition to the right to require additional Equity
Funds (as described in Paragraph 11 hereof), Florida Housing may elect to withhold any Advance or portion
of any Advance, in addition to the Retainage, notwithstanding the substance of any report of the Inspector
or any documentation submitted to Florida Housing in connection with a request for an Advance, during
any period wherein Florida Housing, or Servicer, as agent for Florida Housing, has reasonably determined
that the actual cost budget or progress of construction is materially higher than shown on the Contractor's
Cost Breakdown, or that the percentage of progress of construction of the Improvements is materially lower
than shown on the request for an Advance for the period in question, or if the Development is not in
compliance with this Agreement. Furthermore, if any instrument or document submitted by the Borrower
in connection with any Advance request shall not, in the reasonable exercise of Florida Housing's discretion,
comply in all respects with the conditions and requirements of this Agreement, then Florida Housing may
amend, reduce or withhold funding of an Advance request, as Florida Housing, in its reasonable and timely
discretion, shall deem proper under the circumstances. Any such sums withheld by Florida Housing shall
be released upon satisfaction by the Borrower of relevant conditions.
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8. PAYMENT OF ADVANCE. If all conditions precedent to Florida Housing's obligations
hereunder and to the Advance (other than conditions or actions required of or under the control of Florida
Housing) have been performed to the satisfaction of Florida Housing, the Servicer hereby directs Florida
Housing to make the Advance to the Borrower, in accordance with this Agreement prorated with the
advances under the loan documents for all other financing for the Development, if any (or as otherwise
approved by Florida Housing or the Servicer), and Florida Housing shall make each Advance within ten
(10) days thereafter in the amount justified by the applications, affidavits, certificates and other evidence
submitted to Florida Housing under Paragraphs 5, 6 or 7 above, less Retainage as specified herein.
Notwithstanding the foregoing, unless otherwise approved by the Servicer, the amount so requested shall
not exceed the total amount of the Construction Costs multiplied by the percentage of completion then
attained less the aggregate of all amounts theretofore advanced and soft costs approved by the Servicer.
The proceeds of each Advance hereunder shall be applied solely and exclusively to payment, or to
reimbursement of the Borrower for payment, of the Construction Costs and soft costs approved by Florida
Housing, and the Borrower agrees at any time and from time to time, upon request of Florida Housing, to
exhibit to Florida Housing receipts, vouchers, statements, bills of sale or other evidence satisfactory to
Florida Housing of actual payment of such Construction Costs and soft costs approved by Florida Housing.
Each Advance shall be deemed to be an advance under the Note. Notwithstanding the foregoing, Florida
Housing may apply any amounts due the Borrower hereunder toward satisfaction of any of the terms or
conditions of this Agreement, and amounts so applied shall be part of the Loan and shall be secured by the
lien of the Mortgage, and all disbursements from any “contingency” categories shall be made at the
Servicer's sole and absolute discretion.
If Florida Housing, the Servicer and the Inspector shall consent to any extra work or changes, the
Borrower shall pay directly the additional cost thereof from funds other than the proceeds of the Loan unless
Florida Housing and the Servicer shall determine, in their reasonable discretion, that there are funds
sufficient for the payment of such extra work or changes within the applicable line item or within a
contingency reserve in excess of the amounts necessary to meet the contingencies for which that reserve is
maintained, or there are sufficient savings in other line items, in which case the additional cost of the extra
work or change order shall be paid out of the applicable line item(s) or said contingency reserve. Except
with the prior written consent of Florida Housing, which consent may be granted or withheld in Florida
Housing's sole discretion, there will be no reallocation of funds from any category in the Contractor's Cost
Breakdown to any other category in the Contractor's Cost Breakdown. Except with the prior written consent
of Florida Housing and the Servicer, which consent may be granted or withheld in their sole discretion,
there will be no reallocation of funds from any category in the Use of Proceeds Schedule to any other
category in the Use of Proceeds Schedule. All disbursements from any contingency categories shall be
made at the Servicer's sole and absolute discretion.
9. FINAL HARD COST ADVANCE. Subject to the provisions hereof, when the
Improvements have been completed and prior to the release of the final hard cost payment and/or the release
of Retainage then held by the Servicer, the Borrower shall supply Florida Housing and the Servicer with
the following documents in addition to satisfying all of the conditions and supplying all of the documents
required under Paragraphs 6 and 7 hereof:
(a) Certificate from the Inspector that the Improvements have been completed in
substantial accordance with the Final Plans, in a good and workmanlike manner, and in accordance with all
laws, ordinances, rules and regulations of all governmental authorities having, or purporting to have,
jurisdiction over the Development;
(b) A certificate from the Borrower stating the total Construction Costs;
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(c) A photocopy of the executed final certificate(s) of occupancy issued by the
appropriate official of the jurisdiction in which the Development is located, and any other governmental
certificates (if any) necessary to evidence that the completed Improvements comply with all zoning and
land use ordinances and building regulations;
(d) An acceptable “as built” survey, certified to Florida Housing, Florida Housing's
counsel, the Title Company and the First Mortgagee showing the Improvements as completed to be within
the lot lines and building setback lines, and also showing easements, roads, curb cuts, etc.;
(e) Contractor's and Owner's Final Affidavit as to payment and release of liens for all
lienors named therein, and a final conditional release of mechanics' liens executed by the General
Contractor in form and substance satisfactory to Florida Housing and the Title Company;
(f) Only when Florida Housing is the first mortgagee, policies of fire, lightning and
extended coverage insurance, and such other types of insurance as may be required by Florida Housing as
provided in the Rule and the Florida Housing Insurance Guide, endorsed to show the interest of Florida
Housing, and in form and substance and written by companies satisfactory to Florida Housing;
(g) A final endorsement to the Title Insurance Policy updating the Title Insurance
Policy to the Completion Date, increasing the insurance coverage to the full amount of the Loan and
containing no additional exceptions not previously approved by Florida Housing;
(h) A complete set of signed and sealed “as built” plans and specifications with respect
to the Improvements;
(i) An affidavit from the Borrower which indicates that the management agreement
between said parties delivered to and approved by Florida Housing is in full force and effect and that neither
of the parties thereto is in default thereunder; and
(j) All other instruments and documents reasonably required by Florida Housing or
the Servicer.
10. EXPENSES. Florida Housing shall pay fees relating to the environmental assessment of
the Development. The Borrower shall also pay all other fees and charges incurred in the procuring and
making of the Loan, if applicable, the fees of the Servicer at such times as specified in the Compliance
Monitoring and Servicing Agreement, and all other reasonable expenses incurred by Florida Housing
during the term of the Loan, including without limitation the Title Company's fees and premiums, charges
for examination of title to the Development, expenses of surveys and recording expenses. The Borrower
shall also pay any and all insurance premiums, taxes, assessments, water rates, sewer rates and other
charges, liens and encumbrances upon the Development, any other expenses shown as part of the Total
Development Cost, and any other amounts necessary for the payment of the cost of the Improvements.
Such amounts, unless sooner paid, shall be paid from time to time as Florida Housing shall request either
to the person to whom such payments are due or to Florida Housing if Florida Housing has paid the same,
or Florida Housing may upon notice to Borrower and at its option, deduct from any Advance any amounts
necessary for the payment of these items, and apply such amounts in making such payments, and all sums
so applied shall be deemed Advances under this Agreement and shall bear interest from the date of
disbursement at the default rate set forth in the Loan Documents and payment of said funds and the interest
thereon shall be secured by the Mortgage.
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11. EQUITY FUNDS. Florida Housing may, at any time and from time to time, require the
Borrower to deposit additional funds (the “Equity Funds”) whenever it shall appear to Florida Housing or
the Servicer that the remaining proceeds to be disbursed by Florida Housing (along with the funds available
under the Senior Mortgage Loan, the Subordinate Mortgage Loan, equity funds from the Investor Limited
Partner, and the Additional Borrower Contribution set forth in Paragraph 6(d) hereof, and any other Florida
Housing-approved sources, including deferred developer fees) will be insufficient to pay the remaining
portion of the Total Development Costs not already paid and to otherwise complete construction of the
Improvements in accordance with the Final Plans and the Borrower hereby covenants and agrees to make
such a deposit upon Florida Housing's request. If Florida Housing has not required a deposit of Equity
Funds pursuant to this paragraph, the Borrower shall pay and deliver to Florida Housing evidence,
satisfactory to Florida Housing, in its sole discretion, of the payment of any portion of the Total
Development Costs in excess of the amount of the Loan which remains to be disbursed, together with lien
waivers satisfactory to Florida Housing and Title Company.
12. SPECIAL PROVISIONS APPLICABLE TO CONSTRUCTION LOANS UNDER
THE NHTF PROGRAM. The Borrower expressly agrees to the following terms and conditions in
conformity with the Land Use Restriction Agreement, 24 C.F.R. Part 93, and the Rule, as applicable:
(a) Term. That under this Agreement, until the end of the NHTF Extended Affordability
Period (as defined in the Land Use Restriction Agreement), the Borrower shall manage and operate the
Development in accordance with the terms and provisions of the Land Use Restriction Agreement.
(b) Set Asides and Rent Level Requirements. The Borrower shall comply with the set asides,
rent restrictions, demographic commitment and other requirements set forth in the Land Use Restriction
Agreement.
(c) Compliance with the NHTF Program and the Rule. The Loan shall be subject to all of the
terms and conditions of the NHTF Program and the Rule, as may be amended from time to time.
(d) No Discrimination. The Borrower shall not discriminate on the basis of race, religion,
color, sex, familial status, national origin or disability in the lease, use or occupancy of the Development.
Age discrimination and discrimination against minor dependents, except when units are specifically being
held for the Elderly (as defined in the Rule), is also not permitted.
(e) Prepayment Penalty. The Loan shall not be subject to any prepayment penalty.
(f) Sale, Transfer or Refinancing of the Development.
i. The Loan as to both principal and interest shall be assumable upon the sale, transfer
or refinancing of the Development, subject to the following conditions:
(a) The proposed transferee meets all specific Borrower identity criteria (as
specified in the Rule) which were required as conditions of the original Loan;
(b) The proposed transferee agrees to maintain all set-asides and other
requirements of the Loan for the period originally specified or longer, and agrees to assume
the Borrower's obligations under the Loan Documents;
(c) The proposed transferee agrees to pay all (i) Loan servicing fees for the
remaining term of the Loan or until the Loan is paid in full, and (ii) compliance monitoring
fees through the end of the Affordability Period; and
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(d) The proposed transferee and its application receives a favorable
recommendation from Florida Housing's credit underwriter and approval by the Board of
Directors of Florida Housing.
In the event the above-stated conditions are not met, the Loan as to both principal and
interest, as well as all other obligations due or accrued under the Loan Documents, shall be due in
full upon the sale, transfer or refinancing of the Development unless the consent of Florida Housing
shall have been obtained or the transfer is otherwise permitted under the Loan Documents.
ii. If the Development is sold and the buyer does not meet the criteria for assumption
of the Loan evidenced by the Note, the Loan (principal and any outstanding interest) shall be repaid
from the proceeds of the sale. If there will be insufficient funds available from the proposed sale
of the Development, the Loan shall not be satisfied until Florida Housing has received:
(a) An appraisal prepared by an appraiser selected by Florida Housing or
Florida Housing’s credit underwriter indicating that the purchase price for
the Development is reasonable and consistent with existing market
conditions;
(b) A certification from the Borrower that the purchase price reported is the
actual price paid for the Development, as supported by a copy of the final
executed purchase and sale agreement, and that no other consideration
passed between the parties, as supported by a draft and final closing
statement, and that the income reported to Florida Housing during the term
of the Loan was true and accurate;
(c) A certification from the Borrower that there are no Development funds
available to repay the Loan, including any interest due, and the Borrower
knows of no source from which funds could or would be forthcoming to
pay the Loan; and
(d) The buyer will pay an amount equal to the present value of the annual
compliance monitoring fee, as computed by Florida Housing and the
Servicer, multiplied by the number of years for which the Development
will have a set-aside for Very Low-Income (as defined in the Rule) persons
or households beyond the repayment date. The present value discount rate
shall be two percent (2%) per annum. Such amount shall be reduced by
the amount of any compliance monitoring fees collected by Florida
Housing for the Development, provided:
(1) The compliance monitoring fee covers some or all of the period
following the anticipated NHTF Loan repayment date; and
(2) The Development has substantially equivalent set-asides for Very
Low-Income persons or households mandated through another
program of Florida Housing for which the compliance monitoring
fee was collected.
iii. Florida Housing may renegotiate and extend the Loan in order to extend or retain
the availability of housing for the target population. Such renegotiations shall be based upon:
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(a) Performance of the Borrower during the Loan term;
(b) Availability of similar housing stock for the target population in the area;
(c) Documentation and certification by the Borrower that funds are not
available to repay the Note upon maturity;
(d) A plan for the repayment of the Loan at the new maturity date;
(e) Assurance that the security interest of Florida Housing will not be
jeopardized by the new term(s); and
(f) Industry standard terms which may include amortizing loans requiring
regularly scheduled payments of principal and interest.
iv. Florida Housing staff will recommend that the Florida Housing Board approve
requests for Loan refinancing only if Development Cash Flow (as defined in the Rule) is improved,
the Development’s economic viability is maintained, the security interest of Florida Housing is not
adversely affected, and Florida Housing’s credit underwriter provides a positive recommendation.
v. Florida Housing staff will recommend that Florida Housing Board deny requests
for Loan refinancing which require extension of the Loan term or otherwise adversely affect the
security interest of Florida Housing, unless the criteria outlined in Section 12(f)(iv) above are met,
Florida Housing’s credit underwriter recommends that the approval of such a request is crucial to
the economic survival of the Development, or unless Florida Housing determines that public policy
will be better served by the extension as a result of Borrower agreeing to further extend the set-
aside period or provide additional amenities or resident programs suitable for the resident
population. Further, Florida Housing shall limit any approved extension to a minimum term which
makes the Development feasible and which does not exceed an industry standard term.
vi. Florida Housing staff will recommend that Florida Housing Board deny requests
to increase the amount of any superior mortgage unless the criteria outlined in Section 12(f)(iv)
above are met, the original combined loan to value ratio for the superior mortgage and the Mortgage
is maintained or improved, and a proportionate amount of the increase in the superior mortgage is
used to reduce the outstanding Loan balance.
vii. The Borrower shall not refinance, increase the principal amount, or alter any terms
or conditions of any mortgage superior or inferior to the Mortgage without prior approval of Florida
Housing's Board of Directors and in compliance with the Rule. However, Borrower may reduce
the interest rate on any superior or inferior mortgage loan without permission of Florida Housing’s
Board of Directors, provided that no other terms of the loan are changed. Florida Housing must be
notified of any such change.
viii. Reserved
ix. Notwithstanding anything to the contrary herein, the following shall be permitted,
unless prohibited by the Rule, and shall not require the prior written approval of Florida Housing:
(a) the removal of the Managing General Partner or Co-General Partner of Borrower in accordance
with the Partnership Agreement, and the replacement thereof with the Investor Limited Partner in
the Borrower or any of its affiliates, (b) the transfer of ownership interests in the Investor Limited
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Partner or the interest of the the Investor Limited Partner or the Managing General Partner or to
any of its affiliates; (c) the conversion of Managing General Partner’s interest from a general
partner interest to a Class B limited partner interest in according with the Partnership Agreement;
(d) the transfer of interests from the Managing General Partner to the Co-General Partner in
accordance with the Partnership Agreement; (e) upon the expiration of the tax credit compliance
period, the transfer of the interests of Co-General Partner or the Investor Limited Partner in
Borrower to the Managing General Partner, or any of their affiliates, and (f) any amendment to the
Partnership Agreement to memorialize the transfers or removal described above. The parties agree
that this subsection (ix) shall control to the extent of a conflict in any loan document. The Borrower
shall provide Florida Housing with prompt written notice of any such change described in this
paragraph.
x. Reserved
xi. Florida Housing will not unreasonably withhold, delay or condition a request by
the Borrower for Florida Housing’s consent to an internal reorganization of the limited liability
company structure of the Borrower, or any of the partners, members or stockholders of the
Borrower.
(g) Provisions of Housing. The Development must provide decent, safe, sanitary and
affordable residential rental housing as set forth in 24 C.F.R. Part 93.
(h) Section 3. The Development shall meet the Section 3 requirements of the Housing and
Urban Development Act of 1968 [12 U.S.C. 1701u and 24 CFR Part 75]. Section 3 applies to recipients of
funding exceeding $200,000 for activities involving housing construction, demolition, rehabilitation, or
other public construction, i.e. roads, sewers, community centers, etc. Contractors or subcontractors that
receive contracts in excess of $100,000 for Section 3 covered projects/activities are required to comply with
the Section 3 regulations in the same manner as direct recipients. Recipients of funding must ensure that
certain employment and economic opportunities are, to the greatest extent feasible, directed to Section 3
Residents and Section 3 Business Concerns.
(i) Monitoring. The Borrower agrees to do all things necessary to assist Florida Housing in
carrying out its monitoring responsibilities as required by 24 C.F.R. 93.404(d), which include on-site
inspection of the Development at least annually to determine compliance with housing codes and the
requirements of the federal NHTF program regulations.
(j) Records and Reports. The Borrower shall maintain records sufficient to meet the
requirements of 24 C.F.R., Part 93, including but not limited to the Funding Accountability and
Transparency Act. All records and reports required herein shall be retained and made accessible.
(k) Uniform Administrative Requirements. If the Development has a non-profit involved,
portions of Uniform Administrative Requirements, Cost Principals and audit requirements found in 2 CFR
200 may apply (if applicable).
(l) Other NHTF Program Requirements. The Borrower must carry out the construction and
operation of the Development in compliance with all Federal laws and regulations described in §§ 93.350
through 93.356.
(m) Affirmative Marketing. The Borrower agrees to adopt affirmative marketing procedures
and requirements, in writing, not later than thirty (30) days from the date on which this Agreement is
executed. The affirmative marketing procedures and requirements shall include, but need not be limited to,
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those specified in 24 C.F.R. 93.350. The affirmative marketing procedures and program shall become an
exhibit to this Agreement and be attached hereto as Exhibit “C” and by this reference becomes a part of this
Agreement as though fully set forth herein at the time of execution.
(o) Religious Organizations. If the Borrower is or was created by a religious organization, it
is hereby agreed that all NHTF Program funds disbursed under this Agreement shall be subject to the
conditions, restrictions and limitations of 24 C.F.R. 93.350 and 24 C.F.R. 5.109.
(p) Relocation of Tenants. The Borrower shall comply with all applicable tenant displacement
relocation requests in compliance with 24 C.F.R. 93.352.
(q) Lead-Based Paint. In accordance with 24 C.F.R. 93.351, the Borrower hereby certifies that
the Development constitutes “HUD-associated housing” for purposes of the Lead-Based Paint Poisoning
Prevention Act and is therefore subject to the requirements of 24 C.F.R. Part 35.
(r) Conflict of Interest. In accordance with 24 C.F.R. 93.353, and 2 C.F.R. 318, the Borrower
hereby certifies that no person who is an employee, agent, consultant, officer or elected or appointed official
of Florida Housing and (i) who exercises or has exercised any functions or responsibilities with respect to
a NHTF-Assisted activity or (ii) who is in a position to participate in the decision-making process or gain
inside information with regard to a NHTF-Assisted activity, may obtain a personal or financial interest or
benefit from a NHTF-Assisted activity, or have an interest in any contract, subcontract or agreement (or the
proceeds thereof) with regard to a NHTF activity either for themselves or those whom they have family or
business ties, during their tenure and for one year thereafter.
(s) Debarment and Suspension. In accordance with 24 C.F.R. Part 93, the Borrower hereby
certifies that neither it nor any of its partners, members or principals are presently debarred, suspended,
proposed for debarment, declared ineligible or voluntarily excluded from participation in receiving NHTF
Program funds.
(t) Flood Insurance. In accordance with the Flood Disaster Protection Act of 1973 (42 U.S.C.
4001-4128), NHTF Program funds may not be used with respect to the acquisition, new construction or
rehabilitation of a Development located in an area identified by the Federal Emergency Management
Agency (“FEMA”) as having special flood hazards unless the community in which the Development is
located is participating in the national flood insurance program; therefore, the Borrower hereby certifies
that the Development is either not located in an area identified by FEMA as having special flood hazards
or, if the Development is located in an area identified by FEMA as having special flood hazards, that the
community in which the Development is located is participating in the national flood insurance program.
(u) HUD Property Standards for New Construction. In accordance with 93.301, the
Development must meet all NHTF Program requirements including, but not limited to, (i) the accessibility
requirements of 24 CFR part 8, which implements section 504 of the Rehabilitation Act of 1973 (29 U.S.C.
794), (ii) Titles II and III of the Americans with Disabilities Act (42 U.S.C. 12131-12189) implemented at
28 CFR parts 35 and 36, as applicable, and (iii) the energy efficiency standards established pursuant to
section 109 of the Cranston-Gonzalez National Affordable Housing Act (42 U.S.C. 12709).
(v) VAWA Requirements. In accordance with 24 C.F.R. Section 93.356, which applies to all
rental housing assisted with NHTF Program Funds, the Borrower agrees to comply with the Violence
Against Women Act (VAWA) requirements set forth in 24 CFR part 5, subpart L, including notice
obligations and obligations under the emergency transfer plan.
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(w) Citations. In the event that any of the citations listed herein are changed, modified,
amended or corrected, Borrower agrees to comply with any and all applicable, similar statutes, rules or
regulations of the State or HUD.
13. WARRANTIES AND REPRESENTATIONS OF THE BORROWER. The Borrower
represents and warrants (which representations and warranties shall be deemed continuing) as follows:
(a) Organization Status. If a limited partnership, the Borrower is duly organized, is in good
standing as a limited partnership under the laws of the State and the state of its organization, if different;
further, each general partner of the Borrower if a corporation or a limited liability company, is duly
organized and in good standing under the laws of the State and the state of incorporation or organization,
if different. If a corporation, the Borrower is duly organized, is in good standing as a corporation under the
laws of the State and the state of its organization, if different. If a limited liability company, the Borrower
is duly organized, is in good standing as a limited liability company under the laws of the State and the state
of its organization, if different.
(b) Construction and Compliance with Laws. To the Borrower's knowledge there is no
violation of any applicable zoning, building or any other local, state or federal laws, ordinances and
regulations existing with respect to the anticipated use and construction of the Development; the Borrower
shall obtain all licenses, permits and approvals required by all local, state and federal agencies regulating
such construction and use; and the Borrower is in compliance with all laws, regulations, ordinances and
orders of all governmental authorities having jurisdiction over the Development.
(c) Financial Statements. The financial statements of Borrower and, to Borrower’s
knowledge, any guarantor hereunder heretofore delivered to Florida Housing are true and correct in all
material respects, and fairly present the respective financial conditions of the subjects thereof as of the
respective dates thereof, and as of the date hereof, no material adverse change has occurred in the financial
conditions reflected therein since the respective dates thereof and no additional borrowings have been made
by Borrower since the date thereof other than the borrowing contemplated hereby, the Senior Mortgage
Loan, Subordinate Mortgage Loan and the Permitted Encumbrances (as defined in the Mortgage).
(d) Authority to Enter into Loan Documents. The Borrower has full power and authority to
enter into the Loan Documents and consummate the transactions contemplated hereby, and the facts and
matters expressed in the opinions of its legal counsel are true and correct.
(e) Validity of Loan Documents. The Loan Documents have been approved by those persons
having proper authority, and to the best of the Borrower's knowledge are in all respects legal, valid and
binding according to their terms.
(f) Priority of Lien on Personalty. Except as previously disclosed in writing to Florida
Housing or in the Title Insurance Policy, no chattel mortgage, bill of sale, security agreement, financing
statement or other title retention agreement has been or will be executed with respect to any personal
property, chattel or fixture used in conjunction with the construction, operation, or maintenance of the
Improvements as described, except those executed in favor of the Senior Mortgagee and Subordinate
Mortgagee.
(g) Conflicting Transactions of the Borrower. The consummation of the transaction hereby
contemplated and the performance of the obligations of the Borrower under and by virtue of the Loan
Documents will not result in any breach of, or constitute a default under, any lease, bank loan or credit
agreement, or other instrument to which the Borrower is a party or by which it may be bound or affected.
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(h) Pending Litigation. Except for actions, suits or proceedings which have been specifically
disclosed to and approved by Florida Housing in writing, there are no actions, suits or proceedings before
or by any court or governmental authority, pending, threatened or affecting the Borrower or the
Development which, if determined adversely to the Borrower or the Development, would have a materially
adverse effect on the financial condition, properties, businesses or operations of the Borrower or the
Development, or which may prevent or interfere with or adversely affect the Borrower entering into the
Loan Documents, or the Borrower’s ability to perform its obligations under the Loan Documents, or
involving the validity of the Loan Documents, and, to the Borrower's knowledge, Borrower is not in default
with respect to any order, writ, injunction, decree or demand of any court or any governmental authority.
(i) Availability of Utilities. All utility services necessary for the construction of the
Improvements and the operation thereof for their intended purpose are available at the boundaries of the
Development, including water supply, storm and sanitary sewer facilities, and gas, electric and telephone
facilities, and Borrower has obtained all necessary permits and permissions required from governmental
authorities for unrestricted access to and use of such services in connection with the construction and use
of the Improvements.
(j) Condition of Development. The Development is not now damaged or injured as a result
of any fire, explosion, accident, flood or other casualty, and, to Borrower’s knowledge, there are no soil
conditions which would interfere with the construction of the Improvements.
(k) Construction Contract. Other than as previously disclosed in writing to Florida Housing
and as being insured against, with respect to construction liens, by the Title Company, the Borrower has
not made any contract or arrangement of any kind the performance of which by the other party thereto
would give rise to a lien on the Development except for the contract with the General Contractor. There
have been no amendments or modifications to the Construction Contract, or any other contract approved
by Florida Housing, except as approved by Florida Housing; to the best of the Borrower's knowledge, there
is in existence no default or grounds for default thereunder; and the Construction Contract is in full force
and effect.
(l) Availability of Roads. All roads necessary for the full utilization of the Improvements for
their intended purposes have either been completed or the necessary rights of way therefor have either been
acquired by the appropriate local authorities or have been or will be dedicated by the Borrower to public
use and accepted by such local authorities and all necessary steps have been taken by the Borrower and
such local authorities to assure the complete construction and installation thereof.
(m) No Default. There is no default on the part of the Borrower under this Agreement, the
Note, the Mortgage, the Loan Documents or the Senior Mortgage Loan documents and no event has
occurred and is continuing which with notice, or the passage of time, or either, would constitute a default
under any provision thereof.
(n) Advertising. Subject to applicable laws, rules and regulations, during the period of the
construction of the Improvements, Florida Housing shall have the right to install and maintain on the
Development one or more signs identifying Florida Housing, or to be identified on such signs installed by
others, as one of the institutions financing the Development. A sign or signs will be provided by Florida
Housing and erected at the Borrower's expense. All of Florida Housing’s requirements must be satisfied in
any signs or signage posted during construction. In connection with any leasing of the Development, or
any portion thereof, which has been approved by Florida Housing, the Borrower will not use any
promotional advertising or other material using Florida Housing's name without first obtaining Florida
Housing's prior written approval thereof, which approval shall not be unreasonably withheld.
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(o) Hazardous Waste. The Borrower is in compliance in all material respects with all
provisions of the federal Water Pollution Control Act, Comprehensive Environmental Response,
Compensation and Liability (“Superfund”) Act of 1980 and Solid Waste Disposal Act, Fla. Stat., Chapter
376, and other similar federal, state and local statutory schemes imposing liability on the Borrower relating
to the generation, storage, impoundment, disposal, discharge, treatment, release, seepage, emission,
transportation or destruction of any sewage, garbage, effluent, asbestos or asbestos-containing materials,
polychlorinated biphenyls (PCBs), toxic, hazardous or radioactive materials, petroleum products,
pesticides, smoke, dust, or any other form of pollution as such laws are in effect as of the date of this
Agreement and with any rules, regulations and orders issued by any federal, state or local governmental
body, agency or authority thereunder and with any orders or judgments of any courts of competent
jurisdiction with respect thereto, and no assessment, notice of (primary or secondary) liability or notice of
financial responsibility, or the amount thereof, or to impose civil penalties has been received by the
Borrower. The Borrower has paid any environmental excise taxes, imposed upon it with respect to the
Development pursuant to Sections 4611, 4661 or 4681 of the Internal Revenue Code of 1986, as from time
to time amended.
(p) Representations and Warranties in Loan Documents. All of the representations and
warranties of Borrower contained in the Mortgage and all of the other Loan Documents are true and correct
and are incorporated herein by reference as if set out in full.
(q) Other Financing. The Borrower has not received any other financing for the construction
of the Improvements other than the Loan, the Senior Mortgage Loan, the County Mortgage Loan, equity
from the Investor Limited Partner, and any Additional Borrower Contribution referred to in Paragraph 6(d)
herein, unsecured partner loans, and any other sources approved by Florida Housing.
(r) Use of the Development. There is no (i) plan, study or effort by any governmental authority
or any non-governmental person or agency which may adversely affect the current or planned use of the
Development, or (ii) any intended or proposed governmental requirement (including, but not limited to,
zoning changes) which may adversely affect the current or planned use of the Development. There is no
moratorium or like governmental order or restriction now in effect with respect to the Development and, to
the best of Borrower's knowledge, no moratorium or similar ordinance or restriction is now contemplated.
(s) Labor and Materials. All labor and materials contracted for in connection with the
construction of the Improvements shall be used and employed solely on the Land in said construction and
only in accordance with the Final Plans.
(t) Contractor and Other Contractors. The Construction Contract and all other contracts with
architects, engineers and other professionals, which have been or will be executed, are in full force and
effect and are the legal, valid and binding obligations of the General Contractor and each other contractor,
as applicable, enforceable in accordance with the respective terms thereof; the General Contractor is a duly
licensed general contractor under the laws of the State of Florida; and each other professional is a duly
licensed professional under the laws of the State of Florida.
(u) Payments of Taxes. The Borrower and each of the guarantors, if any, has filed or caused
to be filed all federal, state and local tax returns that are required to be filed and has paid or caused to be
paid all taxes as shown on such returns or on any assessment received by it, to the extent that such taxes
have become due.
(v) Investment Company Act. Neither the Borrower nor any of the guarantors, if any, is an
“investment company” within the meaning of the Investment Company Act of 1940 and any amendments
thereto.
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(w) O.S.H.A. and Environmental Matters. The Borrower has duly complied with, and its
properties are in full compliance in all material respects with, the provisions of the Federal Occupational
Safety and Health Act, the Environmental Protection Act, and the Resource Conservation and Recovery
Act (“RCRA”) and all rules and regulations thereunder and all similar state and local laws, rules and
regulations, including but not limited to any and all of the foregoing relating in any manner to underground
tanks and other storage facilities or equipment and the removal and disposal of asbestos; there have been
no outstanding citations, notices or orders of noncompliance issued to Borrower relating to its businesses
or properties under any such laws, rules or regulations.
(x) ADA Compliance. That to the best of its knowledge, and to the extent applicable, the
Development complies and shall comply with the Americans With Disabilities Act of 1990, as implemented
by 28 C.F.R. Part 35, and the Florida Americans With Disabilities Accessibility Implementation Act, as
amended (collectively, the “ADA”); and to the extent any renovation or changes are required to be made to
the Development, so as to have the Development comply with and meet all the requirements of the ADA,
the Borrower shall, at its expense, promptly and immediately undertake said renovations or improvements.
Furthermore, the Borrower indemnifies Florida Housing from and against all claims, damages, fines,
penalties, losses, expenses (including costs and attorneys’ fees), liabilities and obligations arising out of or
relating to any breach by the Borrower of this representation or the fact that the Development is not in
compliance with the ADA.
14. ADDITIONAL COVENANTS OF THE BORROWER. The Borrower covenants and
agrees with Florida Housing as follows:
(a) Construction Liens. The Borrower (i) will allow no work or construction to be commenced
on the Land, or goods specially fabricated for incorporation therein, which has not been fully paid for prior
to the recording of the Mortgage and Notice of Commencement or which could constitute a lien on the
Development, (ii) will cause a certified copy of the Notice of Commencement to be posted as required by
Chapter 713, Fla. Stat., as soon as possible after recording of the Notice of Commencement, (iii) shall notify
Florida Housing of any and all Notices to the Borrower as Owner as that term is defined in Chapter 713,
Fla. Stat., within five (5) days of receipt thereof, unless Florida Housing is listed on the Notice of
Commencement as a party upon whom a Notice to Owner shall be served, and (iv) will comply with all
provisions of the Florida Construction Lien Law, including but not limited to, payment and notice
provisions contained therein. The Borrower shall save and hold Florida Housing harmless from the claims
of any mechanics' lien or equitable lien and pay promptly upon demand any loss or losses which Florida
Housing may incur as a result of the filing of any such lien, including the reasonable cost of defending same
and Florida Housing's reasonable legal fees in connection therewith.
In addition, the Borrower agrees, at its sole cost and expense, to have any construction lien
or equitable lien which may be filed against the Development or undisbursed funds of the Loan released or
bonded within thirty (30) days of the date of filing same (or Borrower's first receiving notice thereof,
whichever is later), time being of the essence. Florida Housing shall be under no obligation to make further
disbursements while any such lien remains outstanding against the Development. If the Borrower fails,
after demand, to cause said lien or liens to be released or bonded as aforesaid, Florida Housing may take
such steps as it deems necessary and any funds expended shall be charged to the Borrower's loan account
and shall bear interest as provided by the Loan Documents.
The Borrower hereby authorizes Florida Housing to demand, on the Borrower's behalf, the
statement of account referred to in Section 713.16(2), Fla. Stat., of any potential lienor filing a Notice to
Owner. It is specifically understood and agreed, however, that Florida Housing's right to request such
statements of account will in no way impose any obligation on Florida Housing to use such authority, and
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the exercise of such authority on one or more occasion shall not create or imply any obligation on such
party to exercise such authority on subsequent occasions.
(b) No Transfer of Development. Except as specifically set forth in the Land Use Restriction
Agreement, the Mortgage or herein, the Development or any part thereof shall not be sold, leased (except
in the ordinary course of business), conveyed, mortgaged or encumbered (other than those set forth in the
Permitted Encumbrances described in Exhibit “B” to the Mortgage or otherwise disclosed to and approved
by Florida Housing in writing and other than transfers permitted under Section 12(f) hereof) in any way
without the prior written consent of Florida Housing except as provided elsewhere herein, in the Mortgage
or in the Land Use Restriction Agreement. Notwithstanding the foregoing, prior written consent shall not
be required for residential tenant leases, or grants of utility-related, cable, internet or telecommunications
easements and service or concession related leases or easements, including without limitation coin-operated
laundry service leases and/or cable easements, provided they are granted in the ordinary course of business.
All other contracts, deeds, easements or other agreements affecting the Development shall be submitted to
Florida Housing for its written approval prior to the execution thereof by the Borrower, accompanied by an
appropriate survey (if required by Florida Housing) showing the portion of the Development affected, and
any other information reasonably requested by Florida Housing.
(c) Compliance with Laws. The Borrower will comply promptly with all federal, state and
local laws, ordinances and regulations relating to the construction, use, and leasing of the Development,
and will obtain and keep in good standing all necessary licenses, permits and approvals required or desirable
for construction and use of the Improvements.
(d) Brokerage Commissions. The Borrower will not knowingly engage in any activity or enter
into any relationship which will give rise to any loan or brokerage commission with regard to the Loan, and
the Borrower will indemnify Florida Housing from the claims of brokers arising by reason of the execution
hereof or the consummation of the transactions contemplated hereby.
(e) Title to Personalty. The Borrower will deliver to Florida Housing, on demand, copies of
any contracts, bills of sale, statements, receipted vouchers or agreements under which the Borrower claims
title to any materials, fixtures or articles incorporated in the Improvements or subject to the lien of the
Mortgage.
(f) Correction of Defects and Satisfaction of Conditions. The Borrower will, upon reasonable
demand of Florida Housing or Inspector, correct any structural defect in the Improvements or any departure
from the Final Plans not approved by Florida Housing (and which is required to be approved), or perform
any condition to Florida Housing's obligations hereunder not satisfied or no longer satisfied. The Advance
of any proceeds of the Loan shall not constitute a waiver of Florida Housing's right to require compliance
with this covenant with respect to any such defects or departures from the Final Plans not theretofore
discovered by, or called to the attention of Florida Housing and the Inspector, or with respect to the
Borrower's failure to satisfy or continue to satisfy any condition under this Agreement, whether or not
Florida Housing required performance thereof.
(g) Financial Statements to be Furnished. The Borrower shall furnish to Florida Housing:
i. the Borrower agrees to provide annually to Florida Housing a certification
described below. The certification shall be provided within 151 calendar days following the
Borrower's fiscal year end (the “Submission Deadline”) of each year during the term of the Note.
The initial submission shall be due following the fiscal year within which the first unit within the
Development is occupied. In the event the Development contains occupied units at the time of
acquisition, the initial submission shall be due following the fiscal year within which the 12 month
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anniversary of Loan closing is observed. The certification shall be in form and content acceptable
to Florida Housing and shall require submission of annual audited financial statements, the annual
financial reporting form (Form SR-1, as may be amended) and other documents that may be
required by Florida Housing (via email to financial.reporting@floridahousing.org or such other
physical or email addresses provided by Florida Housing). The audited financial statements are to
be prepared in accordance with accounting principles generally accepted in the United States of
America and audited in accordance with auditing standards generally accepted in the United States
of America, for the 12 month fiscal period just ended and shall include: (i) comparative balance
sheet with prior year and current year balances; (ii) statement of revenue and expenses; (iii)
statement of changes in fund balances or equity; (iv) statement of cash flows; and (v) notes to
financial statements. The financial statements shall also be accompanied by a certification of the
Borrower as to the accuracy of such financial statements. A late fee of $500.00 will be assessed
by Florida Housing for failure to submit the required audited financial statements and certification
by the Submission Deadline of each year of the term of the Loan. Failure to submit the required
audited financial statements and certification by the Submission Deadline of each year of the term
of the Loan shall constitute an event of default of the Loan; and
ii. with the statements submitted under (i) above, a certificate signed by the Borrower
and the principal financial officer of the Borrower to the effect that no Event of Default specified
herein, nor any event which upon notice or lapse of time or both would constitute an Event of
Default, has occurred; and
iii. promptly, from time to time, such other information regarding the operations,
business, affairs and financial condition of the Borrower as Florida Housing may reasonably
request.
(h) The Borrower to Maintain Bookkeeping System. The Borrower shall maintain a
bookkeeping system for the Development in form and content sufficient for Florida Housing and Inspector
to conduct reviews, inspections, certifications and reports required by this Agreement. Florida Housing
shall have full (but confidential) access during normal business hours to the books, records and contracts
pertaining to the Development, the Borrower and the General Contractor to determine the accuracy,
correctness and reasonableness of the sums in each Advance.
(i) Collection of Insurance Proceeds. The Borrower will cooperate with Florida Housing in
obtaining for Florida Housing the benefits of any insurance or other proceeds lawfully or equitably payable
to it in connection with the transaction contemplated hereby and the collection of any indebtedness or
obligation of the Borrower to Florida Housing incurred hereunder (including the payment by the Borrower
of the expense of an independent appraisal on behalf of Florida Housing in case of a fire or other casualty
affecting the Development), subject to the rights of the first mortgagee (if any). The prosecution, settlement
and use of insurance claims/proceeds shall be governed by the respective terms of the first mortgage (if
any) and the Mortgage.
(j) Indebtedness. With respect to the Development, the Borrower will not incur, create,
assume or permit to exist any secured indebtedness or liability on account of advances or deposits, any
secured indebtedness or liability for borrowed money for the Development (except for the Senior Mortgage,
the Subordinate Mortgage, the Permitted Encumbrances and unsecured loans made by the partners of the
Borrower in accordance with the Partnership Agreement and any deferred developer fee), any indebtedness
constituting the deferred purchase price of any property or assets, or any indebtedness owed under any
conditional sale or title retention agreement, or any other indebtedness or liability evidenced by notes,
bonds, debentures or similar obligations without the written approval of Florida Housing, except:
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i. indebtedness owed Florida Housing;
ii. indebtedness incurred on open accounts for materials, equipment and supplies or
services purchased in the ordinary course of business, payment for which shall be made promptly
when due;
iii. Developer fee or other indebtedness owed to partners under the Partnership
Agreement; and
(iv) rent due under the Second Amended and Restated Ground Lease.
(k) Consolidation, Merger, Entity Status. The Borrower shall not consolidate with or merge
into any other partnership, corporation or limited liability company, or permit another partnership,
corporation or limited liability company to merge into it, or voluntarily or involuntarily fail to maintain its
current status.
(l) Further Assurances and Preservation of Security. The Borrower will do all acts and execute
all documents for the better and more effective carrying out of the intent and purposes of this Agreement,
as Florida Housing shall reasonably require from time to time, and will do such other acts necessary or
desirable to preserve and protect the collateral at any time securing or intending to secure the Note, as
Florida Housing may reasonably require.
(m) Utilization of Loan Proceeds. The Borrower will utilize the proceeds of the Loan solely
for the Construction Costs or other costs approved by Florida Housing, making withdrawals thereof at
regular intervals, and the Borrower will not hereafter procure a loan or loans from other sources for the
work contemplated under this Agreement, except from the Senior Mortgagee, the Subordinate Mortgagee,
and from the Additional Borrower Contribution referred to in Paragraph 6(d) hereof, and deferred
Developer fee, unsecured partner loans as permitted under the Partnership Agreement and other sources
approved by Florida Housing.
(n) No Assignment. The Borrower shall not assign this Agreement or any interest therein, and
any such assignment shall be void and of no effect.
(o) Liabilities. The Borrower with respect solely to the Land and the operation of the
Development thereon shall not incur new or additional liabilities other than as expressly provided herein
and except for liabilities incurred in the ordinary course of business.
(p) Loan Commitment Terms to Survive Closing of the Loan. Except as otherwise set forth
herein, the Borrower shall have a continuing duty to comply with each and every term of the Loan
Commitment from and after the closing of the Loan. In the event of a conflict, the Loan Documents shall
control.
(q) Reserve for Replacements. In the event the Senior Mortgage contains similar replacement
reserve requirements (including, but not limited to, the same or higher replacement reserve funding deposits
as required by this Agreement), commencing on the earliest to occur of (i) the date of commencement of
the replacement reserve deposits set forth in the Senior Mortgage documents or (ii) three (3) years after the
closing of this Loan, the Borrower shall establish (with the Senior Mortgagee or the Servicer) an escrow
account for the funding of capital repairs, replacements, and improvements to be maintained throughout the
Loan term (“Replacement Reserve Account”).
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All rights of Florida Housing with respect to the Replacement Reserve Account shall be subject to
the prior rights, if any, of the Senior Mortgagee (other than the commencement date and the amount of the
replacement reserve deposits, which shall be controlled by this Section). In the event the Senior Mortgagee
requires replacement reserves with replacement reserve deposit requirements that include the same or higher
deposits, Florida Housing’s rights to have the Servicer hold the Replacement Reserve Account and to disburse
such funds may be subject to the Senior Mortgagee’s requirements. Payment of the required amounts into a
reserve account maintained by the Senior Mortgagee with similar restrictions shall constitute compliance
with this Section, subject, however, to the Borrower's agreement to provide Florida Housing with notice of
all draws on such reserve account and copies of monthly statements relating to such reserve account.
If the Senior Mortgage does not require similar replacement reserve deposits, then commencing on
the earliest to occur of (i) the first month after occupancy of ninety percent (90%) of the units in the
Development, or (ii) three (3) years after Loan closing, the Borrower shall establish (with the Senior
Mortgagee or the Servicer) a Replacement Reserve Account.
Initially, a $300 per unit per year Replacement Reserve ($2,975 per month) will be required. The
Replacement Reserve Account shall not be allowed to be drawn upon during the first five (5) years after Closing
or until the establishment of a minimum balance equal to the accumulation of five (5) years of replacement
reserves per unit. The amount established as a replacement reserve shall be adjusted based on a capital needs
assessment report (“CNA”) to be received by Florida Housing and the Servicer, prepared by an independent
third party and acceptable to Florida Housing and the Servicer at the time the CNA is required, beginning no
later than the 10th year after the first residential building in the Development receives a certificate of occupancy,
a temporary certificate of occupancy, or is placed in service, whichever is earlier (the “Initial Replacement
Reserve Date”). A subsequent CNA is required no later than the 15th year after the Initial Replacement Reserve
Date and subsequently every five (5) years thereafter. If the Borrower does not provide a copy of a CNA to
Florida Housing and/or the Servicer, prepared by an independent third party and acceptable to Florida Housing
and the Servicer, within the stated time frames, then one shall be ordered by Florida Housing or the Servicer at
the Borrower’s expense. The only events allowed to reduce the Replacement Reserve Account balance below
the $300 per unit per year minimum are items related to life safety, structural and systems as approved by
Florida Housing and the Servicer.
Subject to (i) the rights of the Senior Mortgagee to hold replacement reserves and to disburse such
funds and (ii) the approval of the Investor Limited Partner regarding the use and disbursement of such
funds, the release of funds from the Replacement Reserve Account shall be at Florida Housing's sole
discretion. Further, in the event the Senior Mortgagee's replacement reserve requirements are less than
Florida Housing's, any excess reserve requirement shall be deposited with the Servicer and disbursed at
Florida Housing's sole discretion. All reserve funds (whether held by the Senior Mortgagee or the Servicer)
shall be placed in an account designated specifically for this Development. Florida Housing shall have the
right to attach the Replacement Reserve Account (to the extent held by Florida Housing) in the event of a
default under the documents evidencing and securing the Loan. Subject to the rights of the Senior
Mortgagee, the application of the funds by Florida Housing shall not be restricted and may include debt
service and/or repairs.
The replacement reserve funds are not to be used by the Borrower for normal maintenance and repairs
but shall be used for structural building repairs, major building systems replacements and other items included
on the Eligible Reserve for Replacement Items list, effective October 15, 2010, a copy of which is attached
hereto as Exhibit “E”.
(r) Reserve for Taxes and Insurance. Unless an account is established pursuant to the Senior
Mortgage, Borrower shall pay to and maintain in an escrow account with the Servicer such sums as may be
required in order to pay all insurance premiums and applicable taxes. At Florida Housing's reasonable
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discretion, the amount of the contribution to the taxes and insurance reserve account, and/or the
commencement date, may be increased or changed in order to ensure that the Development is adequately
maintained.
(s) Escrow Account Confirmation. If escrow accounts for real estate taxes, insurance
premiums, replacement reserves and sinking funds are held by the Senior Mortgagee or the Trustee, as
applicable, the Servicer shall verify monthly with the Senior Mortgage holder or Borrower, as applicable,
that scheduled payments have been received by the holder.
(t) Reduction of Principal Amount of Loan. If for any reason the entire amount of the Loan
is not used to fund the Construction Costs or toward permanent financing of the Development, the principal
amount of the Loan shall be reduced by the amount of the unused funds which shall be retained by Florida
Housing and the principal sum of the Note shall be adjusted accordingly.
(u) Intentionally Omitted.
(v) Request for Final Loan Disbursement. Subject to the provisions of Paragraphs 6(g), 7 and
9 hereof, the request for final disbursement of Loan funds, excluding Retainage, shall be submitted within
sixty (60) days of completion of construction as evidenced by certificates of occupancy.
(w) Borrower's Partnership Agreement, Operating Agreement or Bylaws. Borrower agrees to
provide to the Servicer, within ten (10) days of execution, copies of any material amendments or other
modifications to Borrower’s limited partnership agreement, operating agreement or bylaws, as applicable.
(x) Rights Inferior. The rights of all contractors, subcontractors, sub-subcontractors, laborers,
suppliers and materialmen performing any work in connection with the Improvements, or furnishing any
services, labor or materials thereto or to the Land, shall be subordinate and inferior to the Mortgage. Florida
Housing shall not be liable to materialmen, contractors, subcontractors, sub-subcontractors, laborers,
suppliers or others for goods or services delivered by them in or upon the Land or employed in the
construction of the Improvements, or for any debts or claims accruing to any of said parties against the
Borrower or against the Land, and it is distinctly understood and agreed that there is no contractual
relationship, either express or implied, between either Florida Housing, Servicer and any materialmen,
contractors, sub-contractors, sub-subcontractors, craftsmen, laborers or any person supplying any work,
labor or material. The Borrower is not, and shall not be, the agent of either Florida Housing or Servicer for
any purpose, nor shall any of them be the agent of Borrower for any purpose, except, as to both, as may be
specifically set forth herein. It is specifically understood and agreed that no party shall be a third party
beneficiary hereunder, except and unless it is specifically provided herein that any provision shall operate
or inure to the use and benefit of a party, i.e., no subcontractor, sub-subcontractor or materialman, laborer
or supplier shall have any rights hereunder against Florida Housing or Servicer or be entitled to the
protection of any of the covenants herein contained.
(y) Borrower's Rights Assigned. The Borrower hereby assigns to Florida Housing, effective
however, only after an Event of Default and the expiration of applicable cure periods, all rights of the
Borrower under its contract with the General Contractor and under its contracts with any other professionals
and Florida Housing shall have the option after an Event of Default, and the expiration of applicable cure
periods, in its sole discretion and in addition to any other rights and remedies Florida Housing may have,
to exercise its rights under this assignment. Nothing herein shall be construed, however, to require Florida
Housing to exercise any rights under this paragraph.
(z) Change Orders. The Borrower covenants and warrants that any change order of $100,000
or more, or $250,000 in the aggregate, or which would extend the Completion Date by more than sixty (60)
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calendar days, shall require the prior written approval of Florida Housing or the Servicer, which approval
shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Servicer shall be provided
with copies of all change orders, regardless of amount. If Borrower does not submit and receive prior
written approval from Florida Housing or the Servicer when required under this paragraph, the change
orders may be deemed denied.
(aa) Payment and Performance Bonds. 100% payment and performance bonds must be
provided by the Borrower to secure the Construction Contract between the General Contractor and the
Borrower, and must be provided by a company with an A.M. Best rating of “A-” or better. The bonds must
list Florida Housing as co-obligee. Florida Housing, its legal counsel and the Servicer must approve in
advance, in their sole discretion, the amount and terms, as well as the form, of such payment and
performance bonds, before such payment and performance bonds shall be accepted by Florida Housing.
(bb) Insecurity. If Florida Housing reasonably deems itself insecure due to a material change
in the Development, including but not limited to, any event which may adversely impact the Borrower’s
ability to maintain or increase occupancy rates within the Development and any event which may adversely
affect the Development’s financial stability, or the ability of the Borrower or any guarantor to comply with
their obligations under the Loan Documents, Florida Housing shall give written notice to Borrower, who
shall have ten (10) days, or such additional period of time approved in writing by Florida Housing to provide
any additional information requested by Florida Housing and thirty (30) days to cure such insecurity, if a
cure is deemed necessary by Florida Housing. Notwithstanding anything to the contrary, in the event the
Borrower shall not cure any insecurity deemed necessary by Florida Housing within the above described
cure period, Florida Housing may, in its sole discretion, permit the Investor Limited Partner such additional
period as Florida Housing shall deem necessary for the Investor Limited Partner to cure such insecurity,
including removal of the General Partner and/or the Managing General Partner pursuant to the Loan
Documents.
(cc) Payment of Developer Fee. During construction, the Developer shall only be permitted to
draw the construction period Developer fee which shall be the lesser of (i) fifty percent (50%) of the total
Developer fee, or (ii) the total Developer fee less the deferred Developer fee listed in the “sources and uses”
for the construction period, as calculated by the Servicer. No more than thirty-five percent (35%) of
Developer’s construction period Developer fee will be funded at Loan closing. The remaining construction
period Developer fee will be disbursed during construction on a pro rata basis, based upon the percentage
of completion of the Development, as approved and reviewed by Florida Housing and the Servicer.
Once the Development has achieved 100% lien free completion and Retainage has been
released, the post-construction period Developer fee may be funded. Post-construction period Developer
fee is the remaining portion of the Developer fee less deferred Developer fee listed in the “sources and
uses” for the permanent period, as calculated by the Servicer.
(dd) Operating Deficit Reserve. The Borrower shall establish an operating deficit reserve
account (“Operating Reserve Account”) to be used (except as set forth below) to fund any Operating
Deficits (as defined in the Partnership Agreement). The Operating Reserve Account will be held as
provided in the Partnership Agreement. The Operating Reserve Account shall be funded in an amount of
$481,830, or such other higher amount as agreed to by the Investor Limited Partner and Florida Housing
on or before the date of the Third Installment (as defined in the Partnership Agreement) under the
Partnership Agreement. Borrower will submit a written request to the Servicer and the Investor Limited
Partner (with adequate supporting documentation) requesting disbursement of funds from the Operating
Reserve Account in the event it experiences Operating Deficits or to otherwise draw the funds as
permitted. After the approval of both the Investor Limited Partner and the Servicer, the holder of the
Operating Reserve Account shall fund any such disbursement requests.
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Notwithstanding anything in the Partnership Agreement to the contrary, upon the expiration of the
Compliance Period (as defined in the Extended Low-Income Housing Agreement anticipated to be issued
with respect to tax credits for the Development), any remaining balance in the Operating Reserve Account,
less amounts that may be drawn for Other Permitted Withdrawals (as defined herein), shall first be used to
pay any outstanding balance of the Loan on the Development or other Florida Housing-administered loan
debt on the Development, then to Florida Housing fees related to the Loan or any other program of Florida
Housing and then any remaining balance shall be deposited into a replacement reserve account for the
Development. The Operating Reserve Account will also be permitted to be drawn upon, from time to time,
by the Borrower to pay deferred developer fees and to reimburse Operating Reserve Account replenishment
amounts or other partner or guarantor loan funding pursuant to the Partnership Agreement ("Other
Permitted Withdrawals"). In no event shall the payment of any amounts to the Borrower or the Developer
from the Operating Reserve Account cause the Developer fee or Contractor fee to exceed the applicable
percentage limitations provided for in the Rule. This Section shall survive the repayment of the Loan, if
paid prior to the expiration of the Compliance Period.
(ee) Permanent Loan Amount. The Borrower acknowledges and agrees that the permanent First
Mortgage Loan amount shall not exceed $11,875,000 (subject to increase per “earn-out” provisions. Any
proposed increase to this loan amount shall require the prior approval of the Servicer and Florida Housing,
prior to the conversion of the First Mortgage Loan from the construction period to the permanent period;
provided, however, the permanent First Mortgage Loan amount may be increased pursuant to the permanent
First Mortgage Loan documents with the prior approval of the Servicer and Florida Housing.
15. DEFAULT. Upon the occurrence of any of the following events and subject to any applicable
cure periods (an “Event of Default”) all obligations on the part of Florida Housing to make any further
Advance hereunder shall, if Florida Housing elects, terminate, and Florida Housing may at its option
exercise any of its remedies set forth herein, but Florida Housing may make any Advances or parts of
Advances after the happening of any Events of Default without thereby waiving the right to exercise such
remedies without becoming liable to make any further Advance. Upon the occurrence of any Event of
Default under the Loan Documents, Florida Housing will accept a cure provided within the applicable cure
period by any Guarantor or any partner of Borrower including without limitation, Managing General
Partner, the Co-General Partner, Special Limited Partner or Investor Limited Partner as applicable.
(a) Failure to Satisfy Conditions to an Advance. Prior to completion of construction of the
Development, if the Borrower fails to, or is unable to, satisfy or keep satisfied any condition to an Advance
under Paragraphs 5, 6, 7, 8, or 9 of this Agreement for a period in excess of thirty (30) days; or
(b) Bankruptcy. If there is filed by or against the Borrower a petition in bankruptcy or a
petition for the appointment of a receiver or trustee of the property of the Borrower, or if there is filed any
such proceeding by or against the General Contractor which, in the reasonable judgment of Florida Housing,
will cause material interference with the timely completion of the Improvements, and any such petition not
filed by the Borrower or the General Contractor is not dismissed within ninety (90) days of the date of
filing; or if the Borrower or the General Contractor files a petition for reorganization under any of the
provisions of the United States Bankruptcy Code or of any similar law, state, federal, or foreign, or if either
of them makes a general assignment for the benefit of creditors or makes any insolvency assignment or is
adjudicated insolvent by any court of competent jurisdiction, any of which events, in the reasonable
judgment of Florida Housing, will cause material interference with the timely completion of the
Improvements; or
(c) Improper Construction. If for any cause whatsoever other than Unavoidable Delays (as
hereinafter defined) the construction of the Improvements is at any time discontinued for more than ten (10)
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consecutive business days or for more than fifteen (15) days in any thirty (30) day period, or not carried on
with diligence and dispatch, in the reasonable judgment of Florida Housing, or if the Improvements, in the
reasonable judgment of Florida Housing, are not being constructed or have not been completed in a good
and workmanlike manner in substantial accordance with the Final Plans, this Agreement and all laws, rules,
regulations and requirements of all governmental authorities having or claiming jurisdiction, now existing
or hereafter enacted, adopted or promulgated, or if the certificate of occupancy for the Development or
other certificates of compliance with zoning ordinances and building regulations have not been issued
within thirty (30) days after the Completion Date, as the same may be extended. “Unavoidable Delays” is
defined as delays due to strikes, blackouts, acts of God, restrictions of any governmental authority, failure
or inability to secure materials or labor by reason of priority or similar regulation or order of any
governmental authority, enemy action, civil disturbance, fire, inclement weather, or any other act beyond
the reasonable control of the Borrower, (excluding, however, the inability or failure of the Borrower to
obtain any financing which may be necessary to carry out its obligations under this Agreement), provided,
however, within fifteen (15) days after the termination of the occurrence which caused any such delay, the
Borrower shall have given written notice to Florida Housing of the cause of the delay and the period of time
during which it existed, and the period of Unavoidable Delay shall be such period of time during which the
particular delay existed or such longer period of time as Florida Housing, in its reasonable discretion, may
determine; or
(d) Breach of Covenants, Warranties and Representations. If any warranty or representation
made by the Borrower or the General Contractor in this Agreement or pursuant to the terms of the Loan
Documents shall at any time be false or misleading in any material respect, or if the Borrower or the General
Contractor shall fail to keep, observe or perform any of the terms, covenants, representations or warranties
contained in the Loan Documents, the Senior Mortgage Loan documents, or any other Loan Document
(provided, that with respect to nonmonetary Events of Default, Florida Housing shall give written notice to
the Borrower, who shall have thirty (30) days to cure which time may be reasonably extended by Florida
Housing and that with respect to monetary Events of Default, the Borrower shall have a fifteen (15) day
grace period), or is unable or unwilling to meet its obligations thereunder; or
(e) Material Adverse Change of the Borrower or the Guarantors. If any material adverse
change shall occur in the financial condition of the Borrower or any guarantor at any time during the term
of the Loan from the financial condition revealed in statements already presented to and accepted by Florida
Housing after notice to the Borrower and thirty (30) days thereafter to remedy the same; or
(f) Failure to Comply with Section 3. If at any time the Development is not in compliance
with the Section 3 requirements;
(g) Cancellation of Permits. If any building permit or other governmental permit, license or
approval required in connection with the Development is not maintained in full force and effect, expires or
is cancelled and not reinstated or renewed within ten (10) days of such cancellation or expiration; or
(h) Failure to Comply with the NHTF Program. If at any time the Borrower of the
Development is not in compliance with all NHTF Program requirements.
16. REMEDIES OF FLORIDA HOUSING. Upon the occurrence and during the
continuance of an Event of Default, then Florida Housing may, at its option, upon written notice to the
Borrower:
(a) Cancel this Agreement.
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(b) Commence an appropriate legal or equitable action to enforce performance of this
Agreement.
(c) Accelerate the payment of the Note and the Loan and any other sums secured by
the Mortgage, and commence appropriate legal and equitable action to foreclose the Mortgage and collect
all such amounts due Florida Housing.
(d) Exercise all rights under the agreements with the General Contractor, the Architect
and the engineer, or employ others to complete the construction, and thereafter lease or let the Development;
and take such action as may be reasonable to preserve and protect the Development and any construction
materials stored thereon.
(e) Exercise any other rights or remedies Florida Housing may have under the
Mortgage or any of the Loan Documents referred to in this Agreement or executed in connection with the
Loan or which may be available under applicable law.
No right, power or remedy of Florida Housing as provided in this Agreement is intended to be
exclusive of any other right, power, or remedy of Florida Housing, but each and every such right, power
and remedy shall be cumulative and concurrent and in addition to any other right, power or remedy available
to Florida Housing now or hereafter existing at law or in equity and may be pursued separately, successively
or concurrently at the sole discretion of Florida Housing. The failure of Florida Housing to exercise any
such right, power or remedy shall in no event be construed as a waiver or release thereof.
17. GENERAL TERMS. The following shall be applicable throughout the period of this
Agreement or thereafter as provided herein:
(a) Laws and Regulations. All terms and provisions of the following are incorporated into and
made a part of this Agreement and the Loan Documents: The NHTF Program, the RFA, Rule Chapter 67-
48, Fla. Admin. Code, in effect as of June 23, 2020, Rule Chapter 67-53, Fla. Admin. Code, in effect as of
August 20, 2009, and Chapter 420, Florida Statutes (collectively, the “Laws and Regulations”); all terms
not otherwise defined herein or in the Loan Documents shall be as construed and defined in the Laws and
Regulations. In the event of any conflict between 24 C.F.R., Section 93, Chapter 420, Fla. Stat. and Rule
Chapters 67-48 and 67-53, Fla. Admin. Code, the provisions of 24 C.F.R., Section 93, shall first control,
then the provisions of Chapter 420, Fla. Stat. shall control. In the event of any conflict between the Loan
Documents and the Laws and Regulations, the Laws and Regulations shall control.
(b) Rights of Third Parties. All conditions of Florida Housing hereunder are imposed solely
and exclusively for the benefit of Florida Housing and its successors and assigns, and no other person shall
have standing to require satisfaction of such conditions or be entitled to assume that Florida Housing will
make Advances in the absence of strict compliance with any or all thereof, and no other person shall, under
any circumstances, be deemed to be a beneficiary of this Agreement or the Loan Documents, any provisions
of which may be freely waived in whole or in part by Florida Housing at any time if, in its sole discretion,
it deems it desirable to do so. In particular, Florida Housing makes no representations and assumes no
duties or obligations as to third parties concerning the quality of the construction by the Borrower of the
Improvements or the absence therefrom of defects.
(c) The Borrower Not Florida Housing's Agent. Nothing in this Agreement, the Note, the
Mortgage or any other Loan Document shall be construed to make the Borrower Florida Housing's agent
for any purpose whatsoever, or the Borrower and Florida Housing partners, or joint or co-venturers, and
the relationship of the parties shall, at all times, be that of debtor and creditor.
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(d) Florida Housing Not Liable for Damage or Loss. All inspections and other services
rendered by or on behalf of Florida Housing shall be rendered solely for the protection and benefit of Florida
Housing. Neither the Borrower nor other third persons shall be entitled to claim any loss or damage against
Florida Housing or against its agents or employees for failure to properly discharge their duties.
(e) Florida Housing Not Obligated to Insure Proper Disbursement of Funds to Third Parties.
Nothing contained in this Agreement, or the Loan Documents, shall impose upon Florida Housing any
obligation to oversee the proper use or application of any disbursements and advances of funds made
pursuant to the Loan.
(f) Indemnification from Third Party Claims. The Borrower shall indemnify and hold
harmless Florida Housing, its directors, officers, members, officials, employees and agents, including the
Servicer (collectively, the “Indemnified Parties”), from any liability, claims or losses, including attorneys’
fees and costs, resulting from the disbursement of the proceeds of the Loan to the Borrower or its designee
or from the condition of the Development, whether related to the quality of construction or otherwise, and
whether arising during or after the term of the Loan excluding misconduct, bad faith or negligence of the
Indemnified Parties. This provision (and the indemnity provisions of Paragraph 13(z) hereof) shall survive
the repayment of the Loan and shall continue in full force and effect so long as the possibility of such
liability, claims, or losses exists.
Whether or not the Loan is made under this Agreement or any Advances are approved and
funds so advanced, the Borrower shall, on demand, pay or reimburse Florida Housing and its assignees and
agents for (a) all transfer, documentary, stamp and similar taxes, broker's fees and commissions, surveys,
travel expenses, photocopying, secretarial overtime and long distance telephone charges (including but not
limited to those imposed by Florida Housing's counsel), abstracting charges, policies and all endorsements
therefor, license and permit fees, fees and costs of the Inspector and Florida Housing's disbursing agent(s),
and all recording and filing fees, payable in connection with, arising out of or in any way related to the
execution, delivery and performance of the Loan Documents or the making of the Loan, and (b) all of
Florida Housing's costs and expenses incurred, including fees and disbursements of legal counsel and other
experts employed or retained by Florida Housing, and all payments made, and indemnify and hold Florida
Housing harmless from and against all losses suffered, by Florida Housing in connection with, arising out
of, or in any way related to (i) the negotiation, preparation, execution and delivery of (A) the Loan
Documents (whether or not executed), (B) any waiver, amendment or consent thereunder or thereto, (ii) the
administration of any operations under the Loan Documents, (iii) consulting with respect to any matter in
any way arising out of, relating to, or connected with, the Loan Documents, including but not limited to the
enforcement by Florida Housing of any of its rights thereunder or the performance by Florida Housing of
any of its obligations thereunder, (iv) protecting, preserving, exercising or enforcing any of the rights of
Florida Housing under the Loan Documents, (v) any appraisals, (vi) any claim (whether asserted by Florida
Housing, the Borrower or any other person and whether asserted before or after the payment, performance
and observance in full of the Borrower's obligations hereunder, under the Note, or the other Loan
Documents) and the prosecution or defense thereof, in any way arising under, related to, or connected with,
the Loan Documents or the relationship established hereunder and thereunder, (vii) any governmental
investigation arising out of, relating to, or in any way connected with the Loan Documents, except that the
foregoing indemnity shall not be applicable to any loss suffered by the Indemnified Parties to the extent
such loss is determined by a judgment of a court, that is binding on the Indemnified Parties, final and not
subject to review on appeal, to be the result of acts or omissions on the part of the Indemnified Parties
constituting willful misconduct, knowing violations of law or, in the case only of claims by the Borrower
against the Indemnified Parties, the failure of the Indemnified Parties to observe any other standard
applicable to the Indemnified Parties under any of the other provisions of this Agreement, or the Loan
Documents or, but only to the extent not available thereunder, applicable law.
Construction Loan Agt
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
38
Borrower hereby authorizes Florida Housing to pay any and all expenses or other amounts
for which Borrower is obligated under this section from the proceeds of disbursement under the Loan, and
no further authorization for such disbursement and payment shall be required from Borrower or any
guarantor, if any. In no event shall Florida Housing be obligated to make any such disbursement or payment
and Borrower shall in any event remain unconditionally obligated to pay any and all such amounts. All
obligations of Borrower under this section shall bear interest at the rate provided for in the Note from the
date of Florida Housing's payment thereof or request to Borrower for payment thereof (whichever shall first
occur) and shall be part of the obligations secured by the Development encumbered by the Mortgage and
the other Loan Documents.
(g) Rights of Subcontractor, Laborers and Materialmen. In no event shall this Agreement be
construed to make Florida Housing, the Title Company or any agent of Florida Housing liable to the General
Contractor or any subcontractor, laborers, materialmen, craftsmen, or others for labor, materials, or services
delivered to the Development or goods specially fabricated for incorporation therein, or for debts or claims
accruing or arising to such persons or parties against the Borrower or the General Contractor. It is distinctly
understood and agreed that, other than as specifically provided herein, there is no relationship of any type
whatsoever, contractual or otherwise, either express or implied, between Florida Housing and the General
Contractor, nor is there any such relationship between Florida Housing and any materialman, subcontractor,
craftsman, laborer or any other person or entity supplying any labor, materials or services to the
Development or specially fabricating goods to be incorporated therein. Except as otherwise specifically
provided herein, no such persons or entities are intended to be third party beneficiaries of this Agreement
or any document or instrument related to the Loan or to have any claim or claims in or to any undisbursed
or retained proceeds of the Loan.
(h) Evidence of Satisfaction of Conditions. Florida Housing shall, at all times, be free
independently to establish to its good faith and satisfaction, and in its absolute discretion, the existence or
nonexistence of a fact or facts which are disclosed in documents or other evidence required by the terms of
this Agreement.
(i) Headings. The headings of the sections, paragraphs and subdivisions of this Agreement
are for the convenience of reference only, and shall not limit or otherwise affect any of the terms hereof.
(j) Invalid Provisions to Affect No Others. If performance of any provision hereof or any
transaction related hereto is limited by law, then the obligation to be performed shall be reduced
accordingly; and if any clause or provision herein contained operates or would prospectively operate to
invalidate this Agreement in part, then the invalid part of said clause or provision only shall be held for
naught, as though not contained herein, and the remainder of this Agreement shall remain operative and in
full force and effect.
(k) Application of Interest to Reduce Principal Sums Due. In the event that any charge, interest
or late charge is above the maximum rate provided by law, then any excess amount over the lawful rate
shall be applied by Florida Housing to reduce the principal sum of the Loan or any other amounts due
Florida Housing hereunder.
(l) Governing Law. The laws of the State shall govern the interpretation and enforcement of
this Agreement.
(m) Number and Gender. Whenever the singular or plural number, masculine or feminine or
neuter gender is used herein, it shall equally include the others and shall apply jointly and severally.
Construction Loan Agt
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
39
(n) Prior Agreement. To the extent necessary, this Agreement shall be deemed to be an
amendment to any prior loan agreement between the Borrower and Florida Housing, and in the event of a
conflict between the terms of this Agreement and of any such prior agreement, the terms of this Agreement
shall govern.
(o) Waiver. If Florida Housing shall waive any provisions of the Loan Documents, or shall
fail to enforce any of the conditions or provisions of this Agreement, such waiver shall not be deemed to
be a continuing waiver and shall never be construed as such; and Florida Housing shall thereafter have the
right to insist upon the enforcement of such conditions or provisions. Furthermore, no provision of this
Agreement shall be amended, waived, modified, discharged or terminated, except by instrument in writing
signed by the parties hereto.
(p) Notices. All notices and other communications to be made or permitted to be made
hereunder shall be in writing and shall be delivered to the addresses shown below or to such other addresses
that the parties may provide to one another in accordance herewith. Such notices and other communications
shall be given by any of the following means: (a) personal service; or (b) national express air courier,
provided such courier maintains written verification of actual delivery. Any notice or other communication
given by the means described in subsection (a) or (b) above shall be deemed effective upon the date of
receipt or the date of refusal to accept delivery by the party to whom such notice or other communication
has been sent.
Florida Housing: Florida Housing Finance Corporation
227 North Bronough Street, Suite 5000
Tallahassee, Florida 32301-1329
Attention: Executive Director
Telephone: (850) 488-4197
with a copy to: Weiss Serota Helfman Cole & Bierman, P.L.
2800 Ponce de Leon Blvd, Suite 1200
Coral Gables, Florida 33134
Attention: Maria V. Currais, Esq.
Telephone: (305) 854-0800
Email: mcurrais@wsh-law.com
Borrower: Vista Breeze, Ltd.
3 Miami Central
161 NW 6th Street, Suite 1020
Miami, Florida 33136
Attention: Kenneth Naylor
Telephone: (305) 357-4700
Email: knaylor@apcompanies.com
with a copy to: Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
150 W. Flagler Street, Suite 2200
Miami, Florida 33130
Attention: Brian McDonough, Esq.
Telephone: (305) 789-3350
Email: BMcDonough@stearnsweaver.com
with a copy to: Klein Hornig LLP
1325 G Street NW, Suite 770
Construction Loan Agt
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
40
Washington, District of Columbia 20005
Attention: Chris Hornig
Telephone: (202) 926-3402
Email: CHornig@kleinhornig.com
Co-General Partner: Vista Breeze HACMB, Inc.
200 Alton Road
Miami Beach, Florida 33139
Attention: Miguell Del Campillo
Telephone: (305) 532-6401
Email: miguell@hacmb.org
with a copy to: Fox Rothschild LLP
BNY Mellon Center
500 Grant Street, Suite 2500
Pittsburgh, Pennsylvania 15219
Attention: Alec Stone, Esq.
Telephone: (412) 391-2523
Email: aistone@foxrothschild.com
Servicer: AmeriNat®
5130 Sunforest Drive, Suite 150
Tampa, Florida 33634
Attention: Mark Fredericks
Telephone: (866) 269-1777
Email: mfredericks@amerinatls.com
Any party may change said address by giving the other parties hereto Notice of such change of
address in accordance with the foregoing provisions. Notwithstanding the foregoing, notice by email shall
be ineffective as notice under this Agreement and the Land Use Restriction Agreement.
(q) Successors and Assigns. This Agreement shall inure to the benefit of and be binding on
the parties hereto and their heirs, legal representatives, successors and assigns; but nothing herein shall
authorize the assignment hereof by the Borrower.
(r) Counterparts. This Agreement may be executed in one or more counterparts, all of which
shall constitute collectively but one and the same instrument.
(s) Priority of Rights of Senior Mortgagee. Notwithstanding any other provision herein, all
rights, title, interests, covenants and agreements herein are subject to the rights, title, interests, covenants
and agreements of the Senior Mortgagee under the Senior Mortgage Loan documents.
(t) Limited Recourse Obligations. The limited recourse provisions set forth in Section 3.07
of the Mortgage will apply with equal force as if set forth fully herein.
(u) Sole Discretion of Florida Housing. Wherever pursuant to this Agreement (a) Florida
Housing exercises any right given to it to approve or disapprove, (b) any arrangement or term is to be
satisfactory to Florida Housing, or (c) any other decision or determination is to be made by Florida Housing,
the decision of Florida Housing to approve or disapprove, all decisions that arrangements or terms are
satisfactory or not satisfactory and all other decisions and determinations made by Florida Housing, shall
Construction Loan Agt
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
41
be in the sole and absolute discretion of Florida Housing and shall be final and conclusive, except as may
be otherwise expressly and specifically provided herein.
(v) Waiver of Jury Trial. BY EXECUTING THIS AGREEMENT, THE BORROWER
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHTS OR THE RIGHTS
OF ITS HEIRS, ASSIGNS, SUCCESSORS OR PERSONAL REPRESENTATIVES TO A TRIAL BY
JURY, IF ANY, IN ANY ACTION, PROCEEDING OR SUIT, WHETHER ARISING IN CONTRACT,
TORT OR OTHERWISE, AND WHETHER ASSERTED BY WAY OF COMPLAINT, ANSWER,
CROSSCLAIM, COUNTERCLAIM, AFFIRMATIVE DEFENSE OR OTHERWISE, BASED ON,
ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT TO BE EXECUTED IN CONNECTION HEREWITH
OR WITH THE INDEBTEDNESS OR THE RENEWAL, MODIFICATION OR EXTENSION OF ANY
OF THE FOREGOING OR ANY FUTURE ADVANCE THEREUNDER. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR FLORIDA HOUSING'S EXTENDING CREDIT TO THE
BORROWER AND NO WAIVER OR LIMITATION OF FLORIDA HOUSING'S RIGHTS
HEREUNDER SHALL BE EFFECTIVE UNLESS IN WRITING AND MANUALLY SIGNED ON
FLORIDA HOUSING'S BEHALF.
The Borrower acknowledges that the above paragraph has been expressly bargained for by Florida
Housing as part of the transaction with the Borrower and that, but for the Borrower's agreement thereto,
Florida Housing would not have extended the Loan evidenced by this Agreement for the terms and at the
interest rates provided.
(w) Cure Rights of Partners. Notwithstanding anything to the contrary contained herein or any
other Loan Document, Florida Housing agrees that any cure of any default made or tendered by the
Managing General Partner, Co-General Partner, the Investor Limited Partner or Special Limited Partner
shall be deemed to be a cure by Borrower and shall be accepted or rejected on the same basis as if made or
tendered by Borrower.
(x) Transfers. The following shall be permitted, unless prohibited by the Rule, and shall not
require the prior written approval of Florida Housing: (a) the removal of the Managing General Partner or
Co-General Partner of Borrower in accordance with the Partnership Agreement, and the replacement
thereof with the Investor Limited Partner in the Borrower or any of its affiliates, (b) the transfer of
ownership interests in the Investor Limited Partner or the interest of the Investor Limited Partner or the
Managing General Partner or to any of its affiliates; (c) the conversion of Managing General Partner’s
interest from a general partner interest to a Class B limited partner interest in according with the Partnership
Agreement; (d) the transfer of interests from the Managing General Partner to the Co-General Partner in
accordance with the Partnership Agreement; (e) upon the expiration of the tax credit compliance period,
the transfer of the interests of Co-General Partner or the Investor Limited Partner in Borrower to the
Managing General Partner or the Co-General Partner, or any of their affiliates, and (f) any amendment to
the Partnership Agreement to memorialize the transfers or removal described above. The Parties agree that
this subsection (x) shall control to the extent of a conflict in any Loan Document. The Borrower shall
provide Florida Housing with prompt written notice of any such change described in this paragraph.
(y) Subordination Agreement Notwithstanding anything to the contrary contained herein, so
long as the Governmental Lender Note is outstanding, or any portion of the note evidencing the First
Mortgage Loan is unpaid, Florida Housing’s rights to declare a default, accelerate the indebtedness secured
by the Note, this Agreement and the other Loan Documents, commence a foreclosure of the Mortgage, or
pursue any other right or remedy hereunder, under the Note or the other Loan Documents, are subject to
the Subordination Agreement.
A-1
Construction Loan Agt
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
EXHIBIT “A”
LEGAL DESCRIPTION
(VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN)
That leasehold estate created by that Second Amended and Restated Ground Lease, by and between Vista
Breeze, Ltd., a Florida limited partnership, and the Housing Authority of The City of Miami Beach, a public
body corporate and politic, as evidenced by that Amended and Restated Memorandum of Lease to be
recorded over the following described lands:
PARCEL 1:
LOT 3, 4 and 5, Block 55, OF NORMANDY GOLF COURSE, ACCORDING TO THE PLAT THEREOF,
AS RECORDED IN PLAT BOOK 44, AT PAGE 62, OF THE PUBLIC RECORDS OF MIAMI-DADE
COUNTY, FLORIDA.
PARCEL 2:
LOTS 6, 7 and 8, BLOCK 56, NORMANDY GOLF COURSE SUBDIVISION, ACCORDING TO THE
PLAT THEREOF RECORDED IN PLAT BOOK 44, PAGE 62, OF THE PUBLIC RECORDS OF MIAMI-
DADE COUNTY, FLORIDA.
B-1
Construction Loan Agt
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
EXHIBIT “B”
USE OF PROCEEDS SCHEDULE
AND CONSTRUCTION DRAW SCHEDULE
(VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN)
C-1
Construction Loan Agt
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
EXHIBIT “C”
AFFIRMATIVE MARKETING PLAN
(VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN)
D-1
Construction Loan Agt
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
EXHIBIT “D”
DESCRIPTION OF FEATURES AND AMENITIES
(VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN)
A. The Development will consist of:
119 Units located in 2 Mid‐Rise residential buildings
Unit Mix:
One hundred nineteen (119) zero bedroom/one bath units:
119 Total Units
B. All units are expected to meet all requirements as outlined below. If the proposed Development
consists of rehabilitation, the proposed Development’s ability to provide all construction features
will be confirmed as outlined in Exhibit F of the RFA. The quality of the construction features
committed to by the Borrower is subject to approval of the Board of Directors.
The Development must meet all federal requirements and state building code requirements,
including the following, incorporating the most recent amendments, regulations, and rules: The
Federal Fair Housing Act as implemented by 24 CFR 100, Florida Accessibility Code for Building
Construction as adopted pursuant to Section 553.503, F.S., Section 504 of the Rehabilitation Act
of 1973, and Titles II and III of the Americans with Disabilities Act (“ADA”) of 1990 as
implemented by 28 CFR 35.
All Developments must meet accessibility standards of Section 504. Section 504 accessibility
standards require a minimum of 5 percent of the total dwelling units, but not fewer than one unit,
to be accessible for individuals with mobility impairments. An additional 2 percent of the total
units, but not fewer than one unit, must be accessible for persons with hearing or vision
impairments. All of the accessible units must be equally distributed among different unit sizes and
Development types and must be dispersed on all accessible routes throughout the Development.
C. All Developments must provide the following General Features:
1. Broadband infrastructure which includes cables, fiber optics, wiring, or other
infrastructure, as long as the installation results in accessibility in each unit;
2. Termite prevention;
3. Pest control;
4. Window covering for each window and glass door inside each unit;
5. Cable or satellite TV hook-up in each unit and, if the Development offers cable or satellite
TV service to the residents, the price cannot exceed the market rate for service of similar
quality available to the Development’s residents from a primary provider of cable or
satellite TV;
6. Washer and dryer hook ups in each of the Development’s units or an on-site laundry facility
for resident use. If the proposed Development will have an on-site laundry facility, the
Construction Loan Agt D-2
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
following requirements must be met:
• There must be a minimum of one (1) Energy Star certified washer and one (1)
Energy Star certified or commercial grade dryer per every 15 units. To determine
the required number of washers and dryers for the on-site laundry facility; divide
the total number of the Developments’ units by 15, and then round the equation’s
total up to the nearest whole number;
• At least one washing machine and one dryer shall be front loading that meets the
accessibility standards of Section 504;
• If the proposed Development consists of Scattered Sites, the laundry facility shall
be located on each of the Scattered Sites, or no more than 1/16 mile from the
Scattered Site with the most units, or a combination of both.
7. At least two full bathrooms in all 3 bedroom or larger new construction units;
8. Bathtub with shower in at least one bathroom in at least 90% of the new construction non-
Elderly units;
9. Elderly Developments must have a minimum of one elevator per residential building
provided for all Elderly Set-Aside Units that are located on a floor higher than the first
floor.
10. Elderly Demographic Developments that are new construction units must have a full-size
range and oven..
D. Required Accessibility Features, regardless of the age of the Development:
Federal and state law and building code regulations requires that programs, activities, and facilities
be readily accessible to and usable by persons with disabilities. Florida Housing requires that the
design, construction, or alteration of its financed Developments be in compliance with federal and
state accessibility requirements. When more than one law and accessibility standard applies, the
Borrower shall comply with the standard (2010 ADA Standards, Section 504, Fair Housing Act, or
Florida Building Code, Accessibility) which affords the greater level of accessibility for the
residents and visitors. Areas required to be made accessible to mobility-impaired residents and their
visitors, including those in wheelchairs, shall include, but not be limited to, accessible routes and
entrances, paths of travel, primary function areas, parking, trash bins, mail and package receiving
areas for residents, pool and other amenities, including paths of travel to amenities and laundry
rooms, including washers and dryers.
E. The Development must provide the following Accessibility Features in all units:
1. Primary entrance doors on an accessible route shall have a threshold with no more than a
½-inch rise;
2. All door handles on primary entrance door and interior doors must have lever handles;
3. Lever handles on all bathroom faucets and kitchen sink faucets;
4. Mid-point on light switches and thermostats shall not be more than 48 inches above
finished floor level; and
5. Cabinet drawer handles and cabinet door handles in bathroom and kitchen shall be lever or
D-pull type that operate easily using a single closed fist.
Construction Loan Agt D-3
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
F. All Elderly (ALF or Non-ALF) Demographic Developments must provide the following
Accessibility Features:
• 20 percent of the new construction units must have roll-in showers.
• Horizontal grab bars in place around each tub and/or shower, or a Corporation-approved
alternative approach for grab bar installation. The installation of the grab bars must meet or
exceed 2010 ADA Standards for Accessible Design, Section 609. In addition, the following
standards for grab bars are required:
o If a bathtub/shower combination with a permanent seat is provided, grab bars shall be
installed to meet or exceed 2010 ADA Standards for Accessible Design, Section 607.4.1.
o If a bathtub/shower combination without a permanent seat is provided, grab bars shall be
installed to meet or exceed 2010 ADA Standards for Accessible Design, Section 607.4.2.
o If a roll-in shower is provided, grab bars shall be installed to meet or exceed 2010 ADA
Standards for Accessible Design, Section 608.3.2.
• Reinforced walls for future installation of horizontal grab bars in place around each toilet, or a
Corporation-approved alternative approach for grab bar installation. The installation of the grab
bars must meet or exceed the 2010 ADA Standards for Accessible Design;
• All bathrooms in all new construction units must have vanity cabinets with at least one roll-out
shelf or drawer in bottom of cabinet;
• Adjustable shelving in master bedroom closets (must be adjustable by resident); and
• In one of the kitchen’s base cabinets, there shall be a large bottom drawer that opens beyond
full extension, also referred to as an “over-travel feature.” Drawers with the over-travel feature
allow drawers to extend completely past the cabinet front so all the contents can be accessed.
The drawer shall be deep and wide enough to store pots and pans and the drawer slides shall
have a weight load rating of a minimum of 100 pounds. The drawers shall be mounted on a
pair of metal side rails that are ball-bearing.
G. Green Building Features required in all Developments:
All new construction units and, as applicable, all common areas must have the features listed below
and all rehabilitation units are expected to have all of the following required Green Building
features unless found to be not appropriate or feasible within the scope of the rehabilitation work
utilizing a capital needs assessment as further explained in Exhibit F of the RFA:
a. Low or No-VOC paint for all interior walls (Low-VOC means 50 grams per liter or less
for flat; 150 grams per liter or less for non-flat paint);
b. Low-flow water fixtures in bathrooms – WaterSense labeled products or the following
Construction Loan Agt D-4
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
specifications:
i. Toilets: 1.28 gallons/flush or less
ii. Urinals: 0.5 gallons/flush,
iii. Lavatory Faucets: 1.5 gallons/minute or less at 60 psi flow rate,
iv. Showerheads: 2.0 gallons/minute or less at 80 psi flow rate;
c. Energy Star certified refrigerator;
d. Energy Star certified dishwasher;
e. Energy Star certified ventilation fan in all bathrooms;
f. Water heater minimum efficiency specifications:
• Residential Electric:
i. Up to 55 gallons = 0.95 EF or 0.92 UEF; or
ii. More than 55 gallons = Energy Star certified; or
iii. Tankless = 0.97 EF and Max GPM of ≥ 2.5 over a 77◦ rise or 0.87 UEF
and GPM of ≥ 2.9 over a 67◦ rise;
• Residential Gas (storage or tankless/instantaneous): Energy Star certified
• Commercial Gas Water Heater: Energy Star certified;
g. Energy Star certified ceiling fans with lighting fixtures in bedrooms;
h. Air Conditioning (in-unit or commercial):
i. Air-Source Heat Pumps – Energy Star certified:
a. ≥8.5 HSPF/ ≥15 SEER/ ≥12.5 EER for split systems
b. ≥8.2 HSPF/ ≥15 SEER/ ≥12 EER for single package equipment including
gas/electric package units.
ii. Central Air Conditioners – Energy Star certified:
a. ≥15 SEER/ ≥12.5 EER* for split systems
b. ≥15 SEER/ ≥12 EER* for single package equipment including gas/electric
package units.
NOTE: Window air conditioners and portable air conditioners are not allowed.
Package Terminal Air Conditioners (PTACs) / Package Terminal Heat Pumps
(PTHPs) are allowed in studio and 1 bedroom units;
In addition to the required Green Building Features outlined above, proposed Developments with
a Development Category of New Construction or Redevelopment, with or without acquisition, must
commit to achieve one of the following Green Building Certification programs:
__X___ Leadership in Energy and Environmental Design (LEED); or
______ Florida Green Building Coalition (FGBC); or
ICC 700 National Green Building Standard (NGBS); or
______ Enterprise Building Communities.
Construction Loan Agt D-5
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
H. Borrowers who select the Elderly (ALF or Non-ALF) Demographic must provide the required
following Resident Program:
24 Hour Support to Assist Residents In Handling Urgent Issues.
An important aging in place best practice is providing the residents access to property management
support 24 hours per day, 7 days a week to assist them to appropriately and efficiently handle urgent
issues or incidents that may arise. These issues may include, but are not limited to, an apartment
maintenance emergency, security or safety concern, or a health risk incident in their apartment or
on the property. The management’s assistance will include a 24/7 approach to receiving residents’
requests for assistance that will include a formal written process for relevant property management
staff to effectively assess and provide assistance for each request.
This assistance may include staff:
• visiting or coordinating a visit to a resident’s apartment to address an urgent maintenance issue;
• responding to a resident being locked out of their apartment;
• contacting on-site security or the police to address a concern;
• providing contact information to the resident and directing or making calls on a resident’s
behalf to appropriate community-based emergency services or related resources to address an
urgent health risk incident;
• calling the resident’s informal emergency contact; or
• addressing a resident’s urgent concern about another resident.
Property management staff shall be on site at least 8 hours daily, but the 24- hour support approach
may include contracted services or technology to assist the management in meeting this
commitment, if these methods adequately address the intent of this service. The Development’s
owner and/or designated property management entity shall develop and implement policies and
procedures for staff to immediately receive and handle a resident’s call and assess the call based on
a resident’s request and/or need.
At a minimum, residents shall be informed by the property management, at move-in and via a
written notice(s)/instructions provided to each resident and displayed in the Development’s
common or public areas, that staff are available to receive resident calls at all times. These notices
shall also provide contact information and direction to first contact the community-based
emergency services if they have health or safety risk concerns.
I. The Borrower must provide the following Resident Programs:
The quality of the Resident Programs committed to by the Borrower is subject to approval of the
Board of Directors. The availability of the Resident Programs must be publicized on an ongoing
basis such as through community newsletters, bulletin board posts, or flyers.
1. Daily Activities
The Borrower or its Management Company must provide on-site supervised, structured
activities, at no cost to the resident, at least five days per week which must be
offered between the hours of 8:00 a.m. and 7:00 p.m. If the Development consists of
Scattered Sites, this resident program must be provided on the Scattered Site with the most
units.
Construction Loan Agt D-6
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
2. Computer Training
The Borrower or its Management Company shall make available computer and internet
training classes (basic and/or advanced level depending on the needs and requests of the
residents). The training classes must be provided at least once a week, at no cost
to the resident, in a dedicated space on site. Training must be held between the hours of
8:00 a.m. and 7:00 p.m., and electronic media, if used, must be used in conjunction with
live instruction. If the Development consists of Scattered Sites, this resident program must
be provided on the Scattered Site with the most units.
3. Assistance with Light Housekeeping, Grocery Shopping and/or Laundry
The Borrower or its Management Company must provide residents with a list of qualified
service providers for (a) light housekeeping, and/or (b) grocery shopping, and/or (c)
laundry and will coordinate, at no cost to the resident, the scheduling of services. The
Developer or Management Company shall verify that the services referral information is
accurate and up-to-date at least once every six months.
E-1
Construction Loan Agt
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
EXHIBIT “E”
ELIGIBLE RESERVES FOR REPLACEMENT ITEMS
(VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN)