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76. Note Covenant Agreement (HACMB)150050438.5 NOTE COVENANT AGREEMENT by and between VISTA BREEZE, LTD. and HOUSING AUTHORITY OF THE CITY OF MIAMI BEACH DATE EFFECTIVE: December 15, 2023 150050438.5 NOTE COVENANT AGREEMENT This Note Covenant Agreement (this "Agreement") is entered into as of December 15, 2023 between the HOUSING AUTHORITY OF THE CITY OF MIAMI BEACH, a public body corporate and politic, having its principal office at 200 Alton Road, Miami Beach, FL 33139 (the "Authority") and VISTA BREEZE, LTD., a Florida limited partnership, with offices at 161 NW 6th Street, Suite 1020, Miami, FL 33136 (the "Owner"). PREAMBLE A. The Authority has approved a plan for the revitalization of the Vista Breeze development site in the City of Miami Beach, Miami-Dade County, Florida, which includes the development and construction of one hundred nineteen (119) residential housing units, all of which shall be low-income housing tax credit ("LIHTC") units under Section 42 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder (the "Code"), the entire project to be known as Vista Breeze (the "Project"). B. Certain public and private funding sources are to be used for the construction of the Project on certain property located in the City of Miami Beach, Miami-Dade County, Florida and more specifically described on Exhibit A (the "Property") in accordance with the Development Plans (as defined in Section 4.06 of this Agreement). C. The Authority is the owner of the Property and, in connection with the development of the Project, the Authority has agreed to lease the Property to the Owner in accordance with the provisions of a Second Amended and Restated Ground Lease between the Authority and the Owner dated on or about the date hereof (the "Ground Lease"). D. Pursuant to the Ground Lease, the Authority has determined to transfer the burdens and benefits of ownership in the Project to the Owner in connection with the construction of the Project in return for Owner’s obligations to pay to the Authority (i) the Annual Base Rent (as defined in the Ground Lease), (ii) the Deferred Base Rent (as defined in the Ground Lease), (iii) the Stabilization Payment (as defined in that certain Promissory Note in the amount of $8,800,000 from the Owner to the Authority dated of even date herewith (the "Authority Note"), (iv) the Annual Note Payment (as defined in the Authority Note) and (v) the Deferred Note Payment (as defined in the Authority Note), which are collectively referred to herein as the "Obligations". E. The terms and conditions of this Agreement are intended, among other things, to elaborate and provide more specific detail regarding the terms of the Obligations. F. The Owner has agreed to (a) acquire a leasehold interest in the Property and the Project pursuant to the Ground Lease and the Development Plans, (b) construct and operate the Project in accordance with the Ground Lease and (c) in connection therewith, to: (i) enter into this Agreement (collectively with the Ground Lease, the Authority Note, the Authority Mortgage (as hereinafter defined) and all other documents executed in connection with the Obligations, including this Agreement, the "Authority Documents"), for the purpose of stipulating certain additional covenants and agreements with respect to the Obligations; 2 150050438.5 (ii) construct the Project on the Property and operate the Project in accordance with the Ground Lease and the Development Plans; and (iii) execute and record (a) that certain Extended Low-Income Housing Agreement in favor of Florida Housing Finance Corporation ("FHFC"); (b) that certain Land Use Restriction Agreement in favor of the Housing Finance Authority of Miami- Dade County, Florida (the "HFA"); (c) that certain Rental Regulatory Agreement in favor of Miami-Dade County, Florida (the "County"); (d) that certain Land Use Restriction Agreement in favor of FHFC; and (e) that certain Amended and Restated Declaration of Restrictive Covenants in favor of the City of Miami Beach, Florida (the "City"); in each case, ensuring that certain units of the Project will continue to serve as low-income, subsidized or rent-restricted housing (collectively, the "Restrictive Agreements") and own and operate the Project in accordance therewith. AGREEMENT In consideration of the premises and their mutual covenants herein contained, the parties intending to be legally bound agree as follows: ARTICLE 1. ACQUISITION AND PREPARATION OF PROPERTY 1.01. Simultaneously with the execution of this Agreement, the Authority is transferring (or amending and restating the previous transfer of) the Property to the Owner pursuant to the Ground Lease and the Owner shall have delivered to the Authority executed copies of the Authority Note and the Authority Mortgage. ARTICLE 2. FINANCING 2.01. The Authority Note shall be secured by an eighth priority Open-End Leasehold Mortgage and Security Agreement between the Owner and the Authority (the "Authority Mortgage") with respect to the Owner's leasehold interest in the Property. The Obligations shall commence upon the date hereof and shall mature on the seventy-fifth (75th) anniversary of the date of the Ground Lease (the "Maturity Date"). The Deferred Base Rent and Deferred Note Payment shall accrue interest, compounding annually, at a rate equal to Five and Fifty-Four Hundredths Percent (5.54%). Payments of the Obligations shall be made as set forth in the Ground Lease and the Authority Note. Except as set forth in the Authority Note and the Ground Lease, no payments of principal or interest shall be due during the term hereof, until the Maturity Date whereupon the outstanding principal balance hereof, and all accrued interest and other charges, shall be due and payable. Notwithstanding anything herein to the contrary, all outstanding principal and interest on the Obligations shall be due and payable upon the sale of the Property and/or the Project. The Obligations may be prepaid in whole or in part at any time without penalty. 2.02. In connection with the Project, the Owner, as borrower, entered into that certain Funding Loan Agreement, dated as of December 1, 2023 (the "Original Funding Loan Agreement"), among the HFA, The Bank of New York Mellon Trust Company, N.A., a national banking association, as fiscal agent (the "Fiscal Agent"), and Bank of America, N.A., a national banking association (the "Original Funding Lender"), pursuant to which the Original Funding Lender made a loan to the HFA in the original principal amount of $32,500,000 (the "Funding 3 150050438.5 Loan"), the proceeds of which the HFA used to make a loan to the Owner pursuant to that certain Construction Phase Borrower Loan Agreement, dated as of December 1, 2023 (the "Senior Construction Loan Agreement"), for the purposes of financing the development and construction of the Project (the "Senior Construction Loan"), such Senior Construction Loan being secured by that certain first priority Construction Leasehold Mortgage with Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing (Construction Loan) by the Owner in favor of the HFA and assigned by the HFA to Fiscal Agent for the benefit of Original Funding Lender (the "Senior Construction Mortgage"). The Owner, Original Funding Lender and Funding Lender entered into that certain Forward Purchase Agreement, dated as of December 1, 2023 (the "Forward Purchase Agreement"), pursuant to which Citibank, N.A. ("Permanent Funding Lender", and together with the Original Funding Lender, during such time as the Permanent Loan remains outstanding, the "Senior Lender"), agreed to acquire Original Funding Lender’s interests in the Funding Loan following conversion of the Senior Construction Loan to its permanent phase (the "Permanent Loan" and, together with the Senior Construction Loan, during such time as the Permanent Loan remains outstanding, the "Senior Loan ", and together with the Original Funding Lender, during such time as the Permanent Loan remains outstanding, the "Senior Lender"), as lender, shall enter into a permanent loan agreement with the Owner, as borrower (the "Permanent Loan Agreement" and, together with the Senior Construction Loan Agreement, during such time as the Permanent Loan remains outstanding, the "Senior Loan Agreement"), such Permanent Loan being secured by that certain first priority Amended and Restated Multifamily Leasehold Mortgage, Assignment of Rents, Security Agreement And Fixture Filing (Florida) by the Owner in favor of the HFA and assigned by the HFA to Fiscal Agent for the benefit of Permanent Funding Lender to secure the Permanent Loan (the "Senior Permanent Mortgage" and, together with the Senior Construction Mortgage, during such time as the Permanent Loan remains outstanding, the "Senior Mortgage"). 2.03. Owner agrees to enter into Authority Documents for the purposes set forth herein and therein. ARTICLE 3. CERTAIN COVENANTS OF OWNER 3.01. The Owner covenants and agrees that, unless compliance is waived by the Authority and in addition to all other covenants and obligations of the Owner set forth in this Agreement, and until payment in full is made of all indebtedness hereunder, the Owner will: (a) pay all of its indebtedness and obligations promptly and in accordance with their respective terms, file or cause to be filed all federal, state and local tax or information returns, if any, which are required to be filed by it, including any payments in lieu of taxes, and pay and discharge or cause to be paid and discharged promptly any taxes or assessments and governmental charges or levies, if any, imposed upon it or upon its income or profits, or upon any the Property, the Project or upon any part thereof, before the same become delinquent or in default, as well as all lawful claims for labor, materials and supplies or otherwise which, if unpaid, might become a lien or charge upon the Property or the Project, or any part thereof; provided, however, that the Owner will not be required to pay and discharge or to cause to be paid and discharged any such indebtedness, obligation, tax, assessment, charge, levy or claim so long as the validity thereof is contested in good faith by appropriate proceedings duly prosecuted and the Owner shall have provided for such reserves with respect thereto as shall be dictated by sound accounting practices. 4 150050438.5 The Authority may request that the Owner supply to the Authority receipts for all payments made pursuant to this Section 3.01(a) during the term of the Obligations; (b) maintain the Project in good order and do all things necessary to enable the Authority to obtain and to maintain a perfected security interest in all collateral required or contemplated under this Agreement in the lien position for the Authority Mortgage contemplated under this Agreement; (c) pay all costs and expenses in connection with the recording and/or filing of any documents, statements, or instruments incidental hereto and any stamp or other taxes which may be payable with respect to the execution or delivery of this Agreement, the Ground Lease, the Restrictive Agreements, the issuance of the Authority Note, or the execution and delivery of any statements, instruments, or documents contemplated by this Agreement. This obligation shall survive the termination of this Agreement; (d) permit the Authority or any of its duly authorized representatives to (i) visit and inspect the Property and the Project, (ii) have access to any books, documents, papers, books of account, and records of the Owner which are directly pertinent to the Obligations for the purpose of making audits, examinations, excerpts, and transcriptions, and (iii) discuss the affairs, finances, and accounts pertaining to the Obligations with authorized agents of the Owner at its offices during normal business hours. The Owner agrees to retain all such records relating to the Project for a period of three (3) years following Completion (as defined in Section 4.07 of this Agreement) except where such longer period may be required by the Restrictive Agreements; (e) maintain and keep in force insurance in the type and for the amounts specified on Exhibit B attached hereto. All public liability, property damage liability, and casualty policies maintained by the Owner will be written as primary policies, not contributing with and not secondary to insurance coverage that the Authority may carry. If the Owner fails to maintain such insurance, at its election, and upon five (5) days' notice to the Owner, the Authority may procure such insurance as may be necessary to comply with the insurance requirements of this Section 3.01 (but shall not be obligated to procure same), and the Owner shall repay to the Authority the cost of such insurance. The Owner shall provide certificates of insurance to the Authority on Acord Form 27 and they shall state that a thirty (30) day notice of prior cancellation or change will be provided to the Authority; (f) if the Project shall be damaged or destroyed, in whole or in part, give prompt notice thereof to the Authority. Subject to the provisions of the Senior Mortgage, the net amount of all insurance proceeds received by the Authority or Owner with respect to such damage or destruction, after deduction of the reasonable costs and expenses incurred by the Authority in collecting the same (the "Net Proceeds") shall be disbursed in accordance with the terms of the Ground Lease; (g) not sell or otherwise dispose of the Project without the prior written consent of the Authority; (h) permit the Authority to inspect the Project for the purpose of verifying the percentage of work completed or for any other purpose. Any inspections of the Project by the Authority are solely for the purpose of protecting the security and preserving the Authority's rights 5 150050438.5 under this Agreement. The Authority is not obligated to make any inspections of the Project, nor is the Authority obligated to disclose the results of any inspections it chooses to make. Inspections of the Project for purposes other than preservation of the security of and preserving the rights of the Authority hereunder are the responsibility of the Owner, and the Authority shall not be subject to any liability related to any inspections. In no event will any inspection by the Authority be a representation that there has been, or will be, compliance with the Development Plans, or that the construction is free from defective materials or workmanship. The Owner shall provide the Authority with ten (10) days advance notice of any job and construction meetings and the Authority shall have the right to attend any job and construction meetings; (i) comply with the requirements of the Restrictive Agreements and the Ground Lease, the terms of which are incorporated herein by reference; (j) supply any information to the Authority during the term of this Agreement that the Authority reasonably requires. The Owner acknowledges that the Authority has entered into this Agreement based on the Owner's representations that the development and/or construction of the Project will provide a benefit to low-income persons qualifying for occupancy pursuant to Section 42 of the Code, that the costs of construction of the Project are reasonable, and that the Owner has expended or will expend the proceeds of the Senior Loan in accordance with this Agreement. Owner agrees to provide the Authority with contracts, invoices, bills, and other documents evidencing expenditures of proceeds of the Senior Loan, as well as any other information required by FHFC, the County, the HFA, the City, the Senior Lender or the Authority. Except as otherwise provided in Section 4.08, the Owner agrees to supply the information requested by FHFC, the County, the HFA, the City, the Senior Lender or the Authority within ten (10) business days of receipt of a written request to do so. Failure to supply the information within said ten (10) day period of time without notice of an excusable cause for delay pursuant to Article 11 shall be considered a breach of the provisions of this Agreement and shall be considered a default hereunder and under the Authority Note; (k) construct the Project in accordance with all applicable building codes and government requirements including those of the County and the State of Florida (the "State") as well as the Florida Building Code, and any amendments thereto as adopted by the County, the State, and the City (the "Building Code"); (l) at the Authority's option, certify the costs of construction of the Project upon Completion of construction. "Cost Certification" shall consist of compliance with all requirements for cost certification and submission of all cost certification documents required by FHFC. The Authority, however, reserves the right to examine canceled checks evidencing Project costs; (m) provide to the Authority copies of written leases covering the rental of the Project for the units and evidence of tenants' qualification prior to the occupancy of the units by tenants. The Owner acknowledges that leases will be reviewed by the Authority on an annual basis and that tenants' incomes for the units must be reverified annually. The Owner further agrees to provide the Authority with annual income and operating expense information for the Project in the form of an audited financial statement, or in such other form as the Authority or the Senior Lender may reasonably require; 6 150050438.5 (n) cause the general contractor for the Project to maintain performance and payment bonds and/or a letter of credit in such amount as the Authority may reasonably require; (o) obtain and maintain in good standing all consents, licenses, permits, approvals and other authorizations necessary or advisable in the conduct of the Owner's business, the development and construction of the Project in accordance with the Development Plans and the lease of the units of the Project; (p) take appropriate measures to prevent, and not engage in or knowingly permit, any illegal activities that could result in damage to the Project, or result in forfeiture of the Project; and (q) at all times maintain records sufficient to demonstrate compliance with the provisions of this Article 3. ARTICLE 4. CONSTRUCTION OF PROJECT BY THE OWNER AND OBTAINING OF GOVERNMENTAL AND OTHER APPROVALS 4.01. The Owner agrees to perform the obligations attributable to it as described in this Agreement. The Owner shall commence and diligently prosecute to completion the construction of the Project in accordance with the Development Plans. Subject to Section 4.07 hereof, it is contemplated that such construction shall be commenced promptly after execution of this Agreement, but in no event later than 30 days after the date hereof and shall be substantially completed on or before May 31, 2026. Owner will use all commercially reasonable efforts to ensure the Completion of the Project within the time periods specified in this Agreement. 4.02. The Owner will be responsible to (i) arrange for the capital contribution by Bank of America, N.A., as the investor limited partner in the Owner (the "Investor Limited Partner") of not less than the amount required by the Owner’s Amended and Restated Agreement of Limited Partnership dated as of the date hereof (the "LPA"), subject to adjustment as set forth therein (the "Equity Capital"); and (ii) cause the Equity Capital to be invested in the Project. 4.03. The Owner represents that it has obtained the Authority's approval of preliminary plans for the Project and final plans and specifications for the obtaining of building permits for the Project. The Owner agrees that, upon execution and delivery of this Agreement, it will cause to be prepared or completed such plans, drawings, documentation, presentations, and applications (collectively the "Governmental Applications") as may be necessary and appropriate for the purpose of obtaining any and all governmental approvals for the improvement of the Property and for the construction of the Project, including, without limitation, the following: environmental clearances and any other necessary permits, licenses, consents, and approvals (collectively the "Governmental Approvals"). All of such Governmental Applications shall be in conformity with the requirements of this Agreement, and any and all federal, state, county, and municipal statutes, laws, ordinances, rules, and regulations applicable thereto. 4.04. The time for commencement or completion of the Project shall be extended for a period of time equal to any delay in construction due to any of the causes set forth in Article 11 hereof. 7 150050438.5 4.05. The Owner shall not commence construction of the Project unless and until it has submitted to the Authority final plans and specifications (collectively referred to, with the site plans and Authority plan described in Preamble Paragraph B, as "Development Plans") which are satisfactory to the Authority and the Owner has received all necessary Governmental Approvals with respect to same. The Authority acknowledges receipt of the Development Plans prior to the date hereof and hereby approves same. 4.06. The Owner shall use all reasonable efforts to cause the appropriate governmental officer or body to issue a Certificate of Occupancy ("CO") upon completion of sufficient portions of the Project to entitle the Owner to a CO as appropriate under the circumstances according to the appropriate law or regulation. For the purposes of this Agreement, substantial completion shall be deemed to have occurred when the Owner is entitled to issuance of a CO. The CO when issued shall constitute evidence that the Owner has fully performed its obligation to construct the Project. In addition, if requested by the Owner, the Authority agrees to issue a Certificate of Completion in form and content satisfactory to counsel for the Owner and in proper form for recording which the Owner shall be entitled to receive at the time that the Owner has completed performance of all of its duties and obligations under this Agreement and all other agreements referred to herein and/or annexed hereto which are required to have been completed at such time, which Certificate of Completion shall evidence that the Owner has completed the Project in accordance with the requirements of this Agreement and the Development Plans approved by the Authority. As used in this Agreement, the term "Completion" shall refer to that date when the Owner becomes entitled to receive a Certificate of Completion, whether or not the Owner requests such a Certificate of Completion. In the event that the Authority shall fail or refuse to provide such Certificate of Completion within thirty (30) days after written request by the Owner, the Authority shall provide the Owner with a written statement setting forth in detail the respects in which it believes that the Owner has failed to complete the Project in accordance with the provisions of this Agreement or with the approved Development Plans or is otherwise in default under this or any other applicable agreement and what measures or acts will be necessary in the reasonable opinion of the Authority in order for the Owner to be entitled to such Certificate of Completion. 4.07. The Owner shall furnish to the Authority a marked-up commitment at closing to issue an ALTA Loan Policy and, thereafter, an ALTA Loan Policy of title insurance in the aggregate original principal amount of the Authority Note (which policy may include a pending disbursement clause), insuring that the Authority will be the holder of a valid lien on the Property in the priority reflected in the Authority Mortgage, free of encumbrances and other exceptions to title other than those exceptions approved in advance by the Authority or subject to which Owner took leasehold title; 4.08. The Owner shall furnish to the Authority certificates of insurance coverage required pursuant to Section 3.01(e), duly endorsed to indicate the interest of the Authority as insured beneficiary. 4.09. All change order requests, to be made on AIA Document G701-2001, have been reviewed and approved by the architect, the general contractor, Owner, the Authority's inspector, and the Authority. 8 150050438.5 4.10. From and after the date hereof, until the Authority has received the Stabilization Payment as required under the Authority Note, the Owner shall furnish to the Authority quarterly status reports as set forth in the Master Development Agreement between Atlantic Pacific Communities, LLC and the Authority, as the same may be amended, restated or otherwise modified from time to time. ARTICLE 5. PROHIBITION AGAINST ASSIGNMENT AND TRANSFER 5.01. Because of the importance to the general welfare of the community of the development of the Project and its use for affordable housing purposes and the public aids that have been made available by law for the purpose of making such development possible, the Owner represents and agrees that its acquisition of a leasehold interest in the Property and the buildings existing thereon pursuant to the Ground Lease, and its other undertakings pursuant to this Agreement are, and will be used, for the purpose of construction and operation of one hundred nineteen (119) new units, all of which shall be LIHTC units, and not for speculation in land holding. 5.02. The Owner further represents and agrees for itself, its successors and assigns, that the Owner has not made or created, and it will not make or create, or suffer or agree to be made or created, any sale, assignment, conveyance, lease, or transfer in any other mode or form of the Property or the Project or any part thereof or any interest therein (whether voluntary or by operation of law), including without limitation sale, transfer, conveyance, or assignment of any interest of a general partner, managing member, member, or controlling stockholder (any such interest being referred to as a "Controlling Interest") in the Owner, or a Controlling Interest in any entity which has a Controlling Interest in the Owner, in each case without the prior written consent of the Authority, except: (a) leases to tenants, (b) utility access and other similar easement agreements, (c) transfers of partnership and/or ownership interests among entities that are partners of the Owner, including without limitation, transfers of the interests of the Investor Limited Partner in Owner permitted under the LPA and the removal and replacement of the general partner of Owner pursuant to the terms of the LPA, (d) transfers permitted by the terms of the Ground Lease, in each case, provided that the Owner gives notice to the Authority and otherwise complies with the terms of the Ground Lease with respect to such permitted transfers, and (e) collateral assignments by Owner in favor of Original Funding Lender in connection with the Senior Construction Loan. For purposes of this Section 5.02, the interest of the Investor Limited Partner in or of a limited liability company partner that is not the general partner of the Owner shall not be deemed a "Controlling Interest" in the Owner. The Authority acknowledges that the LPA may be amended to reflect any transfers allowed pursuant to this Agreement; provided that the Authority receives a copy of each such amendment within thirty days of such amendment. 5.03. The Authority shall be entitled to require as conditions to any such consent provided for in Section 5.02 hereby that: (a) Any proposed transferee shall have the necessary qualifications and financial responsibility to perform the Owner's obligations hereunder, as determined by the Authority; (b) Any proposed transferee, by instrument in writing satisfactory to the Authority and in recordable form, shall, for itself and its successors and assigns, and expressly for 9 150050438.5 the benefit of the Authority, have expressly assumed all of the obligations of the Owner under this Agreement thereafter arising and uncompleted obligations of the Owner which are assumed by the proposed transferee and agreed to be subject to all the conditions and restrictions to which the Owner is subject (such obligations to include assumption of all financial obligations under the Authority Note); (c) There shall be submitted to the Authority for review all instruments and other legal documents involved in effecting a transfer and, if approved by the Authority, their approval shall be indicated to the Owner in writing; (d) As a condition of approval of any such sale or transfer not permitted hereunder, the net proceeds of any sale or refinancing shall be distributed as set forth under Owner's LPA; (e) Any such sale or transfer consented to by the Authority shall release the Owner from any further obligation under this Agreement from and after the closing of the approved sale or transfer except as to any liability or obligation of the Owner incurred prior to such sale or transfer and except as otherwise provided herein or in the approval by the Authority; The Owner and its transferees shall comply with such other conditions as the Authority may reasonably determine are necessary to achieve and safeguard the purposes of this Agreement, the Ground Lease, and the Restrictive Agreements. ARTICLE 6. RIGHTS OF BENEFICIARY 6.01. Except as otherwise provided herein, neither the Owner nor any successor in interest to the Property or the Project or any part thereof shall engage in any financing or any other transaction creating any mortgage or other encumbrance or lien upon the Property or the Project, whether by express agreement or operation of law, or suffer any encumbrance or lien to be made on or attach to the Property or the Project, except for the Authority Mortgage, the Senior Mortgage, a leasehold mortgage loan to be extended by the County on or about the date hereof, a leasehold mortgage loan to be extended by the City on or about the date hereof, one or more leasehold mortgage loans to be extended by FHFC on or about the date hereof, the Restrictive Agreements and except for an inchoate lien for taxes or payments in lieu of taxes and municipal obligations. The Owner or its successor in interest shall request consent from the Authority in writing, in advance of any proposed financing other than those listed in the previous sentence, secured by a mortgage or other similar lien instrument, which it proposes to enter into with respect to the Property or the Project, or any part thereof, which consent may be withheld for any reason. The Owner shall promptly notify the Authority of any encumbrance or lien that has been created on or attached to the Property or the Project, by involuntary act of the Owner or others, upon obtaining knowledge or notice of same. 6.02. Notwithstanding any of the provisions of this Agreement, including but not limited to those which are or are intended to be covenants running with the land, the holder of any mortgage authorized by this Agreement (including any such holder who obtains title to the Property or any part thereof as a result of foreclosure proceedings, or action in lieu thereof, but not including (a) any other party who thereafter obtains title to the Property or such party from or through any such holder or (b) any other purchaser at foreclosure sale (other than the holder of the 10 150050438.5 mortgage itself)) shall in no way be obligated by the provisions of this Agreement to construct or complete the Project or to guarantee such construction or completion; provided that nothing in this Article or any other Article or provision of this Agreement shall be deemed or construed to permit or authorize any such holder to devote the Property or the Project or any part thereof to any uses, or to construct any project thereon, other than those uses permitted under this Agreement, the Restrictive Agreements, and the Ground Lease. 6.03. Whenever the Authority shall deliver any notice or demand to the Owner with respect to any breach or default by the Owner of its obligations or covenants under this Agreement, the Authority shall at the same time forward a copy of such notice or demand to the Investor Limited Partner and the holder of any other mortgage permitted hereby as provided in Section 16.01 hereof. 6.04. After any breach or default referred to in Article 8 or elsewhere, each holder shall (insofar as the rights of the Authority are concerned) have the right, at its option, to cure or remedy such breach or default to the extent that it relates to the part of the Property covered by its mortgage and to add the cost thereof to its mortgage, provided that, if the breach or default is with respect to construction of the Project, nothing contained in this Article or any other Article of this Agreement shall be deemed to permit or authorize such holder either before or after foreclosure or action in lieu thereof, to undertake or continue the construction or completion of the Project (beyond the extent necessary to conserve or protect the Project or construction already completed) without first having expressly assumed the obligations to the Authority, by written agreement reasonably satisfactory to the Authority, to complete, in the manner provided in this Agreement, the Project on the Property or the part thereof to which the lien, interest, or title of such holder relates. Any such holder who shall properly complete the Project relating to the Property or applicable part thereof shall be entitled, upon written request made to the Authority to a Certificate of Completion as hereinabove set forth in Section 4.06. ARTICLE 7. RIGHT TO CURE 7.01. Except as otherwise provided in Article 8 or elsewhere in this Agreement, in the event of any default in or breach of this Agreement, or any of its terms or conditions, by any party hereto, or any successor to such party, such party (or successor) shall, upon written notice of such default from any other party hereto (the “Original Default Notice”), to the other, proceed promptly to commence to cure or remedy such default or breach. In the case of a default or breach by the Owner hereunder, under the Authority Note or the Authority Mortgage, the Authority agrees that it shall give written notice of such default or breach not only to the Owner but also to the Investor Limited Partner (to the address set forth in Article 16) so that either the Owner or the Investor Limited Partner may have the opportunity to cure the default or breach and shall give written notice of such default or breach to the holder of any other mortgage permitted hereby. In case such default or breach is not be cured or remedied within thirty (30) days of receipt of notice, the aggrieved party may institute such proceedings as may be necessary or desirable in its opinion to cure and remedy such default or breach, including, but not limited to, proceedings to compel specific performance by the party in default or breach of its obligations; provided that if the nature of such breach or default is such that it cannot be cured within thirty (30) days, no default shall be deemed to have occurred if the defaulting party commences the curing of such default or breach within such period of thirty (30) days, and diligently and continuously prosecutes in good faith the curing of same until the breach or default is, in fact, cured. 11 150050438.5 7.02. In the event of any conflict in cure periods between Section 7.01 and the Senior Loan Agreement, the Senior Loan Agreement shall control; provided that, in no event may a party have more than two hundred ten (210) days to cure a default following the Original Default Notice. ARTICLE 8. EVENTS OF DEFAULT 8.01. The occurrence of any of the following events shall constitute an "Event of Default" hereunder: (a) The Owner breaches any of the agreements, terms, covenants, representations or warranties, or conditions which this Agreement requires the Owner to perform, which default or violation has not been cured within the cure period provided for in Article 7; (b) Subject to Articles 7 and 11, the Owner or its successor in interest shall default in or violate its obligations with respect to the construction or completion of the Project or if the Owner or its successor in interest shall abandon or suspend construction for a period of ten (10) working days; (c) The Owner or its successor in interest shall fail to pay any excise or real estate taxes or assessments including payments in lieu of taxes on the Property or the Project or any part thereof when due, or shall place thereon any encumbrance or lien unauthorized by this Agreement, or shall suffer any levy or attachment to be made, or any material person’s or mechanics' lien, or any other unauthorized encumbrance or lien to attach which is not discharged of record by payment, deposit, bond, order of court of competent jurisdiction or otherwise within thirty (30) days after notice of filing thereof; (d) The Owner makes any sale, conveyance, assignment, or transfer of the Property or the Project, or any part thereof, in violation of this Agreement; (e) The Owner shall be unable to pay the Owner’s debts as the same shall mature; (f) The Owner shall file a voluntary petition in bankruptcy or a voluntary petition seeking reorganization or to effect a plan or an arrangement with or for the benefit of the Owner’s creditors; (g) The Owner shall apply for or consent to the appointment of a receiver, trustee, or conservator for any portion of the Owner's property or such appointment shall be made without the Owner's consent and shall not be removed within ninety (90) days; (h) The Owner shall fail to perform any of its duties and obligations set forth in the Authority Note, the Authority Mortgage, which failure continues beyond the expiration of any applicable notice and cure period specified therein; or (i) Any representation or warranty made by the Owner on the date hereof shall prove false or misleading in any material respect. If there exists an Event of Default, the Authority shall have the right, in addition to any other remedies provided for in Article 7 and that may be available to it under law or in equity or 12 150050438.5 pursuant to the Authority Note, the Authority Mortgage, or other agreements between the Authority and Owner, to (i) accelerate the Promissory Note, (ii) foreclose upon the Property and the Project, (iii) remove the Owner's management agent and (iv) appoint a receiver without notice and without regard to the value of the Property and the Project as security for the Obligations, or the solvency or insolvency of any person liable for the payment of the Obligations. Notwithstanding anything herein to the contrary, for so long as the Authority is affiliated with a general partner of the Owner, (a) any act or omission of the Owner that would otherwise be deemed to be an Event of Default hereunder and that is attributable to such general partner affiliated with the Authority shall not constitute an Event of Default; and (b) upon the occurrence of any one or more Events of Default that are not caused by an affiliate of the Authority acting as a general partner or that are caused by such affiliate acting as general partner but at the direction of the Investor Limited Partner, the Authority shall have no right to exercise a Possessory Remedy, but shall retain any right or remedy it may have that is not a Possessory Remedy for so long as Bank of America, N.A., or an affiliate of Bank of America, N.A. is the Investor Limited Partner of Owner or a Permitted Leasehold Mortgagee (as defined in the Ground Lease). For purposes of this Section 8, a "Possessory Remedy" shall mean termination, ejection, receivership, confession of judgment, or other remedy that deprives the Owner of possession of the Property and the Project. Notwithstanding anything to the contrary in this Agreement, for so long as a Permitted Leasehold Mortgage (as defined in the Ground Lease) remains outstanding, if the Owner defaults as mortgagor under a Permitted Leasehold Mortgage, such default shall not constitute an Event of Default hereunder except to the extent that Owner’s acts or omissions, in and of themselves, constitute an Event of Default under the express terms of this Agreement. ARTICLE 9. CERTAIN REQUIREMENTS 9.01. The parties to this Agreement each represent and warrant that there have been obtained, or they have reasonable assurance that there will be obtained all Federal, State, and local Governmental Approvals and reviews required by law to be obtained for the construction of the Project in accordance with the Development Plans and operation of the Project in accordance with the requirements of this Agreement. 9.02. The parties to this Agreement hereby agree to keep and maintain books, records, and other documents relating directly to the Obligations and any duly authorized representative of the Authority shall, at all reasonable times, have access to and the right to inspect, copy, audit, and examine all such books, records, and other documents of the parties hereto relating to the Obligations until the completion of all close-out procedures respecting the Obligations, any applicable laws, regulations, and agreements relating to the Obligations and any other agreements relating to the foregoing. 9.03. Each party to this Agreement agrees that any duly authorized representative of the Authority shall, at all reasonable times, have access to any portion of the Property and/or the Project to be constructed thereon until the completion of all close-out procedures as set forth in Section 9.02. 9.04. No agreement or contract to which the Authority is a party shall be amended without the prior written approval of the Authority. 13 150050438.5 9.05. The parties to this Agreement acknowledge and agree that nothing contained in this Agreement or any other agreement between the parties hereto involving the Obligations connected with the Project nor any act of the Authority or of any of the parties hereto shall be deemed and construed by any of the parties hereto or by third parties to create any relationship of third-party beneficiary or of principal and agent, or of limited or general partnership, or of joint venture, or of any association or relationship involving the Authority. 9.06. The parties to this Agreement agree that until Completion, the Authority shall have the right to require the Owner to place a sign on the Property at the Authority's expense, consistent with any criteria established by the Authority. To the extent that there may be any inconsistency or conflict between the terms of the Authority Note and the Authority Mortgage and this Agreement, this Agreement shall govern. ARTICLE 10. REPRESENTATIONS AND WARRANTIES 10.01. The Owner hereby represents and warrants as follows: (a) It has the legal capacity to assume responsibility for compliance with all applicable laws, regulations, rules, programs, and agreements and to enter into this Agreement and all documents to be executed by the Owner in connection with this Agreement (the "Owner Documents") and to perform all of the undertakings herein set forth and as set forth in the Owner Documents. (b) The Development Plans comply in all material respects with all recorded lawful covenants and agreements related to the Project (including leases) and all applicable local, state and federal laws, ordinances, government restrictions and regulations, including all laws, ordinances, regulations, requirements and covenants pertaining to health and safety, construction of the Project, fair housing, equal opportunity, anti-discrimination, environmental protection, zoning and land use, and leases, including, without limitation, the Fair Housing Act, as amended, and the Americans with Disabilities Act, as amended. (c) It is a duly organized and validly existing limited partnership under the laws of the State. Necessary resolutions have been duly adopted by the Owner and each general partner thereof, authorizing the execution and delivery of this Agreement and the Owner Documents and authorizing and directing the persons executing this Agreement and the Owner Documents to do so for and on behalf of each of those entities. (d) This Agreement and the Owner Documents to be executed by the Owner have been duly and validly executed and delivered by the Owner and constitute valid and legally binding obligations enforceable in accordance with their respective terms, except as limited by bankruptcy, insolvency, or other laws of general application relating to or affecting the enforcement of creditors' rights. (e) It is not a party to any contract or agreement or subject to any charter or other legal restriction of any kind which materially and adversely affects the business, property or assets, or the condition, financial or otherwise, of the Owner. Neither the execution and delivery of this Agreement, nor any of the Owner Documents, nor compliance with the terms, conditions, 14 150050438.5 and provisions hereof and thereof, will conflict with or result in a breach of the terms, conditions, or provisions of, or constitute a default under any law or any regulation, order, or decree of any court or governmental agency, or any indenture or other agreement or instrument to which the Owner is subject, or will result in the creation or imposition of any lien, charge, or encumbrance of any nature whatsoever upon any of the property or assets of the Owner pursuant to the terms of any such indenture or agreement or instrument, except as contemplated by the provisions of this Agreement, and does not and will not require the approval of any federal regulatory body or of any state or local commission or authority having jurisdiction with respect thereto, unless such approval has been obtained and is in full force and effect on the date hereof. (f) There is no action, proceeding or investigation now pending before any court or any governmental department or agency nor any basis therefor, known or believed to exist which: (i) questions the validity of this Agreement, or any of the Owner Documents or any action or act taken or to be taken by the Owner pursuant to this Agreement, or any of the Owner Documents; or (ii) is likely to result in a material adverse change in the authority, property, assets, liabilities, or condition of the Owner which will materially and substantially impair its ability to perform pursuant to the terms of this Agreement, or any of the Owner Documents. (g) The Senior Loan and Equity Capital will be used by the Owner for the purposes set forth herein. 10.02. The Authority represents and warrants as follows: (a) Necessary resolutions have been duly adopted by the Authority, authorizing the execution and delivery of this Agreement and authorizing and directing the persons executing this Agreement to do so for and on behalf of the Authority. (b) This Agreement and all agreements executed and delivered by the Authority as contemplated by this Agreement (the "Authority Documents") have been duly and validly executed by the Authority, as applicable, and constitute valid and legally binding obligations enforceable in accordance with their respective terms, except as limited by bankruptcy, insolvency, or other laws of general application relating to or affecting the enforcement of creditors' rights. (c) Neither the execution and delivery of this Agreement and the Authority Documents, nor compliance with the terms, conditions, and provisions hereof and thereof, will conflict with or result in a breach of the terms, conditions, or provisions of, or constitute a default under, any law or any regulation, order or decree of any court or governmental agency or any indenture or other agreement or instrument to which the Authority is subject. ARTICLE 11. DELAYS 11.01. For the purposes of any of the provisions of this Agreement, neither the Authority nor the Owner, as the case may be, nor any successor in interest, shall be considered in breach of, or default in, its obligations with respect to the preparation of the Property for construction, construction of the Project, or the beginning and completion of the Project, or progress with respect thereto, in the event of enforced delay in the performance of such obligations due to unforeseeable causes beyond its control and without its fault or negligence, including, but not restricted to, acts of God, acts of the public enemy, acts of the Federal Government, acts of other parties (excluding 15 150050438.5 acts of the Authority for which for purposes of this Section shall not be considered acts of other parties and shall be considered acts of the Authority), fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, severe energy shortages, other embargoes, pending litigation which will interfere with the Owner's ability to begin or to complete the construction of the buildings which comprise the Project, and unusually severe weather or delays of subcontractors due to such causes; it being the purpose and intent of this provision that in the event of the occurrence of any such enforced delay, the time or times for performance of the obligations of the Owner with respect to construction of the Project shall be extended for the period of the enforced delay. Within ten (10) days of actual notice of an excusable cause for delay hereunder, the party seeking to be relieved of its obligation to perform shall give written notice of the occurrence of the event to the other party hereto. ARTICLE 12. RIGHTS AND REMEDIES CUMULATIVE 12.01. The rights and remedies of the parties to this Agreement whether provided by law or by this Agreement shall be cumulative, and the exercise by any party of any one or more of such remedies shall not preclude the exercise by it, at the same or different times, of any other such remedies for the same default or breach or of any of its remedies for any other default or breach by any other party. No waiver made by any such party with respect to the performance, or manner or time thereof, or any obligation of any other party, or any condition to its own obligation under this Agreement, shall be considered a waiver of any rights of the party making the waiver with respect to the particular obligation of any other party or condition to its own obligation beyond those expressly waived in writing and to the extent thereof, or a waiver in any respect in regard to any other rights of the party making the waiver or any other obligations of any other party. ARTICLE 13. EXCESS FUNDS 13.01. To the extent that the costs of completing the construction and development of the Project are less than the sources of financing described in Article 2 hereof, or to the extent that the actual sources of financing are greater than the amounts described in Article 2 hereof, such excess funds available to the Owner shall be handled in the manner set forth in the LPA. ARTICLE 14. ATTORNEY OPINIONS 14.01. The parties hereto shall furnish such opinions of their respective attorneys as may be reasonably required. ARTICLE 15. COOPERATION AND COMPLIANCE 15.01. The parties hereto agree to cooperate with each other and provide all necessary documentation, certificates, and consents and to take all necessary action in order to satisfy the terms and conditions hereof and of the Ground Lease, the applicable laws, regulations, and agreements relating thereto. 15.02. Each party hereto agrees to comply with the terms and conditions of the applicable laws, regulations, and agreements relating to the Obligations. ARTICLE 16. NOTICES AND DEMANDS 16 150050438.5 16.01. A notice, demand or other communication under this Agreement by any party to the other shall be sufficiently given or delivered if dispatched by United States Registered or Certified Mail, or by nationally recognized overnight courier service, postage or charges prepaid and return receipt requested, or delivered personally (and receipt acknowledged) to the parties at their respective addresses set forth herein, or at such other address or addresses with respect to the parties or their counsels as any party may, from time to time, designate in writing and forward to the others as provided in this Article 16. Any notice to the Owner herein shall also be given to the Investor Limited Partner at the address provided in this Article 16. If to the Authority: Housing Authority of the City of Miami Beach 200 Alton Road Miami Beach, FL 33139 Attention: Miguell Del Campillo, Executive Director Phone: (305) 532-6401, ext. 3020 Email: miguell@hacmb.org If to the Owner: Vista Breeze, Ltd. 161 NW 6th Street, Suite 1020 Miami, FL 33136 Attn.: Kenneth Naylor Phone: 305-357-4700 Email: knaylor@apcommunities.com With copies to: Fox Rothschild LLP BNY Mellon Center 500 Grant Street, Suite 2500 Pittsburgh, PA 15219 Attn.: Michael H. Syme, Esq. Phone: 412-391-2450 Email: msyme@foxrothschild.com If to Investor Limited Partner: Bank of America, N.A. 100 Federal Street Boston, MA 02110 MA5-100-04-11 Attention: Asset Manager for Vista Breeze Apartments Email: lihtcreporting@bofa.com With copies to: Atlantic Pacific Communities 161 NW 6th Street, Suite 1020 Miami, FL 3313333136 Attn.: Michael Fincher, Esq. Phone: 404-200-8669 Email: mfincher@apcompanies.com With a copy to: Holland & Knight LLP 10 St. James Avenue Boston, MA 02116 Attention: Sara C. Heskett, Esq. Email: sara.heskett@hklaw.com ARTICLE 17. TITLE OF ARTICLES 17.01. The titles of the several Articles of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. 17 150050438.5 ARTICLE 18. SEVERABILITY 18.01. The validity of any article, section, clause, or provision of this Agreement shall not affect the validity of the remaining articles, sections, clauses or provisions hereof. ARTICLE 19. SUCCESSORS AND ASSIGNS BOUND 19.01. The Agreement shall be binding upon the respective parties hereto and their permitted successors and assigns. ARTICLE 20. GOVERNING LAW 20.01. In the event the Federal laws, and to the extent that Federal laws, do not apply to the within Agreement, this Agreement shall be governed by and construed in accordance with the laws of the State. ARTICLE 21. COUNTERPARTS 21.01. This Agreement may be executed in counterparts and all such counterparts shall be deemed to be originals and together shall constitute but one and the same instrument. ARTICLE 22. EXHIBITS 22.01. Any and all Schedules and Exhibits annexed to this Agreement are hereby made a part of this Agreement by this reference thereto. ARTICLE 23. ENTIRE AGREEMENT 23.01. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior oral and written agreements between the parties with respect to the subject matter hereof except as otherwise provided herein. ARTICLE 24. EFFECTIVE DATE 24.01. Anything herein contained to the contrary notwithstanding, the effective date of this Agreement shall be the date upon which all of the parties hereto have executed and delivered this Agreement and the date upon which all of the other agreements referred to herein or relative hereto have been fully executed and delivered by the parties to such agreements. ARTICLE 25. RECOURSE 25.01. Neither the Owner nor any partner, nor any member, stockholder, officer, or director of any partner of the Owner shall have any personal liability for the performance of the Owner's obligations hereunder, including any amounts payable hereunder, it being understood that the Authority's sole recourse shall be to the Property and Project and the rents and issues therefrom. Neither the Authority nor any successor thereof shall have any right to seek the performance of any obligation hereunder, including any amounts payable hereunder, out of the assets of any general or limited partner or partners of the Owner, except as provided in the Guaranty. 18 150050438.5 ARTICLE 26. PUBLICITY 26.01. The Owner agrees: (a) to cooperate with the Authority with respect to any publicity relating to the Obligations and the Project, and that it shall not schedule any publicity-related events relating thereto without at least twenty (20) business days' prior written notice to the Authority; (b) to prominently feature the Authority as a primary lender and co-sponsor on any and all promotional flyers, news releases, advertisements, brochures, posters, letters, printed materials, electronic broadcasts, and radio and television broadcasts concerning the Project; (c) that, except as required by law or regulation, the Owner will not disclose to any third party or to the public any information related to the Obligations without the Authority's prior written consent; and (d) to offer the Authority the opportunity to participate in any such publicity- related events. ARTICLE 27. CONSENT TO JURISDICTION AND SERVICE OF PROCESS 27.01. Each of the parties hereby (a) irrevocably submits to the jurisdiction of the courts of Miami-Dade County, Florida for the purposes of any action or proceeding arising out of or relating to this Agreement or the subject matter hereof and brought by any other party; and (b) waives and agrees not to assert, by way of motion, as a defense or otherwise, in any such action or proceeding, any claim that (i) it is not personally subject to the jurisdiction or such courts, (ii) the action or proceeding is brought in an inconvenient forum or (iii) the venue of the action or proceeding is improper. [SIGNATURE PAGES FOLLOWS] 150050438.5 Exhibit A LEGAL DESCRIPTION OF PROPERTY 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 Ground 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. 150050438.5 Exhibit B INSURANCE The Owner shall cause the appropriate entity to maintain and keep in force the following insurance: A. General Liability including bodily injury and property damage: $2,000,000 General Aggregate Limit (Other than Products & Completed Operations) $2,000,000 Products & Completed Operations Aggregate Limit $1,000,000 Per Occurrence $1,000,000 Personal Liability & Advertising Liability Insurance $1,000,000 Fire/Legal Liability $ 10,000 Medical Expense B. Excess and Umbrella Liability: $5,000,000 Per Occurrence $5,000,000 Aggregate C. Workers Compensation and Employers Liability: $500,000 Each Accident $500,000 Disease-Policy Limit $500,000 Disease-Each Employee D. Builders Risk: (1) The Owner shall have "All Risk" insurance against loss or damage by fire, flood and such other risks and matters, including without limitation, business interruption, rental loss and public liability. The amount of such insurance will not be less than 100% of the full replacement value of the Project, including the cost of debris removal, without deduction for depreciation. (2) Endorsement: Designated Construction Project General Aggregate Limits. E. Business Automobile Liability - $1,000,000 F. Professional Liability. The following contractors must be required to provide no less than $3,000,000 of professional liability coverage: 150050438.5 (a) Engineers (b) Architects; and (c) Attorneys G. To the extent prefabricated product(s) will be used, Riggers Liability in an amount appropriate for the situation and agreed upon by the Authority in writing. H. The Owner's insurance shall include the following: 1. Waiver of subrogation all liability policies. 2. Hold Harmless Agreement covering the Authority, and all successors and assigns, commissions, officers, directors, agents, lessees, employees and authorized representatives. 3. All Carriers should be "A" rated by AM Best, unless otherwise approved by the Lender. All policies of insurance (other than professional liability) must be made on an occurrence basis.