31. Forward Purchase Agreement
FORWARD PURCHASE AGREEMENT
THIS FORWARD PURCHASE AGREEMENT (this “Agreement”) is made and
entered into as of December 1, 2023, by and among BANK OF AMERICA, N.A., a national
banking association (“Seller”), CITIBANK, N.A., a national banking association (“Purchaser”),
and VISTA BREEZE, LTD., a Florida limited partnership (the “Borrower”). The date of this
Agreement as set forth above is for reference purposes only, and this Agreement will not be
effective and binding until the Closing Date (as hereinafter defined).
RECITALS
A. The Housing Authority of the City of Miami Beach, a public body corporate and
politic established pursuant to Chapter 421, Florida Statutes (the “Landlord”), is the legal owner
of fee simple title to the Land (as defined in the Forward Commitment Fee Security Instrument (as
hereinafter defined)) and pursuant to that certain Second Amended and Restated Ground Lease,
dated as of December 15, 2023, between the Landlord and the Borrower, the Borrower is the holder
of a leasehold interest in the Land.
B. The Borrower has applied to the Housing Finance Authority of Miami-Dade
County, Florida, a public body corporate and politic organized and existing under the laws of the
State of Florida (the “Governmental Lender”) for a loan (the “Borrower Loan”) for the
acquisition, construction, development and/or equipping of a 119-unit multifamily residential
project, located in the City of Miami Beach, Miami-Dade County, Florida, on the land described
in Exhibit A attached hereto, known or to be known as Vista Breeze (the “Project” or the
“Mortgaged Property”).
C. The Borrower has requested that the Governmental Lender enter into that certain
Funding Loan Agreement, dated as of December 1, 2023 (the “Original Funding Loan
Agreement”), among the Governmental Lender, The Bank of New York Mellon Trust Company,
N.A., a national banking association, as fiscal agent (the “Fiscal Agent”), and Seller, as Funding
Lender, pursuant to which Seller will make a loan to the Governmental Lender in the original
principal amount of $32,500,000 (the “Funding Loan” or the “Loan”), the proceeds of which
Governmental Lender will use to make the Borrower Loan.
D. The Governmental Lender has executed and delivered to the Seller its Multifamily
Housing Revenue Note, Series 2023 (Vista Breeze) dated as of the Closing Date (the
“Governmental Lender Note”) evidencing its obligation to make the payments due to the Seller
under the Funding Loan.
E. The proceeds of the Borrower Loan are being loaned and disbursed to Borrower
pursuant to that certain Construction Phase Borrower Loan Agreement, dated as of December 1,
2023 (the “Original Borrower Loan Agreement”). Borrower and Seller have also entered into
that certain Construction Disbursement Agreement, dated as of December 15, 2023 (the
“Disbursement Agreement”), which provides for the manner, procedures and conditions of
disbursements under the Borrower Loan.
F. The Borrower Loan is evidenced by that certain Construction Phase Project Loan
Note (the “Original Borrower Note”) dated as of December 15, 2023 (the “Closing Date”) made
- 2 -
Forward Purchase Agreement Vista Breeze
by Borrower payable to the order of Governmental Lender, as endorsed and assigned to Fiscal
Agent for the benefit of Seller.
G. The Borrower Loan is secured by, among other things, that certain Leasehold
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated as of December 15,
2023, executed by Borrower for the benefit of Governmental Lender (the “Original Security
Instrument”; and together with the Original Borrower Note, the Original Borrower Loan
Agreement, the Disbursement Agreement and all other documents executed in connection with the
Borrower Loan, collectively, the “Borrower Loan Documents”), which Original Security
Instrument will encumber the Mortgaged Property.
H. Pursuant to the Original Funding Loan Agreement, the Original Borrower Note, the
Original Security Instrument, the Original Borrower Loan Agreement, the Funding Loan
Documents (as defined in the Original Funding Loan Agreement; and together with the Borrower
Loan Documents, collectively, the “Loan Documents”) and all other Borrower Loan Documents
except for the Unassigned Rights (as defined in the Original Funding Loan Agreement), are being
assigned by the Governmental Lender to Fiscal Agent, for the benefit of the Seller to secure the
Funding Loan.
I. Pursuant to the terms and conditions of this Agreement, upon satisfaction of the
Conditions to Closing set forth in Article III and any other conditions herein, Purchaser has agreed
to purchase the Funding Loan in the maximum principal amount of up to $11,875,000 (the
“Maximum Permanent Period Amount”), as the same may be increased pursuant to the Earn-
Out Option set forth in Exhibit C to this Agreement, or such lesser amount as required by the terms
hereof. The terms and conditions of Purchaser’s purchase of the Funding Loan are set forth in this
Agreement. Upon such purchase of the Loan by Purchaser (subject to the terms hereof), the
Funding Loan will, pursuant to its terms, convert into a term loan in an aggregate principal amount
not to exceed the Permanent Period Amount (calculated in accordance with Exhibit C to this
Agreement), bearing interest at an annual rate equal to the Underwriting Rate (as defined in Exhibit
C to this Agreement), with a maturity date of July 1, 2057, a mandatory prepayment of the
Borrower Loan and, accordingly, the Funding Loan, required to be made no later than January 1,
2042, and with a forty (40) year amortization schedule (the “Permanent Loan”). If Purchaser does
not purchase the Loan from Seller for any reason whatsoever or if Borrower does not otherwise
refinance the Project with Purchaser pursuant to an alternative loan facility, the Loan will, at the
option of Seller, become immediately due and payable pursuant to the terms of the Loan
Documents, and Borrower shall be liable to Purchaser for a fee equal to the Forward Commitment
Fee (as defined in that certain Promissory Note (Forward Commitment Fee) dated as of the Closing
Date, by Borrower in favor of Purchaser), payable upon the Termination Date (as defined herein)
or any earlier date on which this Agreement terminates (the “Forward Commitment Fee”).
J. From and after the Conversion Date (as hereinafter defined) and the Purchaser’s
acquisition of the Funding Loan, the Borrower Loan shall be evidenced by that certain Amended
and Restated Multifamily Note (the “Permanent Borrower Note”), which Permanent Borrower
Note shall amend and restate and replace in its entirety the Original Borrower Note. Concurrently
therewith, the Original Security Instrument shall be assigned by Fiscal Agent (at the direction of
the Seller) to Governmental Lender, and shall subsequently be amended and restated and replaced
in its entirety by that certain Amended and Restated Multifamily Leasehold Mortgage, Assignment
- 3 -
Forward Purchase Agreement Vista Breeze
of Rents, Security Agreement and Fixture Filing (Florida) (“Amended and Restated Security
Instrument”), to be recorded on or about the Conversion Date. The Permanent Loan shall be
made to the Borrower pursuant to the terms of that certain Loan Covenant Agreement between
Purchaser and Borrower (the “Loan Covenant Agreement”).
K. The Amended and Restated Security Instrument will be assigned by Governmental
Lender to Fiscal Agent for the benefit of Purchaser, and will be recorded on or about the
Conversion Date.
L. As a condition precedent to the closing of the Loan, Seller requires that Borrower
and Purchaser execute this Agreement and enter into the agreements, and make the certifications,
set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and promises of the
parties herein contained, and for other good and valuable consideration, receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
PURCHASE OF LOAN
1.1 Sale and Purchase. Subject to the terms and conditions of this Agreement, Seller
agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, without recourse,
representation or warranty, the Funding Loan (which at the time of purchase shall have principal
outstanding equal to the Permanent Period Amount as defined in Section 2.1 hereof), together with
an assignment (or in the case of the opinions herein, delivery thereof) of all of Seller’s right, title
and interest, as “Lender,” “Funding Lender” or “Servicer” or otherwise (as applicable), in the
following documents or instruments relating to the Loan (collectively the “Assigned
Documents”):
(a) The Original Funding Loan Agreement, the Original Borrower Loan
Agreement, and the other Loan Documents, other than the Terminated Documents (as
hereinafter defined);
(b) (i) The original or a copy of the legal opinion letter addressed to Seller from
Borrower’s legal counsel, dated as of the Closing Date, and (ii) a new opinion letter
addressed to Purchaser from Borrower’s legal counsel, dated as of the Conversion Date;
(c) Except for the Terminated Documents (the “Terminated Documents”), as
listed in Schedule II to the form of Assignment and Assumption of Mortgage and Loan
Documents attached as Exhibit E-1 to this Agreement (the “Assignment and
Assumption”), original copies of all of the Loan Documents as listed in Schedule I to the
form of Assignment and Assumption, together with appropriate Uniform Commercial
Code financing statements and continuation statements (the “UCC Statements”) sufficient
to perfect (and maintain the perfection of) the security interest held by Seller in and to the
personalty and other collateral of Borrower described in the Original Security Instrument
(in each case, with evidence of filing thereon), together with all amendments thereto;
- 4 -
Forward Purchase Agreement Vista Breeze
(d) Any subordination agreements and/or tri-party agreements related to
subordinate financing or restrictions relating to the Project, including, without limitation,
the Approved Subordinate Debt (as defined in Exhibit B hereto), with evidence of
recording thereon;
(e) Each modification, amendment, assumption, release, or waiver letter, if any,
executed by Seller (if legally required) and/or Borrower (if legally required), pertaining to
any of the terms, covenants or conditions of the Loan, any obligor under the Loan and/or
any collateral for the Loan, with evidence of recording where appropriate; and
(f) Except for the Terminated Documents, all other instruments, agreements,
documents or reports (other than documents, memos, notes or reports prepared by
employees, agents, attorneys or representatives of Seller solely for the internal use of
Seller) affecting or relating to the Loan which were prepared and delivered to Seller in
connection with, or executed and delivered to Seller in connection with or as security for,
the Loan, including but not limited to any and all security agreements, collateral
assignments, pledge agreements, financial agreements, corporate authorizations, limited
liability company certificates, partnership consents and other corporate limited liability
company or partnership documents, legal opinion letters from Borrower’s counsel,
estoppel letters addressed to Borrower in connection with the Assigned Documents,
estoppel letters from Borrower, tenants on the Project or governmental authorities or
agencies, operating reports, environmental reports, site plans, surveys, soil and substrata
studies, architectural drawings, plans and specifications, engineering plans and studies,
floor plans, landscape plans, external written correspondence, insurance certificates or
policies, appraisals, financial statements of Borrower, any constituent parties of Borrower,
and any other obligors under the Loan; provided that notwithstanding the foregoing, Seller
shall not be responsible for delivering any reliance, read-and-rely or similar letters or
consents from any party to or for the benefit of Purchaser.
1.2 Form of Loan Documents and Subordinate Loan Documents. As of the Conversion
Date, Purchaser confirms that copies of the Assigned Documents and documents relating to the
Approved Subordinate Debt made to Borrower as of the date hereof have been delivered to, and
approved by, Purchaser.
1.3 Assignment and Assumption. As of the Conversion Date, the Assignment and
Assumption shall have been executed by Seller and Purchaser. On the Conversion Date, and upon
recordation of the Assignment and Assumption and delivery to Purchaser of the Assigned
Documents, the ownership of the Loan, and the interest of Seller in the Governmental Lender Note,
Original Security Instrument and the other Assigned Documents shall immediately vest in
Purchaser.
1.4 Terminated Documents. The foregoing provisions of this Article 1 to the contrary
notwithstanding, the Terminated Documents shall not be deemed Assigned Documents sold to
Purchaser, shall not be delivered to Purchaser, and substantially all of the provisions of such
Terminated Documents shall be released and terminated upon the Conversion Date, pursuant to
the Release and Termination Agreement to be executed by Borrower, Seller and Purchaser
substantially in the form attached hereto as Exhibit G to this Agreement (the “Release and
- 5 -
Forward Purchase Agreement Vista Breeze
Termination”); except to the extent of any provisions that, by the express terms of the Terminated
Documents or applicable law, survive any such termination.
ARTICLE 2
PURCHASE PRICE
2.1 Purchase Price. Provided that all of the Conditions to Closing set forth in Article 3
of this Agreement are satisfied, Purchaser shall purchase the Loan at par; provided, however, that
at Conversion, the Loan shall not exceed the principal amount of the Borrower Loan following the
calculation provided for in Exhibit C to this Agreement (the “Permanent Period Amount”),
which shall be calculated as follows:
(a) Borrower shall deliver to Purchaser the Conversion Package on or before
the Conversion Package Submission Date (as such terms are defined in Exhibit B hereto).
Provided that Purchaser receives the Conversion Package on or before the Conversion
Package Submission Date, Purchaser shall calculate the Permanent Period Amount in
accordance with Exhibit C to this Agreement based upon the Underwritten NOI (as defined
in Exhibit C hereto) from the Project during the Calculation Period (as defined in Exhibit
B hereto).
(b) Notwithstanding the provisions of Exhibit C to this Agreement or any other
provision to the contrary in the Original Borrower Note, in this Agreement or in the
Original Borrower Loan Agreement, the Permanent Period Amount (i) shall not exceed the
Maximum Permanent Period Amount or an amount that results in a loan-to-value ratio of
more than the Required Loan to Value Ratio (as defined in Exhibit C hereto) (as determined
by Purchaser) and (ii) subject to such restrictions, shall be the principal amount necessary
to cause the ratio of the Underwritten NOI to the amount of principal and interest due in a
12-month period on the Original Borrower Note following any reamortization of the
principal amount thereof as a result of a principal reduction, to equal no less than the
Required Debt Service Coverage Ratio (as defined in Exhibit C hereto).
(c) Following satisfaction of all of the Conditions to Conversion (as defined in
Exhibit B hereto), Purchaser shall deliver written notice to Seller, Fiscal Agent and
Borrower of: (i) the proposed Conversion Date, (ii) the amount of the Permanent Period
Amount, (iii) any required prepayment of the Original Borrower Note, and (iv) any
amendments to the amortization schedule for the Original Borrower Note, as applicable.
(d) Purchaser’s calculation of the Permanent Period Amount and any
amendments to the amortization schedule for the Borrower Loan shall be made in
accordance with Exhibit C to this Agreement and such determination shall be, in the
absence of manifest error, conclusive and binding on all parties.
2.2 Payment of Permanent Period Amount. The Permanent Period Amount shall be
payable at the Conversion Date by wire transfer of immediately available funds from Purchaser
directly to Seller or Fidelity National Title Insurance Company (the “Title Company”), as escrow
agent for further payment to Seller upon the satisfaction of the Conditions To Closing.
- 6 -
Forward Purchase Agreement Vista Breeze
2.3 Fees To Be Paid to Purchaser. Purchaser shall have received the following fees
from Borrower at or prior to the closing and initial disbursement of the Loan (the “Loan Closing”)
upon execution of this Agreement as provided below:
(a) Purchaser Loan Fee. Purchaser shall have received a loan fee equal to one
percent (1.0%) of the Maximum Permanent Period Amount and the Earn Out Amount (as
hereinafter defined) (the “Purchaser Loan Fee”). The Purchaser Loan Fee shall be paid
to Purchaser upon execution of this Agreement. The Purchaser Loan Fee shall not be
refundable.
(b) Other Fees. Borrower shall pay all reasonable out of pocket costs of
Purchaser, such as appraisal fees, legal fees, environmental review and consulting fees, and
all other costs related to this transaction (the “Expenses”). Purchaser hereby acknowledges
receipt of payment of a non-refundable application fee equal to $25,000 (the “Application
Deposit”), which shall be applied against payment of the Expenses, provided that Borrower
shall be responsible for the payment of all such Expenses if the foregoing Application
Deposit is insufficient for such purposes.
(c) Forward Commitment Fee. Borrower acknowledges that Purchaser has
entered into, and will continue to enter into, other contracts with other parties in reliance
upon Borrower’s fulfillment of Borrower’s obligations under this Agreement and the Loan
Documents. In the event Borrower fails to fulfill or otherwise breaches the terms,
provisions or conditions of this Agreement or the Loan Documents or the conditions to
Purchaser’s purchase of the Loan as set forth herein are never met, and, as a result,
Purchaser does not fund the purchase price hereunder, Borrower shall pay to Purchaser the
Forward Commitment Fee calculated as follows:
(i) In the event that Borrower voluntarily prepays the Borrower Loan
to any amount less than ninety percent (90%) of the Maximum Permanent Period
Amount on or prior to the Termination Date (the “Minimum Permanent Period
Amount”) and the Permanent Period Amount is funded, a fee shall be payable
which is equal to the greater of (i) the amount calculated pursuant to Purchaser’s
standard yield maintenance formula on the amount that is less than ninety percent
(90%) of the Maximum Permanent Period Amount, as determined by Purchaser in
accordance with this Agreement, and (ii) one percent (1%) of the amount that is
less than ninety percent (90%) of the Maximum Permanent Period Amount, as
determined by Purchaser in accordance with this Agreement.
(ii) If the Conditions to Conversion are not satisfied, or if Purchaser
terminates this Agreement in accordance with its terms, and in each case the
Permanent Period Amount is not funded, a yield maintenance premium shall be
payable which is equal to the greater of (i) the amount calculated pursuant to
Purchaser’s standard yield maintenance formula on the Maximum Permanent
Period Amount, as determined by Purchaser in accordance with this Agreement, or
(ii) two percent (2%) of the Maximum Permanent Period Amount, as determined
by Purchaser in accordance with this Agreement.
- 7 -
Forward Purchase Agreement Vista Breeze
Borrower’s obligation to pay the Forward Commitment Fee shall be evidenced by
a recourse Forward Commitment Note, which shall be secured by a subordinate deed to
secure debt encumbering the Mortgaged Property (the “Forward Commitment Fee
Security Instrument”) and shall be guaranteed for the benefit of Purchaser by the
Guarantor (as defined in the Forward Commitment Fee Security Instrument). The Forward
Commitment Fee shall be payable as liquidated damages to compensate Purchaser for
losses sustained on its other contracts, time spent, labor and services performed, loss of
interest and any other loss which might be incurred by Purchaser in connection with this
transaction, it being understood that Purchaser’s damages are not fully capable of being
ascertained at this time and that the Forward Commitment Fee represents Borrower’s and
Purchaser’s best estimate at this time of such damages. In such event, Borrower shall have
no further liability to Purchaser for any breach of this Agreement or the Loan Documents.
ARTICLE 3
CONDITIONS TO PURCHASE
3.1 Conditions to Purchaser’s Purchase. Purchaser’s obligation to purchase the Loan
at the Conversion Date shall be subject to only the following specific conditions precedent (the
“Conditions to Closing”):
(a) Compliance with Conditions to Conversion. It shall be a Condition to
Closing that Borrower or any other relevant party shall have complied with the Conditions
to Conversion set forth on Exhibit B to this Agreement to the extent applicable to each such
party. Borrower and Seller acknowledge that Purchaser shall have the exclusive right to
determine whether and to what extent the Conditions to Conversion set forth on Exhibit B
are satisfied and to determine the actual Permanent Period Amount. Seller and Borrower
acknowledge that, with regard to the Condition to Conversion relating to completion of the
Improvements (as defined in the Disbursement Agreement), such Improvements shall be
required to be completed in substantial accordance with the Plans and Specifications
approved by Purchaser (unless otherwise approved by Purchaser). In order to facilitate
Purchaser’s determination of the satisfaction of the Conditions to Conversion and
calculation of the Permanent Period Amount, Borrower shall submit to Purchaser for its
review, approval and reliance, the Conversion Package and each of the documents
collected with respect to Borrower, any managing members, general partners or managers
of Borrower, the Project and the Improvements (collectively, the “Underwriting
Documents”) specified in this Agreement, the Disbursement Agreement or as otherwise
requested by Purchaser, each in accordance with the submission deadlines applicable to
each such document. In addition, once Purchaser has approved any Underwriting
Document, any further additions or changes to such Underwriting Document must be
resubmitted to Purchaser for approval. Purchaser’s determination of the satisfaction of
Conditions to Conversion and calculation of the Permanent Period Amount and any
amendments to the amortization of the Loan shall be, in the absence of manifest error,
conclusive and binding on all parties.
(b) Borrower Payment. Borrower shall have made all payments of any accrued
and outstanding interest on the Original Borrower Note and to reduce the aggregate
principal due and owing thereunder to the Permanent Period Amount.
- 8 -
Forward Purchase Agreement Vista Breeze
(c) Loan Documents. Borrower, Guarantor, Governmental Lender and Fiscal
Agent, as applicable, shall have executed and delivered to Purchaser each of the Loan
Documents in the respective forms annexed to this Agreement as Exhibit D to this
Agreement.
(d) Assigned Documents; Additional Documents. Seller shall have delivered to
Purchaser directly or through the Title Company the original, fully executed Assigned
Documents. Borrower shall have executed (or caused to be executed) and Seller shall have
delivered to Purchaser such amendments to the Assigned Documents and/or such
additional documents as Purchaser may reasonably require (the “Additional Documents”)
in order to satisfy the Conditions to Closing or other terms of this Agreement.
(e) Payment of Purchaser Fees and All Other Costs. Borrower shall have paid
Purchaser any and all fees in accordance with the terms and conditions of this Agreement,
the Disbursement Agreement and Original Borrower Loan Agreement. All outstanding
actual costs, expenses, taxes and actual attorneys’ fees incurred by Purchaser in connection
with the Loan Closing and the sale of the Loan shall have been paid by Borrower to
Purchaser, including (without limiting the generality of the foregoing) escrow fees and
costs, recording costs, title insurance premiums, flood certification, tax service contract (if
any), appraisal fees, mortgage tax (if any), fees paid to attorneys in connection with
preparation of documents, or providing legal advice or opinions and all other fees, costs
and expenses contemplated by this Agreement and the Loan Documents.
(f) Loan Purchase Documents. Seller shall have duly executed (or authorized
the Fiscal Agent to execute as applicable) and delivered (i) to Purchaser (A) an original
certificate of Seller, in the form attached hereto as Exhibit F to this Agreement (the “Seller
Certificate”), certifying that all information contained therein shall be true and correct, (B)
an original, notarized Assignment and Assumption, in recordable form, (C) an original
endorsement to the Multifamily Housing Revenue Note, Series 2023 (Vista Breeze) in the
form attached hereto as Exhibit E-2 to this Agreement, (D) an original endorsement to the
Original Borrower Note in the form attached hereto as Exhibit E-3 executed as of the
Conversion Date, and (ii) to Fiscal Agent, the Notice to Fiscal Agent in the form attached
hereto as Exhibit I (“Notice to Fiscal Agent”).
(g) Legal Opinion. Purchaser shall have received (i) an original opinion of
Borrower’s legal counsel addressed to Seller, dated as of the Loan Closing and (ii) a
reliance letter from Borrower’s legal counsel, authorizing Purchaser to rely on the opinion
delivered to Seller by Borrower’s legal counsel at the Loan Closing, together with a new
original opinion of Borrower’s legal counsel, addressed to Purchaser and dated as of the
Conversion Date. Such opinion shall be in form and substance reasonably satisfactory to
Purchaser, and shall address the legality, validity, authorization and enforceability of the
Loan and the Assigned Documents.
(h) Security Interest. Purchaser shall have a first priority perfected security
interest in the Project, subject to the Permitted Encumbrances (as defined herein), and
Borrower shall authorize and deliver any and all financing statements and fixture filings
- 9 -
Forward Purchase Agreement Vista Breeze
required in connection therewith, which financing statements shall have been filed in the
appropriate office therefor.
(i) Recordation of Documents. The Amended and Restated Security
Instrument and Assignment and Assumption and all Loan Documents which, by their
express terms, are required to be recorded, must be delivered and released to the Title
Company for recording.
3.2 Conditions to Seller’s Sale. Seller’s obligation to sell the Loan at the Conversion
Date shall be subject to only the following specific conditions precedent:
(a) Payment of Permanent Period Amount. Purchaser shall have paid Seller the
Permanent Period Amount.
(b) Payment by Borrower of Note Balance. Borrower shall have paid Seller the
difference, if any, between the Permanent Period Amount and the amount of outstanding
principal, accrued interest and costs and expenses on the Loan as of the Conversion Date.
(c) Seller’s Costs. Seller’s costs, expenses, taxes and attorneys’ fees in
connection with the Loan Closing and the sale of the Loan to Purchaser shall have been
paid as otherwise mutually agreed by Borrower and Seller in the Disbursement Agreement
and other Loan Documents.
(d) Release and Termination. Borrower shall have executed and delivered to
Seller and Purchaser the Release and Termination dated as of the Conversion Date.
ARTICLE 4
CONVERSION
4.1 Time of Conversion. The closing of the sale of the Loan by Seller to Purchaser and
the recordation of the Assignment and Assumption (the “Conversion”), shall occur on or before a
date no later than ten (10) Business Days following satisfaction of all of the conditions set forth in
Article 3 of this Agreement (such date, the “Conversion Date”). The precise date and time of the
Conversion Date shall be mutually determined by Seller and Purchaser; provided, however, the
Conversion Date shall not occur later than July 1, 2026 (the “Termination Date”). If the
Conversion Date is extended by the Seller by six (6) months as contemplated in Section 2.1 of the
Disbursement Agreement (the “First Extended Construction Loan Maturity Date”), then the
Termination Date shall be extended to January 1, 2027 (the “First Extended Termination Date”).
Further, if the First Extended Construction Loan Maturity Date is further extended, as Seller
determines in its discretion, then the First Extended Termination Date may be further extended to
a date that is no later than July 1, 2027 (the “Second Extended Termination Date”). In the event
the Conversion Date has not occurred by the Termination Date, then Purchaser shall have the
independent right, in its sole and absolute discretion, to either terminate this Agreement or extend
the Termination Date to a date that is mutually acceptable to Purchaser and Seller. In the event the
Termination Date is extended to the First Extended Termination Date, an additional 0.05% will be
added to the interest rate set forth in the Permanent Borrower Note. In the event the Termination
Date is further extended from the First Extended Termination Date to the Second Extended
- 10 -
Forward Purchase Agreement Vista Breeze
Termination Date, an additional 0.05% will be added to the interest rate set forth in the Permanent
Borrower Note.
4.2 Procedure for Conversion and Sale. The sale of the Loan to Purchaser shall close
by the Title Company, as escrow agent: (a) delivering the Assigned Documents to Purchaser, if
not previously delivered to Purchaser; (b) delivering the Additional Documents to Purchaser, if
not previously delivered to Purchaser; (c) recording a fully executed original of the Assignment
and Assumption in the Office of the County Recorder where the Mortgaged Property is located;
(d) filing of UCC-3 forms of assignment in the appropriate filing office; (e) issuing a new or re-
issued title policy in the form required under Exhibit B to this Agreement and in form and
substance satisfactory to Purchaser; (f) paying Seller in immediately available funds: (i) the
Permanent Period Amount, (ii) any payment of principal required from Borrower to reduce the
principal amount outstanding under the Loan and the Original Borrower Note to the Permanent
Period Amount and (iii) the payment from Borrower of accrued interest and other fees and charges
owed to Seller, if any; (g) delivering the original Assignment and Assumption to Seller and
Purchaser (each receiving the original signature of the other party thereto); (h) delivering the
original Release and Termination to Seller, Purchaser and Borrower (each receiving the original
signatures of the other parties thereto); (i) delivering an original opinion of legal counsel for the
Borrower to Purchaser or reliance letter (together with the appropriate bring-down letter), as set
forth in Section 3.1 above; (j) delivering to the Fiscal Agent the Notice to Fiscal Agent and an
executed copy of the Wire Instructions Transfer executed by Purchaser, in the form attached hereto
as Exhibit J; and (k) otherwise complying with the terms of the escrow instructions from Purchaser
and/or Seller to the Title Company.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
5.1 Representations of Seller. Seller represents and warrants to Purchaser as of the date
hereof that:
(a) Sole Owner. Seller is the sole legal and beneficial owner and holder of the
Loan, free and clear of any and all liens and security interests in favor of any other party,
other than Unassigned Rights retained by Governmental Lender.
(b) Authority. Seller, and the officers acting on its behalf, have all requisite
power and authority to execute and deliver, and to perform all of its obligations under this
Agreement and all instruments and other documents required to be executed and delivered
by Seller in connection herewith.
(c) Binding Obligation. This Agreement constitutes the valid, legal and
binding agreement of Seller, and is enforceable against Seller in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws of general applicability relating to or affecting the
enforcement of creditors’ rights and/or by general equitable principles which may limit the
availability of equitable remedies, including without limitation, the remedy of specific
performance.
- 11 -
Forward Purchase Agreement Vista Breeze
(d) Brokers. Seller has not engaged any broker or finder or incurred or become
obligated to pay any broker’s commission or finder’s fee in connection with the
transactions contemplated by this Agreement.
5.2 Representations of Purchaser. Purchaser represents and warrants to Seller as of the
date hereof that:
(a) Authority. Purchaser and the officers acting on its behalf have all requisite
power and authority to execute and deliver, and to perform all of its obligations under this
Agreement and under all instruments and other documents to be executed and delivered by
Purchaser in connection herewith.
(b) Binding Obligation. This Agreement constitutes the legal, valid and
binding obligation of Purchaser enforceable against Purchaser in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws of general applicability relating to or affecting the
enforcement of creditors’ rights and/or by general equitable principles which may limit the
availability of equitable remedies, including without limitation, the remedy of specific
performance.
(c) Brokers. Purchaser has not engaged any broker or finder or incurred or
become obligated to pay any broker’s commission or finder’s fee in connection with the
transactions contemplated by this Agreement.
(d) Independent Decision. Purchaser represents that it has made and will make
independently and without reliance on Seller, or any other party, or upon the officers,
directors, agents, attorneys or employees of Seller or any other party, and based on such
documents and information as it has deemed appropriate, including, without limitation, the
Underwriting Documents, its own credit and legal evaluation of the Loan and Borrower,
and valuation of the Project, and the decision to enter into this Agreement. Neither Seller
nor its officers, directors, agents, attorneys or employees shall be deemed an agent for
Purchaser or be deemed to have assumed any fiduciary obligation toward or relationship
of Governmental Lender with or for Purchaser in connection with the Permanent Loan or
the Underwriting Documents.
5.3 Representations of Borrower. As of the date hereof, Borrower represents and
warrants to Seller and Purchaser that:
(a) Authority. Borrower has all requisite power and authority to execute and
deliver, and to perform all of its obligations under this Agreement and under all instruments
and other documents to be executed and delivered by Borrower in connection herewith.
The transactions contemplated by this Agreement are and will be in all respects valid and
legal. Borrower warrants that all information in the loan application and the financial
statements and other documents submitted by, or on behalf of, Borrower in connection with
the Loan, this Agreement and/or the Project, including, without limitation, the
Underwriting Documents (hereinafter referred to collectively as the “Application
Documents”) was correct in all material respects when made, that no material information
- 12 -
Forward Purchase Agreement Vista Breeze
was omitted from the Application Documents, that there has been no materially adverse
change in any condition or fact stated in the Application Documents between the date of
the applicable document and the date hereof.
(b) Organization. Borrower and each general partner of Borrower is duly
formed and is validly existing pursuant to the laws of the State of Florida, is in full
compliance with all requirements for its formation and existence and has continuously been
in existence.
(c) Binding Obligation. This Agreement constitutes a legal, valid and binding
obligation of Borrower enforceable against Borrower in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws of general applicability relating to or affecting the
enforcement of creditors’ rights and/or by general equitable principles which may limit the
availability of equitable remedies, including without limitation, the remedy of specific
performance.
(d) No Actions, Suits or Proceedings. There are no actions, suits or proceedings
at law or in equity now pending or, to Borrower’s best knowledge, overtly threatened
against or affecting the Project or Borrower, its sponsor, or any of Borrower’s general
partners, which would have a material adverse effect on the Project or the financial
condition of Borrower, and there are no facts now in existence that, with the giving of
notice or the lapse of time, or both, would form the basis for any such action, suit or
proceeding. To its knowledge, Borrower is not in default with respect to any order, writ,
injunction, decree or demand of any court or any Governmental Lender.
(e) No Voluntary Bankruptcy. Neither Borrower nor any of its general partners
have: (i) filed a petition for relief under the United States Bankruptcy Reform Act of 1978,
as amended from time to time, or any substitute or replacement legislation (the
“Bankruptcy Code”), or under any other present or future state or federal law regarding
bankruptcy, reorganization or other debtor relief law; (ii) filed a pleading or an answer in
any involuntary proceeding under the Bankruptcy Code or other debtor relief law which
admits the jurisdiction of the court or the petition’s material allegations regarding
Borrower’s (or its general partners’) insolvency; (iii) made a general assignment for the
benefit of creditors; or (iv) applied for, or suffered the appointment of, a receiver, trustee,
custodian or liquidator of Borrower (or its general partners) or any of their respective
property.
(f) No Involuntary Bankruptcy. No involuntary petition under the Bankruptcy
Code or under any other debtor relief law has been filed against Borrower or its general
partners or in any way restrains or limits Borrower or its general partners or Seller or
Purchaser, regarding the Loan or the Project.
(g) FIRPTA Compliance. Borrower is a “United States Person” within the
meaning of Section 7702(a)(30) of the Code. The “Code” shall mean the Internal Revenue
Code of 1986, the Regulations (whether temporary or final) under that Code or the statutory
predecessor of that Code, and any amendments of, or successor provisions to, the foregoing
- 13 -
Forward Purchase Agreement Vista Breeze
and any official rulings, announcements, notices, procedures and judicial determinations
regarding any of the foregoing, all as and to the extent applicable. Unless otherwise
indicated, reference to a Section includes any applicable successor section or provision and
such applicable Regulations, rulings, announcements, notices, procedures and
determinations pertinent to that Section.
(h) Affiliation of Parties. Borrower is not affiliated, directly or indirectly, with
Seller or with any of the respective subsidiaries, affiliates or officers of Seller; provided,
no representation is made with respect to persons that own, directly or indirectly, interests
in Borrower’s investor limited partner.
(i) Brokers. Borrower has not engaged any broker or finder or incurred or
become obligated to pay any broker’s commission or finder’s fee in connection with the
Loan or the transactions contemplated by this Agreement.
5.4 Disclaimer.
(a) Obligations of Seller. Notwithstanding anything to the contrary in this
Agreement, Seller shall have no obligation to sell the Loan if (a) Borrower fails to satisfy
Seller’s requirements in this Agreement or in the Loan Documents or (b) Seller reasonably
determines that any condition to Purchaser’s purchase of the Loan in accordance with this
Agreement has not been timely satisfied by Borrower as required under this Agreement.
(b) Obligations of Purchaser. Notwithstanding anything to the contrary in this
Agreement, Purchaser shall have no obligation to purchase the Loan if Borrower or Seller
fails to satisfy Purchaser’s requirements in this Agreement to purchase the Loan or
Purchaser reasonably determines that any condition to Purchaser’s purchase of the Loan in
accordance with this Agreement has not been timely satisfied by Borrower or Seller as
required under this Agreement.
5.5 Payment and Performance Bonds. Seller and Purchaser acknowledge and agree that
each of them have been named as dual obligees under the payment and performance bonds issued
in connection with the Project, as their respective interests may appear. Notwithstanding the
foregoing, prior to Conversion, Seller shall have the sole right to claim and collect on the proceeds
of such payment and performance bonds. Purchaser shall have no right to claim and collect on the
proceeds of such payment and performance bonds until after Conversion. Purchaser agrees that,
prior to Conversion, Seller is hereby authorized and empowered to take any and all actions and
exercise any and all rights relating to such payment and performance bonds. Purchaser shall not
take any actions or exercise any rights relating to such payment and performance bonds until after
Conversion.
ARTICLE 6
COVENANTS OF SELLER
6.1 Modification of Loan; Release of Security.
- 14 -
Forward Purchase Agreement Vista Breeze
(a) Without the prior written consent of Purchaser (which consent shall not be
unreasonably withheld, conditioned or delayed), Seller will not modify, amend, cancel,
extend, release, waive or otherwise change in any manner any of the terms, covenants,
conditions or obligors under any of the Assigned Documents in any material respect to the
extent that they apply to the Permanent Loan. Without the prior written consent of
Purchaser or except as otherwise contemplated by the Assigned Documents, Seller shall
not cause the subordination of the Original Security Instrument or the release of any
security for the Loan which is intended to be assigned to Purchaser hereunder.
(b) Without the prior written consent of Purchaser, which shall not be
unreasonably withheld, Seller shall not consent to any replacement of Atlantic Pacific
Community Management, LLC, a Delaware limited liability company, as property
manager of the Project (“Property Manager”), or to any changes to the Management
Agreement for the Project, executed as of the Closing Date, by and between Borrower and
Property Manager. Notwithstanding the foregoing, at the request of Borrower, Seller may
consent to the replacement of the Property Manager by the Landlord within thirty-six (36)
months of stabilization, subject to the discretionary approval of Purchaser, Equity Investor
and Governmental Lender.
(c) Without the prior consent of Purchaser, which shall not be unreasonably
withheld, Seller shall not consent to any material amendments to the Partnership
Agreement (as defined in Exhibit B hereto).
ANY BREACH OF COVENANTS CONTAINED IN THIS SECTION 6.1 WHICH ARE
MATERIAL TO PURCHASER’S PERMANENT LOAN UNDERWRITING WILL, AT THE
SOLE AND ABSOLUTE DISCRETION OF PURCHASER RESULT IN THE TERMINATION
OF THIS AGREEMENT. PURCHASER’S SOLE AND EXCLUSIVE REMEDY FOR SUCH
BREACH SHALL BE THE TERMINATION OF THIS AGREEMENT AND ENTITLEMENT
TO RECEIVE FROM BORROWER ANY FEE UNDER THE TERMS OF THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, ANY FORWARD COMMITMENT FEE TO WHICH
PURCHASER IS ENTITLED UNDER THE FORWARD COMMITMENT FEE NOTE OR
HEREUNDER.
6.2 Pendency of Action. Upon actual knowledge thereof, Seller shall promptly notify
Purchaser of the institution or pendency of any action, suit, or proceeding against or affecting the
Loan, the Project or Improvements, Borrower, or any of Borrower’s general partners and shall
deliver to Purchaser copies of all notices and other writings relating to said actions promptly upon
receipt thereof.
6.3 Transfer of Loan. Prior to the Conversion Date or termination of this Agreement,
Seller shall not transfer, assign, sell, convey, hypothecate, or otherwise alienate the Loan or
negotiate or attempt to negotiate the transfer, assignment, sale, conveyance, hypothecation, or
other alienation of the Loan without in each case Purchaser’s prior written consent, which consent
shall not be unreasonably withheld, conditioned or delayed. Anything in this Agreement or the
Loan Documents to the contrary notwithstanding, without notice to or consent of any party or the
need to comply with any of the formal or procedural requirements of this Agreement or the Loan
Documents, (a) the Seller and/or any eligible transferee, assignee, purchaser or participant may (to
- 15 -
Forward Purchase Agreement Vista Breeze
the fullest extent permitted under applicable law) at any time and from time to time pledge and
assign any or all of its right, title and interest in, to and under all or any of the Loan or the Loan
Documents to a Federal Reserve Bank; provided, however, that prior to Conversion, any such
pledge and/or assignment shall have been released by such Federal Reserve Bank, and (b) the
Seller may transfer the Loan to any wholly owned affiliate or may sell, assign or grant
participations in all or any portion of its interests and rights under the Loan and Loan Documents
so long as the Seller remains as the holder of the Loan.
ARTICLE 7
NOTICE OF DEFAULT
7.1 Notice of Default; Borrower’s and Seller’s Right to Cure.
7.1.1 Notice of Default. Concurrently with the delivery by Purchaser to Borrower
of any notice of default under this Agreement, Purchaser shall deliver to Seller a copy of any such
notice of default at the address of each set forth in Section 8.2 below.
7.1.2 Seller’s and Borrower’s Right to Cure Default. Notwithstanding anything
to the contrary in the Loan Documents, Seller or Borrower shall not be in default under this
Agreement, nor shall Purchaser be entitled to exercise any rights and remedies it may have arising
out of Seller’s or Borrower’s failure to satisfy any of the terms, conditions and/or covenants set
forth in this Agreement, until and unless Purchaser has notified Borrower and Seller in writing of
the occurrence of any such default (that continues beyond any applicable notice and cure period)
in accordance with the terms and conditions of Section 7.1.1 and Seller (with no obligation to do
so) or Borrower has failed to cure such default or breach prior to the Termination Date. If any such
default or breach is not cured within the period specified above in this Section 7.1.2, then Purchaser
may, at its option, exercisable by written notice to Seller and Borrower:
(a) terminate Purchaser’s obligations under this Agreement including but not
limited to Purchaser’s obligation to purchase the Loan; or
(b) waive the defaults that have not yet been cured or extend the time for cure
of such defaults, in which event this Agreement will remain in full force and effect.
7.2 Notice to Purchaser of Default Under Loan. Concurrently with the delivery by
Seller to Borrower of any notice of default under the Loan Documents, Seller shall send to
Purchaser a copy of any such notice of default at the address set forth in Section 8.2 below.
Notwithstanding anything stated to the contrary in the Loan Documents or this Agreement, in no
event shall the occurrence of a default under the Loan constitute a default under this Agreement or
entitle Purchaser to terminate this Agreement or exercise any other rights or remedies it may have
hereunder, except to the extent that such default has not been cured within the cure period as set
forth in Section 7.1.2 above.
7.3 Default by Seller. Seller shall be in default hereunder upon the occurrence of any
one or more of the following events:
- 16 -
Forward Purchase Agreement Vista Breeze
(a) any of Seller’s representations or warranties set forth in this Agreement
prove to be materially untrue or inaccurate in any material respect on the date when made;
or
(b) Seller shall fail to meet, substantially comply with or perform any covenant,
agreement, or obligation within the time limits and in the manner required in this
Agreement.
The parties acknowledge that, in the event of a default by Seller hereunder (except a breach by
Seller of the covenants contained in Section 6.1 above), damages would be an inadequate remedy.
Accordingly, with that exception, in the event of a default by Seller hereunder, Purchaser and/or
Borrower shall have the right to obtain specific performance of this Agreement against Seller. In
addition to the other remedies of Purchaser hereunder, if the Conversion Date does not occur by
the Termination Date as a result of non-performance by Seller of its obligations under this
Agreement, Purchaser may terminate this Agreement.
7.4 Default by Purchaser. Purchaser shall be in default hereunder upon the occurrence
of any one or more of the following events:
(a) any of Purchaser’s representations or warranties set forth in this Agreement
are materially untrue or inaccurate in any material respect on the date when made; or
(b) Purchaser shall fail to meet, substantially comply with or perform any
covenant, agreement, or obligation within the time limits and in the manner required in this
Agreement.
The parties acknowledge that, in the event of a default by Purchaser hereunder, damages would be
an inadequate remedy. Accordingly, in the event of a default by Purchaser hereunder, Seller and
Borrower shall each, separate and independent of one another, have the right to obtain specific
performance of this Agreement against Purchaser. In addition to the other remedies of Seller
hereunder, if the Conversion Date does not occur by the Termination Date as a result of non-
performance by Purchaser of its obligations under this Agreement, Seller may terminate this
Agreement.
7.5 Default by Borrower. Borrower shall be in default hereunder upon the occurrence
of any one or more of the following events:
(a) any of Borrower’s representations or warranties set forth in this Agreement
are materially untrue or inaccurate in any material respect on the date when made; or
(b) Borrower shall fail to meet, comply with or materially perform any
covenant, agreement, or obligation within the time limits and in the manner required in this
Agreement.
In the event of a default by Borrower hereunder, and if such default is not cured within the time
periods set forth in Section 7.1.2 above, the sole and exclusive remedy of Purchaser shall be to
terminate this Agreement and collect from Borrower any amounts set forth in Section 2.3 above.
Furthermore, in the event of a default by Borrower hereunder, Seller shall have all the rights and
- 17 -
Forward Purchase Agreement Vista Breeze
remedies available to Seller under the Loan Documents. Seller and Purchaser acknowledge and
agree that Borrower’s investor limited partner, or its designees, shall have the right, but not the
obligation, to cure any default on behalf of Borrower hereunder, and the same shall be accepted as
if made by Borrower itself.
ARTICLE 8
NOTICES
8.1 Method of Delivery. All notices and demands given pursuant to the terms hereof
shall be given in writing delivered in person, by commercial courier, or by registered or certified
mail, return receipt requested, with all postage and fees fully prepaid. Notices shall be considered
delivered upon receipt by a person commonly accepting delivery of letters or parcels at the
recipient’s address, such receipt to be as indicated by the return receipt if the notice was sent by
mail; except that, upon an attempt to effectuate service of notice as provided herein, if the party
being sent the notice either (a) refuses to accept delivery, or (b) has moved and no notice has been
served upon the party sending the notice in question informing it of the recipient’s new address,
then the party to whom the notice was intended to be served shall be deemed to have received the
notice upon the attempt to deliver it at the last address for the intended recipient as to which the
sender had notice. Notices shall be addressed as specified below, subject to the right of either party
to change the address for service of notice on it by such party serving a notice upon the other of
the new address, except that any change of address to a post office box shall not be effective unless
a street address is also specified for use in effectuating personal service.
8.2 Address for Notices.
(a) The address of Seller for all purposes under this Agreement and for all
notices hereunder shall be:
Bank of America, N.A.
401 E. Las Olas Blvd.
Fort Lauderdale, Florida 33301
FL6-812-18-02
Attention: Binyamin Rosenbaum
With a copy to:
Bank of America, N.A.
101 East Kennedy Blvd., 6th Floor
P.O. Box 31590
Tampa, FL 33602
Mail Stop: FL1-400-06-13
Attention: CREB Loan Administration
With a copy to:
Holland & Knight LLP
31 West 52nd Street, 11th Floor
- 18 -
Forward Purchase Agreement Vista Breeze
New York, NY 10019
Attention: Kathleen M. Furey, Esq.
(b) The address of Purchaser for all purposes under this Agreement and for all
notices hereunder shall be:
Citibank, N.A.
388 Greenwich Street, Trading 4th Floor
New York, New York 10013
Attention: Transaction Management Group
Re: Vista Breeze
Deal ID No. 60001596
Facsimile: (212) 723-8209
Citibank, N.A.
325 East Hillcrest Drive, Suite 160
Thousand Oaks, California 91360
Attention: Operations Manager/Asset Manager
Re: Vista Breeze
Deal ID No. 60001596
Facsimile: (805) 557-0924
Citibank, N.A.
388 Greenwich Street, Trading 4th Floor
New York, New York 10013
Attention: Account Specialist
Re: Vista Breeze
Deal ID No. 60001596
Facsimile: (212) 723-8209
With a copy of any default notice to:
Citibank, N.A.
388 Greenwich Street, 17th Floor
New York, New York 10013
Attention: General Counsel’s Office
Re: Vista Breeze
Deal ID No. 60001596
Facsimile: (646) 291 5754
(c) The address of Borrower for all purposes under this Agreement and for all
notices hereunder shall be:
- 19 -
Forward Purchase Agreement Vista Breeze
Vista Breeze, LTD.
c/o Atlantic Pacific Communities
161 NW 6th Street, Suite 1020
Miami, Florida 33136
Attention: Kenneth Naylor
With a copy to:
Klein Hornig LLP
1325 G Street NW, Suite 770
Washington, D.C. 20005
Attention: Chris Hornig, Esq.
With a copy to:
Vista Breeze HACMB, Inc.
c/o 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
With a copy to:
Fox Rothschild LLP
BNY Mellon Center
500 Grant Street, Suite 2500
Pittsburgh, PA 15219
Attention: Michael H. Syme, Esq.
Email: msyme@foxrothschild.com
Phone: (412) 391-2450
(d) The address of Equity Investor for all purposes under this Agreement and
for all notices hereunder shall be:
Bank of America, N.A.
MA5-100-04-11
100 Federal Street
Boston, MA 02110
Attention: Tax Credit Asset Management (Vista Breeze)
Holland & Knight LLP
10 St. James Avenue
Boston, MA 02116
Attention : Sara C. Heskett, Esq.
- 20 -
Forward Purchase Agreement Vista Breeze
ARTICLE 9
MISCELLANEOUS
9.1 Entire Agreement. This Agreement (including the exhibits hereto) contains the
entire agreement among the parties regarding the sale and purchase of the Loan, and no oral
statements or prior written matter not specifically incorporated herein shall be of any force and
effect. No variation, modification, or changes hereof shall be binding on any party hereto unless
set forth in a document executed by all parties.
9.2 Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and upon their respective legal representatives, successors and
assigns. Except as permitted under Section 6.3, any assignment of this Agreement by Seller or
Purchaser (other than an assignment involving the sale of all or substantially all of the assets of
either such institution) without the consent of the other institution shall be null and void and of no
force and effect.
9.3 Time of Essence. Time is of the essence in the execution and performance of this
Agreement and of each provision hereof.
9.4 Terminology. Wherever required by the context, any gender shall include any other
gender, the singular shall include the plural, and the plural shall include the singular.
9.5 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida.
9.6 Severability. In case any one or more of the provisions contained in this Agreement
shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall
be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.
9.7 Attorneys’ Fees. In the event of any action at law or in equity in relation to this
Agreement, the losing party shall pay the prevailing party’s reasonable attorneys’ fees and costs.
9.8 Rules of Construction. The parties acknowledge that each party and its counsel
have reviewed and commented as to the terms and conditions of this Agreement, and the parties
hereby agree that normal rules of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this Agreement or
amendments or exhibits hereto.
9.9 Counterparts. This Agreement and any exhibits attached hereto requiring
signatures may be executed in any number of counterparts, each of which shall be an original, but
all of which together shall constitute but one instrument.
9.10 Exhibits. Each of the Exhibits attached hereto is hereby incorporated by reference
into this Agreement.
9.11 Determinations by Purchaser or Seller. In any instance where the consent or
approval of Purchaser may be given or is required, or where any determination, judgment or
- 21 -
Forward Purchase Agreement Vista Breeze
decision is to be rendered by Purchaser or Seller under this Agreement, including in connection
with determination of the satisfaction of the Conditions to Conversion or the Conditions to Closing,
the granting, withholding or denial of such consent or approval and the rendering of such
determination, judgment or decision shall be made or exercised by Purchaser or Seller (or their
respective designated representative), at its sole and exclusive option and in its sole and absolute
discretion.
9.12 Venue; Jurisdiction. Borrower, Seller and Purchaser agree that any controversy
arising under or in relation to this Agreement may be litigated in the State of Florida. The state
and federal courts and authorities with jurisdiction in the State of Florida shall have jurisdiction
over all controversies that shall arise under or in relation to this Agreement and the Loan
Documents. Borrower, Seller and Purchaser irrevocably consent to service, jurisdiction and venue
of such courts for any such litigation and waive any other venue to which they might be entitled
by virtue of domicile, habitual residence or otherwise.
9.13 WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY
LAW, EACH PARTY HERETO (a) COVENANTS AND AGREES NOT TO ELECT A TRIAL
BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS AGREEMENT OR ANY
RELATIONSHIP AS BORROWER AND LENDER THAT IS TRIABLE OF RIGHT BY A
JURY AND (b) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH
ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE.
THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH
PARTY, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT
LEGAL COUNSEL.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
A-1
Forward Purchase Agreement Vista Breeze
EXHIBIT A
LEGAL DESCRIPTION
That leasehold estate created by that Second Amended and Restated Ground Lease, by and
between Vista Breeze, Ltd., a Florida limited partnership, and the Housing Authority of The City
of Miami Beach, a public body corporate and politic, as evidenced by that Amended and
Restated Memorandum of Lease to be recorded over the following described lands:
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
Forward Purchase Agreement Vista Breeze
EXHIBIT B
CONDITIONS TO CONVERSION
The conditions set forth in this Exhibit B (collectively, the “Conditions to Conversion”)
must be satisfied prior to the occurrence of the Conversion Date.
(a) Completion of Construction and/or Rehabilitation. Borrower shall submit
to Purchaser no later than the Conversion Package Submission Date (as hereinafter defined)
evidence satisfactory to Purchaser that Borrower has completed the construction and/or
rehabilitation required by this Agreement (the “Improvements”) (including all amenities,
landscaping, signage, parking, and the like (i) in a good and workmanlike manner, (ii) in
accordance with the approved Plans and Specifications, including approved change orders, if any,
(iii) on a lien-free basis, (iv) in compliance with all legal requirements, including, without
limitation, all Legal Requirements, including building codes, zoning requirements, subdivision
requirements, fire and safety laws, the requirements of the Americans with Disabilities Act and, if
applicable, the design and rehabilitation requirements established pursuant to the Fair Housing
Act, as amended, (v) in compliance with the environmental requirements set forth in the Borrower
Loan Documents, and (vi) otherwise in accordance with the terms and provisions of this
Agreement and the other Borrower Loan Documents. Such evidence shall include the
documentation that Borrower is required to provide pursuant to this Agreement and the Borrower
Loan Documents, including, but not limited to, any and all certificates of occupancy (or equivalent
documentation) from the local government authority, certificates of Borrower, Borrower’s
architect, engineer, the inspecting architect/architectural consultant and other project consultants,
if applicable, which shall, among other things, certify that the Improvements were completed in
accordance with the requirements of this Paragraph (a) and have attached thereto supporting
documentation from all applicable Governmental Authorities. All such evidence shall be in form
and content satisfactory to Purchaser and shall also be subject to verification, review and
inspection, as applicable, by Purchaser and/or its consultants.
(b) Borrower; Guarantor; Borrower’s Ownership of the Project; No Material
Adverse Change. The identity of Borrower and Guarantor shall not have changed (except for such
changes as may have been approved by Purchaser or Transfers permitted by the Forward
Commitment Fee Security Instrument). To the extent there is a Credit Enhancer (as hereinafter
defined), Borrower shall remain eligible under such Credit Enhancer’s requirements for mortgage
borrowers and shall continue to own the Project. There shall be no reduction in the Guarantor’s
direct or indirect ownership interest in and control over Borrower except as expressly permitted
by the Forward Commitment Fee Security Instrument. There shall be no Material Adverse Change
in the condition, financial or otherwise, of Borrower or any Guarantor. There shall be no Material
Adverse Change in the financial condition of the Project or any other feature of the transaction
from that which existed on the Closing Date. Borrower shall submit to Purchaser no later than the
Conversion Package Submission Date evidence satisfactory to Purchaser that the requirements of
this Paragraph (b) have been satisfied as of such date, provided, however, that such requirements
shall continue to be satisfied through the Conversion Date. Notwithstanding anything to the
contrary in this Agreement or the Loan Documents, if Landlord exercises its option to acquire the
ownership interest of Atlantic Pacific Companies (“APC”) in Borrower pursuant to that certain
Master Development Agreement, then a to-be-formed affiliate entity of Landlord shall replace the
B-2
Forward Purchase Agreement Vista Breeze
Guarantor, provided such entity satisfies a minimum liquidity requirement of $1,000,000 and such
other requirements as Purchaser determines in its discretion.
(c) Sources and Uses of Funds. Borrower shall provide assurances and
evidence, satisfactory in form and content to Purchaser, that Borrower (1) has received or will
receive fully and timely, all Equity Contributions to be made to Borrower as of such date, proceeds
of approved subordinate financing and other cash to be received by Borrower as of such date and
the Conversion Date, and has properly applied such Equity Contributions, proceeds, and other cash
to the Project to the extent received and (2) has funded or will fund, fully and timely, all cash
required to be invested in the Project as of such date and the Conversion Date. Borrower shall
have submitted to Purchaser no later than the Conversion Package Submission Date evidence
satisfactory to Purchaser of the satisfaction of the requirements of this Paragraph (c) as of such
date, provided, however, that such requirements shall continue to be satisfied through the
Conversion Date.
(d) Low-Income Housing Tax Credits. Borrower shall have provided on or
before the Conversion Package Submission Date evidence satisfactory to Purchaser that (i) the
Project is eligible for low-income housing tax credits, which evidence may be a draft or copy of
the accountant’s cost certification and, to the extent available, the IRS Form 8609 for the Project,
(ii) Borrower has taken all steps necessary to obtain such low-income housing tax credits for the
Project in the amount required under the Partnership Agreement, and (iii) the Project (A) meets
the requirements of a “qualified low-income housing project” within the meaning of Section
42(g) of the Internal Revenue Code and of a “qualified residential rental project” within the
meaning of Section 142(d) of the Internal Revenue Code and (B) at all times has been in
compliance with (1) all federal, state and local low-income housing and other requirements
applicable to the Project and (2) any applicable requirements of the Internal Revenue Code, and
the final and temporary regulations issued under the Internal Revenue Code. The requirements of
this Paragraph (d) shall continue to be satisfied through the Conversion Date.
(e) Minimum Occupancy Requirement. Borrower shall provide to Purchaser
evidence satisfactory to Purchaser that occupancy at the Project has stabilized and not less than
ninety percent (90%) of the residential rental units of the Project were physically occupied under
acceptable leases (i.e., legally valid, binding and enforceable written lease agreements with bona
fide tenants (excluding employees of the Borrower or any affiliate of the Borrower) providing for
initial lease terms of not less than six months and complying with all Legal Requirements and with
the Multifamily Underwriting Guidelines (as hereinafter defined)) with appropriate tenants, all for
each of the three consecutive full calendar months comprising the Calculation Period. From and
after the date construction and/or rehabilitation of the Project is completed, through and including
the Conversion Date, Borrower shall promptly deliver to Purchaser each month a current certified
rent roll and such other information as may be reasonably required for Purchaser to determine the
physical occupancy of the Project. The rent rolls for the second and third months of the Calculation
Period shall be dated one month and two months, respectively, from the date of the rent roll for
the first month of the Calculation Period. Evidence of stabilized occupancy shall include, but is
not limited to, such information and documents required by the Multifamily Underwriting
Guidelines to establish the annualized stabilized effective gross income of the Project for each of
the three months comprising the Calculation Period including: (i) the percentage of the residential
rental units in the Project that have achieved occupancy categorized by bedroom configuration
B-3
Forward Purchase Agreement Vista Breeze
(e.g., one-bedroom, two-bedroom, etc.), square footage and rent type (i.e., low income or market
rate); (ii) actual effective gross income produced by the Project in the Calculation Period; and
(iii) rental income by unit type.
(f) Permanent Period Amount; Mandatory Prepayment of the Borrower
Loan. Purchaser shall have determined the Permanent Period Amount in accordance with the
terms of Exhibit C to this Agreement, and Borrower shall have made any prepayment required
pursuant to Section 3.3 of the Original Borrower Loan Agreement within the time required to
reduce the Borrower Loan to the Permanent Period Amount.
(g) Title and Survey. Borrower shall submit to Purchaser at Borrower’s sole
cost and expense on or before the Conversion Package Submission Date, (i) a pro-forma
commitment for a re-issuance of the title policy insuring the Borrower Loan that (A) reflects the
Original Security Instrument, as amended and restated for the benefit of Purchaser, (B) contains
no exceptions other than the Permitted Encumbrances (as hereinafter defined), or such other
encumbrances and exceptions as shall be acceptable to Purchaser in its sole discretion, and (C)
otherwise conforms to Purchaser’s then-current title requirements, and (ii) ALTA “as-built”
survey complying with Purchaser’s then-current survey requirements. Borrower shall deliver to
Purchaser on the Conversion Date a re-issued title policy that conforms in all respects to the pro-
forma approved by Purchaser.
(h) Other Real Estate Due Diligence. In addition to those items required by
Paragraph (g) above, Purchaser must receive, if requested by Purchaser, at Borrower’s sole cost
and expense, on or before the Conversion Package Submission Date satisfactory updates to any
and all other third-party reports and other items delivered in connection with Borrower’s
application for the Borrower Loan, including, without limitation, the appraisal, any of which may
be ordered by Purchaser, in its sole discretion, directly from the third party.
(i) Equity Investor. There shall be no change in the identity or interest of the
Equity Investor or the parties to the Partnership Agreement (as each such term is hereinafter
defined), as of the Closing Date except as otherwise permitted by Section 6.1(c) of this Agreement
or Section 21 of the Forward Commitment Fee Security Instrument. The requirements of this
Paragraph (i) shall continue to be satisfied through the Conversion Date.
(j) No Event of Default. There shall be no Event of Default or event which
would be an Event of Default under the Borrower Loan Documents but for the requirement that
notice be given or time elapse or both. The requirements of this Paragraph (j) shall continue to be
satisfied through the Conversion Date.
(k) Conversion Fee and other Costs in Connection with Conversion.
Borrower shall pay Purchaser the Conversion Fee for Purchaser’s services in processing
information to determine whether the Conditions to Conversion have been satisfied, due and
payable upon the earlier to occur of (i) the submission of the Conversion Package or (ii) ninety (90)
days prior to the Termination Date. Additionally, Borrower shall pay any other costs or expenses
in connection with the Conversion, including, without limitation, actual legal fees and all costs
associated with the updates of all third-party reports actually incurred within five (5) Business
Days after written request therefor from Purchaser.
B-4
Forward Purchase Agreement Vista Breeze
(l) Updated Physical Needs Assessment. Purchaser shall have received at
Borrower’s cost an updated physical needs assessment, with a replacement reserve analysis, by
Purchaser’s engineering consultant (and, if indicated by such analysis or assessment, the
replacement reserves for the Project shall be increased accordingly).
(m) Management Agent. To the extent not previously provided, Borrower shall
provide Purchaser with a copy of the management agreement for the management of the Project,
satisfying the requirements of Purchaser’s underwriting criteria. There shall have been no change
in the management firm or the management agreement for the management of the Project approved
by Purchaser as of the Closing Date without Purchaser’s prior written consent, which shall not be
unreasonably withheld, delayed or conditioned. The requirements of this Paragraph (m) shall
continue to be satisfied through the Conversion Date.
(n) Inspections; Audits. Purchaser and/or its consultants may, in Purchaser’s
sole discretion, inspect any portion of the units and audit any portion of the tenant lease files, the
results of which inspections and/or audits must be acceptable to Purchaser.
(o) Deposits. To the extent not previously paid, Borrower shall have paid to
Purchaser, or Servicer, as applicable, any deposits required to be paid under the Borrower Loan
Documents at any time prior to the Conversion Date, including, without limitation, any initial
deposit for taxes, insurance, or other escrows.
(p) Insurance. Purchaser shall have received from its insurance consultant a
report satisfactory to Purchaser in its sole discretion that the insurance for the Project conforms in
all respects to Purchaser’s requirements, including, without limitation, confirmation that the policy
does not contain an exclusion for acts of terrorism. The insurance for the Project must be obtained
by Borrower at a cost that will allow for an underwritten debt service coverage ratio no less than
the Required Debt Service Coverage Ratio (as defined in Exhibit C hereto).
(q) Gap or Bridge Financing Repaid. Any construction, gap or bridge
financing provided to Borrower is paid in full or has become subordinate debt of the Borrower
conforming to Purchaser’s requirements.
(r) MMP/O&M Program. Borrower shall have adopted: (i) a Moisture
Management Program/Microbial Operations and Maintenance Program in form and substance
acceptable to Purchaser and (ii) any additional operations and maintenance plan that may be
necessary or appropriate as determined by Purchaser based on any environmental condition at the
Project.
(s) Permanent Period Amount. The Permanent Period Amount, as determined
by Purchaser in accordance with the provisions of Exhibit C to this Agreement, shall be no less
than the Minimum Permanent Period Amount.
(t) Flood Insurance Coverage. Purchaser shall have received from Borrower
in a form acceptable to Purchaser in its sole discretion either (i) a Letter of Map Revision (LOMR)
for the Project evidencing that the Mortgaged Property is not located in an area identified as a
flood prone area or a Special Flood Hazard Area (as defined by the U.S. Department of Housing
B-5
Forward Purchase Agreement Vista Breeze
and Urban Development pursuant to the Flood Disaster Act of 1973), or (ii) an insurance policy
that provides acceptable flood insurance coverage.
(u) Defined Terms: As used herein, the following terms have the meanings set
forth below:
“Approved Subordinate Debt” shall mean each of the following:
(a) City of Miami Beach, Florida (HOME Loan)
Principal Amount: $1,003,969
Maturity: 30 years from issuance of a Final Certificate of Occupancy
Interest Rate: 0.00%
Amortization: N/A
Recourse: Non-Recourse, subject to carveouts
(b) Miami-Dade County (Surtax Loan)
Principal Amount: $5,950,000
Maturity: December 1, 2053
Interest Rate: 1.00%
Amortization: N/A
Recourse: Non-Recourse, subject to carveouts
(c) Florida Housing Finance Corporation (SAIL Loan)
Principal Amount: $3,000,000
Maturity: June 1, 2044
Interest Rate: 1.00%
Amortization: N/A
Recourse: Non-Recourse, subject to carveouts
(d) Florida Housing Finance Corporation (ELI Loan)
Principal Amount: $600,000
Maturity: June 1, 2044
Interest Rate: 0.00%
Amortization: N/A
Recourse: Non-Recourse, subject to carveouts
(e) Florida Housing Finance Corporation (NHTF Loan)
Principal Amount: $1,301,500
Maturity: December 1, 2053
Interest Rate: 0.00%
Amortization: N/A
Recourse: Non-Recourse, subject to carveouts
(f) Florida Housing Finance Corporation (Viability Loan)
Principal Amount: $4,300,000
Maturity: June 1, 2044
Interest Rate: 1.00%
B-6
Forward Purchase Agreement Vista Breeze
Amortization: N/A
Recourse: Non-Recourse, subject to carveouts
(g) Housing Authority of the City Of Miami Beach (HACMB Loan)
Principal Amount: $8,800,000
Maturity: December 1, 2098
Interest Rate: 5.54%
Amortization: N/A
Recourse: Non-Recourse, subject to carveouts
“Calculation Period” shall mean three (3) consecutive full calendar months
occurring prior to the Conversion Date, as the same may be extended pursuant to this
Agreement.
“Conversion Fee” means $10,000.
“Conversion Package” shall mean all items that must be delivered to Purchaser
pursuant to this Exhibit B on or before the Conversion Package Submission Date.
“Conversion Package Submission Date” shall mean the date that is
three (3) months prior to the Conversion Date, as the same may be extended pursuant to
the provisions of this Agreement.
“Credit Enhancer” means a government sponsored enterprise that at any time,
directly or indirectly, purchases the Loan or provides credit enhancement with respect to
the Loan.
“Equity Contributions” shall mean the equity to be contributed by the Equity
Investor to Borrower, in accordance with and subject to the terms and conditions of the
Partnership Agreement.
“Equity Investor” shall mean Bank of America, N.A., a national banking
association, its successors or assigns, as investor limited partner in Borrower.
“Governmental Authority” shall mean (i) any governmental municipality or
political subdivision thereof, (ii) any governmental or quasi-governmental agency,
authority, board, bureau, commission, department, instrumentality or public body, or (iii)
any court, administrative tribunal or public utility, agency, commission, office or authority
of any nature whatsoever for any governmental unit (federal, state, county, district,
municipal, city or otherwise), now or hereafter in existence.
“Legal Requirements” shall mean statutes, laws, rules, orders, regulations,
ordinances, judgments, decrees and injunctions of Governmental Authorities affecting all
or part of the Project or any of Borrower’s property (including the Project) or the
construction, rehabilitation, use, alteration or operation thereof, whether now or hereafter
enacted and in force, and all permits, licenses and authorizations and regulations relating
thereto, and all covenants, agreements, restrictions and encumbrances contained in any
instrument, either of record or known to the Borrower, at any time in force affecting all or
B-7
Forward Purchase Agreement Vista Breeze
part of the Project, including any that may (i) require repairs, modifications or alterations
in or to all or part of the Project, or (ii) in any way limit the use and enjoyment thereof.
“Managing General Partner” means APC Vista Breeze, LLC, a Florida limited
liability company.
“Material Adverse Change” means any set of circumstances or events which (a)
has or would reasonably be expected to have any material adverse effect whatsoever upon
the validity or enforceability of this Agreement or any other document executed in
connection with the Permanent Loan; (b) is or would reasonably be expected to be material
and adverse to the business, properties, assets, financial condition, results of operations of
the Borrower, Managing General Partner, Guarantor or the Mortgaged Property; (c) would
reasonably be expected to impair materially the ability of the Borrower, Managing General
Partner or Guarantor to duly and punctually pay or perform any of their respective
obligations under any of the documents executed in connection with the Permanent Loan
to which they are a party; or (d) impairs materially or would reasonably be expected to
impair materially any rights of or benefits available to the Governmental Lender under this
Agreement or any other document executed in connection with the Permanent Loan,
including, without limitation, the ability of Governmental Lender or, upon the assignment
of the Borrower Loan to it, of the Purchaser, to the extent permitted, to enforce its legal
remedies pursuant to this Agreement or any other document executed in connection with
the Permanent Loan.
“Multifamily Underwriting Guidelines” shall mean multifamily underwriting
guidelines generated by the Credit Enhancer (or if there is no Credit Enhancer, the
Purchaser’s internal multifamily underwriting guidelines), as in effect from time to time.
“Partnership Agreement” means that certain Amended and Restated Agreement
of Limited Partnership, dated as of the Closing Date, among Managing General Partner,
Equity Investor, Vista Breeze HACMB, Inc., a Florida not-for-profit corporation, Banc of
America CDC Special Holding Company, Inc., a North Carolina corporation, and the
Howard D. Cohen Revocable Trust U/A/D 4/6/1993, as withdrawing limited partner.
“Permitted Encumbrances” means any easements, encumbrances or restrictions
listed on the schedule of exceptions in the title insurance policy issued to Seller as of the
date of recordation of the Original Security Instrument insuring Seller’s interest in the
Mortgaged Property, together with the liens securing the Approved Subordinate Debt, any
extended low-income housing commitment (as such term is defined in Section 42(h)(6)(B)
of the Internal Revenue Code) and the Tax Regulatory Agreement (as defined in the
Original Funding Loan Agreement) and restrictive use agreements pursuant to any
subordinate loan(s), customary easements entered into by Borrower in connection with the
development and operation of the Mortgaged Property which Purchaser has determined
would have no material adverse effect on the use of the Mortgaged Property, documents
required to be recorded by applicable law which have no material adverse effect on the use
or value of the Mortgaged Property and are otherwise acceptable to Purchaser, and
apartment leases executed in connection with the terms of the Project.
C-1
Forward Purchase Agreement Vista Breeze
EXHIBIT C
CALCULATION OF PERMANENT PERIOD AMOUNT
1. Underwritten NOI. Purchaser shall determine the net operating income of the
Project (“Underwritten NOI”). Underwritten NOI is the difference between the annualized
stabilized effective gross income of the Project and the annualized expenses for the Project as
adjusted.
(a) Annualized Stabilized Effective Gross Income. Purchaser shall base its
determination of annualized stabilized effective gross income on the (i) rental income from
the residential rental units of the Project, and (ii) such of the income from garage, parking,
laundry, commercial space and “other income” as allowed by the Multifamily
Underwriting Guidelines as Purchaser determines in its discretion. Purchaser shall base its
determination on the certified rent roll for each of the three months comprising the
Calculation Period. Purchaser shall adjust rental income from the residential rental units
of the Project, garage, parking, laundry, commercial space and other income for:
(i) evidence of rent deterioration;
(ii) concessions, reductions, inducements or forbearances (such as any
cash reduction in monthly rent during the term of a lease, any free rent before,
during or after the term of a lease, any rent coupons, gift certificates and tangible
goods or any other form of rent reduction or forbearance);
(iii) re-tenanting costs if a substantial number of leases of units have a
term of less than 12 months;
(iv) vacancy at the highest of: (i) actual vacancy based on the annualized
vacancy from the Calculation Period, and (ii) the applicable minimum physical
vacancy factor required by the Multifamily Underwriting Guidelines for the Project
based on the number of units and the market in which the Project exists adjusted
for concessions and bad debt;
(v) 30-day or more delinquencies;
(vi) low-income restrictions required by any applicable federal, state or
local subsidy program, any restrictive covenant or regulatory agreement or
otherwise as required by the Multifamily Underwriting Guidelines; and
(vii) all other applicable adjustments required by the Multifamily
Underwriting Guidelines.
(b) Annualized Expenses. Purchaser shall base its determination of annualized
expenses on the higher of:
(i) the actual year-to-date expenses of the Project (“Actual Operating
Expenses”) on an annualized basis; and
C-2
Forward Purchase Agreement Vista Breeze
(ii) the annualized expenses for the Project estimated by Purchaser in
underwriting and approving the Borrower Loan (“Pro Forma Expenses”).
Purchaser shall adjust the Pro Forma Expenses for the following categories of
expenses, taking into account all relevant facts and circumstances and making
prudent allowances for inflation and other increases in costs:
(A) real estate taxes: facts and circumstances include
availability of full or partial exemptions or abatements and the length
thereof, pending changes in relevant law, growth rate of tax rates of the
relevant taxing districts, whether the current assessment of the Project is a
full assessment reflecting completion of the Improvements in accordance
with the approved Plans and Specifications and assessed values of other
properties in the relevant tax district;
(B) property liability and other insurance: insurance premiums
must reflect insurance coverage for the Project complying in all respects
with the Multifamily Underwriting Guidelines requirements;
(C) utilities; and
(D) management fees for the Project: Purchaser shall adjust the
management fee if the property manager or managing agent is related to the
Borrower or a Borrower Affiliate and the actual management fee is lower
than market rates.
In determining the annualized expenses of the Project, Purchaser shall:
(i) except with respect to expenses for real estate taxes, property
liability and other insurance and management fees, compare both total expenses
and individual line items to determine whether Pro Forma Expenses or Actual
Operating Expenses are higher and either (a) adjust the overall number if the sum
of changes results in a higher amount, or (b) apply Actual Operating Expenses with
supportive reasoning to justify analysis;
(ii) make appropriate adjustments for any unusually low or high
expenses which do not reflect stable operations of the Project;
(iii) for non-residential management expenses (incurred, for example,
for off-site management and leasing), use the greater of actual expenses or the
percentage of effective gross income used in the original underwriting; and
(iv) for replacement reserve deposit amounts, use the greater of the
amount used by Purchaser in the original underwriting or the actual amount
required to be set aside by the Replacement Reserve Agreement.
(c) Adjustments for Special Risks. Purchaser shall further adjust Underwritten
NOI and the component parts of Underwritten NOI on account of any special risks
addressed by the Multifamily Underwriting Guidelines.
C-3
Forward Purchase Agreement Vista Breeze
2. Permanent Period Amount. Purchaser shall determine the Permanent Period
Amount by dividing (x) by (y), where (x) is the quotient obtained by dividing the Underwritten
NOI of the Project by the applicable Required Debt Service Coverage Ratio and (y) is the Annual
Debt Service Constant or, expressed as a formula:
x = (Underwritten NOI ÷
Permanent Period Amount = Required Debt Service Coverage Ratio)
y = Annual Debt Service Constant
Defined Terms: As used herein, the following terms have the meanings set forth below:
“Annual Debt Service Constant” shall mean the constant annual percentage determined
by Purchaser necessary to fully amortize the Borrower Loan in level monthly annuity payments
over a forty (40) year period at the Underwriting Rate (when expressed as a percentage, carried
out to at least six (6) decimal places).
“Multifamily Underwriting Guidelines” shall mean multifamily underwriting guidelines
generated by the Credit Enhancer (or if there is no Credit Enhancer, the Purchaser’s internal
multifamily underwriting guidelines), as in effect from time to time.
“Required Debt Service Coverage Ratio” shall mean 1.15 to 1.00.
“Required Loan to Value Ratio” shall mean 90%, based on the market value, if
applicable, of permanent below market financing and assuming project rents on 80% or more of
the units are discounted to a level at least ten percent below market rentals, otherwise 85%.
“Underwriting Rate” shall mean the following:
6.27% In the event the Conversion Date occurs on or prior to July 1, 2026.
6.32% In the event the Conversion Date occurs after July 1, 2026.
6.37% In the event the Conversion Date occurs after January 1, 2027.
“Underwritten NOI” shall have the meaning set forth in this Exhibit C.
3. Earn-Out Option. At the Conversion Date, Borrower will have the option to
request an increase of up to $1,187,500 above the contemplated $11,875,000 Maximum Permanent
Period Amount (such increase above $11,875,000 shall hereafter be referred to as the “Earn-Out
Amount”) (bringing the Permanent Period Amount up to $13,062,500) (the “Earn-Out Option”),
which amount shall be determined by Purchaser in its sole discretion based on Purchaser’s
Conversion underwriting and application of Purchaser’s loan sizing parameters. To the extent that
C-4
Forward Purchase Agreement Vista Breeze
the Permanent Period Amount (including the Earn-Out Amount) exceeds the Required Loan to
Value Ratio, Purchaser will require a new appraisal at Borrower’s expense to support the Earn-
Out Amount. The Permanent Period Amount must support the Required Debt Service Coverage
at Conversion and a minimum 1.15 debt service coverage in the fifteenth (15th) year of the exit
analysis performed by Purchaser in connection with Conversion underwriting. To the extent that
the Borrower exercises the Earn-Out Option, and the Purchaser confirms that the required
conditions described above are satisfied, such Earn-Out Option shall be evidenced by the terms of
the Permanent Borrower Note. The interest rate on the Earn-Out Amount will be set at a fixed rate
five (5) Business Days prior to the Conversion Date, and which shall be the sum of the SOFR swap
index (“SOFR Swap Index”) for the remaining term, plus a spread of 2.40% (the “Spread”),
provided however, that if the Termination Date is extended to the First Extended Termination
Date, an additional 0.05% will be added to the Spread, such that the spread will be 2.45%, and if
the Termination Date is further extended to the Second Extended Termination Date, an additional
0.05% will be added to the Spread, such that the spread will be 2.50%; and provided further, that
if the SOFR Swap Index becomes unavailable, then the Purchaser, in its sole and absolute
discretion, will choose a successor index and provide notice of such choice to the Borrower (the
“Earn-Out Interest Rate”). In no event shall the interest rate on the Earn-Out Amount be less
than 0.25% less than the interest rate on the Maximum Permanent Period Amount. The rate of the
Permanent Borrower Note will be a blended rate consisting of the Earn-Out Interest Rate and the
fixed rate of the Maximum Permanent Period Amount (the “Permanent Period Interest Rate”)
set as of the Closing Date and any increase to the Permanent Period Interest Rate as set forth in
Section 4.1 of this Agreement. Such blended rate shall be the Underwriting Rate for all purposes
hereunder.
D-1
Forward Purchase Agreement Vista Breeze
EXHIBIT D
FORMS OF LOAN DOCUMENTS
[See Attached]
1. Amended and Restated Funding Loan Agreement
2. Amended and Restated Borrower Loan Agreement
3. Amended and Restated Multifamily Note
4. Amended and Restated Multifamily Leasehold Mortgage, Assignment of Rents and
Security Agreement (Florida)
5. Assignment of Mortgage and Loan Documents
6. Exceptions to Non-Recourse Guaranty
7. Replacement Reserve Agreement
8. Assignment of Management Agreement
9. Agreement of Environmental Indemnification
10. Loan Covenant Agreement
11. Assignment of HAP Contract
12. Subordination and Intercreditor Agreement (City)
13. Subordination and Intercreditor Agreement (County)
14. Subordination and Intercreditor Agreement (FHFC)
15. Subordination and Intercreditor Agreement (HACMB)
16. Insurance Anti-Coercion Statement
17. Business Purpose Affidavit
18. Continuing Disclosure Agreement
19. Borrower’s Conversion Certificate
20. UCC Financing Statements
D
Forward Purchase Agreement Vista Breeze
EXHIBIT D-1 TO FORWARD PURCHASE AGREEMENT
FORM OF AMENDED AND RESTATED FUNDING LOAN AGREEMENT
[See attached]
4856-5616-9347.5
FOLEY DRAFT #4
December 13, 2023
AMENDED AND RESTATED FUNDING LOAN AGREEMENT
(Permanent Phase)
among
CITIBANK, N.A.,
as Funding Lender
HOUSING FINANCE AUTHORITY OF MIAMI-DADE COUNTY, FLORIDA,
as Governmental Lender
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Fiscal Agent
Relating to
Vista Breeze
175 S. Shore Drive and 280 S. Shore Drive, in the City of Miami Beach, Miami-Dade County,
Florida
Loan Principal Amount: $____________
Dated as of ______, 202_ (Conversion Date)
4856-5616-9347.5
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS; PRINCIPLES OF CONSTRUCTION
Section 1.1. Definitions. ......................................................................................................................... 2
Section 1.2. Effect of Headings and Table of Contents. ....................................................................... 11
Section 1.3. Date of Funding Loan Agreement. ................................................................................... 11
Section 1.4. Designation of Time for Performance. ............................................................................. 11
Section 1.5. Interpretation. .................................................................................................................... 11
ARTICLE II
TERMS; GOVERNMENTAL LENDER NOTE
Section 2.1. Terms. ............................................................................................................................... 11
Section 2.2. Form of Governmental Lender Note. ................................................................................ 13
Section 2.3. Execution and Delivery of Governmental Lender Note. .................................................. 13
Section 2.4. Authentication. .................................................................................................................. 13
Section 2.5. Registration and Transfer of Governmental Lender Note. ............................................... 13
Section 2.6. Restrictions on Transfer. ................................................................................................... 14
ARTICLE III
PREPAYMENT
Section 3.1. Prepayment of the Governmental Lender Note from Prepayments Under the Permanent
Phase Borrower Note. ....................................................................................................... 15
Section 3.2. Notice of Prepayment. ...................................................................................................... 15
ARTICLE IV
SECURITY
Section 4.1. Security for the Funding Loan. ......................................................................................... 15
Section 4.2. Delivery of Security. ......................................................................................................... 16
ARTICLE V
LIMITED LIABILITY
Section 5.1. Source of Payment of Funding Loan, the Governmental Lender Note and Other
Obligations. ....................................................................................................................... 17
Section 5.2. Exempt from Individual Liability. .................................................................................... 17
Section 5.3. Revenue Obligation. ......................................................................................................... 18
ARTICLE VI
RESERVED
ARTICLE VII
FUNDS AND ACCOUNTS
Section 7.1. Authorization to Create Funds and Accounts. .................................................................. 19
Section 7.2. Investment of Funds. ......................................................................................................... 19
Section 7.3. Establishment of Funds and Accounts. ............................................................................. 20
Section 7.4. Loan Payment Fund. ......................................................................................................... 20
ii
4856-5616-9347.5
Section 7.5. Administration Fund. ........................................................................................................ 21
Section 7.6. Project Fund. ..................................................................................................................... 21
Section 7.7. Rebate Fund. ..................................................................................................................... 21
Section 7.8. Amounts Remaining in Funds. ......................................................................................... 22
ARTICLE VIII
REPRESENTATIONS AND COVENANTS
Section 8.1. General Representations. .................................................................................................. 22
Section 8.2. No Encumbrance on Security. .......................................................................................... 23
Section 8.3. Repayment of Funding Loan. ........................................................................................... 23
Section 8.4. Servicer. ............................................................................................................................ 23
Section 8.5. Borrower Loan Agreement Performance. ......................................................................... 23
Section 8.6. Maintenance of Records; Inspection of Records. ............................................................. 23
Section 8.7. Tax Covenants. ................................................................................................................. 24
Section 8.8. Performance by the Borrower. .......................................................................................... 25
Section 8.9. Maintenance of Records. .................................................................................................. 25
ARTICLE IX
DEFAULT; REMEDIES
Section 9.1. Events of Default. ............................................................................................................. 25
Section 9.2. Acceleration of Maturity; Rescission and Annulment. ..................................................... 26
Section 9.3. Additional Remedies; Funding Lender Enforcement. ...................................................... 26
Section 9.4. Application of Money Collected. ...................................................................................... 28
Section 9.5. Remedies Vested in Funding Lender. ............................................................................... 28
Section 9.6. Restoration of Positions. ................................................................................................... 28
Section 9.7. Rights and Remedies Cumulative. .................................................................................... 29
Section 9.8. Delay or Omission Not Waiver. ........................................................................................ 29
Section 9.9. Waiver of Past Defaults. ................................................................................................... 29
Section 9.10. Remedies Under Borrower Loan Agreement or Permanent Phase Borrower Note. ......... 29
Section 9.11. Waiver of Appraisement and Other Laws. ....................................................................... 29
Section 9.12. Suits to Protect the Security. ............................................................................................. 29
Section 9.13. Remedies Subject to Applicable Law. .............................................................................. 30
Section 9.14. Assumption of Obligations. .............................................................................................. 30
ARTICLE X
AMENDMENT; AMENDMENT OF FUNDING LOAN AGREEMENT
AND OTHER DOCUMENTS
Section 10.1. Amendment of Funding Loan Agreement. ....................................................................... 30
Section 10.2. Amendments Require Funding Lender Consent. .............................................................. 30
Section 10.3. Consents and Opinions. .................................................................................................... 30
ARTICLE XI
THE FISCAL AGENT
Section 11.1. Appointment of Fiscal Agent; Acceptance. ...................................................................... 31
Section 11.2. Certain Duties and Responsibilities of Fiscal Agent. ....................................................... 31
Section 11.3. Notice of Defaults. ............................................................................................................ 32
Section 11.4. Certain Rights of Fiscal Agent. ......................................................................................... 33
Section 11.5. Not Responsible for Recitals. ........................................................................................... 34
iii
4856-5616-9347.5
Section 11.6. May Hold Governmental Lender Note. ............................................................................ 34
Section 11.7. Moneys Held in Trust. ...................................................................................................... 34
Section 11.8. Compensation and Reimbursement. ................................................................................. 34
Section 11.9. Fiscal Agent Required; Eligibility. ................................................................................... 35
Section 11.10. Resignation and Removal; Appointment of Successor. .................................................... 35
Section 11.11. Acceptance of Appointment by Successor. ...................................................................... 36
Section 11.12. Merger, Conversion, Consolidation or Succession to Business. ....................................... 36
Section 11.13. Appointment of Co-Fiscal Agent. ..................................................................................... 36
Section 11.14. Loan Servicing. ................................................................................................................. 37
Section 11.15. No Recourse Against Officers or Employees of Fiscal Agent. ......................................... 37
Section 11.16. USA Patriot Act Requirements of the Fiscal Agent. ........................................................ 37
Section 11.17. Filing of Financial Statements. ......................................................................................... 38
ARTICLE XII
MISCELLANEOUS
Section 12.1. Notices. ............................................................................................................................. 38
Section 12.2. Term of Funding Loan Agreement. .................................................................................. 40
Section 12.3. Successors and Assigns. ................................................................................................... 41
Section 12.4. Legal Holidays. ................................................................................................................. 41
Section 12.5. Governing Law. ................................................................................................................ 41
Section 12.6. Invalidity, Illegality or Unenforceability of Provisions. ................................................... 41
Section 12.7. Execution in Several Counterparts. ................................................................................... 41
Section 12.8. Nonrecourse Obligation of the Borrower. ........................................................................ 41
Section 12.9. Waiver of Trial by Jury. .................................................................................................... 41
Section 12.10. Electronic Transactions. .................................................................................................... 41
Section 12.11. Reference Date. ................................................................................................................. 42
EXHIBIT A FORM OF TRANSFEREE REPRESENTATIONS LETTER
4856-5616-9347.5
AMENDED AND RESTATED FUNDING LOAN AGREEMENT
This AMENDED AND RESTATED FUNDING LOAN AGREEMENT (this “Funding Loan
Agreement”), is made and entered into as of ___________, 20__ (Conversion Date), by and among
CITIBANK, N.A., in its capacity as Funding Lender (the “Funding Lender” or the “Funding Lender”),
the HOUSING FINANCE AUTHORITY OF MIAMI-DADE COUNTY, FLORIDA (the
“Governmental Lender”), a public body corporate and politic organized and existing under the laws of
the State of Florida (the “State”), and THE BANK OF NEW YORK MELLON TRUST COMPANY,
N.A., a national banking association, organized and operating under the laws of the United States of
America, having a corporate trust office in Jacksonville, Florida, as Fiscal Agent (the “Fiscal Agent”) and
amends and restates the Funding Loan Agreement, dated as of December 1, 2023 (the “Construction Phase
Funding Loan Agreement”) by and among BANK OF AMERICA, N.A., in its capacity as Initial Funding
Lender (the “Initial Funding Lender”), the Governmental Lender and the Fiscal Agent. The Funding Loan
Agreement, as amended and restated hereby is referred to herein as the Funding Loan Agreement.
Capitalized terms are defined in Section 1.01 of this Funding Loan Agreement.
RECITALS
A. Pursuant to Chapter 159, Part IV, Florida Statutes, as amended, Resolution R-1194-78
adopted by the Board of County Commissioners of Miami-Dade County (the “Board”) on October 17,
1978, Ordinance No. 78-89 enacted by the Board on December 12, 1978 and Ordinance No. 11-99 enacted
by the Board on December 6, 2011 (collectively, the “Act”) and the Construction Phase Borrower Loan
Agreement dated as of December 1, 2023 (the “Construction Phase Borrower Loan Agreement”) by and
among the Governmental Lender, the Fiscal Agent and Vista Breeze, Ltd., a Florida limited partnership,
duly organized and existing under the laws of the State (the “Borrower”), the Governmental Lender made
a construction period mortgage loan pursuant to the Construction Phase Borrower Loan Agreement (the
“Borrower Loan”) to the Borrower in the aggregate principal amount of $32,500,000 to provide for the
financing of the acquisition, construction and equipping of a multifamily rental housing development to be
located at 175 S. Shore Drive and 280 S. Shore Drive, in the City of Miami Beach, Miami-Dade County,
Florida known as Vista Breeze (the “Project”).
B. The Governmental Lender made the Borrower Loan to the Borrower with the proceeds
received from the separate loan made to the Governmental Lender by the Initial Funding Lender pursuant
to the Funding Loan Agreement in the maximum aggregate principal amount of $32,500,000 (the “Funding
Loan”). The Funding Loan was evidenced by the Multifamily Housing Revenue Note, Series 2023 (Vista
Breeze) dated December 15, 2023 (together with all riders and addenda thereto, the “Governmental
Lender Note”) delivered by the Governmental Lender to the Initial Funding Lender.
C. The Borrower’s repayment obligations in respect of the Borrower Loan were evidenced by
a Multifamily Note dated December 15, 2023 (together with all riders and modifications thereto, the
“Construction Phase Borrower Note”) delivered to the Governmental Lender, which Construction Phase
Borrower Note was endorsed by the Governmental Lender to the Fiscal Agent as security for the Funding
Loan.
D. To secure the Borrower’s obligations under the Construction Phase Borrower Note, the
Borrower executed and delivered to the Governmental Lender a Leasehold Mortgage, Assignment of Rents,
Security Agreement and Fixture Filing dated as of December 1, 2023 (the “Security Instrument”) with
respect to the Project, which Security Instrument was assigned by the Governmental Lender to the Fiscal
Agent as security for the Funding Loan.
2
4856-5616-9347.5
E. The Initial Funding Lender, the Funding Lender and the Borrower entered into a Forward
Purchase Agreement, dated as of December 1, 2023 (the “Forward Purchase Agreement”) pursuant to
which the Funding Lender agreed to purchase the Funding Loan from the Initial Funding Lender upon the
satisfaction of certain conditions, including the Conditions to Conversion. The Conditions to Conversion
have been satisfied and the Borrower Loan is converting from the Borrower Loan to the Permanent Phase
Borrower Loan on the date hereof which is the Conversion Date.
F. In connection with the Funding Lender’s purchase of the Funding Loan on the Conversion
Date, (i) this Funding Loan Agreement and the Amended and Restated Borrower Loan Agreement, dated
the date hereof, between the Governmental Lender, the Borrower and the Fiscal Agent (the “Borrower
Loan Agreement”) are being executed and delivered and shall become effective, (ii) the Permanent Phase
Borrower Note, dated the date hereof, from the Borrower to the Governmental Lender (the “Permanent
Phase Borrower Note”), which amends and restates in its entirety the Construction Phase Borrower Note,
is being executed and delivered by the Borrower and assigned to the Funding Lender by the Governmental
Lender, (iii) the Security Instrument is being amended and restated and (iv) this Funding Loan Agreement,
the Borrower Loan Agreement and the Permanent Phase Borrower Note will secure the Funding Loan in
substitution for the Construction Phase Funding Loan Agreement, Construction Phase Borrower Loan
Agreement and Construction Phase Borrower Note, respectively, which Construction Phase Funding Loan
Agreement and Construction Phase Borrower Loan Agreement are simultaneously being terminated.
G. All of the Conditions to Conversion (as defined in the Forward Purchase Agreement) and
all of the other conditions of Funding Lender’s purchase of the Funding Loan set forth in the Forward
Purchase Agreement have been, or as of the Conversion Date will be, satisfied.
NOW, THEREFORE, in consideration of the premises and of the purchase of the Funding Loan
by the Funding Lender, and for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; PRINCIPLES OF CONSTRUCTION
Section 1.1. Definitions. For all purposes of this Funding Loan Agreement, except as otherwise
expressly provided or unless the context otherwise clearly requires:
(a) Unless specifically defined herein, all capitalized terms shall have the meanings ascribed
thereto in the Borrower Loan Agreement.
(b) The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to
this Funding Loan Agreement as a whole and not to any particular Article, Section or other subdivision.
The terms “agree” and “agreements” contained herein are intended to include and mean “covenant” and
“covenants.”
(c) All references made (i) in the neuter, masculine or feminine gender shall be deemed to
have been made in all such genders, and (ii) in the singular or plural number shall be deemed to have been
made, respectively, in the plural or singular number as well. Singular terms shall include the plural as well
as the singular, and vice versa.
(d) All accounting terms not otherwise defined herein shall have the meanings assigned to
them, and all computations herein provided for shall be made, in accordance with GAAP (Generally
Accepted Accounting Principles).
3
4856-5616-9347.5
(e) All references in this instrument to designated “Articles,” “Sections” and other
subdivisions are to the designated Articles, Sections and subdivisions of this instrument as originally
executed.
(f) All references in this instrument to a separate instrument are to such separate instrument as
the same may be amended or supplemented from time to time pursuant to the applicable provisions thereof.
(g) References to the Governmental Lender Note as “tax exempt” or to the “tax exempt status”
of the Governmental Lender Note are to the exclusion of interest on the Governmental Lender Note (other
than any portion of the Governmental Lender Note held by a “substantial user” of the Project or a “related
person” within the meaning of Section 147 of the Code) from gross income for federal income tax purposes
pursuant to Section 103(a) of the Code.
(h) The following terms have the meanings set forth below:
“Act” shall have the meaning assigned to such term in the recitals above.
“Additional Borrower Payments” shall have the meaning given such term in the Borrower Loan
Agreement.
“Administration Fund” shall mean the fund by that name created and established under this Funding
Loan Agreement.
“Affiliate” shall mean, as to any Person, any other Person that, directly or indirectly, is in Control
of, is Controlled by or is under common Control with such Person.
“Approved Transferee” means (1) a “qualified institutional buyer” (“QIB”) as defined in Rule 144A
promulgated under the Securities Act of 1933, as in effect on the date hereof (the “Securities Act”) that is
a financial institution or commercial bank having capital and surplus of $5,000,000,000 or more, (2) an
Affiliate of the Funding Lender that is a QIB, (3) a trust or custodial arrangement established by the Funding
Lender or one of its Affiliates or any state or local government or any agency or entity which is a political
subdivision of a federal, state or local government (a “Governmental Entity”), in each case (i) the beneficial
interests in which will be owned only by QIBs, (ii) the beneficial interests in which will be rated in the “A”
category or higher without regard to modifier (or the equivalent investment grade category) by at least one
nationally recognized rating agency and (iii) evidence of compliance with (i) or (ii) acceptable to the Fiscal
Agent, or (4) a Governmental Entity. For any transfers after the six (6) month anniversary of the Conversion
Date, “A” will be replaced by “BBB” for purposes of clause 3(ii) above.
“Authorized Attesting Officer” means the Vice Chair, Secretary/Treasurer or any Assistant
Secretary of the Governmental Lender, or such other officer or official or member of the Governmental
Lender, including but not limited to the Executive Director of the Governmental Lender who, in accordance
with the County Authorization, the law of the State, the bylaws or other governing documents of the
Governmental Lender, or practice or custom, regularly attests or certifies official acts and records of the
Governmental Lender, and includes any assistant or deputy officer to the principal officer or officers
exercising such responsibilities.
“Authorized Governmental Lender Representative” shall mean the Chair, Vice-Chair, and any
other, officer or employee of the Governmental Lender designated to perform a specified act, to sign a
specified document or to act generally on behalf of the Governmental Lender as evidenced by a written
certificate furnished to the Funding Lender, the Fiscal Agent, the Servicer (if any) and the Borrower
containing the specimen signature of such person and signed on behalf of the Governmental Lender by the
4
4856-5616-9347.5
Chair, Vice-Chair or Executive Director of the Governmental Lender. Such certificate may designate an
alternate or alternates, each of whom shall be entitled to perform all duties of the Authorized Governmental
Lender Representative.
“Borrower” shall mean Vista Breeze, Ltd., a Florida limited partnership, and its successors and
assigns.
“Borrower Loan” shall mean the mortgage loan made by the Governmental Lender to the Borrower
pursuant to the Construction Phase Borrower Loan Agreement in the original maximum aggregate principal
amount of $32,500,000, as originally evidenced by the Construction Phase Borrower Note, which on the
Conversion Date is outstanding in the amount of $__________ and evidenced by the Permanent Phase
Borrower Note.
“Borrower Loan Agreement” shall mean the Amended and Restated Borrower Loan Agreement,
dated as of _______, 20__, between the Governmental Lender, the Borrower and the Fiscal Agent, as
supplemented, amended or replaced from time to time in accordance with its terms.
“Borrower Loan Agreement Default” shall mean any event of default set forth in 8.1 of the
Borrower Loan Agreement. A Borrower Loan Agreement Default shall “exist” if a Borrower Loan
Agreement Default shall have occurred and be continuing beyond any applicable cure period.
“Borrower Loan Documents” shall have the meaning given to such term in the Borrower Loan
Agreement.
“Business Day” shall mean any day other than (i) a Saturday or a Sunday, or (ii) a day on which
the offices of the Fiscal Agent in Jacksonville, Florida or federally insured depository institutions in New
York, New York are authorized or obligated by law, regulation, governmental decree or executive order to
be closed.
“Code” shall mean the Internal Revenue Code of 1986, as in effect on the Delivery Date or (except
as otherwise referenced herein) as it may be amended to apply to obligations issued on the Delivery Date,
together with applicable proposed, temporary and final regulations promulgated, and applicable official
public guidance published, under the Code.
“Compliance Monitoring Fee” means the compliance monitoring fee in an annual amount equal to
$30.00 per rental unit in the Project (119 units; $3,570.00 annual fee) (subject to adjustment from time to
time by the Governmental Lender) to be paid by the Borrower to the Governmental Lender pursuant to the
Regulatory Agreement.
“Conditions to Conversion” shall have the meaning given such term in the Forward Purchase
Agreement.
“Control” shall mean, with respect to any Person, either (i) ownership directly or through other
entities of more than 50% of all beneficial equity interest in such Person, or (ii) the possession, directly or
indirectly, of the power to direct or cause the direction of the management and policies of such Person,
through the ownership of voting securities, by contract or otherwise.
“Conversion Date” shall mean ___________, the date on which the Funding Lender purchases the
Governmental Lender Note from the Initial Funding Lender and assumes the role of the Funding Lender
under the Funding Loan Documents.
5
4856-5616-9347.5
“County” shall mean Miami-Dade County, Florida.
“County Authorization” has the meaning set forth in the recitals above.
“Delivery Date” shall mean the date of issuance and delivery of the Governmental Lender Note.
“Equity Investor” shall have the meaning ascribed thereto in the Borrower Loan Agreement.
“Event of Default” shall have the meaning ascribed thereto in Section 9.1 hereof.
“Fee Guaranty & Environmental Indemnity” means the Fee Guaranty and Environmental
Indemnity Agreement, dated as of December 1, 2023, by and among the Governmental Lender, the Fiscal
Agent and the Governmental Lender Guarantors.
“Fiscal Agent” shall mean The Bank of New York Mellon Trust Company, N.A., a national banking
association, as fiscal agent hereunder, and any successor fiscal agent or co-fiscal agent appointed under this
Funding Loan Agreement.
“Fiscal Agent’s Fees” shall mean the Fiscal Agent’s initial acceptance fee and expenses of $2,000
plus fees and expenses of its counsel in conjunction with the delivery of the Governmental Lender Note
and the ongoing compensation and expenses payable to the Fiscal Agent as follows:
(i) the annual administration fees of the Fiscal Agent, for the ordinary services of the
Fiscal Agent rendered under this Funding Loan Agreement during each twelve-month period and
shall be $4,250, payable in advance in semiannual installments of $2,125 on the Delivery Date and
each December 1 and June 1 thereafter;
(ii) the reasonable fees and charges of the Fiscal Agent for necessary extraordinary
services rendered by it and/or reimbursement for extraordinary expenses incurred by it under this
Funding Loan Agreement as and when the same become due, including reasonable fees and
expenses of legal counsel and internal default administrators (including fees prior to litigation, at
trial or for appellate proceedings); provided, however, that the Fiscal Agent shall not be required
to undertake any such extraordinary services unless provision for payment of extraordinary
expenses satisfactory to the Fiscal Agent shall have been made; and
(iii) for purposes of the Borrower Loan Agreement, indemnification of the Fiscal Agent
by the Borrower.
“Funding Lender” shall mean Citibank, N.A., a national banking association, and any successor
under this Funding Loan Agreement and the Borrower Loan Documents.
“Funding Loan Agreement” shall mean this Amended and Restated Funding Loan Agreement,
dated ________, 20__, by and among the Funding Lender, the Governmental Lender and the Fiscal Agent,
as it may from time to time be supplemented, modified or amended by one or more instruments
supplemental hereto entered into pursuant to the applicable provisions hereof.
“Funding Loan Documents” shall mean (i) this Funding Loan Agreement, (ii) the Borrower Loan
Agreement, (iii) the Regulatory Agreement, (iv) the Tax Certificate, (v) the Borrower Loan Documents,
(vi) the Loan Covenant Agreement, (vii) the Governmental Lender Guaranties, (viii) all other documents
evidencing, securing, governing or otherwise pertaining to the Funding Loan, and (ix) all amendments,
modifications, renewals and substitutions of any of the foregoing.
6
4856-5616-9347.5
“Governmental Lender” shall mean the Housing Finance Authority of Miami-Dade County,
Florida.
“Governmental Lender Extraordinary Fees and Expenses” means the expenses and disbursements
payable to the Governmental Lender under this Funding Loan Agreement for extraordinary services and
extraordinary expenses, including extraordinary fees, costs and expenses incurred by the Governmental
Lender, Bond Counsel and counsel to the Governmental Lender which are to be paid by the Borrower
pursuant to the Borrower Loan Documents.
“Governmental Lender Fee” means, collectively, the Governmental Lender Ordinary Fees and
Expenses and the Governmental Lender Extraordinary Fees and Expenses.
“Governmental Lender Guaranties” means, collectively, (i) the Guaranty of Recourse Obligations,
(ii) the Operating Deficit Guaranty, and (iii) the Fee Guaranty and Environmental Indemnity, each dated as
of December 1, 2023, by the Governmental Lender Guarantors for the benefit of the Governmental Lender
and the Fiscal Agent.
“Governmental Lender Guarantors” means, collectively, the Borrower, APC Vista Breeze, LLC, a
Florida limited liability company, Vista Breeze HACMB, Inc., a Florida not for profit corporation, Atlantic
Pacific Communities, LLC, a Delaware limited liability company, APC Vista Breeze Development, LLC,
a Florida limited liability company, HACMB Development, LLC, a Florida limited liability company,
Howard D. Cohen Revocable Trust Under Agreement Dated 4/6/1993, and Howard D. Cohen, individually.
“Governmental Lender Ordinary Fees and Expenses” means collectively (i) the annual fee of the
Governmental Lender, payable by the Borrower in the amount of 25 basis points (0.25%) of the outstanding
principal amount of the Governmental Lender Note (calculated on the Business Day prior to any reduction
on such payment date), payable in semiannual installments in arrears on each December 1 and June 1,
commencing on June 1 or December 1 following Conversion, pro-rated as applicable to such date, (ii) the
Compliance Monitoring Fee and (iii) the Governmental Lender Short-Term Prepayment Fee, if applicable.
“Governmental Lender Short-Term Prepayment Fee” means the applicable fee in the following
schedule determined based on the principal amount of the Governmental Lender Note to be prepaid and the
length of time between the date of issuance of the Note and the prepayment or final maturity of the
Governmental Lender Note; provided however, such fee shall not be less than $20,000, which fee is payable
on the partial or full prepayment or final maturity date, as applicable:
Prepayment Date
Note Amount ≤ 18-Month 18+ to 24-Months 24+ to 60-Months
$15 million or less 31 bps 24 bps 18 bps
Above $15 million up to $20 million 30 bps 23 bps 17 bps
$20 million up to $25 million 29 bps 22 bps 16 bps
$25 million up to $30 million 28 bps 21 bps 15 bps
$30 million or above 27 bps 20 bps 14 bps
7
4856-5616-9347.5
“Governmental Lender Note” shall mean the Governmental Lender Note described in the recitals
of this Funding Loan Agreement.
“Guaranty of Recourse Obligations” means the Absolute and Unconditional Guaranty of Recourse
Obligations, dated as of December 1, 2023, from the Governmental Lender Guarantors, jointly and
severally, in favor of the Governmental Lender and the Fiscal Agent.
“Highest Rating Category” shall mean, with respect to a Permitted Investment, that the Permitted
Investment is rated by S&P or Moody’s in the highest rating given by that Rating Agency for that general
category of security. By way of example, the Highest Rating Category for tax exempt municipal debt
established by S&P is “A 1+” for debt with a term of one year or less and “AAA” for a term greater than
one year, with corresponding ratings by Moody’s of “MIG 1” (for fixed rate) or “VMIG 1” (for variable
rate) for three (3) months or less and “Aaa” for greater than three months. If at any time (i) both S&P and
Moody’s rate a Permitted Investment and (ii) one of those ratings is below the Highest Rating Category,
then such Permitted Investment will, nevertheless, be deemed to be rated in the Highest Rating Category if
the lower rating is no more than one rating category below the highest rating category of that Rating
Agency. For example, a Permitted Investment rated “AAA” by S&P and “Aa3” by Moody’s is rated in the
Highest Rating Category. If, however, the lower rating is more than one full rating category below the
Highest Rating Category of that Rating Agency, then the Permitted Investment will be deemed to be rated
below the Highest Rating Category. For example, a Permitted Investment rated “AAA” by S&P and “A1”
by Moody’s is not rated in the Highest Rating Category.
“Loan Covenant Agreement” shall mean the Loan Covenant Agreement between the Borrower and
the Funding Lender, dated the date hereof.
“Loan Payment Fund” shall mean the fund by that name created and established under this Funding
Loan Agreement.
“Maturity Date” shall mean with respect to the Governmental Lender Note, July 1, 2057.
“Minimum Beneficial Ownership Amount” shall mean an amount not less than fifteen percent
(15%) of the aggregate outstanding principal amount of the Funding Loan.
“Moody’s” shall mean Moody’s Investors Service, Inc., or its successor.
“Operating Deficit Guaranty” means the Absolute and Unconditional Guaranty of Operating
Deficits, dated as of December 1, 2023, from the Governmental Lender Guarantors, jointly and severally,
to the Governmental Lender and the Fiscal Agent.
“Opinion of Counsel” shall mean a written opinion from an attorney or firm of attorneys, acceptable
to the Funding Lender and the Governmental Lender with experience in the matters to be covered in the
opinion; provided that whenever an Opinion of Counsel is required to address the exclusion of interest on
the Governmental Lender Note from gross income for purposes of federal income taxation, such opinion
shall be provided by Tax Counsel.
“Permanent Phase Borrower Loan” shall mean the mortgage loan made by the Governmental
Lender to the Borrower pursuant to the Borrower Loan Agreement in the aggregate principal amount of
$___________, as evidenced by the Permanent Phase Borrower Note.
“Permanent Phase Borrower Note” shall mean the “Permanent Phase Borrower Note” as defined
in the Recitals hereto.
8
4856-5616-9347.5
“Permitted Investments” shall mean, to the extent authorized by law for investment of any moneys
held under this Funding Loan Agreement:
(a) Direct obligations of the United States of America including obligations issued or
held in book-entry form on the books of the Department of the Treasury of the United States of America
(“Government Obligations”).
(b) Direct obligations of, and obligations on which the full and timely payment of
principal and interest is unconditionally guaranteed by, any agency or instrumentality of the United States
of America, or direct obligations of the World Bank, which obligations are rated in the Highest Rating
Category.
(c) Demand deposits or time deposits with, or certificates of deposit issued by, the
Fiscal Agent or its Affiliates or any bank organized under the laws of the United States of America or any
state or the District of Columbia which has combined capital, surplus and undivided profits of not less than
$50,000,000 and maturing in less than 365 days; provided that the Fiscal Agent or such other institution
has been rated at least “VMIG-1”/”A-1+” by Moody’s/S&P which deposits or certificates are fully insured
by the Federal Deposit Insurance Corporation or collateralized pursuant to the requirements of the Office
of the Comptroller of the Currency.
(d) Bonds (including tax-exempt bonds), bills, notes or other obligations of or secured
by Fannie Mae, Freddie Mac, the Federal Home Loan Bank or the Federal Farm Credit Bank.
(e) Money market funds rated AAA by S&P which are registered with the Securities
and Exchange Commission and which meet the requirements of Rule 2(a)(7) of the Investment Company
Act of 1940, as amended, which may be administered by the Fiscal Agent or its Affiliates.
(f) Collateralized Investment Agreements or Repurchase Agreements with financial
institutions rated in the “A” category or higher without regard to qualifiers, by at least one Rating Agency.
The agreement must be continually collateralized with obligations specified in paragraphs (a), (b) and/or
(d) above, eligible for wire through the Federal Reserve Bank System or the DTC/PTC as applicable, and
at a level of at least 103% of the amount on deposit and valued no less than daily. The collateral must be
held by a third party custodian and be free and clear of all liens and claims of third parties. Securities must
be valued daily, marked-to-market at current market price plus accrued interest. If the market value of the
securities is found to be below the required level, the provider must restore the market value of the securities
to the required level within one (1) business day. Permitted collateral must be delivered to and held in a
segregated account by the Fiscal Agent or a custodian (the “Collateral Agent”), and the Collateral Agent
cannot be the provider. The collateral must be delivered to the Collateral Agent before/simultaneous with
payment (perfection by possession of certificated securities). Acceptable collateral must be free and clear
of all liens and claims of third parties and shall be registered in the name of the Collateral Agent for the
benefit of the Governmental Lender and Fiscal Agent. The agreement shall state that the Collateral Agent
has a valid and perfected first priority security interest in the securities, any substituted securities and all
proceeds thereof.
(g) Any other investment authorized by the laws of the State, if such investment is
approved in advance in writing by the Funding Lender in its sole discretion.
Permitted Investments shall not include any of the following:
(1) Except for any investment described in the next sentence, any investment or any
agreement with a maturity profile greater than the date(s) on which funds representing the corpus
of the investment may be needed under the Funding Loan Documents. This exception (1) shall not
apply to Permitted Investments listed in paragraph (g).
9
4856-5616-9347.5
(2) Any obligation bearing interest at an inverse floating rate.
(3) Any investment which may be prepaid or called at a price less than its purchase
price prior to stated maturity.
(4) Any investment the interest rate on which is variable and is established other than
by reference to a single index plus a fixed spread, if any, and which interest rate moves
proportionately with that index.
Ratings of Permitted Investments shall be determined at the time of purchase of such
Permitted Investments and without regard to ratings subcategories, and the Fiscal Agent shall have
no responsibility to monitor the ratings of Permitted Investments after the initial purchase of such
Permitted Investments.
“Person” shall mean any individual, corporation, limited liability company, partnership, joint
venture, estate, trust, unincorporated association, any federal, state, county or municipal government or any
bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the
foregoing.
“Pledged Revenues” shall mean the amounts pledged under this Funding Loan Agreement to the
payment of the principal of, prepayment premium, if any, and interest on the Funding Loan and the
Governmental Lender Note, consisting of the following: (i) all income, revenues, proceeds and other
amounts to which the Governmental Lender is entitled (other than amounts received by the Governmental
Lender with respect to the Unassigned Rights) derived from or in connection with the Project and the
Funding Loan Documents, including all Borrower Loan Payments due under the Borrower Loan Agreement
and the Permanent Phase Borrower Note, payments with respect to the all Permanent Phase Borrower Loan
Payments and all amounts obtained through the exercise of the remedies provided in the Funding Loan
Documents and all receipts credited under the provisions of this Funding Loan Agreement against said
amounts payable, and (ii) moneys held in the funds and accounts established under this Funding Loan
Agreement, together with investment earnings thereon (except any amounts on deposit in the
Administration Fund and Rebate Fund).
“Prepayment Premium” shall mean (i) any premium payable by the Borrower pursuant to the
Borrower Loan Documents in connection with a prepayment of the Permanent Phase Borrower Note
(including any Prepayment Premium as set forth in the Permanent Phase Borrower Note) and (ii) any
premium payable on the Governmental Lender Note pursuant to this Funding Loan Agreement.
“Project” shall have the meaning given to that term in the Borrower Loan Agreement.
“Rating Agency” shall mean any one and each of S&P and Moody’s then rating the Permitted
Investments or any other nationally recognized statistical rating agency then rating the Permitted
Investments, which has been approved by the Funding Lender.
“Rebate Fund” shall mean the fund by that name created and established under this Funding Loan
Agreement.
“Record Date” shall mean the last day of each calendar month.
“Regulations” shall mean with respect to the Code, the relevant U.S. Treasury regulations and
proposed regulations thereunder or any relevant successor provision to such regulations and proposed
regulations.
10
4856-5616-9347.5
“Regulatory Agreement” shall mean that certain Land Use Restriction Agreement, dated as of the
date hereof, by and among the Governmental Lender, the Borrower and the Fiscal Agent, as hereafter
amended or modified.
“Required Transferee Representations” shall mean the representations in substantially the form
attached to this Funding Loan Agreement as Exhibit A.
“Resolution” shall mean the resolution of the Governmental Lender authorizing the Funding Loan,
as evidenced by the Governmental Lender Note and the execution and delivery of the Funding Loan
Documents to which the Governmental Lender is a party.
“Responsible Officer” shall mean any officer within the Corporate Trust Department (or any
successor group) of the Fiscal Agent, including any vice president, assistant vice president, assistant
secretary or any other officer or assistant officer of the Fiscal Agent customarily performing functions
similar to those performed by the persons who at the time shall be such officers, respectively, who is
responsible for the administration of this Funding Loan Agreement.
“Securities Act” shall mean the Securities Act of 1933, as amended.
“Security” shall mean the security for the performance by the Governmental Lender of its
obligations under the Governmental Lender Note and this Funding Loan Agreement as more fully set forth
in Article IV hereof.
“Security Instrument” shall mean the Amended and Restated Mortgage, Assignment of Rents,
Security Agreement and Fixture Filing, dated as of the date hereof (as amended, restated and/or
supplemented from time to time), made by the Borrower in favor of the Governmental Lender and assigned
to the Funding Lender to secure the performance by the Governmental Lender of its obligations with respect
to the Funding Loan, as evidenced by the Governmental Lender Note.
“Servicer” shall mean any Servicer appointed by the Funding Lender to perform certain servicing
functions with respect to the Funding Loan and on the Permanent Phase Borrower Loan pursuant to a
separate servicing agreement to be entered into between the Funding Lender and the Servicer. Initially the
Servicer shall be the Funding Lender pursuant to this Funding Loan Agreement.
“Servicing Agreement” shall mean any servicing agreement entered into between the Funding
Lender and a Servicer with respect to the servicing of the Funding Loan and/or the Permanent Phase
Borrower Loan.
“S&P” shall mean S&P Global Ratings, a division of S&P Global Inc., and its successors.
“State” shall mean the State of Florida.
“Tax Certificate” shall mean the Tax Certificate and Agreement executed by the Governmental
Lender and the Borrower including all exhibits and other attachments thereto as may be amended from time
to time.
“Tax Counsel” shall mean, collectively, Foley & Lardner, LLP, or any other attorney or firm of
attorneys designated by the Governmental Lender and approved by the Funding Lender having a national
reputation for skill in connection with the authorization and issuance of municipal obligations under
Sections 103 and 141 through 150 (or any successor provisions) of the Code.
11
4856-5616-9347.5
“Tax Counsel No Adverse Effect Opinion” shall mean an opinion of Tax Counsel to the effect that
the taking of the action specified therein will not, in and of itself, impair the exclusion of interest on the
Governmental Lender Note from gross income for purposes of federal income taxation (subject to the
inclusion of such customary exceptions as are acceptable to the recipient thereof).
“Unassigned Rights” shall mean the Governmental Lender’s rights to reimbursement and payment
of its fees, costs and expenses and the Rebate Amount under Section 2.5 of the Borrower Loan Agreement,
its rights of access under Section 5.18 thereof, its rights to indemnification under Section 5.16 thereof and
under any of the other Funding Loan Documents, if such right exists, its rights to attorneys’ fees under
Sections 5.12 and 5.15 thereof, its rights to receive notices, reports and other statements and its rights to
consent to certain matters, as provided in this Funding Loan Agreement, the Borrower Loan Agreement
and under any of the other Funding Loan Documents, if such right exists.
“Written Certificate,” “Written Certification,” “Written Consent,” “Written Direction,” “Written
Notice,” “Written Order,” “Written Registration,” “Written Request,” and “Written Requisition” shall mean
a written certificate, direction, notice, order or requisition signed by an Authorized Borrower
Representative, an Authorized Governmental Lender Representative, a Responsible Officer of the Fiscal
Agent or an authorized representative of the Funding Lender and delivered to the Funding Lender, the
Servicer, the Governmental Lender Servicer, the Fiscal Agent or such other Person as required under the
Funding Loan Documents.
“Yield” shall mean yield as defined in Section 148(h) of the Code and any regulations promulgated
thereunder.
Section 1.2. Effect of Headings and Table of Contents. The Article and Section headings
herein and in the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.3. Date of Funding Loan Agreement. The date of this Funding Loan Agreement is
intended as and for a date for the convenient identification of this Funding Loan Agreement and is not
intended to indicate that this Funding Loan Agreement was executed and delivered on said date.
Section 1.4. Designation of Time for Performance. Except as otherwise expressly provided
herein, any reference in this Funding Loan Agreement to the time of day shall mean the time of day in the
city where the Funding Lender maintains its place of business for the performance of its obligations under
this Funding Loan Agreement.
Section 1.5. Interpretation. The parties hereto acknowledge that each of them and their
respective counsel have participated in the drafting and revision of this Funding Loan Agreement.
Accordingly, the parties agree that any rule of construction that disfavors the drafting party shall not apply
in the interpretation of this Funding Loan Agreement or any amendment or supplement or exhibit hereto.
ARTICLE II
TERMS; GOVERNMENTAL LENDER NOTE
Section 2.1. Terms.
(a) Principal Amount. The maximum aggregate principal amount of the Funding Loan and
the Governmental Lender Note evidencing such Funding Loan is $______________.
12
4856-5616-9347.5
(b) Maturity. The Funding Loan shall mature on the Maturity Date at which time the entire
principal amount, to the extent not previously paid, and all accrued and unpaid interest, shall be due and
payable.
(c) Principal. The outstanding principal amount of the Governmental Lender Note and of the
Funding Loan as of any given date shall be the principal amount outstanding on the Conversion Date, less
any payments of principal of the Governmental Lender Note received from payments of corresponding
principal amounts under the Borrower Note, including regularly scheduled principal payments and
voluntary and mandatory prepayments. The principal amount of the Governmental Lender Note and
interest thereon shall be payable on the basis specified in paragraphs (d), (e) and (f) of this Section 2.1. The
Fiscal Agent shall keep a record of all principal repayments made under the Governmental Lender Note
and shall upon written request provide the Governmental Lender and the Funding Lender with a statement
of the outstanding principal balance of the Governmental Lender Note and the Funding Loan.
(d) Interest. Interest shall be paid on the outstanding principal amount of the Governmental
Lender Note at the rate or rates set forth in the Permanent Phase Borrower Note and otherwise as set forth
in the Borrower Loan Agreement.
(e) Corresponding Payments. The payment or prepayment of principal, interest and premium,
if any, due on the Governmental Lender Note shall be identical with and shall be made on the same dates,
terms and conditions, as the principal, interest, premiums, late payment fees and other amounts due on the
Permanent Phase Borrower Note. Any payment or prepayment made by the Borrower of principal, interest,
premium, if any, due on the Permanent Phase Borrower Note shall be deemed to be like payments or
prepayments of principal, interest and premium, if any, due on the Funding Loan and the Governmental
Lender Note.
(f) Usury. The Governmental Lender intends to conform strictly to the usury laws applicable
to this Funding Loan Agreement and the Governmental Lender Note and all agreements made in the
Governmental Lender Note, this Funding Loan Agreement and the Funding Loan Documents are expressly
limited so that in no event whatsoever shall the amount paid or agreed to be paid as interest or the amounts
paid for the use of money advanced or to be advanced hereunder exceed the highest lawful rate prescribed
under any law which a court of competent jurisdiction may deem applicable hereto. If, from any
circumstances whatsoever, the fulfillment of any provision of the Governmental Lender Note, this Funding
Loan Agreement or the other Funding Loan Documents shall involve the payment of interest in excess of
the limit prescribed by any law which a court of competent jurisdiction may deem applicable hereto, then
the obligation to pay interest hereunder shall be reduced to the maximum limit prescribed by law. If from
any circumstances whatsoever, the Funding Lender shall ever receive anything of value deemed interest,
the amount of which would exceed the highest lawful rate, such amount as would be excessive interest shall
be deemed to have been applied, as of the date of receipt by the Funding Lender, to the reduction of the
principal remaining unpaid hereunder and not to the payment of interest, or if such excessive interest
exceeds the unpaid principal balance, such excess shall be refunded to the Borrower. This paragraph shall
control every other provision of the Governmental Lender Note, this Funding Loan Agreement and all other
Funding Loan Documents.
In determining whether the amount of interest charged and paid might otherwise exceed the limit
prescribed by law, the parties hereto intend and agree that (i) interest shall be computed upon the assumption
that payments under the Borrower Loan Agreement and other Funding Loan Documents will be paid
according to the agreed terms, and (ii) any sums of money that are taken into account in the calculation of
interest, even though paid at one time, shall be spread over the actual term of the Funding Loan.
13
4856-5616-9347.5
Section 2.2. Form of Governmental Lender Note. As evidence of its obligation to repay the
Funding Loan, the Governmental Lender has executed and delivered the Governmental Lender Note.
Section 2.3. Execution and Delivery of Governmental Lender Note. The Governmental
Lender Note shall each be executed on behalf of the Governmental Lender by the manual or facsimile
signature of an Authorized Governmental Lender Representative and attested by the manual or facsimile
signature of an Authorized Attesting Officer. Any facsimile signatures shall have the same force and effect
as if said officers had manually signed the Governmental Lender Note. In case any officer of the
Governmental Lender whose manual or facsimile signature shall appear on a Governmental Lender Note
shall cease to be such officer before the delivery thereof, such signature or such facsimile shall nevertheless
be valid and sufficient for all purposes, the same as if he had remained in office until delivery, and also a
Governmental Lender Note may bear the facsimile signatures of, or may be signed by, such persons as at
the actual time of the execution thereof shall be the proper officers to sign such Governmental Lender Note
although at the date of the Governmental Lender Note such persons may not have been such officers.
Section 2.4. Authentication. The Fiscal Agent has authenticated the Governmental Lender
Note by execution of the certificate of authentication on or attached to the Governmental Lender Note, and
the certificate of authentication so executed on or attached to the Governmental Lender Note shall be
conclusive evidence that the Governmental Lender Note has been authenticated and delivered under this
Funding Loan Agreement.
Section 2.5. Registration and Transfer of Governmental Lender Note.
(a) The Fiscal Agent acknowledges that the Funding Lender is the holder of the Governmental
Lender Note as of the Conversion Date and shall remain the sole holder of the Governmental Lender Note
except as otherwise provided herein.
(b) The Fiscal Agent, on behalf of the Governmental Lender, shall provide for the registration
of the Governmental Lender Note or interests therein and the registration of transfers thereof. In that regard,
the Fiscal Agent shall maintain a register which shall contain a record of the Governmental Lender Note at
any time authenticated hereunder, together with the name and address of the holder thereof, the date of
authentication, the date of transfer or payment, and such other matters as may be deemed appropriate by
the Fiscal Agent or the Governmental Lender. The Governmental Lender, the Fiscal Agent and any agent
of the Governmental Lender or the Fiscal Agent shall treat the person in whose name the Governmental
Lender Note is registered as of the Record Date as the owner of the Governmental Lender Note for the
purpose of receiving payment of the Governmental Lender Note and for all other purposes whatsoever
whether or not the Governmental Lender Note payments are overdue, and, to the extent permitted by law,
neither the Governmental Lender, the Fiscal Agent nor any such agent shall be affected by notice to the
contrary.
(c) The transfer of the Governmental Lender Note is subject to registration by the holder
thereof only upon compliance with the conditions for registration of transfer imposed on the holder under
this Section 2.5 and under Section 2.6 hereof. Upon surrender of any Governmental Lender Note at the
principal corporate trust office of the Fiscal Agent, the Governmental Lender shall execute (if necessary),
and the Fiscal Agent shall authenticate and deliver, in the name of the designated transferee (but not
registered in blank or to “bearer” or a similar designation), a new Governmental Lender Note of a like
principal amount, and having the same stated maturity, tenor and interest rate, substantially in the form set
forth in Exhibit A hereto.
(d) Any Governmental Lender Note delivered in exchange for or upon transfer of a
Governmental Lender Note shall be a valid limited obligation of the Governmental Lender evidencing the
14
4856-5616-9347.5
same debt and entitled to the same benefits under this Funding Loan Agreement, as the Governmental
Lender Note surrendered for such exchange or transfer.
(e) Registration of the transfer of the Governmental Lender Note may be made on the Fiscal
Agent’s register by the holder thereof by such holder’s attorney duly authorized in writing; provided, that
the Governmental Lender Note presented or surrendered for registration of transfer or exchange (i) is
accompanied by evidence of compliance with the provisions of Section 2.6 hereof, (ii) is duly endorsed or
be accompanied by a written instrument or instruments of transfer, in a form satisfactory to the
Governmental Lender and the Fiscal Agent, duly executed by the holder thereof or his, her or its attorney
duly authorized in writing and (iii) includes written instructions as to the details of the transfer of the
Governmental Lender Note.
(f) No service charge shall be made to the registered holder of the Governmental Lender Note
for any registration, transfer or exchange, but the Fiscal Agent and the Governmental Lender may require
payment of a sum sufficient to cover any tax, fee or other governmental charge that may be imposed in
connection with any transfer or exchange of the Governmental Lender Note, and any legal or unusual costs
of transfers. Such sums shall be paid in every instance by the purchaser or assignee of the Funding Loan
or portion thereof.
(g) The Governmental Lender Note shall not be transferred through the services of the
Depository Trust Company or any other third-party registrar.
(h) The transferor shall also provide or cause to be provided to the Fiscal Agent all information
necessary to allow the Fiscal Agent to comply with any applicable tax reporting obligations, including
without limitation any cost basis reporting obligations under Internal Revenue Code Section 6045. The
Fiscal Agent may rely on the information provided to it and shall have no responsibility to verify or ensure
the accuracy of such information.
Section 2.6. Restrictions on Transfer.
(a) The Funding Lender shall deliver to the Governmental Lender the Required Transferee
Representations in substantially the form attached hereto as Exhibit A on the Delivery Date.
(b) The Funding Lender shall have the right to sell (i) the Governmental Lender Note and the
Funding Loan in whole or (ii) a participation interest or other beneficial ownership interest in the
Governmental Lender Note and the Funding Loan to the extent permitted by Section 2.6(c) below, provided
that such sale shall be only to Approved Transferees that execute and deliver the Required Transferee
Representations to the Funding Lender, with a copy to the Governmental Lender and the Fiscal Agent;
provided, however, that no Required Transferee Representations shall be required to be delivered by
transferees or beneficial interest holders described in clauses (3) or (4) of the definition of “Approved
Transferee.”
(c) Notwithstanding the other provisions of this Section 2.6, no beneficial ownership interest
in the Governmental Lender Note and Funding Loan shall be sold in an amount that is less than the
Minimum Beneficial Ownership Amount; provided, however, that beneficial ownership interests in the
Governmental Lender Note and Funding Loan described in clause (3) of the definition of “Approved
Transferee” may be sold in any amount equal to or greater than $100,000.
(d) The parties agree that no rating shall be sought from a rating agency with respect to the
Funding Loan or the Governmental Lender Note.
15
4856-5616-9347.5
The Fiscal Agent shall be entitled to rely, without any further inquiry, on any Required Transferee
Representations delivered to it and shall be fully protected in registering any transfer or exchange of the
Governmental Lender Note in reliance on any such Required Transferee Representations which appear on
their face to be correct and of which the Fiscal Agent has no actual knowledge otherwise. Any such holder
desiring to effect such transfer shall agree to indemnify the Governmental Lender and the Fiscal Agent
from and against any and all liability, cost or expense (including attorneys’ fees) that may result if the
transfer is not exempt from registration under the Securities Act or is not made in accordance with such
federal and state laws. Notwithstanding anything to the contrary herein, the holder shall not transfer or sell
the Governmental Lender Note or any interest therein to a party related to or affiliated with the Borrower,
any general partner, limited partner or member of the Borrower without the prior written consent of the
Governmental Lender.
ARTICLE III
PREPAYMENT
Section 3.1. Prepayment of the Governmental Lender Note from Prepayments Under the
Permanent Phase Borrower Note. The Governmental Lender Note is subject to voluntary and mandatory
prepayment as follows:
(a) The Governmental Lender Note shall be subject to voluntary prepayment to the extent and
in the manner and on any date that the Permanent Phase Borrower Note is subject to voluntary prepayment
as set forth therein, at a prepayment price equal to the principal balance of the Permanent Phase Borrower
Note to be prepaid, plus interest thereon to the date of prepayment and the amount of any Prepayment
Premium payable under the Permanent Phase Borrower Note, plus any Additional Borrower Payments due
and payable under the Borrower Loan Agreement through the date of prepayment.
The Borrower shall not have the right to voluntarily prepay all or any portion of the Permanent
Phase Borrower Note, thereby causing the Governmental Lender Note to be prepaid, except as specifically
permitted in the Permanent Phase Borrower Note, without the prior written consent of Funding Lender,
which may be withheld in Funding Lender’s sole and absolute discretion.
(b) The Governmental Lender Note shall be subject to mandatory prepayment in whole or in
part upon prepayment of the Permanent Phase Borrower Note at the direction of the Funding Lender in
accordance with the terms of the Permanent Phase Borrower Note at a prepayment price equal to the
outstanding principal balance of the Permanent Phase Borrower Note prepaid, plus accrued interest plus
any other amounts payable under the Permanent Phase Borrower Note or the Borrower Loan Agreement.
Section 3.2. Notice of Prepayment. Notice of prepayment of the Governmental Lender Note
shall be deemed given to the extent that notice of prepayment of the Permanent Phase Borrower Note is
timely and properly given to Funding Lender and Fiscal Agent in accordance with the terms of the
Permanent Phase Borrower Note and the Borrower Loan Agreement, and no separate notice of prepayment
of the Governmental Lender Note is required to be given.
ARTICLE IV
SECURITY
Section 4.1. Security for the Funding Loan. To secure the payment of the Funding Loan and
the Governmental Lender Note, to declare the terms and conditions on which the Funding Loan and the
Governmental Lender Note is secured, and in consideration of the premises and of the funding of the
Funding Loan by the Funding Lender, the Governmental Lender by these presents does grant, bargain, sell,
remise, release, convey, assign, transfer, mortgage, hypothecate, pledge, set over and confirm to the
16
4856-5616-9347.5
Funding Lender for the benefit of the holder from time to time of the Governmental Lender Note or any
interests therein, a lien on and security interest in the following described property (excepting, however,
the Unassigned Rights) (said property, rights and privileges being herein collectively called, the
“Security”):
(a) All right, title and interest of the Governmental Lender in, to and under the Borrower Loan
Agreement and the Permanent Phase Borrower Note, including, without limitation, all rents, revenues and
receipts derived thereunder by the Governmental Lender from the Borrower relating to the Project and
including, without limitation, all Pledged Revenues, Borrower Loan Payments and Additional Borrower
Payments (except those related to the Unassigned Rights) derived by the Governmental Lender under and
pursuant to, and subject to the provisions of, the Borrower Loan Agreement; provided that the pledge and
assignment made under this Funding Loan Agreement shall not impair or diminish the obligations of the
Governmental Lender under the provisions of the Borrower Loan Agreement;
(b) All right, title and interest of the Governmental Lender in, to and under, together with all
rights, remedies, privileges and options pertaining to, the Funding Loan Documents, and all other payments,
revenues and receipts derived by the Governmental Lender under and pursuant to, and subject to the
provisions of, the Funding Loan Documents;
(c) Any and all moneys and investments from time to time on deposit in, or forming a part of,
all funds and accounts created and held under this Funding Loan Agreement (other than the Administration
Fund and the Rebate Fund), subject to the provisions of this Funding Loan Agreement permitting the
application thereof for the purposes and on the terms and conditions set forth herein; and
(d) Any and all other real or personal property of every kind and nature or description, which
may from time to time hereafter, by delivery or by writing of any kind, be subjected to the lien of this
Funding Loan Agreement as additional security by the Governmental Lender or anyone on its part or with
its consent, or which pursuant to any of the provisions hereof or of the Borrower Loan Agreement may
come into the possession or control of the Fiscal Agent or the Funding Lender or a receiver appointed
pursuant to this Funding Loan Agreement; and the Fiscal Agent or the Funding Lender is hereby authorized
to receive any and all such property as and for additional security for the Funding Loan and the
Governmental Lender Note and to hold and apply all such property subject to the terms hereof.
The pledge and assignment of and the security interest granted in the Security pursuant to this
Section 4.1 for the payment of the principal of, premium, if any, and interest on the Governmental Lender
Note, in accordance with its terms and provisions, and for the payment of all other amounts due hereunder,
shall attach and be valid and binding from and after the time of the delivery of the Governmental Lender
Note by the Governmental Lender. The Security so pledged and then or thereafter received by the Fiscal
Agent or the Funding Lender shall immediately be subject to the lien of such pledge and security interest
without any physical delivery or recording thereof or further act, and the lien of such pledge and security
interest shall be valid and binding and prior to the claims of any and all parties having claims of any kind
in tort, contract or otherwise against the Governmental Lender irrespective of whether such parties have
notice thereof.
Section 4.2. Delivery of Security. In order to secure payment of the Funding Loan and the
Governmental Lender Note, the Governmental Lender has pledged and assigned its right, title and interest
in the Security to the Funding Lender. In connection with such pledge, assignment, transfer and
conveyance, the Governmental Lender shall deliver to the Funding Lender the following documents or
instruments promptly following their execution and, to the extent applicable, their recording or filing:
17
4856-5616-9347.5
(a) The Permanent Phase Borrower Note endorsed without recourse to the Funding Lender by
the Governmental Lender;
(b) The originally executed Borrower Loan Agreement and Regulatory Agreement;
(c) The originally executed Security Instrument and all other Borrower Loan Documents
existing at the time of delivery of the Permanent Phase Borrower Note and an assignment for security of
the Security Instrument from the Governmental Lender to the Funding Lender, in recordable form;
(d) Uniform Commercial Code financing statements or other chattel security documents giving
notice of the Funding Lender’s status as an assignee of the Governmental Lender’s security interest in any
personal property forming part of the Project, in form suitable for filing; and
(e) Uniform Commercial Code financing statements giving notice of the pledge by the
Governmental Lender of the Security pledged under this Funding Loan Agreement.
The Governmental Lender shall, at the expense of the Borrower, deliver and deposit with the Fiscal
Agent or the Funding Lender such additional documents, financing statements, and instruments as the
Funding Lender may reasonably require and direct from time to time for the better perfecting and assuring
to the Funding Lender of its lien and security interest in and to the Security.
ARTICLE V
LIMITED LIABILITY
Section 5.1. Source of Payment of Funding Loan, the Governmental Lender Note and Other
Obligations. The Governmental Lender Note evidencing the Funding Loan is a revenue obligation of the
Governmental Lender, payable solely from the Pledged Revenues and other funds and moneys and Security
pledged and assigned hereunder. None of the Governmental Lender, the State, or any political subdivision
thereof nor any public agency shall in any event be liable for the payment of the principal of, premium (if
any) or interest on the Governmental Lender Note and the Funding Loan or for the performance of any
pledge, obligation or agreement of any kind whatsoever with respect thereto except as set forth herein, and
none of the Funding Loan or the Governmental Lender Note or any of the Governmental Lender’s
agreements or obligations shall be construed to constitute an indebtedness of or a pledge of the faith and
credit of or a loan of the credit of or a moral obligation of any of the foregoing within the meaning of any
constitutional or statutory provision whatsoever. Neither the faith, revenues, credit nor taxing power of the
Governmental Lender, the State or any other political corporation or subdivision or agency thereof shall be
pledged to the payment of the principal of, premium (if any), or interest on the Governmental Lender Note
or this Funding Loan Agreement.
Section 5.2. Exempt from Individual Liability. No recourse under or upon any obligation,
covenant, warranty or agreement contained in this Funding Loan Agreement or in the Governmental Lender
Note, or under any judgment obtained against the Governmental Lender, or the enforcement of any
assessment, or any legal or equitable proceedings by virtue of any constitution or statute or otherwise, or
under any circumstances under or independent of this Funding Loan Agreement, shall be had against any
of the members, officers, agents or employees of the Governmental Lender (past, present or future), either
directly or through the Governmental Lender or otherwise, for the payment for or to the Governmental
Lender or any receiver of the Governmental Lender, or for or to the owner of the Governmental Lender
Note, or otherwise, of any sum that may be due and unpaid by the Governmental Lender upon the
Governmental Lender Note. Any and all personal liability of every nature whether at common law or in
equity or by statute or by constitution or otherwise of any such member, officer, agent or employee, as such,
by reason of any act of omission on his or her part or otherwise, for the payment for or to the owner of a
18
4856-5616-9347.5
Governmental Lender Note or otherwise of any sum that may remain due and unpaid upon a Governmental
Lender Note secured by this Funding Loan Agreement or any of them is, by the acceptance of the
Governmental Lender Note, expressly waived and released as a condition of and in consideration for the
execution of this Funding Loan Agreement and the delivery of the Governmental Lender Note. Anything
in this Funding Loan Agreement to the contrary notwithstanding, it is expressly understood by the parties
to this Funding Loan Agreement that (a) the Governmental Lender may rely exclusively on the truth and
accuracy of any certificate, opinion, notice or other instrument furnished to the Governmental Lender by
the Fiscal Agent, the Servicer, the Borrower or the owner of the Governmental Lender Note as to the
existence of any fact or state of affairs, (b) the Governmental Lender shall not be under any obligation under
this Funding Loan Agreement to perform any record keeping or to provide any legal services, it being
understood that such services shall be performed or caused to be performed by the Fiscal Agent or by the
Servicer and its respective counsel, as applicable, and (c) none of the provisions of this Funding Loan
Agreement shall require the Governmental Lender to expend or risk its own funds or otherwise to incur
financial liability in the performance of any of its duties or in the exercise of any of its rights or powers
under this Funding Loan Agreement, unless it shall first have been adequately indemnified to its satisfaction
against any costs, expenses and liability which it may incur as a result of taking such action. No recourse
for the payment of any part of the principal of, premium, if any, or interest on the Governmental Lender
Note or for the satisfaction of any liability arising from, founded upon or existing by reason of the initial
delivery, purchase or ownership of a Governmental Lender Note shall be had against any officer, member,
agent or employee of the Governmental Lender, as such, all such liability being expressly released and
waived as a condition of and as a part of the consideration for the execution of this Funding Loan Agreement
and the delivery of the Governmental Lender Note. No covenant, stipulation, obligation or agreement of
the Governmental Lender contained in this Funding Loan Agreement shall be deemed to be a covenant,
stipulation, obligation or agreement of any present or future member, officer, agent or employee of the
Governmental Lender in other than that person’s official capacity. No member, officer, agent or employee
of the Governmental Lender shall be individually or personally liable for the payment of the principal or
redemption price of or interest on the Governmental Lender Note or be subject to any personal liability or
accountability by reason of the delivery of the Governmental Lender Note.
It is recognized that notwithstanding any other provision of this Funding Loan Agreement, neither
the Borrower, the Fiscal Agent nor any owner of the Governmental Lender Note shall look to the
Governmental Lender for damages suffered by the Borrower, the Fiscal Agent or such owner as a result of
the failure of the Governmental Lender to perform any covenant, undertaking or obligation under this
Funding Loan Agreement, the Borrower Loan Agreement, the Governmental Lender Note or any of the
other documents referred to herein, or as a result of the incorrectness of any representation made by the
Governmental Lender in any of such documents, or for any other reason. Although this Funding Loan
Agreement recognizes that such documents shall not give rise to any pecuniary liability of the
Governmental Lender, nothing contained in this Funding Loan Agreement shall be construed to preclude
in any way any action or proceeding (other than that element of any action or proceeding involving a claim
for monetary damages against the Governmental Lender) in any court or before any governmental body,
agency or instrumentality or otherwise against the Governmental Lender or any of its officers or employees
to enforce the provisions of any of such documents which the Governmental Lender is obligated to perform
and the performance of which the Governmental Lender has not assigned to the Fiscal Agent or any other
person.
Section 5.3. Revenue Obligation. Notwithstanding any other provision of this Funding Loan
Agreement to the contrary:
THE GOVERNMENTAL LENDER NOTE IS ISSUED PURSUANT TO THE COUNTY
AUTHORIZATION, THE RESOLUTION AND IN ACCORDANCE WITH THE ACT, AND ARE
REVENUE OBLIGATIONS OF THE GOVERNMENTAL LENDER. NEITHER THE
19
4856-5616-9347.5
GOVERNMENTAL LENDER NOR ANY OFFICIAL OR EMPLOYEE OF THE GOVERNMENTAL
LENDER NOR ANY PERSON EXECUTING A GOVERNMENTAL LENDER NOTE SHALL BE
LIABLE PERSONALLY ON SUCH GOVERNMENTAL LENDER NOTE OR SUBJECT TO ANY
PERSONAL LIABILITY OR ACCOUNTABILITY BY REASON OF ITS ISSUANCE. THE
GOVERNMENTAL LENDER NOTE AND THE INTEREST THEREON ARE REVENUE
OBLIGATIONS OF THE GOVERNMENTAL LENDER, PAYABLE ONLY FROM THE SOURCES
DESCRIBED IN THIS FUNDING LOAN AGREEMENT. NEITHER THE GOVERNMENTAL
LENDER, THE STATE NOR ANY OTHER POLITICAL CORPORATION OR SUBDIVISION OR
AGENCY THEREOF SHALL BE OBLIGATED TO PAY THE PRINCIPAL OF THE
GOVERNMENTAL LENDER NOTE OR THE INTEREST THEREON OR OTHER COSTS INCIDENT
THERETO EXCEPT FROM THE MONEY PLEDGED THEREFOR. NEITHER THE FAITH AND
CREDIT NOR THE TAXING POWER OF THE STATE NOR ANY POLITICAL CORPORATION OR
SUBDIVISION OR AGENCY THEREOF NOR THE FAITH AND CREDIT OF THE
GOVERNMENTAL LENDER IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF,
PREMIUM, IF ANY, OR INTEREST ON THE GOVERNMENTAL LENDER NOTE OR OTHER
COSTS INCIDENT THERETO. THE GOVERNMENTAL LENDER NOTE IS NOT A DEBT OF THE
UNITED STATES OF AMERICA.
ARTICLE VI
RESERVED
ARTICLE VII
FUNDS AND ACCOUNTS
Section 7.1. Authorization to Create Funds and Accounts. Except as provided in Section 7.3
hereof, no funds or accounts shall be established in connection with the Funding Loan. The Fiscal Agent
is authorized to establish and create from time to time such other funds and accounts or subaccounts as
directed by the Funding Lender or, if there is a Servicer, by the Servicer, as may be necessary for the deposit
of moneys (including, without limitation, insurance proceeds and/or condemnation awards), if any, received
by the Governmental Lender, the Funding Lender, the Fiscal Agent or the Servicer pursuant to the terms
hereof or any of the other Funding Loan Documents and not immediately transferred or disbursed pursuant
to the terms of the Funding Loan Documents and/or the Borrower Loan Documents.
Section 7.2. Investment of Funds. Amounts held in any funds or accounts created by the Fiscal
Agent under this Funding Loan Agreement shall be invested in Permitted Investments at the written
direction of the Borrower, subject in all cases to the restrictions of Section 8.7 hereof and of the Tax
Certificate. The Fiscal Agent may make any and all such investments through its own investment
department or that of its affiliates or subsidiaries, and may charge its ordinary and customary fees for such
trades, including account maintenance fees.
The Fiscal Agent may conclusively rely upon the Borrower’s written instructions as to both the
suitability and legality of any directed investments. In the absence of written direction from the Borrower,
the Fiscal Agent shall hold such amounts on deposit in the funds and accounts established under this
Funding Loan Agreement uninvested. The Fiscal Agent shall have no liability in respect of losses incurred
as a result of the liquidation of any investment prior to its stated maturity or the failure of the Borrower to
provide timely written investment direction.
Although the Governmental Lender and the Borrower each recognizes that it may obtain a broker
confirmation or written statement containing comparable information at no additional cost, the
Governmental Lender and the Borrower hereby agree that confirmations of Permitted Investments are not
required to be issued by the Fiscal Agent for each month in which a monthly statement is rendered. No
20
4856-5616-9347.5
statement need be rendered for any fund or account if no activity occurred in such fund or account during
such month.
Section 7.3. Establishment of Funds and Accounts. In connection with the Funding Loan,
there were established with the Fiscal Agent the following funds and accounts:
(a) Project Fund;
(b) Revenue Fund;
(c) Loan Payment Fund;
(d) Administration Fund (and therein a Governmental Lender Conversion Fee Account);
(e) Cost of Issuance Fund; and
(f) Rebate Fund.
Upon Conversion, the Project Fund, the accounts therein, the Governmental Lender Conversion
Fee Account and the Cost of Issuance Fund are closed.
All money required to be deposited with or paid to the Fiscal Agent for the account of any of the
funds or accounts created by this Funding Loan Agreement shall be held by the Fiscal Agent for the benefit
of the Funding Lender, and except for money held in the Administration Fund and Rebate Fund, shall, while
held by the Fiscal Agent, constitute part of the Pledged Revenues and be subject to the lien hereof.
The Fiscal Agent shall provide Written Notice of any change to its wiring instructions to the
Funding Lender and the Borrower no less than five (5) Business Days prior to the next payment date for
which such revised instructions will be applicable.
Section 7.4. Loan Payment Fund. The Governmental Lender and the Borrower shall have no
interest in the Loan Payment Fund or the moneys therein, which shall always be maintained by the Fiscal
Agent completely separate and segregated from all other moneys held hereunder and from any other moneys
of the Governmental Lender and the Borrower.
The Fiscal Agent shall deposit into the Loan Payment Fund any amounts received from the
Borrower as payments of principal of, premium, if any, or interest on the Permanent Phase Borrower Loan
and any other amounts received by the Fiscal Agent that are subject to the lien and pledge of this Funding
Loan Agreement, including any Pledged Revenues not required to be deposited to the Administration Fund
or Rebate Fund or not otherwise specifically directed in writing to be deposited into other funds created by
this Funding Loan Agreement.
The Fiscal Agent shall apply all amounts on deposit in the Loan Payment Fund in the following
order of priority:
First, to pay or provide for the payment of the interest then due on the Governmental Lender Note;
Second, to pay or provide for the payment and premium, if any, or the prepayment of principal on
the Governmental Lender Note, provided moneys have been transferred or deposited into the Loan Payment
Fund for such purpose; and
Third, to pay or provide for the payment of the Governmental Lender Note on the Maturity Date.
21
4856-5616-9347.5
If the Fiscal Agent has not received, by 2:00 p.m. Eastern time on the date interest is due on the
Governmental Lender Note, an amount sufficient to pay such interest, the Fiscal Agent shall provide
immediate telephonic or electronic notice to the Funding Lender of such deficiency. The Fiscal Agent may
rely on the payment terms of the Governmental Lender Note for purposes of payments described above.
Section 7.5. Administration Fund. The Fiscal Agent shall deposit in the Administration Fund
the amounts required by the Borrower Loan Agreement to be paid by the Borrower to the Governmental
Lender or the Fiscal Agent, as provided in this Section 7.5. Amounts on deposit in the Administration Fund
shall be used to pay the fees and expenses of the Governmental Lender and the Fiscal Agent, as and when
the same become due. In that regard, moneys in the Administration Fund shall be withdrawn or maintained,
as appropriate, by the Fiscal Agent to pay (a) the Governmental Lender Fee when due and payable, (b) on
each December 1 and June 1 to the Fiscal Agent amounts due pursuant to subparts (i) and (ii) of the
definition of “Fiscal Agent’s Fees” herein, (c) upon receipt, to the Fiscal Agent, any amounts due to the
Fiscal Agent which have not been paid, other than amounts paid in accordance with clause (b) above, and
(d) upon receipt, to, or at the direction of, the Governmental Lender, any amounts owing the Governmental
Lender by the Borrower and then due and unpaid, other than amounts paid in accordance with clause (a)
above.
In the event that the amounts on deposit in the Administration Fund are not equal to the amounts
payable from the Administration Fund as provided in the preceding paragraph on any date on which such
amounts are due and payable, the Fiscal Agent shall give notice to the Borrower of such deficiency and of
the amount of such deficiency and request payment within two Business Days to the Fiscal Agent of the
amount of such deficiency.
Written notice of any insufficiency, which results in the Governmental Lender not receiving the
Governmental Lender Fee on the applicable due date, shall be provided by the Fiscal Agent to the
Governmental Lender (with a copy to the Borrower and the Funding Lender) within 10 days of the
respective due date.
Upon payment by the Borrower to the Fiscal Agent of such deficiency, the amounts for which such
deficiency was requested shall be paid by the Fiscal Agent.
Notwithstanding anything herein to the contrary, the Fiscal Agent, on behalf of the Governmental
Lender, shall prepare and submit a written invoice to the Borrower for payment of the Governmental Lender
Fee not later than 10 days prior to the due date for payment of such Governmental Lender Fee, and shall
remit moneys received from the Borrower to the Governmental Lender for payment of such fee. Failure of
the Fiscal Agent to prepare or submit such notice shall not excuse the Borrower from making the required
payments.
Section 7.6. Project Fund. Proceeds of the Funding Loan provided by the Initial Funding
Lender were deposited to the Note Proceeds Account of the Project Fund and disbursed in accordance with
the Funding Loan Agreement to pay Qualified Project Costs and to pay other costs related to the Project as
provided therein. Not less than 95% of the moneys deposited in and credited to the Note Proceeds Account
of the Project Fund representing the proceeds of the Funding Loan, including Investment Income thereon,
have been expended for Qualified Project Costs (the “95% Requirement”). The Project Fund is closed.
Section 7.7. Rebate Fund. All amounts in the Rebate Fund shall be held, invested and disbursed
by the Fiscal Agent in accordance with the provisions of the Tax Certificate, the terms of which are
incorporated herein by reference and made a part hereof as if fully set forth herein. The Borrower shall
have the absolute obligation to deposit funds into the Rebate Fund in accordance with the provisions of the
Tax Certificate. The Fiscal Agent shall make rebate payments to the United States Treasury in accordance
22
4856-5616-9347.5
with the applicable provisions of the Tax Certificate. The Fiscal Agent shall conclusively be deemed to
have complied with such provisions if it follows the written instructions of the Borrower or the Rebate
Analyst and shall not be required to take any actions under the Tax Certificate on behalf of the Borrower
in the absence of written instructions from the Borrower and the Rebate Analyst.
Section 7.8. Amounts Remaining in Funds. After full payment of the Funding Loan
and full payment of the fees, charges and expenses of the Fiscal Agent, the Governmental Lender, the
Rebate Analyst, the Funding Lender and the Servicer and other amounts required to be paid hereunder or
under any Borrower Loan Document (as certified in writing to the Fiscal Agent by the Governmental Lender
with respect to amounts due to the Governmental Lender and by the Rebate Analyst with respect to amounts
due to the Rebate Analyst), any amounts remaining in any fund or account hereunder other than the Rebate
Fund shall be paid to the Borrower..
ARTICLE VIII
REPRESENTATIONS AND COVENANTS
Section 8.1. General Representations. The Governmental Lender makes the following
representations as the basis for the undertakings on its part herein contained:
(g) The Governmental Lender is a public body corporate and politic under the Act, has the
power and authority to (i) enter into the Funding Loan Documents to which it is a party and the transactions
contemplated thereby, (ii) incur the indebtedness represented by the Governmental Lender Note and the
Funding Loan and apply the proceeds of such indebtedness to finance a portion of the costs of the Project
and (iii) carry out its other obligations under this Funding Loan Agreement and the Governmental Lender
Note, and by proper action has duly authorized the Governmental Lender’s execution and delivery of, and
its performance under, such Funding Loan Documents and all other agreements and instruments relating
thereto.
(h) The Governmental Lender is not in default under or in violation of, and the execution and
delivery of the Funding Loan Documents to which it is a party and its compliance with the terms and
conditions thereof will not conflict with or constitute a default under or a violation of, (i) the Act or the
County Authorization, (ii) to its knowledge, any other existing laws, rules, regulations, judgments, decrees
and orders applicable to it, or (iii) to its knowledge, the provisions of any agreements and instruments to
which the Governmental Lender is a party, a default under or violation of which would prevent it from
entering into this Funding Loan Agreement, executing and delivering the Governmental Lender Note,
financing the Project, executing and delivering the other Funding Loan Documents to which it is a party or
consummating the transactions contemplated thereby, and, to its knowledge, no event has occurred and is
continuing under the provisions of any such agreement or instrument or otherwise that with the lapse of
time or the giving of notice, or both, would constitute such a default or violation (it being understood,
however, that the Governmental Lender is making no representations as to the necessity of registering the
Permanent Phase Borrower Note pursuant to any securities laws or complying with any other requirements
of securities laws).
(i) No litigation, inquiry or investigation of any kind in or by any judicial or administrative
court or agency is pending or, to the knowledge of the Governmental Lender, threatened against the
Governmental Lender with respect to (i) the organization and existence of the Governmental Lender, (ii)
its authority to execute or deliver the Funding Loan Documents to which it is a party, (iii) the validity or
enforceability of any such Funding Loan Documents or the transactions contemplated thereby, (iv) the title
of any officer of the Governmental Lender who executed such Funding Loan Documents or (v) any
23
4856-5616-9347.5
authority or proceedings relating to the execution and delivery of such Funding Loan Documents on behalf
of the Governmental Lender, and no such authority or proceedings have been repealed, revoked, rescinded
or amended but are in full force and effect.
(j) The revenues and receipts to be derived from the Borrower Loan Agreement, the
Permanent Phase Borrower Note and this Funding Loan Agreement have not been pledged previously by
the Governmental Lender to secure any of its notes or bonds other than the Funding Loan as evidenced by
the Governmental Lender Note.
THE GOVERNMENTAL LENDER MAKES NO REPRESENTATION, COVENANT OR
AGREEMENT AS TO THE FINANCIAL POSITION OR BUSINESS CONDITION OF THE
BORROWER OR THE PROJECT AND DOES NOT REPRESENT OR WARRANT AS TO ANY
STATEMENTS, MATERIALS, REPRESENTATIONS OR CERTIFICATIONS FURNISHED BY THE
BORROWER IN CONNECTION WITH THE FUNDING LOAN OR AS TO THE CORRECTNESS,
COMPLETENESS OR ACCURACY THEREOF.
Section 8.2. No Encumbrance on Security. The Governmental Lender will not knowingly
create or knowingly permit the creation of any mortgage, pledge, lien, charge or encumbrance of any kind
on the Security or any part thereof prior to or on a parity with the lien of this Funding Loan Agreement,
except as expressly permitted or contemplated by the Funding Loan Documents.
Section 8.3. Repayment of Funding Loan. Solely from amounts pledged therefor, and subject
to the provisions of Article V hereof, the Governmental Lender will duly and punctually repay, or cause to
be repaid, the Funding Loan, as evidenced by the Governmental Lender Note, as and when the same shall
become due, all in accordance with the terms of the Governmental Lender Note and this Funding Loan
Agreement.
Section 8.4. Servicer. The Funding Lender may appoint a Servicer to service and administer
the Governmental Loan and/or the Permanent Phase Borrower Loan on behalf of the Funding Lender and
the Fiscal Agent, including without limitation the fulfillment of rights and responsibilities granted by
Governmental Lender to Funding Lender pursuant to Section 2.1 of the Borrower Loan Agreement.
Section 8.5. Borrower Loan Agreement Performance. The Funding Lender, the Fiscal Agent
and the Servicer, if any, on behalf of the Governmental Lender, may (but shall not be required or obligated
to) perform and observe any such agreement or covenant of the Governmental Lender under the Borrower
Loan Agreement, all to the end that the Governmental Lender’s rights under the Borrower Loan Agreement
may be unimpaired and free from default.
(b) The Governmental Lender will promptly notify the Borrower, the Fiscal Agent, the
Servicer, if any, and the Funding Lender in writing of the occurrence of any Borrower Loan Agreement
Default, provided that the Governmental Lender has received written notice or otherwise has knowledge of
such event.
Section 8.6. Maintenance of Records; Inspection of Records. The Fiscal Agent shall keep and
maintain adequate records pertaining to any funds and accounts established hereunder, including all
deposits to and disbursements from said funds and accounts and shall keep and maintain the registration
books for the Governmental Lender Note and interests therein. The Fiscal Agent shall retain in its
possession all certifications and other documents presented to it, all such records and all records of principal,
interest and premium paid on the Governmental Lender Note, subject to the inspection of the Funding
Lender and the Governmental Lender and their representatives at all reasonable times and upon reasonable
prior notice.
24
4856-5616-9347.5
(d) The Governmental Lender and the Funding Lender will at any and all times, upon the
reasonable request of the Servicer, if any, the Borrower, the Fiscal Agent, the Governmental Lender or the
Funding Lender, afford and procure a reasonable opportunity by their respective representatives to inspect
the books, records, reports and other papers of the Governmental Lender or the Funding Lender, as
appropriate, relating to the Project and the Funding Loan, if any, and to make copies thereof.
Section 8.7. Tax Covenants. The Governmental Lender covenants to and for the benefit of the
Funding Lender that, notwithstanding any other provisions of this Funding Loan Agreement or of any other
instrument, it will (subject to the limited liability provisions hereof):
(a) Enforce or cause to be enforced all obligations of the Borrower under the Regulatory
Agreement in accordance with its terms and seek to cause the Borrower to correct any violation of the
Regulatory Agreement within a reasonable period after any such violation is first discovered;
(b) Not take or cause to be taken any other action or actions, or fail to take any action or actions,
which would cause the interest payable on the Governmental Lender Note to be includable in gross income
for federal income tax purposes;
(c) At all times do and perform all acts and things permitted by law and necessary or desirable
in order to assure that interest paid by the Governmental Lender on the Governmental Lender Note will be
excluded from the gross income of the holders of the Governmental Lender Note, for federal income tax
purposes, pursuant to Section 103 of the Code, except in the event where any holder of the Governmental
Lender Note or a portion thereof is a “substantial user” of the facilities financed with the Funding Loan or
a “related person” within the meaning of Section 147(a) of the Code;
(d) Not take any action or permit or suffer any action to be taken if the result of the same would
be to cause the Governmental Lender Note to be “federally guaranteed” within the meaning of
Section 149(b) of the Code and the Regulations; and
(e) Require the Borrower to agree, pursuant to the terms and provisions of the Borrower Loan
Agreement, not to commit any act and not to make any use of the proceeds of a Governmental Lender Note,
or any other moneys which may be deemed to be proceeds of such Governmental Lender Note pursuant to
the Code, which would cause such Governmental Lender Note to be an “arbitrage bond” within the meaning
of Sections 103(b) and 148 the Code, and to comply with the requirements of the Code throughout the term
of the Funding Loan; and
(f) Require the Borrower to take all steps necessary to compute and pay or cause to be paid
pursuant to the provisions of Section 7.7 hereof any rebatable arbitrage in accordance with Section 148(f)
of the Code in accordance with the applicable provisions of the Tax Certificate.
(g) In furtherance of the covenants in this Section 8.7, the Governmental Lender and the
Borrower have executed, delivered and complied with the provisions of the Tax Certificate, which are by
this reference incorporated into this Funding Loan Agreement and made a part of this Funding Loan
Agreement as if set forth in this Funding Loan Agreement in full.
For purposes of this Section 8.7 the Governmental Lender’s compliance shall be based solely on
matters within the Governmental Lender’s control and no acts, omissions or directions of the Borrower, the
Fiscal Agent, the Funding Lender or any other Persons shall be attributed to the Governmental Lender.
In complying with the foregoing covenants, the Governmental Lender may rely from time to time
on a Tax Counsel No Adverse Effect Opinion or other appropriate opinion of Tax Counsel.
25
4856-5616-9347.5
Section 8.8. Performance by the Borrower. Without relieving the Governmental Lender from
the responsibility for performance and observance of the agreements and covenants required to be
performed and observed by it hereunder, the Borrower, on behalf of the Governmental Lender, may perform
any such agreement or covenant if no Borrower Loan Agreement Default or Potential Default under the
Borrower Loan Agreement exists.
Section 8.9. Maintenance of Records. The Funding Lender shall keep and maintain adequate
records pertaining to funds and accounts relative to the Permanent Phase Borrower Loan not established
with the Fiscal Agent, if any, including all deposits to and disbursements from said funds and accounts and
will provide information and records relating thereto to the Fiscal Agent or the Governmental Lender upon
request.
ARTICLE IX
DEFAULT; REMEDIES
Section 9.1. Events of Default. Subject in all respects to Article V hereof, any one or more of
the following shall constitute an event of default (an “Event of Default”) under this Funding Loan
Agreement (whatever the reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) A default in the payment of any interest upon the Governmental Lender Note when such
interest becomes due and payable; or
(b) A default in the payment of principal of, or premium on, the Governmental Lender Note
when such principal or premium becomes due and payable, whether at its stated maturity, by declaration of
acceleration or call for mandatory prepayment or otherwise; or
(c) Subject to Section 8.8 hereof, default in the performance or breach of any material covenant
or warranty of the Governmental Lender in this Funding Loan Agreement (other than a covenant or
warranty or default in the performance or breach of which is elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a period of 30 days after there has been given written
notice, as provided in Section 12.1 hereof, to the Governmental Lender, the Fiscal Agent and the Borrower
by the Funding Lender or the Servicer, specifying such default or breach and requiring it to be remedied
and stating that such notice is a “Notice of Default” under this Funding Loan Agreement; provided that, so
long as the Governmental Lender, or the Borrower or Equity Investor on behalf of the Governmental
Lender, has commenced to cure such failure to observe or perform within the thirty (30) day cure period
and the subject matter of the default is not capable of cure within said thirty (30) day period and the
Governmental Lender, or the Borrower or Equity Investor on behalf of the Governmental Lender, is
diligently pursuing such cure to the Funding Lender’s satisfaction, with the Funding Lender’s Written
Direction or Written Consent, then the Governmental Lender shall have an additional period of time as
reasonably necessary (not to exceed 30 days unless extended in writing by the Funding Lender) within
which to cure such default; or
(d) A default in the payment of any Additional Borrower Payments; or
(e) Any other “Default” or “Event of Default” under any of the other Funding Loan Documents
to which the Governmental Lender is a party and is an obligor thereunder or, upon the Written Direction of
the Funding Lender, under any other Funding Loan Document (taking into account any applicable grace
periods therein).
26
4856-5616-9347.5
Any notice of default delivered by the Funding Lender to the Borrower shall be contemporaneously
delivered to the Equity Investor.
Section 9.2. Acceleration of Maturity; Rescission and Annulment.
(a) Subject to the provisions of Article V and Section 9.9 hereof, upon the occurrence of an
Event of Default under Section 9.1 hereof, then and in every such case, the Funding Lender may declare
the principal of the Funding Loan and the Governmental Lender Note and the interest accrued to be
immediately due and payable, by notice to the Fiscal Agent, the Governmental Lender and the Borrower
and upon any such declaration, all principal of and Prepayment Premium, if any, and interest on the
Governmental Lender Note shall become immediately due and payable.
(b) At any time after a declaration of acceleration has been made pursuant to subsection (a) of
this Section, the Funding Lender may by Written Notice to the Fiscal Agent, the Borrower and the
Governmental Lender, rescind and annul such declaration and its consequences if:
(i) The Borrower has deposited with the Fiscal Agent or the Funding Lender a sum
sufficient to pay (1) all overdue installments of interest on the Governmental Lender Note, (2) the principal
of and Prepayment Premium on the Governmental Lender Note that has become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates prescribed therefor in the Governmental
Lender Note, (3) to the extent that payment of such interest is lawful, interest upon overdue installments of
interest at the rate or rates prescribed therefor in the Governmental Lender Note, and (4) all sums paid or
advanced by the Funding Lender and the reasonable compensation, expenses, disbursements and advances
of the Funding Lender, its agents and counsel (but only to the extent not duplicative with subclauses (1)
and (3) above); and
(ii) All Events of Default, other than the non-payment of the principal of the
Governmental Lender Note which have become due solely by such declaration of acceleration, have been
cured or have been waived in writing as provided in Section 9.9 hereof.
No such rescission and annulment shall affect any subsequent default or impair any right
consequent thereon.
(c) Notwithstanding the occurrence and continuation of an Event of Default, it is understood
that the Funding Lender shall pursue no remedies against the Borrower or the Project if no Borrower Loan
Agreement Default has occurred and is continuing. An Event of Default hereunder shall not in and of itself
constitute a Borrower Loan Agreement Default.
Section 9.3. Additional Remedies; Funding Lender Enforcement.
(a) Upon the occurrence of an Event of Default, the Funding Lender may, subject to the
provisions of Article V, this Section 9.3 and Section 9.9 hereof, proceed to protect and enforce its rights by
mandamus or other suit, action or proceeding at law or in equity. No remedy conferred by this Funding
Loan Agreement upon, or remedy reserved to the Funding Lender is intended to be exclusive of any other
remedy, but each such remedy shall be cumulative and shall be in addition to any other remedy given to the
Funding Lender hereunder or now or hereafter existing at law or in equity or by statute. The Funding
Lender acknowledges and agrees that the Governmental Lender shall not be responsible or liable for any
fees and expenses incurred by the Funding Lender in connection with pursuing remedies under this Article
IX.
27
4856-5616-9347.5
(b) Upon the occurrence and continuation of any Event of Default, the Funding Lender may
proceed forthwith to protect and enforce its rights and this Funding Loan Agreement by such suits, actions
or proceedings as the Funding Lender, in its sole discretion, shall deem expedient. Funding Lender shall
have upon the occurrence and continuation of any Event of Default all rights, powers, and remedies with
respect to the Security as are available under the Uniform Commercial Code applicable thereto or as are
available under any other applicable law at the time in effect and, without limiting the generality of the
foregoing, the Funding Lender may proceed at law or in equity or otherwise, to the extent permitted by
applicable law:
(i) to take possession of the Security or any part thereof, with or without legal process,
and to hold, service, administer and enforce any rights thereunder or thereto, and otherwise exercise all
rights of ownership thereof, including (but not limited to) the sale of all or part of the Security;
(ii) to become mortgagee of record for the Permanent Phase Borrower Loan including,
without limitation, completing the assignment of the Security Instrument by the Governmental Lender to
the Funding Lender as anticipated by this Funding Loan Agreement, and recording the same in the real
estate records of the jurisdiction in which the Project is located, without further act or consent of the
Governmental Lender, and to service and administer the same for its own account;
(iii) to service and administer the Funding Loan as agent and on behalf of the
Governmental Lender or otherwise, and, if applicable, to take such actions necessary to enforce the
Borrower Loan Documents and the Funding Loan Documents on its own behalf, and to take such alternative
courses of action, as it may deem appropriate; or
(iv) to take such steps to protect and enforce its rights whether by action, suit or
proceeding in equity or at law for the specific performance of any covenant, condition or agreement in the
Governmental Lender Note, this Funding Loan Agreement or the other Funding Loan Documents, or the
Borrower Loan Documents, or in and of the execution of any power herein granted, or for foreclosure
hereunder, or for enforcement of any other appropriate legal or equitable remedy or otherwise as the
Funding Lender may elect.
(c) Whether or not an Event of Default has occurred, the Funding Lender, in its sole discretion,
shall have the sole right to waive or forbear any term, condition, covenant or agreement of the Security
Instrument, the Borrower Loan Agreement, the Permanent Phase Borrower Note or any other Borrower
Loan Documents or Funding Loan Documents applicable to the Borrower, or any breach thereof, other than
a covenant that would adversely impact the tax exempt status of the interest on the Governmental Lender
Note, and provided that the Governmental Lender may enforce specific performance with respect to the
Unassigned Rights; provided, however, that any such forbearance by the Funding Lender in the exercise of
its remedies under the Funding Loan Documents shall not be construed as a waiver by the Funding Lender
of any Conditions to Conversion.
(d) If the Borrower defaults in the performance or observance of any covenant, agreement or
obligation of the Borrower set forth in the Regulatory Agreement, and if such default remains uncured for
a period of 60 days after the Borrower, the Governmental Lender, the Fiscal Agent and the Funding Lender
receive Written Notice stating that a default under the Regulatory Agreement has occurred and specifying
the nature of the default, the Funding Lender shall have the right to seek specific performance of the
provisions of the Regulatory Agreement or to exercise its other rights or remedies thereunder; provided,
however, that any such forbearance by the Funding Lender in the exercise of its remedies under the Funding
Loan Documents shall not be construed as a waiver by the Funding Lender of any Conditions to Conversion.
28
4856-5616-9347.5
(e) If the Borrower defaults in the performance of its obligations under the Borrower Loan
Agreement to make rebate payments, to comply with any applicable continuing disclosure requirements, or
to make payments owed pursuant to Sections 2.5, 5.15 or 5.16 of the Borrower Loan Agreement for fees,
expenses or indemnification, the Funding Lender shall have the right to exercise all its rights and remedies
thereunder (subject to the last paragraph of Section 9.14 hereof).
Section 9.4. Application of Money Collected. Any money collected by the Funding Lender or
the Fiscal Agent pursuant to this Article and any other sums then held by the Funding Lender as part of the
Security, shall be applied in the following order, at the date or dates fixed by the Funding Lender:
First: To the payment of any and all other amounts due under the Funding Loan Documents to the
Fiscal Agent incurred in performance of its duties under this Funding Loan Agreement, including, without
limitation, the payment of all reasonable fees and expenses of the Fiscal Agent incurred in exercising any
remedies under this Funding Loan Agreement;
Second: To the payment of any and all other amounts due under the Funding Loan Documents
other than with respect to principal and interest accrued on the Funding Loan, including, without limitation,
any amounts due to the Governmental Lender, the Funding Lender, the Servicer, and the Rebate Analyst;
Third: To the payment of the whole amount of the Funding Loan, as evidenced by the
Governmental Lender Note, then due and unpaid in respect of which or for the benefit of which such money
has been collected, with interest (to the extent that such interest has been collected or a sum sufficient
therefor has been so collected and payment thereof is legally enforceable at the respective rate or rates
prescribed therefor in the Governmental Lender Note) on overdue principal of, and Prepayment Premium
and overdue installments of interest on the Governmental Lender Note; provided, however, that partial
interests in any portion of the Funding Loan, as evidenced by the Governmental Lender Note shall be paid
in such order of priority as may be prescribed by Written Direction of the Funding Lender in its sole and
absolute discretion; and
Fourth: The payment of the remainder, if any, to the Borrower or to whosoever may be lawfully
entitled to receive the same or as a court of competent jurisdiction may direct.
If and to the extent this Section 9.4 conflicts with the provisions of the Servicing Agreement, the
provisions of the Servicing Agreement shall control. Capitalized terms used in this Section 9.4 but not
otherwise defined in this Funding Loan Agreement shall have the meanings given such terms in the
Servicing Agreement.
Section 9.5. Remedies Vested in Funding Lender. All rights of action and claims under this
Funding Loan Agreement or the Governmental Lender Note may be prosecuted and enforced by the
Funding Lender without the possession of the Governmental Lender Note or the production thereof in any
proceeding relating thereto.
Section 9.6. Restoration of Positions. If Funding Lender shall have instituted any proceeding
to enforce any right or remedy under this Funding Loan Agreement and such proceeding shall have been
discontinued or abandoned for any reason or shall have been determined adversely to the Funding Lender,
then and in every such case the Governmental Lender and the Funding Lender shall, subject to any
determination in such proceeding, be restored to their former positions hereunder, and thereafter all rights
and remedies of the Governmental Lender and the Funding Lender shall continue as though no such
proceeding had been instituted.
29
4856-5616-9347.5
Section 9.7. Rights and Remedies Cumulative. No right or remedy herein conferred upon or
reserved to the Funding Lender is intended to be exclusive of any other right or remedy, and every right
and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 9.8. Delay or Omission Not Waiver. No delay or omission of the Funding Lender to
exercise any right or remedy accruing upon an Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Funding Lender may be exercised from time to time, and as often as may
be deemed expedient, by Funding Lender. No waiver of any default or Event of Default pursuant to Section
9.9 hereof shall extend to or shall affect any subsequent default or Event of Default hereunder or shall
impair any rights or remedies consequent thereon.
Section 9.9. Waiver of Past Defaults. Before any judgment or decree for payment of money
due has been obtained by the Funding Lender against the Borrower, the Funding Lender may, subject to
Section 9.6 hereof, by Written Notice to the Fiscal Agent, the Governmental Lender and the Borrower,
waive any past default hereunder or under the Borrower Loan Agreement and its consequences except for
default in obligations due the Governmental Lender pursuant to or under the Unassigned Rights. Upon any
such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Funding Loan Agreement and the Borrower Loan Agreement;
but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 9.10. Remedies Under Borrower Loan Agreement or Permanent Phase Borrower
Note. As set forth in this Section 9.10 but subject to Section 9.9 hereof, the Funding Lender shall have the
right, in its own name or on behalf of the Governmental Lender, to declare any default and exercise any
remedies under the Borrower Loan Agreement or the Permanent Phase Borrower Note, whether or not the
Governmental Lender Note have been accelerated or declared due and payable by reason of an Event of
Default.
Section 9.11. Waiver of Appraisement and Other Laws.
(a) To the extent permitted by law, the Governmental Lender will not at any time insist upon,
plead, claim or take the benefit or advantage of, any appraisement, valuation, stay, extension or redemption
law now or hereafter in force, in order to prevent or hinder the enforcement of this Funding Loan
Agreement; and the Governmental Lender, for itself and all who may claim under it, so far as it or they now
or hereafter may lawfully do so, hereby waives the benefit of all such laws. The Governmental Lender, for
itself and all who may claim under it, waives, to the extent that it may lawfully do so, all right to have the
property in the Security marshaled upon any enforcement hereof.
(b) If any law now in effect prohibiting the waiver referred to in Section 9.11(a) shall hereafter
be repealed or cease to be in force, such law shall not thereafter be deemed to constitute any part of the
contract herein contained or to preclude the application of this Section 9.11.
Section 9.12. Suits to Protect the Security. The Funding Lender shall have power to institute
and to maintain such proceedings as it may deem expedient to prevent any impairment of the Security by
any acts that may be unlawful or in violation of this Funding Loan Agreement and to protect its interests in
the Security and in the rents, issues, profits, revenues and other income arising therefrom, including power
to institute and maintain proceedings to restrain the enforcement of or compliance with any Governmental
enactment, rule or order that may be unconstitutional or otherwise invalid, if the enforcement of or
30
4856-5616-9347.5
compliance with such enactment, rule or order would impair the security hereunder or be prejudicial to the
interests of the Funding Lender.
Section 9.13. Remedies Subject to Applicable Law. All rights, remedies and powers provided
by this Article may be exercised only to the extent that the exercise thereof does not violate any applicable
provision of law in the premises, and all the provisions of this Article are intended to be subject to all
applicable mandatory provisions of law which may be controlling in the premises and to be limited to the
extent necessary so that they will not render this Funding Loan Agreement invalid, unenforceable or not
entitled to be recorded, registered or filed under the provisions of any applicable law.
Section 9.14. Assumption of Obligations. In the event that the Funding Lender or its assignee
or designee shall become the legal or beneficial owner of the Project by foreclosure or deed in lieu of
foreclosure, such party shall succeed to the rights and the obligations of the Borrower under the Borrower
Loan Agreement, the Permanent Phase Borrower Note, the Regulatory Agreement and any other Funding
Loan Documents to which the Borrower is a party. Such assumption shall be effective from and after the
effective date of such acquisition and shall be made with the benefit of the limitations of liability set forth
therein and without any liability for the prior acts of the Borrower.
It is the intention of the parties hereto that upon the occurrence and continuance of an Event of
Default hereunder, rights and remedies may be pursued pursuant to the terms of the Funding Loan
Documents.
ARTICLE X
AMENDMENT; AMENDMENT OF FUNDING LOAN AGREEMENT
AND OTHER DOCUMENTS
Section 10.1. Amendment of Funding Loan Agreement. Any of the terms of this Funding Loan
Agreement and the Governmental Lender Note may be amended or waived only by an instrument signed
by the Funding Lender, the Fiscal Agent and the Governmental Lender; provided, however, no such
amendment which materially affects the rights, duties, obligations or other interests of the Borrower shall
be made without the consent of the Borrower, and, provided further, that if the Borrower is in default under
any Funding Loan Document, no Borrower consent shall be required unless such amendment has a material
adverse effect on the rights, duties, obligations or other interests of the Borrower. All of the terms of this
Funding Loan Agreement shall be binding upon the successors and assigns of and all persons claiming
under or through the Governmental Lender, the Fiscal Agent or any such successor or assign, and shall
inure to the benefit of and be enforceable by the successors and assigns of the Funding Lender and the
Fiscal Agent.
Section 10.2. Amendments Require Funding Lender Consent. Neither the Governmental
Lender nor the Fiscal Agent shall consent to any amendment, change or modification of the Borrower Loan
Agreement or any other Permanent Phase Borrower Loan Document or Funding Loan Document without
the prior Written Consent of the Funding Lender.
Section 10.3. Consents and Opinions. No amendment to this Funding Loan Agreement or any
other Funding Loan Document entered into under this Article X or any amendment, change or modification
otherwise permitted under this Article X shall become effective unless and until (i) the Funding Lender
shall have approved the same in writing in its sole discretion and (ii) the Funding Lender, the Governmental
Lender and the Fiscal Agent shall have received, at the expense of the Borrower, a Tax Counsel No Adverse
Effect Opinion and an Opinion of Counsel to the effect that any such proposed amendment is authorized
and complies with the provisions of this Funding Loan Agreement and is a legal, valid and binding
31
4856-5616-9347.5
obligation of the parties thereto, subject to normal exceptions relating to bankruptcy, insolvency and
equitable principles limitations.
ARTICLE XI
THE FISCAL AGENT
Section 11.1. Appointment of Fiscal Agent; Acceptance. The Governmental Lender hereby
appoints The Bank of New York Mellon Trust Company, N.A. as Fiscal Agent hereunder. The Fiscal Agent
shall signify its acceptance of the duties and obligations imposed upon it by this Funding Loan Agreement
by executing this Funding Loan Agreement.
Section 11.2. Certain Duties and Responsibilities of Fiscal Agent.
(a) The Fiscal Agent undertakes to perform such duties and only such duties as are specifically
set forth in this Funding Loan Agreement, and no implied covenants or obligations shall be read into this
Funding Loan Agreement against the Fiscal Agent.
(b) If an event of default exists hereunder or under any Permanent Phase Borrower Loan
Document of which Fiscal Agent has been provided Written Notice, the Fiscal Agent shall exercise such of
the rights and powers vested in it by this Funding Loan Agreement, and subject to Section 11.2(c)(iii)
hereof, use the same degree of care and skill in its exercise, as a prudent corporate trust officer would
exercise or use under the circumstances in the conduct of corporate trust business. The Fiscal Agent, prior
to the occurrence of an event of default and after the curing of all events of default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set forth in this Funding Loan
Agreement, and no implied covenants or obligations should be read into this Funding Loan Agreement
against the Fiscal Agent.
(i) The Fiscal Agent may consult with counsel, and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken,
suffered or omitted by the Fiscal Agent hereunder in good faith and in reliance thereon.
(ii) The Fiscal Agent shall not be accountable for the use or application by the obligor
of the Governmental Lender Note or the proceeds thereof or for the use or application of any money paid
over by the Fiscal Agent in accordance with the provisions of this Funding Loan Agreement or for the use
and application of money received by any paying agent.
(iii) The Fiscal Agent shall have no liability for any loss, expense or liability incurred
as a result of such investment made in accordance with directions of the Borrower or the Governmental
Lender, as applicable.
(c) No provision of this Funding Loan Agreement shall be construed to relieve the Fiscal
Agent from liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, in each case, as finally adjudicated by a court of law, except that:
(i) This subsection shall not be construed to limit the effect of subsection (a) of this
Section;
(i) The Fiscal Agent shall not be liable for any error of judgment made in good faith,
unless it shall be proved that the Fiscal Agent was negligent in ascertaining the pertinent facts;
32
4856-5616-9347.5
(ii) The Fiscal Agent shall not be liable with respect to any action taken or omitted to
be taken by it in accordance with the direction of the Funding Lender relating to the time, method and place
of conducting any proceeding for any remedy available to the Fiscal Agent, or exercising any trust or power
conferred upon the Fiscal Agent under this Funding Loan Agreement; and
(iii) No provision of this Funding Loan Agreement shall require the Fiscal Agent to
expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or liability is not assured to it in its
sole discretion.
Subject to its rights to indemnification pursuant to Section 11.4 hereof, the Fiscal Agent is directed
to enter into the Borrower Loan Documents to which it is a party and other related documents, solely in its
capacity as Fiscal Agent.
(d) Whether or not therein expressly so provided, every provision of this Funding Loan
Agreement and the other Funding Loan Documents relating to the conduct or affecting the liability of or
affording protection to the Fiscal Agent shall be subject to the provisions of this Section.
(e) The Fiscal Agent may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished to the Fiscal Agent and
conforming to the requirements of this Funding Loan Agreement; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be furnished to the Fiscal Agent, the
Fiscal Agent shall be under a duty to examine the same to determine whether or not they conform to the
requirements of this Funding Loan Agreement.
(f) The permissive rights of the Fiscal Agent to do things enumerated in this Funding Loan
Agreement shall not be construed as a duty.
(g) The rights of the Fiscal Agent and limitations of liability enumerated herein and in
Section 11.4 shall extend to actions taken or omitted in its role as assignee of the Governmental Lender
under the Borrower Loan Agreement and the other Funding Loan Documents.
(h) In connection with the issuance of the Governmental Lender Note, certain moneys may be
deposited with the Fiscal Agent before the Delivery Date pursuant to one or more letters of instruction from
the provider or providers of such moneys. Such moneys will be held uninvested by the Fiscal Agent subject
to the terms and conditions of this Funding Loan Agreement in addition to terms provided in such letter(s)
of instruction. For such purpose the standards of care, provisions regarding responsibilities and
indemnification and other sections relating to the Fiscal Agent contained in this Funding Loan Agreement
and the Borrower Loan Agreement (the “Effective Provisions”) shall be effective as of the first day of
receipt by the Fiscal Agent of such moneys. The Effective Provisions shall be deemed incorporated into
such letter(s) of instructions.
Section 11.3. Notice of Defaults. Upon the occurrence of any default hereunder or under any
Permanent Phase Borrower Loan Document and provided that a Responsible Officer of the Fiscal Agent is
aware of or has received Written Notice of the existence of such default, promptly, and in any event within
15 days, the Fiscal Agent shall transmit to the Governmental Lender, the Borrower, the Equity Investor, the
Servicer, if any, and the Funding Lender, in the manner and at the addresses for notices set forth in
Section 12.1 hereof, notice of such default hereunder known to the Fiscal Agent pursuant to Section 11.4(g)
hereof, unless such default shall have been cured or waived.
33
4856-5616-9347.5
Section 11.4. Certain Rights of Fiscal Agent. Except as otherwise provided in Section 11.1
hereof:
(a) The Fiscal Agent may rely and shall be protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order,
bond, note, debenture, coupon or other paper or document believed by it to be genuine and to have been
signed or presented by the purported proper party or parties;
(b) Any request or direction of the Governmental Lender mentioned herein shall be sufficiently
evidenced by a certificate or order executed by an Authorized Governmental Lender Representative;
(c) Whenever in the administration of this Funding Loan Agreement or any Permanent Phase
Borrower Loan Document the Fiscal Agent shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Fiscal Agent (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon a Written Certificate of the
Governmental Lender, the Funding Lender, the Servicer or the Borrower, as appropriate;
(d) The Fiscal Agent shall be under no obligation to exercise any of the rights or powers vested
in it by this Funding Loan Agreement or any Permanent Phase Borrower Loan Document at the request or
direction of the Funding Lender, pursuant to this Funding Loan Agreement, unless the Funding Lender
shall have offered to the Fiscal Agent in writing security or indemnity reasonably satisfactory to the Fiscal
Agent against the costs, expenses and liabilities which might be incurred by it in compliance with such
request or direction, except costs, expenses and liabilities which are adjudicated to have resulted from its
own negligence or willful misconduct, provided, that nothing contained in this subparagraph (d) shall be
construed to require such security or indemnity for the performance by the Fiscal Agent of its obligations
under Section 8.6 hereof;
(e) The Fiscal Agent shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, note, debenture, coupon or other paper or document but the Fiscal Agent, in its
discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and,
if the Fiscal Agent shall determine to make such further inquiry or investigation, it shall be entitled to
examine the books and records of the Governmental Lender, if any, and of the Borrower, in either case
personally or by agent or attorney after reasonable notice and during normal business hours;
(f) The Fiscal Agent may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and pay reasonable compensation thereto and
the Fiscal Agent shall not be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder. The Fiscal Agent may act upon the advice of counsel of
its choice concerning all matters hereof and the Fiscal Agent shall not be responsible for any loss or damage
resulting from any action or inaction taken in good faith reliance upon said advice;
(g) Notwithstanding anything contained herein or in the Security Instrument to the contrary,
upon the occurrence and continuance of an Event of Default, before taking any foreclosure action or any
action which may subject the Fiscal Agent to liability under any environmental law, statute, regulation or
similar requirement relating to the environment, the Fiscal Agent may require that a satisfactory indemnity
bond, indemnity or environmental impairment insurance be furnished for the payment or reimbursement
of all expenses to which it may be put and to protect it against all liability resulting from any claims,
judgments, damages, losses, penalties, fines, liabilities (including strict liability) and expenses which may
result from such foreclosure or other action. The Fiscal Agent shall not be required to take any action to
foreclose or otherwise enforce the Security Instrument unless indemnified to its satisfaction and will not be
34
4856-5616-9347.5
required to foreclose if doing so will subject it to environmental liability or will require the approval of a
governmental regulator that cannot be obtained; and
(h) The Fiscal Agent shall not be required to take notice or be deemed to have notice of any
default hereunder or under any Permanent Phase Borrower Loan Document except for failure by the
Borrower to make payments of principal, interest, premium, if any, or the Governmental Lender Fee when
due, unless a Responsible Officer of the Fiscal Agent shall be specifically notified by a Written Direction
of such default by the Governmental Lender, the Servicer or the Funding Lender, and all notices or other
instruments required by this Funding Loan Agreement or under any Permanent Phase Borrower Loan
Document to be delivered to the Fiscal Agent, must, in order to be effective, be delivered in writing to a
Responsible Officer of the Fiscal Agent at the Office of the Fiscal Agent, and in the absence of such Written
Notice so delivered the Fiscal Agent may conclusively assume there is no default as aforesaid.
Section 11.5. Not Responsible for Recitals. The recitals contained herein and in the
Governmental Lender Note shall be taken as the statements of the Governmental Lender, and the Fiscal
Agent assumes no responsibility for their correctness. The Fiscal Agent makes no representations as to the
value or condition of the Pledged Revenues, the Security or any part thereof, or as to the title of the
Governmental Lender thereto or as to the security afforded thereby or hereby, or as to the validity or
sufficiency of this Funding Loan Agreement or of the Governmental Lender Note.
The Fiscal Agent shall have no responsibility or liability with respect to any information, statement
or recital in any offering memorandum or other disclosure material prepared or distributed with respect to
the funding of the Funding Loan.
The Fiscal Agent shall not be required to monitor the financial condition of the Borrower or the
physical condition of the Project. Unless otherwise expressly provided, the Fiscal Agent shall be under no
obligation to analyze, review or make any credit decisions with respect to any financial statements, reports,
notices, certificates or documents received hereunder but shall hold such financial statements reports,
notices, certificates and documents solely for the benefit of, and review by, the Funding Lender and such
other parties to whom the Fiscal Agent may provide such information pursuant to this Funding Loan
Agreement The Fiscal Agent shall not be deemed to have notice of any information contained therein or
event of default which may be disclosed therein in any manner.
The Fiscal Agent makes no representations as to and shall have no responsibility for the sufficiency
of the insurance required under any of the Borrower Loan Documents.
Section 11.6. May Hold Governmental Lender Note. The Fiscal Agent in its individual or any
other capacity may become the owner or pledgee of the Governmental Lender Note and may otherwise deal
with the Governmental Lender, the Funding Lender and the Borrower with the same rights it would have if
it were not Fiscal Agent.
Section 11.7. Moneys Held in Trust. Moneys held by the Fiscal Agent in trust hereunder need
not be segregated from other funds except to the extent required by law. The Fiscal Agent shall be under
no liability for interest on any moneys received by it hereunder except as otherwise provided herein.
Section 11.8. Compensation and Reimbursement. Under the Borrower Loan Agreement, the
Borrower has agreed to, except as otherwise expressly provided herein, reimburse the Fiscal Agent as
provided in this Funding Loan Agreement or the Borrower Loan Agreement, upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Fiscal Agent in accordance with
any provision of this Funding Loan Agreement (including the reasonable fees, expenses and disbursements
35
4856-5616-9347.5
of its agents and counsel), except any such expense, disbursement or advance as may be attributable to the
Fiscal Agent’s negligence or willful misconduct, both as finally adjudicated by a court of law.
When the Fiscal Agent incurs expenses or renders service in connection with any bankruptcy or
insolvency proceeding, such expenses (including the fees and expenses of its counsel) and the compensation
for such services are intended to constitute expenses of administration under any bankruptcy law or law
relating to creditors rights generally.
(a) The Governmental Lender has no obligation to pay the Fiscal Agent for services rendered.
(b) As security for the performance of the obligations of the Borrower under this Section and
for the payment of such compensation, expenses, reimbursements and indemnity, the Fiscal Agent shall
have the right to use and apply any moneys held by it as Pledged Revenues.
(c) The Fiscal Agent’s rights to compensation and reimbursement shall survive its resignation
or removal, the payment of the Funding Loan or the Permanent Phase Borrower Loan or the release of this
Funding Loan Agreement.
Section 11.9. Fiscal Agent Required; Eligibility. Any successor Fiscal Agent shall at all times
be a trust company, a state banking corporation or a national banking association with the authority to
accept trusts in the State approved in writing by the Governmental Lender and either (a) have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of
condition, (b) be a wholly owned subsidiary of a bank holding company, or a wholly owned subsidiary of
a company that is a wholly owned subsidiary of a bank holding company, having a combined capital surplus
of at least $50,000,000 as set forth in its most recent published annual report of condition, have at least
$500,000,000 of trust assets under management and have a combined capital surplus of at least $2,000,000
as set forth in its most recent published annual report of condition, or (c) be otherwise acceptable to the
Funding Lender in its sole and absolute discretion.
Section 11.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Fiscal Agent hereunder and no appointment of a successor
Fiscal Agent pursuant to this Article shall become effective until the written acceptance by the successor
Fiscal Agent of such appointment.
(b) The Fiscal Agent may resign at any time by giving 60 days’ Written Notice thereof to the
Governmental Lender, the Borrower, the Servicer, if any, and the Funding Lender. If an instrument of
acceptance by a successor Fiscal Agent shall not have been delivered to the Fiscal Agent within 30 days
after the giving of such notice of resignation, the resigning Fiscal Agent may petition any court of competent
jurisdiction for the appointment of a successor Fiscal Agent.
(c) The Fiscal Agent may be removed at any time with 30 days’ notice by (i) the Governmental
Lender, with the Written Consent of the Funding Lender, (ii) the Borrower (unless the Borrower is in default
under any of the Borrower Loan Documents), with the Written Consent of the Funding Lender and the
Governmental Lender, or (iii) the Funding Lender by Written Notice delivered to the Fiscal Agent, the
Governmental Lender and the Borrower.
(d) If the Fiscal Agent shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the Office of the Fiscal Agent for any cause, the Governmental Lender shall promptly appoint
a successor Fiscal Agent, with the consent of the Funding Lender. In case all or substantially all of the
Pledged Revenues and Security shall be in the possession of a receiver or trustee lawfully appointed, such
36
4856-5616-9347.5
receiver or trustee may similarly appoint a successor to fill such vacancy until a new Fiscal Agent shall be
so appointed by the Governmental Lender. If, within 60 days after such resignation, removal or incapability
or the occurrence of such vacancy, the Governmental Lender has failed to so appoint a successor Fiscal
Agent, then a successor Fiscal Agent shall be appointed by the Funding Lender (from any institution
acceptable to the Governmental Lender to serve as a fiscal agent or trustee) with Written Notice thereof
delivered to the Governmental Lender, the Borrower, the Servicer, if any, and the retiring Fiscal Agent, and
the successor Fiscal Agent so appointed shall, forthwith upon its acceptance of such appointment, become
the successor Fiscal Agent and supersede the successor Fiscal Agent appointed by such receiver or Fiscal
Agent. If no successor Fiscal Agent shall have been appointed by the Governmental Lender or the Funding
Lender and accepted appointment in the manner hereinafter provided, the Fiscal Agent may petition any
court of competent jurisdiction for the appointment of a successor Fiscal Agent.
(e) The retiring Fiscal Agent shall cause Written Notice of each resignation and each removal
of the Fiscal Agent and each appointment of a successor Fiscal Agent to be provided to the Funding Lender.
Each notice shall include the name of the successor Fiscal Agent and the address of the office of the
successor Fiscal Agent.
Section 11.11. Acceptance of Appointment by Successor.
(a) Every successor Fiscal Agent appointed hereunder shall execute, acknowledge and deliver
to the Governmental Lender and to the retiring Fiscal Agent an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Fiscal Agent shall become effective and such successor
Fiscal Agent, without any further act, deed or conveyance, shall become vested with all the estates,
properties, rights, powers, trusts and duties of the retiring Fiscal Agent; notwithstanding the foregoing, on
request of the Governmental Lender or the successor Fiscal Agent, such retiring Fiscal Agent shall, upon
payment of its charges, execute and deliver an instrument conveying and transferring to such successor
Fiscal Agent upon the trusts herein expressed all the estates, properties, rights, powers and trusts of the
retiring Fiscal Agent, and shall duly assign, transfer and deliver to such successor Fiscal Agent all property
and money held by such retiring Fiscal Agent hereunder. Upon request of any such successor Fiscal Agent,
the Governmental Lender shall execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Fiscal Agent all such estates, properties, rights, powers and trusts.
(b) No successor Fiscal Agent shall accept its appointment unless at the time of such
acceptance such successor Fiscal Agent shall be qualified and eligible under this Article, to the extent
operative.
Section 11.12. Merger, Conversion, Consolidation or Succession to Business. Any corporation
or association into which the Fiscal Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the Fiscal Agent shall be a
party, or any corporation or association succeeding to all or substantially all of the corporate trust business
of the Fiscal Agent, shall be the successor of the Fiscal Agent hereunder, provided such corporation shall
be otherwise qualified and eligible under this Article, to the extent operative, without the execution or filing
of any paper or any further act on the part of any of the parties hereto. Notwithstanding the foregoing, any
such successor Fiscal Agent shall cause Written Notice of such succession to be delivered to the Funding
Lender within 30 days of such succession.
Section 11.13. Appointment of Co-Fiscal Agent. It is the purpose of this Funding Loan
Agreement that there shall be no violation of any laws of any jurisdiction (including particularly the laws
of the State) denying or restricting the right of banking corporations or associations to transact business as
Fiscal Agent in such jurisdiction. It is recognized that in case of litigation under this Funding Loan
Agreement, the Borrower Loan Agreement, any other Permanent Phase Borrower Loan Document or the
37
4856-5616-9347.5
Regulatory Agreement, and in particular in case of the enforcement of any of them on default, or in case
the Fiscal Agent deems that by reason of any present or future law of any jurisdiction it may not exercise
any of the powers, rights or remedies herein granted to the Fiscal Agent or hold title to the properties, in
trust, as herein provided, or take any other action which may be desirable or necessary in connection
therewith, it may be necessary that the Fiscal Agent appoint an additional individual or institution as a
separate or co-fiscal agent. The following provisions of this Section are adopted to these ends.
The Fiscal Agent is hereby authorized to appoint an additional individual or institution as a separate
or co-fiscal agent hereunder, upon Written Notice to the Governmental Lender, the Funding Lender and the
Borrower, and with the consent of the Governmental Lender and the Funding Lender, but without the
necessity of further authorization or consent, in which event each and every remedy, power, right, claim,
demand, cause of action, immunity, estate, title, interest and lien expressed or intended by this Funding
Loan Agreement, any Permanent Phase Borrower Loan Document, the Regulatory Agreement or the
Borrower Loan Agreement to be exercised by or vested in or conveyed to the Fiscal Agent with respect
thereto shall be exercisable by and vest in such separate or co-fiscal agent but only to the extent necessary
to exercise such powers, rights and remedies, and every covenant and obligation necessary to the exercise
thereof by such separate or co-fiscal agent shall run to and be enforceable by either of them.
Should any instrument in writing from the Governmental Lender be required by the separate fiscal
agent or co-fiscal agent appointed by the Fiscal Agent for more fully and certainly vesting in and confirming
to him or it such properties, rights, powers, trusts, duties and obligations, any and all such instruments in
writing shall, on request of the Fiscal Agent, be executed, acknowledged and delivered by the Governmental
Lender. In case any separate fiscal agent or co Fiscal Agent, or a successor to either, shall die, become
incapable of acting, resign or be removed, all the estates, properties, rights, powers, trusts, duties and
obligations of such separate fiscal agent or co-fiscal agent, so far as permitted by law, shall vest in and be
exercised by the Fiscal Agent until the appointment of a successor to such separate fiscal agent or co-fiscal
agent.
Section 11.14. Loan Servicing. The Governmental Lender and the Fiscal Agent acknowledge that
the Funding Lender shall have the right to appoint a Servicer to service and administer the Funding Loan
and Permanent Phase Borrower Loan, as set forth in a Servicing Agreement. The Funding Lender shall
provide Written Notice to the Fiscal Agent of the appointment, termination or replacement of any Servicer.
The Governmental Lender and the Fiscal Agent shall not be responsible for monitoring the performance of
any Servicer or for any acts or omissions of such Servicer. The Funding Lender may, in its sole discretion,
terminate or replace the Servicer.
Section 11.15. No Recourse Against Officers or Employees of Fiscal Agent. No recourse with
respect to any claim related to any obligation, duty or agreement contained in this Funding Loan Agreement
or any other Funding Loan Document shall be had against any officer or employee, as such, of the Fiscal
Agent, it being expressly understood that the obligations, duties and agreements of the Fiscal Agent
contained in this Funding Loan Agreement and the other Funding Loan Documents are solely corporate in
nature.
Section 11.16. USA Patriot Act Requirements of the Fiscal Agent. To help the government of
the United States of America fight the funding of terrorism and money laundering activities, federal law
requires all financial institutions to obtain, verify, and record information that identifies each person who
opens an account. For a non-individual person such as a business entity, a charity, a trust, or other legal
entity, the Fiscal Agent may request documentation to verify such person’s formation and existence as a
legal entity and the identity of the owners or controlling persons thereof. The Fiscal Agent may also request
financial statements, licenses, identification and authorization documents from individuals claiming
authority to represent such person or other relevant documentation.
38
4856-5616-9347.5
Section 11.17. Filing of Financial Statements. The Fiscal Agent shall cause to be filed a
continuation statement with respect to each Uniform Commercial Code financing statement relating to the
Funding Loan on which it is listed as a secured party, and which was filed at the time of the issuance of the
Funding Loan, in such manner and in such places as the initial filings (copies of which shall be provided to
the Fiscal Agent by the Governmental Lender) were made. The Borrower shall be responsible for the
reasonable costs incurred by the Fiscal Agent in the preparation and filing of all such continuation
statements hereunder. Notwithstanding anything to the contrary contained herein, the Fiscal Agent shall
not be responsible for any initial filings of any financing statements or the information contained therein
(including the exhibits thereto), the perfection of any such security interests, or the accuracy or sufficiency
of any description of collateral in such initial filings or for filing any modifications or amendments to the
initial filings required by any amendments to Article 9 of the Uniform Commercial Code, and unless the
Fiscal Agent shall have been notified by the Funding Lender that any such initial filing or description of
collateral was or has become defective, the Fiscal Agent shall be fully protected in relying on such initial
filing and descriptions in filing any continuation statements or modifications thereto pursuant to this Section
11.17 and in filing any continuation statements in the same filing offices as the initial filings were made.
ARTICLE XII
MISCELLANEOUS
Section 12.1. Notices. All notices, demands, requests and other communications required or
permitted to be given by any provision of this Funding Loan Agreement shall be in writing and sent by first
class, regular, registered or certified mail, commercial delivery service, overnight courier, e-mail, telecopier
or facsimile transmission, air or other courier, or hand delivery to the party to be notified addressed as
follows:
If to the Borrower: Vista Breeze, Ltd.
c/o Atlantic Pacific Communities, LLC
161 NW 6th Street, Suite 1020
Miami, Florida 33136
Attention: Kenneth Naylor
Telephone: (305) 357-4700
Email: knaylor@apcompanies.com
with a copy to: Klein Hornig LLP
1325 G. Street NW, Suite 770
Washington, DC 20005
Attention: Chris Hornig
Email: chornig@kleinhornig.com
Tel: (202) 926-3402
Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
(which copy shall not constitute notice to Borrower)
150 W. Flagler Street
Miami, Florida 33130
Attention: Brian McDonough, Esq.
Email: bmcdonough@stearnsweaver.com
Telephone: (305) 789-3350
Fox Rothschild LLP
BNY Mellon Center
500 Grant Street, Suite 2500
39
4856-5616-9347.5
Pittsburg, Pennsylvania 15219
Attention: Alec Stone
Email: ajstone@foxrothschild.com
Telephone: (412) 391-2523
with a copy to: Bank of America, N.A.
MA5-100-04-11
100 Federal Street
Boston, MA 02110
Attention: Tax Credit Asset Management (Vista Breeze)
Email: LIHTCreporting@bofa.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
Telephone: (503) 243-5860
If to the Governmental Lender: Housing Finance Authority of Miami-Dade County, Florida
7855 NW 12th Street, Suite 202
Doral, Florida 33126
Attention: Cheree Gulley, Executive Director
Facsimile: (305) 392-2722
Email: cgulley@hfamiami.com
and a copy to: Miami-Dade County Attorney’s Office.
111 N.W. 12th Street
Suite 2810
Miami, Florida 33128
Attention: David S. Hope, Esq.
Email: dhope@miamidade.gov
If to Funding Lender:
with a copy to:
Citibank, N.A.
388 Greenwich Street, Trading 4th Floor
New York, New York 10013
Attention: Transaction and Asset Management Group
Re: Vista Breeze
Deal ID# __________
Facsimile: (212) 723-8209
Citibank, N.A.
325 East Hillcrest Drive, Suite 160
Thousand Oaks, California 91360
Attention: Operations Manager/Asset Manager
Re: Vista Breeze
Deal ID# __________
Facsimile: (805) 557-0924
and
40
4856-5616-9347.5
with a copy to:
Citibank, N.A
c/o Berkadia Commercial Mortgage LLC
323 Norristown Road, Suite 300
Ambler, Pennsylvania 19002
Attention: Client Relations Manager
Re: Vista Breeze
Deal ID# __________
Facsimile: (215) 328-0305
And a copy of any notices
of default sent to:
Citibank, N.A.
388 Greenwich Street, 17th Floor
New York, New York 10013
Attention: General Counsel’s Office
Re: Vista Breeze
Deal ID# _________
Facsimile: (646) 291-5754
If to Fiscal Agent: The Bank of New York Mellon Trust Company, N.A.
4655 Salisbury Road, Suite 300
Jacksonville, Florida 33256
Attention: Corporate Trust Department
Email: heidi.bowers@bnymellon.com
Telephone: (904) 645-1983
Any such notice, demand, request or communication shall be deemed to have been given and
received for all purposes under this Funding Loan Agreement: (i) three Business Days after the same is
deposited in any official depository or receptacle of the United States Postal Service first class, or, if
applicable, certified mail, return receipt requested, postage prepaid; (ii) on the date of transmission when
delivered by telecopier or facsimile transmission, e-mail or other telecommunication device, provided any
telecopy or other electronic transmission received by any party after 4:00 p.m., local time, as evidenced by
the time shown on such transmission, shall be deemed to have been received the following Business Day;
(iii) on the next Business Day after the same is deposited with a nationally recognized overnight delivery
service that guarantees overnight delivery; and (iv) on the date of actual delivery to such party by any other
means; provided, however, if the day such notice, demand, request or communication shall be deemed to
have been given and received as aforesaid is not a Business Day, such notice, demand, request or
communication shall be deemed to have been given and received on the next Business Day. Any facsimile
signature by a Person on a document, notice, demand, request or communication required or permitted by
this Funding Loan Agreement shall constitute a legal, valid and binding execution thereof by such Person.
Any party to this Funding Loan Agreement may change such party’s address for the purpose of
notice, demands, requests and communications required or permitted under this Funding Loan Agreement
by providing written notice of such change of address to all of the parties by written notice as provided
herein.
Section 12.2. Term of Funding Loan Agreement. This Funding Loan Agreement shall be in full
force and effect until all payment obligations of the Governmental Lender hereunder have been paid in full
and the Funding Loan has been retired or the payment thereof has been provided for; except that on and
after payment in full of the Governmental Lender Note, this Funding Loan Agreement shall be terminated,
without further action by the parties hereto.
41
4856-5616-9347.5
Section 12.3. Successors and Assigns. All covenants and agreements in this Funding Loan
Agreement by the Governmental Lender shall bind its successors and assigns, whether so expressed or not.
Section 12.4. Legal Holidays. In any case in which the date of payment of any amount due
hereunder or the date on which any other act is to be performed pursuant to this Funding Loan Agreement
shall be a day that is not a Business Day, then payment of such amount or such act need not be made on
such date but may be made on the next succeeding Business Day, and such later payment or such act shall
have the same force and effect as if made on the date of payment or the date fixed for prepayment or the
date fixed for such act, and no additional interest shall accrue for the period after such date and prior to the
date of payment.
Section 12.5. Governing Law. This Funding Loan Agreement shall be governed by and shall be
enforceable in accordance with the laws of the State.
Section 12.6. Invalidity, Illegality or Unenforceability of Provisions. If any provision of this
Funding Loan Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining portions shall not in any way be affected or impaired. In case any covenant, stipulation,
obligation or agreement contained in the Governmental Lender Note or in this Funding Loan Agreement
shall for any reason be held to be usurious or in violation of law, then such covenant, stipulation, obligation
or agreement shall be deemed to be the covenant, stipulation, obligation or agreement of the Governmental
Lender or the Funding Lender only to the full extent permitted by law.
Section 12.7. Execution in Several Counterparts. This Funding Loan Agreement may be
contemporaneously executed in several counterparts, all of which shall constitute one and the same
instrument and each of which shall be, and shall be deemed to be, an original.
Section 12.8. Nonrecourse Obligation of the Borrower. Except as otherwise provided in the
Borrower Loan Agreement, any obligations of the Borrower under this Funding Loan Agreement pursuant
to the provisions of the Borrower Loan Agreement are without recourse to the Borrower or to the
Borrower’s partners or members, as the case may be, and the provisions of Section 11.1 of the Borrower
Loan Agreement are by this reference incorporated herein.
Section 12.9. Waiver of Trial by Jury. TO THE MAXIMUM EXTENT PERMITTED UNDER
APPLICABLE LAW, EACH OF THE PARTIES HERETO (A) COVENANTS AND AGREES NOT TO
ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS FUNDING
LOAN AGREEMENT OR THE RELATIONSHIP BETWEEN THE PARTIES THAT IS TRIABLE OF
RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH
ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS
WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY,
KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.
Section 12.10. Electronic Transactions.
(a) The transactions described in this Funding Loan Agreement may be conducted and related
documents and may be stored by electronic means. Copies, telecopies, facsimiles, electronic files and other
reproductions of original executed documents shall be deemed to be authentic and valid counterparts of
such original documents for all purposes, including the filing of any claim, action or suit in the appropriate
court of law. Notwithstanding the foregoing, original executed versions of each of the Funding Loan
Agreement and the Borrower Loan Agreement shall be delivered to the Funding Lender in connection with
the closing of the transaction described herein.
42
4856-5616-9347.5
(b) The Fiscal Agent shall have the right to accept and act upon instructions including funds
transfer instructions (“Instructions”) given pursuant to this Funding Loan Agreement and related financing
documents and delivered using Electronic Means; provided, however, that Borrower and/or the
Governmental Lender, as applicable, shall provide to the Fiscal Agent an incumbency certificate listing
officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen
signatures of such Authorized Officers, which incumbency certificate shall be amended by Governmental
Lender and/or the Borrower, as applicable, whenever a person is to be added or deleted from the listing.
For purposes of this subsection (b), “Electronic Means” shall mean the following communications methods:
e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes,
passwords and/or authentication keys issued by the Fiscal Agent, or another method or system specified by
the Fiscal Agent as available for use in connection with its services hereunder. If the Governmental Lender
and/or the Borrower, as applicable, elects to give the Fiscal Agent Instructions using Electronic Means and
the Fiscal Agent in its discretion elects to act upon such Instructions, the Fiscal Agent’s understanding of
such Instructions shall be deemed controlling. The Governmental Lender and the Borrower understand and
agree that the Fiscal Agent cannot determine the identity of the actual sender of such Instructions and that
the Fiscal Agent shall conclusively presume that directions that purport to have been sent by an Authorized
Officer listed on the incumbency certificate provided to the Fiscal Agent have been sent by such Authorized
Officer. The Governmental Lender and the Borrower shall be responsible for ensuring that only Authorized
Officers transmit such Instructions to the Fiscal Agent and that the Governmental Lender, the Borrower
and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable
user and authorization codes, passwords and/or authentication keys upon receipt by the Governmental
Lender and/or the Borrower, as applicable. The Fiscal Agent shall not be liable for any losses, costs or
expenses arising directly or indirectly from the Fiscal Agent’s reliance upon and compliance with such
Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written
instruction. The Governmental Lender and the Borrower agree: (i) to assume all risks arising out of the use
of Electronic Means to submit Instructions to the Fiscal Agent, including without limitation the risk of the
Fiscal Agent acting on unauthorized Instructions, and the risk of interception and misuse by third parties;
(ii) that it is fully informed of the protections and risks associated with the various methods of transmitting
Instructions to the Fiscal Agent and that there may be more secure methods of transmitting Instructions
than the method(s) selected by the Governmental Lender and/or the Borrower, as applicable; (iii) that the
security procedures (if any) to be followed in connection with its transmission of Instructions provide to it
a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv)
to notify the Fiscal Agent immediately upon learning of any compromise or unauthorized use of the security
procedures.
Section 12.11. Reference Date. This Funding Loan Agreement is dated for reference purposes
only as of the date first above written.
Section 12.12. Restatement of Construction Phase Funding Loan Agreement. The
Construction Phase Funding Loan Agreement is hereby amended and restated in its entirety pursuant to this
Funding Loan Agreement.
[The remainder of this page is intentionally left blank; signature pages follow.]
S-1
4856-5616-9347.5
IN WITNESS WHEREOF, the Funding Lender, the Fiscal Agent and the Governmental Lender
have caused this Funding Loan Agreement to be duly executed as of the date first written above.
CITIBANK, N.A., as the Funding Lender
By:
Name:
Title:
Deal ID # _________
[SIGNATURE PAGE TO AMENDED AND RESTATED
FUNDING LOAN AGREEMENT – VISTA BREEZE]
S-2
4856-5616-9347.5
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., as Fiscal Agent
By: ______________________________________
Name:
Title:
[SIGNATURE PAGE TO AMENDED AND RESTATED
FUNDING LOAN AGREEMENT – VISTA BREEZE]
S-3
4856-5616-9347.5
HOUSING FINANCE AUTHORITY OF
MIAMI-DADE COUNTY, FLORIDA, as
Governmental Lender
By:
Name:
Title:
[SIGNATURE PAGE TO AMENDED AND RESTATED
FUNDING LOAN AGREEMENT – VISTA BREEZE]
A-1
4856-5616-9347.5
EXHIBIT A
FORM OF REQUIRED TRANSFEREE REPRESENTATIONS
_________________, 20__
The undersigned, as holder (the “Holder”) of a loan (the “Funding Loan”) in the principal amount
of $____________ from CITIBANK, N.A. (the “Funding Lender”) to Housing Finance Authority of
Miami-Dade County, Florida (the “Governmental Lender”) pursuant to an Amended and Restated Funding
Loan Agreement dated as of _________, 20__ (the “Funding Loan Agreement”) among the Funding
Lender, The Bank of New York Mellon Trust Company, N.A., as fiscal agent (the “Fiscal Agent”), and the
Governmental Lender (the “Funding Loan”) evidenced by the Multifamily Housing Revenue Note, Series
2023 (Vista Breeze) (the “Governmental Lender Note”), or an interest therein, hereby represents that:
1. The Holder has sufficient knowledge and experience in financial and business matters with
respect to the evaluation of residential real estate developments such as the Project to be able to evaluate
the risk and merits of the investment represented by the Governmental Lender Note. We are able to bear
the economic risks of such investment.
2. The Holder acknowledges that it has either been supplied with or been given access to
information, including financial statements and other financial information, to which a reasonable investor
would attach significance in making investment decisions, and the Holder has had the opportunity to ask
questions and receive answers from knowledgeable individuals concerning the Governmental Lender, the
Project, the use of proceeds of the Governmental Lender Note and the security therefor so that, as a
reasonable investor, the Holder has been able to make its decision to purchase the Governmental Lender
Note or an interest therein. In entering into this transaction, the Holder acknowledges that it has not relied
upon any representations or opinions of the Governmental Lender relating to the legal consequences to the
Funding Lender or other aspects of its making the Funding Loan and acquiring the Governmental Lender
Note, nor has it looked to, nor expected, the Governmental Lender to undertake or require any credit
investigation or due diligence reviews relating to the Borrower, its financial condition or business
operations, the Project (including the financing or management thereof), or any other matter pertaining to
the merits or risks of the transactions contemplated by the Funding Loan Agreement and the Borrower Loan
Agreement, or the adequacy of the funds pledged to the Funding Lender to secure repayment of the
Governmental Lender Note.
3. The Holder is an Approved Transferee.
4. The Holder acknowledges that it is purchasing [an interest in] the Governmental Lender
Note for investment for its own account and not with a present view toward resale or the distribution thereof,
in that it does not now intend to resell or otherwise dispose of all or any part of its interests in the
Governmental Lender Note; provided, however, that the Holder may sell or transfer the Governmental
Lender Note[ or an interest therein] pursuant to the terms of Section 2.6 of the Funding Loan Agreement.
5. The Holder understands that the Governmental Lender Note is a limited obligation of the
Governmental Lender; payable solely from funds and moneys pledged and assigned under the Funding
Loan Agreement, and that the liabilities and obligations of the Governmental Lender with respect to the
Governmental Lender Note is expressly limited as set forth in the Funding Loan Agreement and related
documents.
A-2
4856-5616-9347.5
6. The Holder acknowledges that the Funding Loan is being made as a direct loan evidenced
by the Governmental Lender Note and not through the purchase of a municipal security and that the
Governmental Lender will not make a filing with the municipal securities Rulemaking Board’s Electronic
Municipal Market Access Repository. The Holder acknowledges that no CUSIP numbers or credit ratings
have been obtained with respect to the Governmental Lender Note.
7. The Holder hereby indemnifies the Governmental Lender and the Fiscal Agent from and
against any and all liability, cost or expense (including attorneys’ fees) that may result if the
purchase/transfer is not exempt from registration under the Securities Act or is not made in accordance with
federal and state laws. Further, the Holder hereby affirms it shall not transfer or sell the Governmental
Lender Note or any interest therein to a party related to or affiliated with the Borrower, any general partner,
limited partner or member of the Borrower without the prior written consent of the Governmental Lender.
8. Capitalized terms used herein and not otherwise defined have the meanings given such
terms in the Funding Loan Agreement.
[Remainder of page intentionally left blank.]
A-3
4856-5616-9347.5
[Signature Page to Required Transferee Representations]
[ ], as Holder
By
Name
Its
D
Forward Purchase Agreement Vista Breeze
EXHIBIT D-2 TO FORWARD PURCHASE AGREEMENT
FORM OF AMENDED AND RESTATED BORROWER LOAN AGREEMENT
[See attached]
4894-2953-3827.5
FOLEY DRAFT #4
December 13, 2023
AMENDED AND RESTATED BORROWER LOAN AGREEMENT
(Permanent Phase)
among
HOUSING FINANCE AUTHORITY OF MIAMI-DADE COUNTY, FLORIDA,
as Governmental Lender
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A,
as Fiscal Agent
and
VISTA BREEZE, LTD,
as Borrower
Relating to
Vista Breeze
Approximate 1.22 Acre Site located at 175 S. Shore Drive and 280 S. Shore Drive, in the City of
Miami Beach, Miami-Dade County, Florida
Borrower Loan Principal Amount: $_____________
Dated as of ________, 20__
All of the right, title and interest of the Housing Finance Authority of Miami-Dade County,
Florida (except for its Unassigned Rights) in and to this Borrower Loan Agreement are being
assigned to The Bank of New York Mellon Trust Company, N.A., as Fiscal Agent, as security for the
Funding Loan made pursuant to that certain Amended and Restated Funding Loan Agreement dated
as of ________, 20__ by and among the Governmental Lender, the Funding Lender named therein
and the Fiscal Agent.
4894-2953-3827.5
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. .......................................................................................................................... 2
ARTICLE II
GENERAL
Section 2.1 Origination of the Permanent Phase Borrower Loan. ....................................................... 14
Section 2.2 Security for the Funding Loan. ......................................................................................... 15
Section 2.3 Loan; the Permanent Phase Borrower Note. ..................................................................... 16
Section 2.4 Borrower Loan Payments. ................................................................................................. 16
Section 2.5 Additional Borrower Payments. ........................................................................................ 17
Section 2.6 Overdue Payments; Payments in Default. ......................................................................... 18
Section 2.7 Calculation of Interest Payments and Deposits to Real Estate Related Reserve
Funds. 18
Section 2.8 Grant of Security Interest; Application of Funds. ............................................................. 18
Section 2.9 Marshalling; Payments Set Aside. .................................................................................... 18
ARTICLE III
RESERVED
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Borrower Representations. ................................................................................................ 19
Section 4.2 Survival of Representations and Covenants. ..................................................................... 29
ARTICLE V
AFFIRMATIVE COVENANTS
Section 5.1 Existence. .......................................................................................................................... 29
Section 5.2 Taxes and Other Charges. ................................................................................................. 29
Section 5.3 Repairs; Maintenance and Compliance; Physical Condition. ........................................... 29
Section 5.4 Litigation. .......................................................................................................................... 29
Section 5.5 Performance of Other Agreements. ................................................................................... 30
Section 5.6 Notices. 30
Section 5.7 Cooperate in Legal Proceedings. ....................................................................................... 30
Section 5.8 Further Assurances. ........................................................................................................... 30
Section 5.9 Delivery of Financial Information. ................................................................................... 31
Section 5.10 Environmental Matters. ..................................................................................................... 31
Section 5.11 Title to the Project. ............................................................................................................ 31
Section 5.12 Governmental Lender’s, Fiscal Agent’s and Funding Lender’s Fees. .............................. 31
ii
4894-2953-3827.5
Section 5.13 Estoppel Statement. ........................................................................................................... 31
Section 5.14 Defense of Actions. ........................................................................................................... 32
Section 5.15 Expenses. ........................................................................................................................... 32
Section 5.16 Indemnity. ......................................................................................................................... 33
Section 5.17 No Warranty of Condition or Suitability by the Governmental Lender or Funding
Lender. ............................................................................................................................. 35
Section 5.18 Right of Access to the Project. .......................................................................................... 35
Section 5.19 Notice of Default. .............................................................................................................. 35
Section 5.20 Covenant with Governmental Lender, the Fiscal Agent and the Funding Lender. ........... 35
Section 5.21 Reserved. ........................................................................................................................... 36
Section 5.22 Maintenance of Insurance. ................................................................................................ 36
Section 5.23 Information; Statements and Reports. ............................................................................... 36
Section 5.24 Additional Notices. ........................................................................................................... 37
Section 5.25 Compliance with Other Agreements; Legal Requirements. .............................................. 37
Section 5.26 Maintenance of Project. .................................................................................................... 38
Section 5.27 Fixtures. ............................................................................................................................. 38
Section 5.28 Income from Project. ......................................................................................................... 38
Section 5.29 Leases and Occupancy Agreements. ................................................................................. 38
Section 5.30 Project Agreements and Licenses. .................................................................................... 39
Section 5.31 Payment of Debt Payments. .............................................................................................. 39
Section 5.32 ERISA. ............................................................................................................................. 39
Section 5.33 Patriot Act Compliance. .................................................................................................... 39
Section 5.34 Funds from Equity Investor. ............................................................................................. 40
Section 5.35 Tax Covenants. .................................................................................................................. 40
Section 5.36 Payment of Rebate. ........................................................................................................... 44
Section 5.37 Covenants under Funding Loan Agreement. ..................................................................... 46
Section 5.38 Continuing Disclosure Agreement. ................................................................................... 47
Section 5.39 Subordinate Loans. ............................................................................................................ 47
ARTICLE VI
NEGATIVE COVENANTS
Section 6.1 Management Agreement. .................................................................................................. 47
Section 6.2 Dissolution. ....................................................................................................................... 47
Section 6.3 Change in Business or Operation of Property. .................................................................. 47
Section 6.4 Debt Cancellation. ............................................................................................................. 48
Section 6.5 Assets. 48
Section 6.6 Transfers. ........................................................................................................................... 48
Section 6.7 Debt. 48
Section 6.8 Assignment of Rights. ....................................................................................................... 48
Section 6.9 Principal Place of Business. .............................................................................................. 48
Section 6.10 Partnership Agreement. ..................................................................................................... 48
Section 6.11 ERISA. 48
Section 6.12 No Hedging Arrangements. .............................................................................................. 49
iii
4894-2953-3827.5
Section 6.13 Loans and Investments; Distributions; Related Party Payments. ...................................... 49
Section 6.15 Personal Property. ............................................................................................................. 49
Section 6.16 Fiscal Year. ....................................................................................................................... 49
Section 6.17 Publicity. ........................................................................................................................... 49
Section 6.18 Subordinate Loan Documents. .......................................................................................... 50
Section 6.19 Ground Lease. ................................................................................................................... 50
ARTICLE VII
RESERVED
ARTICLE VIII
DEFAULTS
Section 8.1 Events of Default. ............................................................................................................. 50
Section 8.2 Remedies. .......................................................................................................................... 53
ARTICLE IX
SPECIAL PROVISIONS
Section 9.1 Sale of Note and Secondary Market Transaction. ............................................................. 56
ARTICLE X
MISCELLANEOUS
Section 10.1 Notices. 58
Section 10.2 Brokers and Financial Advisors. ....................................................................................... 62
Section 10.3 Survival. ............................................................................................................................ 62
Section 10.4 Preferences. ....................................................................................................................... 62
Section 10.5 Waiver of Notice. .............................................................................................................. 63
Section 10.6 Offsets, Counterclaims and Defenses................................................................................ 63
Section 10.7 Publicity. ........................................................................................................................... 63
Section 10.8 Construction of Documents. .............................................................................................. 63
Section 10.9 No Third Party Beneficiaries. ........................................................................................... 63
Section 10.10 Assignment. ....................................................................................................................... 64
Section 10.11 Governmental Lender, Funding Lender, Fiscal Agent and Servicer Not in Control;
No Partnership. ................................................................................................................. 64
Section 10.12 Release. ............................................................................................................................. 65
Section 10.13 Term of the Amended and Restated Borrower Loan Agreement. ..................................... 65
Section 10.14 Reimbursement of Expenses. ............................................................................................ 65
Section 10.15 Permitted Contests. ........................................................................................................... 65
Section 10.16 Funding Lender Approval of Instruments and Parties. ..................................................... 66
Section 10.17 Funding Lender Determination of Facts. .......................................................................... 66
Section 10.18 Calendar Months. .............................................................................................................. 66
Section 10.19 Determinations by Lender. ................................................................................................ 66
Section 10.20 Governing Law. ................................................................................................................ 66
Section 10.21 Consent to Jurisdiction and Venue. ................................................................................... 66
iv
4894-2953-3827.5
Section 10.22 Successors and Assigns. .................................................................................................... 66
Section 10.23 Severability. ...................................................................................................................... 67
Section 10.24 Entire Agreement; Amendment and Waiver. .................................................................... 67
Section 10.25 Counterparts. ..................................................................................................................... 67
Section 10.26 Captions. ........................................................................................................................... 67
Section 10.27 Servicer. ............................................................................................................................ 67
Section 10.28 Beneficiary Parties as Third Party Beneficiary. ................................................................ 67
Section 10.29 Waiver of Trial by Jury. .................................................................................................... 67
Section 10.30 Time of the Essence. ......................................................................................................... 68
Section 10.31 Reference Date. ................................................................................................................. 68
Section 10.32 Americans with Disabilities Act. ...................................................................................... 68
ARTICLE XI
LIMITATIONS ON LIABILITY
Section 11.1 Limitation on Liability. ..................................................................................................... 68
Section 11.2 Limitation on Liability of Governmental Lender. ............................................................. 68
Section 11.3 Waiver of Personal Liability. ............................................................................................ 70
Section 11.4 Limitation on Liability of Funding Lender’s Officers, Employees, Etc. .......................... 70
Section 11.5 Delivery of Reports, Etc. ................................................................................................... 71
Section 11.6 Restatement of Construction Phase Borrower Loan Agreement. ...................................... 71
Section 11.7 Electronic Transactions. .................................................................................................... 71
4894-2953-3827.5
AMENDED AND RESTATED BORROWER LOAN AGREEMENT
THIS BORROWER LOAN AGREEMENT (this “Borrower Loan Agreement”) is made and
entered into as of ________, 20__, by and among the HOUSING FINANCE AUTHORITY OF MIAMI-
DADE COUNTY, FLORIDA (the “Governmental Lender”), a public body corporate and politic organized
and existing under the laws of the State of Florida (the “State”), THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., a national banking association, duly organized and existing under the laws of
the United States of America (together with any successor Fiscal Agents appointed under the Funding Loan
Agreement, the “Fiscal Agent”), and VISTA BREEZE, LTD., a Florida limited partnership, duly
organized and existing under the laws of the State (together with its successors and assigns permitted
hereunder, the “Borrower”).
RECITALS
A. Pursuant to Chapter 159, Part IV, Florida Statutes, as amended, Resolution R-1194-78
adopted by the Board of County Commissioners of Miami-Dade County (the “Board”) on October 17,
1978, Ordinance No. 78-89 enacted by the Board on December 12, 1978 and Ordinance No. 11-99 enacted
by the Board on December 6, 2011 (collectively, the “Act”) and the Construction Phase Borrower Loan
Agreement dated as of December 1, 2023 (the “Construction Phase Borrower Loan Agreement”) by and
among the Governmental Lender, the Fiscal Agent and Vista Breeze, Ltd., a Florida limited partnership,
duly organized and existing under the laws of the State (the “Borrower”), the Governmental Lender made
a construction period mortgage loan pursuant to the Construction Phase Borrower Loan Agreement (the
“Construction Phase Borrower Loan”) to the Borrower in the maximum aggregate principal amount of
$32,500,000 to provide for the financing of the acquisition, construction and equipping of a multifamily
rental housing development located 175 S. Shore Drive and 280 S. Shore Drive, in the City of Miami Beach,
Miami-Dade County, Florida, known as Vista Breeze (the “Project”).
B. The Governmental Lender made the Construction Phase Borrower Loan to the Borrower
with the proceeds received from the separate loan made to the Governmental Lender by the Initial Funding
Lender pursuant to the Funding Loan Agreement in the maximum aggregate principal amount of
$32,500,000 (the “Construction Phase Funding Loan”). The Construction Phase Funding Loan is
evidenced by the Multifamily Housing Revenue Note, Series 2023 (Vista Breeze) dated December 15, 2023
(together with all riders and addenda thereto, the “Governmental Lender Note”) delivered by the
Governmental Lender to the Initial Funding Lender.
C. The Borrower’s repayment obligations in respect of the Construction Phase Borrower Loan
were by a Construction Phase Borrower Loan Note dated December 15, 2023 (together with all riders and
modifications thereto, the “Construction Phase Borrower Note”) delivered to the Governmental Lender,
which Construction Phase Borrower Note was endorsed by the Governmental Lender to the Fiscal Agent
as security for the Construction Phase Funding Loan.
D. To secure the Borrower’s obligations under the Construction Phase Borrower Note, the
Borrower executed and delivered to the Governmental Lender a Mortgage, Assignment of Rents, Security
Agreement and Fixture Filing dated as of December 1, 2023 (the “Security Instrument”) with respect to
the Project, which Security Instrument was assigned by the Governmental Lender to the Fiscal Agent as
security for the Construction Phase Funding Loan.
E. The Initial Funding Lender, the Funding Lender and the Borrower entered into a Forward
Purchase Agreement, dated as of December 1, 2023 (the “Forward Purchase Agreement”) pursuant to
which the Funding Lender agreed to purchase the Funding Loan from the Initial Funding Lender upon the
satisfaction of certain conditions, including the Conditions to Conversion. The Conditions to Conversion
2
4894-2953-3827.5
have been satisfied and the Construction Phase Borrower Loan is converting from the Construction Phase
Borrower Loan to the Permanent Phase Borrower Loan on the date hereof which is the Conversion Date
(the “Permanent Phase Borrower Loan”).
F. In connection with the Conversion (i) the Funding Loan Agreement and this Borrower
Loan Agreement are being executed and delivered and shall become effective, (ii) the Permanent Phase
Borrower Note, dated the date hereof, from the Borrower to the Governmental Lender (the “Permanent
Phase Borrower Note”) is being executed and delivered by the Borrower and assigned to the Funding
Lender by the Governmental Lender and the Construction Phase Borrower Note is being returned to the
Borrower and marked as superseded by the Permanent Phase Borrower Note, (iii) the Security Instrument
is being amended and restated and (iv) the Permanent Phase Funding Loan, the Amended and Restated
Borrower Loan Agreement and the Permanent Phase Borrower Note will secure the Funding Loan in
substitution for the Construction Phase Funding Loan Agreement, Construction Phase Borrower Loan
Agreement and Construction Project Note, respectively, which Construction Phase Funding Loan
Agreement and Construction Phase Borrower Loan Agreement are simultaneously being terminated.
NOW, THEREFORE, for and in consideration of the mutual covenants and representations
hereinafter contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Capitalized terms not otherwise defined herein shall have the
meanings provided in the Funding Loan Agreement, the Security Instrument or the Loan Covenant
Agreement. The following terms, when used in this Borrower Loan Agreement (including when used in
the above recitals), shall have the following meanings:
“Act of Bankruptcy” shall mean the filing of a petition in bankruptcy (or any other commencement
of a bankruptcy or similar proceeding) under any applicable bankruptcy, insolvency, reorganization, or
similar law, now or hereafter in effect; provided that, in the case of an involuntary proceeding, such
proceeding is not dismissed within ninety (90) days after the commencement thereof.
“ADA” shall have the meaning set forth in Section 4.1.38 hereof.
“Additional Borrower Payments” shall mean the payments payable pursuant to Section 2.5
(Additional Borrower Payments), Section 2.6 (Overdue Payments; Payments in Default) and Section 5.15
(Expenses) of this Borrower Loan Agreement; and Section 10 (Prepayments) of the Permanent Phase
Borrower Note.
“Agreement of Environmental Indemnification” shall mean the Agreement of Environmental
Indemnification, dated as of the date hereof, executed by the Borrower and the Guarantor for the benefit of
the Beneficiary Parties (as defined therein) and any lawful holder, owner or pledgee of the Permanent Phase
Borrower Note from time to time.
“Appraisal” shall mean an appraisal of the Project and Improvements, which appraisal shall be (i)
performed by a qualified appraiser licensed in the State selected by the Funding Lender, and (ii) satisfactory
to the Funding Lender (including, without limitation, as adjusted pursuant to any internal review thereof by
the Funding Lender) in all respects.
“Authorized Borrower Representative” shall mean a person at the time designated and authorized
to act on behalf of the Borrower by a written certificate furnished to the Governmental Lender, the Funding
3
4894-2953-3827.5
Lender, the Fiscal Agent and the Servicer and containing the specimen signature of such person and signed
on behalf of the Borrower by its Borrower Controlling Entity which certificate may designate one or more
alternates.
“Bankruptcy Code” shall mean the United States Bankruptcy Reform Act of 1978, as amended
from time to time, or any substitute or replacement legislation.
“Bankruptcy Event” shall have the meaning given to that term in the Security Instrument.
“Bankruptcy Proceeding” shall have the meaning set forth in Section 4.1.8 hereof.
“Beneficiary Parties” shall mean, collectively, the Fiscal Agent, the Governmental Lender and the
Funding Lender.
“Borrower” shall have the meaning set forth in the recitals to this Borrower Loan Agreement.
“Borrower Affiliate” shall mean, as to the Borrower, the General Partner or the Guarantor, (i) any
entity that directly or indirectly owns, controls, or holds with power to vote, 20 percent or more of the
outstanding voting securities of Borrower, the General Partner or the Guarantor, (ii) any corporation 20
percent or more of whose outstanding voting securities are directly or indirectly owned, controlled or held
with power to vote by the Borrower, the General Partner or the Guarantor, (iii) any partner, shareholder or,
if a limited liability company, member of Borrower, the General Partner or the Guarantor, or (iv) any other
person that is related (to the third degree of consanguinity) by blood or marriage to the Borrower, the
General Partner or the Guarantor (to the extent any of the Borrower, the General Partner or the Guarantor
is a natural person).
“Borrower Controlling Entity” shall mean, if the Borrower is a partnership, any general partner or
managing general partner of the Borrower, or if the Borrower is a limited liability company, the manager
or authorized member of the Borrower, or if the Borrower is a not-for-profit corporation, the members or
directors thereof, as applicable.
“Borrower Loan Documents” shall mean this Borrower Loan Agreement, the Loan Covenant
Agreement, the Permanent Phase Borrower Note, the Security Instrument, the Agreement of Environmental
Indemnification, the Guaranty, the Replacement Reserve Agreement, the Governmental Lender Guaranties
and all other documents or agreements evidencing or relating to the Permanent Phase Borrower Loan.
“Borrower Loan Payment Date” shall mean (i) the date upon which regularly scheduled Borrower
Loan Payments are due pursuant to the Permanent Phase Borrower Note, or (ii) any other date on which
the Permanent Phase Borrower Note is prepaid or paid, whether at the scheduled maturity or upon the
acceleration of the maturity thereof.
“Borrower Loan Payments” shall mean the monthly loan payments payable pursuant to the
Permanent Phase Borrower Note.
“Borrower Payment Obligations” shall mean all payment obligations of the Borrower under the
Borrower Loan Documents, including, but not limited to, the Permanent Phase Borrower Loan Payments
and the Additional Borrower Payments.
“Business Day” shall mean any day other than (i) a Saturday or Sunday, or (ii) a day on which the
offices of the Fiscal Agent in Jacksonville, Florida, or federally insured depository institutions in New York,
4
4894-2953-3827.5
New York are authorized or obligated by law, regulation, governmental decree or executive order to be
closed.
“Calendar Month” shall mean each of the twelve (12) calendar months of the year.
“CC&R’s” shall mean any covenants, conditions, restrictions, maintenance agreements or
reciprocal easement agreements affecting the Project or the Mortgaged Property.
“City HOME Loan” means the subordinate loan in the aggregate principal amount of $1,003,969
made by City of Miami Beach, Florida to the Borrower, as evidenced by the City Home Loan Documents.
“City HOME Loan Documents” means, collectively, all instruments, agreements and other
documents evidencing, securing or otherwise relating to the City HOME Loan or executed and delivered
by the Borrower in connection with the City HOME Loan.
“Code” shall mean the Internal Revenue Code of 1986, as in effect on the Delivery Date or (except
as otherwise referenced herein) as it may be amended to apply to obligations issued on the Delivery Date,
together with applicable proposed, temporary and final regulations promulgated (the “Regulations”), and
applicable official public guidance published, under the Code.
“Collateral” shall mean all collateral described in (i) this Borrower Loan Agreement (including,
without limitation, all property in which the Governmental Lender and/or the Funding Lender is granted a
security interest pursuant to any provision of this Borrower Loan Agreement), (ii) the Security Instrument,
or (iii) any other Security Document which collateral shall include the Project, all of which collateral
(exclusive of the Unassigned Rights) is pledged and assigned to the Funding Lender under Funding Loan
Agreement to secure the Funding Loan.
“Compliance Monitoring Fee” means a compliance monitoring fee in an annual amount equal to
$30.00 per rental unit in the Project (subject to adjustment from time to time by the Governmental Lender)
to be paid by the Borrower to the Governmental Lender on an annual basis during the Qualified Project
Period (as defined in the Regulatory Agreement) or for such longer period if the set-aside requirements
required by the Code, the Act or other Governmental Lender requirements remain in force.
“Computation Date” shall have the meaning ascribed thereto in Section 1.148-3(e) of the
Regulations.
“Condemnation” shall mean any action or proceeding or notice relating to any proposed or actual
condemnation or other taking, or conveyance in lieu thereof, of all or any part of the Project, whether direct
or indirect.
“Conditions to Conversion” shall have the meaning given to such term in the Forward Purchase
Agreement.
“Continuing Disclosure Agreement” shall mean that certain Continuing Disclosure Agreement
dated as of _________, 20__, by and between the Borrower and the Funding Lender, pursuant to which the
Borrower agrees to provide certain information with respect to the Project, the Borrower and the Funding
Loan subsequent to the Conversion Date, as amended, supplemented or restated from time to time.
“Contractual Obligation” shall mean, for any Person, any debt or equity security issued by that
Person, and any indenture, mortgage, deed of trust, contract, undertaking, instrument or agreement (written
or oral) to which such Person is a party or by which it is bound, or to which it or any of its assets is subject.
5
4894-2953-3827.5
“Conversion Date” shall mean ______, 20__, the date on which the Funding Lender purchases the
Governmental Lender Note from the Initial Funding Lender and assumes the role of the Funding Lender
under the Funding Loan Documents.
“County” shall mean Miami-Dade County, Florida.
“County Authorization” shall have the meaning given to that term in the recitals to this Borrower
Loan Agreement.
“Day” or “Days” shall mean calendar days unless expressly stated to be Business Days.
“Debt” shall mean, as to any Person, any of such Person’s liabilities, including all indebtedness
(whether recourse and nonrecourse, short term and long term, direct and contingent), all committed and
unfunded liabilities, and all unfunded liabilities, that would appear upon a balance sheet of such Person
prepared in accordance with GAAP.
“Default Rate” shall have the meaning given to that term in the Permanent Phase Borrower Note.
“Delivery Date” shall mean the date of issuance and delivery of the Governmental Lender Note.
“Determination of Taxability” shall mean (i) a determination by the Commissioner or any District
Director of the Internal Revenue Service, (ii) a private ruling or Technical Advice Memorandum concerning
the Governmental Lender Note issued by the National Office of the Internal Revenue Service in which the
Governmental Lender and Borrower were afforded the opportunity to participate, (iii) a determination by
any court of competent jurisdiction, (iv) the enactment of legislation or (v) receipt by the Funding Lender,
at the request of the Governmental Lender, the Borrower or the Funding Lender, of an opinion of Tax
Counsel, in each case to the effect that the interest on the Governmental Lender Note is includable in gross
income for federal income tax purposes of any holder or any former holder of all or a portion of the
Governmental Lender Note, other than a holder who is a “substantial user” of the Project or a “related
person” (as such terms are defined in Section 147(a) of the Code); provided, however, that no such
Determination of Taxability under clause (i) or (iii) shall be deemed to have occurred if the Governmental
Lender (at the sole expense of the Borrower) or the Borrower is contesting such determination, has elected
to contest such determination in good faith and is proceeding with all applicable dispatch to prosecute such
contest until the earliest of (a) a final determination from which no appeal may be taken with respect to
such determination, (b) abandonment of such appeal by the Governmental Lender or the Borrower, as the
case may be, or (c) one year from the date of initial determination.
“Developer” shall mean APC Vista Breeze Development, LLC and HACMB Development, LLC,
each a Florida limited liability company, and its respective successors and assigns.
“ELI Loan” means the subordinate loan in the aggregate principal amount of $___________ made
by Florida Housing Finance Corporation to the Borrower, as evidenced by the ELI Loan Documents.
“ELI Loan Documents” means, collectively, all instruments, agreements and other documents
evidencing, securing or otherwise relating to the ELI Loan or executed and delivered by the Borrower in
connection with the ELI Loan.
“Equipment” shall have the meaning given to the term “Personalty” in the Security Instrument.
“Equity Contributions” shall mean the equity to be contributed by the Equity Investor to Borrower,
in accordance with and subject to the terms of the Partnership Agreement.
6
4894-2953-3827.5
“Equity Investor” shall mean Bank of America, N.A., a national association, as a limited partner of
the Borrower, and its permitted successors and assigns.
“ERISA” shall mean the Employment Retirement Income Security Act of 1974, as amended from
time to time, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” shall mean all members of a controlled group of corporations and all trades and
business (whether or not incorporated) under common control and all other entities which, together with
the Borrower, are treated as a single employer under any or all of Section 414(b), (c), (m) or (o) of the
Code.
“Event of Default” shall mean any Event of Default set forth in Section 8.1 of this Borrower Loan
Agreement. An Event of Default shall “exist” if a Potential Default shall have occurred and be continuing
beyond any applicable cure period.
“Excess Revenues” shall have the meaning ascribed thereto in Section 2.2(e) hereof.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Expenses of the Project” shall mean, for any period, the current expenses, paid or accrued, for the
operation, maintenance and current repair of the Project, as calculated in accordance with GAAP, and shall
include, without limiting the generality of the foregoing, salaries, wages, employee benefits, cost of
materials and supplies, costs of routine repairs, renewals, replacements and alterations occurring in the
usual course of business, costs and expenses properly designated as capital expenditures (e.g. repairs which
would not be payable from amounts on deposit in a repair and replacement fund held pursuant to the
Borrower Loan Documents), a management fee (however characterized) not to exceed the Underwritten
Management Fee, costs of billings and collections, costs of insurance, and costs of audits. Expenses of the
Project shall not include any payments, however characterized, on account of any subordinate financing in
respect of the Project or other indebtedness, allowance for depreciation, amortization or other non-cash
items, gains and losses or prepaid expenses not customarily prepaid.
“Fair Market Value” shall mean the price at which a willing buyer would purchase the investment
from a willing seller in a bona fide, arm’s length transaction (determined as of the date the contract to
purchase or sell the investment becomes binding) if the investment is traded on an established securities
market (within the meaning of Section 1273 of the Code) and, otherwise, the term “Fair Market Value”
means the acquisition price in a bona fide arm’s length transaction (as referenced above) if (i) the investment
is a certificate of deposit that is acquired in accordance with applicable regulations under the Code, (ii) the
investment is an agreement with specifically negotiated withdrawal or reinvestment provisions and a
specifically negotiated interest rate (for example, a guaranteed investment contract, a forward supply
contract or other investment agreement) that is acquired in accordance with applicable regulations under
the Code, (iii) the investment is a United States Treasury Security State and Local Government Series that
is acquired in accordance with applicable regulations of the United States Bureau of Public Debt, or (iv)
the investment is an interest in any commingled investment fund in which the Governmental Lender and
related parties do not own more than a ten percent (10%) beneficial interest therein if the return paid by the
fund is without regard to the source of investment.
“Fee Guaranty and Environmental Indemnity Agreement” means the Fee Guaranty and
Environmental Indemnity Agreement, dated as of the date of this Borrower Loan Agreement, by
Governmental Lender Guarantors for the benefit of the Governmental Lender and the Fiscal Agent.
7
4894-2953-3827.5
“Fiscal Agent” shall mean the fiscal agent from time to time under and pursuant to the Funding
Loan Agreement. Initially, the Fiscal Agent is The Bank of New York Mellon Trust Company, N.A.
“Funding Lender” shall mean Citibank, N.A., a national banking association, in its capacity as
lender under the Funding Loan, and its successors and assigns.
“Funding Loan” means the Funding Loan made by the Initial Funding Lender to the Governmental
Lender under the Funding Loan Agreement, which Funding Loan has been purchased by the Funding
Lender on the date hereof in a principal amount of $_______.
“Funding Loan Agreement” means the Amended and Restated Funding Loan Agreement dated of
even date herewith, by and among the Governmental Lender, the Fiscal Agent and the Funding Lender, as
it may from time to time be supplemented, modified or amended by one or more amendments or other
instruments supplemental thereto entered into pursuant to the applicable provisions thereof.
“Funding Loan Documents” shall have the meaning given to that term in the Funding Loan
Agreement.
“GAAP” shall mean generally accepted accounting principles as in effect on the date of the
application thereof and consistently applied throughout the periods covered by the applicable financial
statements.
“General Partner” shall mean (i) Vista Breeze HACMB, Inc., a Florida not for profit corporation,
and/or (ii) any other Person as otherwise permitted with the Funding Lender’s approval pursuant to the
Borrower Loan Documents.
“Governmental Authority” shall mean (i) any governmental municipality or political subdivision
thereof, (ii) any governmental or quasi-governmental agency, authority, board, bureau, commission,
department, instrumentality or public body, or (iii) any court, administrative tribunal or public utility,
agency, commission, office or authority of any nature whatsoever for any governmental unit (federal, state,
county, district, municipal, city or otherwise), now or hereafter in existence.
“Governmental Lender” shall have the meaning set forth in the recitals to this Borrower Loan
Agreement.
“Governmental Lender Guaranties” means, collectively, (i) the Continuing, Absolute and
Unconditional Guaranty of Recourse Obligations, and (ii) the Fee Guaranty and Environmental Indemnity
Agreement, each dated as of December1, 2023, by the Governmental Lender Guarantors for the benefit of
the Governmental Lender and the Fiscal Agent.
“Governmental Lender Guarantors” means, collectively, the Borrower, APC Vista Breeze, LLC, a
Florida limited liability company, Vista Breeze HACMB, Inc., a Florida not for profit corporation, Atlantic
Pacific Communities, LLC, a Delaware limited liability company, APC Vista Breeze Development, LLC,
a Florida limited liability company, HACMB Development, LLC, a Florida limited liability company,
Howard D. Cohen Revocable Trust Under Agreement Dated 4/6/1993, and Howard D. Cohen, individually.
“Governmental Lender Note” shall mean that certain Multifamily Housing Revenue Note, Series
2023 (Vista Breeze) dated December 15, 2023, in the principal maximum amount of $32,500,000, made by
the Governmental Lender and payable to the Funding Lender, as it may be amended, supplemented or
replaced from time to time, as purchased by the Funding Lender on the Conversion Date in the principal
amount of $__________.
8
4894-2953-3827.5
“Gross Income” shall mean all receipts, revenues, income and other moneys received or collected
by or on behalf of the Borrower and derived from the ownership or operation of the Project, if any, and all
rights to receive the same, whether in the form of accounts, accounts receivable, contract rights or other
rights, and the proceeds of such rights, and whether now owned or held or hereafter coming into existence
and proceeds received upon the foreclosure sale of the Project. Gross Income shall not include loan
proceeds, equity or capital contributions, or tenant security deposits being held by the Borrower in
accordance with applicable law.
“Gross Proceeds” shall mean, without duplication, the aggregate of:
(a) the net amount (after payment of all expenses of originating the Funding Loan) of Funding
Loan proceeds received by the Governmental Lender as a result of the origination of the Funding Loan;
(b) all amounts received by the Governmental Lender as a result of the investment of the
Funding Loan proceeds;
(c) any amounts held in any fund or account to the extent that the Governmental Lender
reasonably expects to use the amounts in such fund to pay any portion of the Funding Loan; and
(d) any securities or obligations pledged by the Governmental Lender or by the Borrower as
security for the payment of any portion of the Funding Loan.
“Ground Lease” shall mean the Second Amended and Restated Ground Lease, dated December 15,
2023, between the Housing Authority of the City of Miami Beach, Florida, as landlord and the Borrower,
as tenant.
“Guarantor” shall mean, the Borrower, or any other person or entity which may hereafter become
a guarantor of any of the Borrower’s obligations under the Permanent Phase Borrower Loan and the
Governmental Lender Guarantors with respect to the Governmental Lender Guaranties.
“Guaranty” shall mean the Exceptions to Non-Recourse Guaranty, dated as of the date of this
Borrower Loan Agreement, by Guarantor for the benefit of the Beneficiary Parties.
“HACMB Loan” means the loan made by the Housing Authority of the City of Miami Beach,
Florida to the Borrower with respect to the Project in the principal amount of $________ pursuant to the
HACMB Loan Documents.
“HACMB Loan Documents” means collectively, all instruments, agreements and other documents
evidencing, securing or otherwise relating to the HACMB Loan or executed and delivered by the Borrower
in connection with the HACMB Loan.
“Indemnified Party” shall have the meaning set forth in Section 5.16 hereof.
“Installment Computation Date” shall mean any Computation Date other than the first Computation
Date or the final Computation Date.
“Interest Rate” shall mean, with respect to the Permanent Phase Borrower Note, the rate of interest
accruing on such Permanent Phase Borrower Note pursuant to the terms thereof.
“Land” means the real property described on Exhibit A to the Security Instrument.
9
4894-2953-3827.5
“Late Charge” shall mean the amount due and payable as a late charge on overdue payments under
the Permanent Phase Borrower Note, as provided in Section 7 of the Permanent Phase Borrower Note and
Section 2.5(a)(v) hereof.
“Legal Action” shall mean an action, suit, investigation, inquiry, proceeding or arbitration at law
or in equity or before or by any foreign or domestic court, arbitrator or other Governmental Authority.
“Legal Requirements” shall mean statutes, laws, rules, orders, regulations, ordinances, judgments,
decrees and injunctions of Governmental Authorities affecting all or part of the Project or any property
(including the Project) or the construction, rehabilitation, use, alteration or operation thereof, whether now
or hereafter enacted and in force, and all permits, licenses and authorizations and regulations relating
thereto, and all covenants, agreements, restrictions and encumbrances contained in any instrument, either
of record or known to the Borrower, at any time in force affecting all or part of the Project, including any
that may (i) require repairs, modifications or alterations in or to all or part of the Project, or (ii) in any way
limit the use and enjoyment thereof.
“Liabilities” shall have the meaning set forth in Section 5.16 hereof.
“Licenses” shall mean all rights, licenses, permits, franchises, authorizations, approvals and
agreements relating to use, occupancy, operation or leasing of the Project or the Mortgaged Property.
“Lien” shall mean any interest, or claim thereof, in the Project securing an obligation owed to, or a
claim by, any Person other than the owner of the Project, whether such interest is based on common law,
statute or contract, including the lien or security interest arising from a deed of trust, mortgage, deed to
secure debt, assignment, encumbrance, pledge, security agreement, conditional sale or trust receipt or a
lease, consignment or bailment for security purposes. The term “Lien” shall include reservations,
exceptions, encroachments, easements, rights of way, covenants, conditions, restrictions, leases and other
title exceptions and encumbrances affecting the Project.
“Management Agreement” shall mean the Management Agreement between the Borrower and the
Property Manager, pursuant to which the Property Manager is to manage the Project, as same may be
amended, restated, replaced, supplemented or otherwise modified from time to time.
“Material Adverse Change” means any set of circumstances or events which (a) has or could
reasonably be expected to have any material adverse effect whatsoever upon the validity or enforceability
of this Borrower Loan Agreement or any other Borrower Loan Document; (b) is or could reasonably be
expected to be material and adverse to the business, properties, assets, financial condition, or results of
operations of the Borrower, General Partner, Guarantor or the Mortgaged Property; (c) could reasonably be
expected to impair materially the ability of the Borrower, General Partner or Guarantor to duly and
punctually pay or perform any of their respective obligations under any of the Borrower Loan Documents
to which they are a party; or (d) impairs materially or could reasonably be expected to impair materially
any rights of or benefits available to the Governmental Lender or the Fiscal Agent under this Borrower
Loan Agreement or any other Borrower Loan Document, including, without limitation, the ability of
Governmental Lender or the Fiscal Agent or, upon the assignment of the Permanent Phase Borrower Loan
to it, of the Funding Lender, to the extent permitted, to enforce its legal remedies pursuant to this Borrower
Loan Agreement or any other Borrower Loan Document.
“Moody’s” shall mean Moody’s Investors Service, Inc., or its successor.
“Mortgaged Property” shall have the meaning given to that term in the Security Instrument.
10
4894-2953-3827.5
“NHTF Loan” means the subordinate loan in the aggregate principal amount of $___________
made by Florida Housing Finance Corporation to the Borrower, as evidenced by the NHTF Loan
Documents.
“NHTF Loan Documents” means, collectively, all instruments, agreements and other documents
evidencing, securing or otherwise relating to the NHTF Loan or executed and delivered by the Borrower in
connection with the NHTF Loan.
“Nonpurpose Investment” shall mean any investment property (as defined in Section 148(b) of the
Code) that is acquired with the Gross Proceeds of the Funding Loan, and which is not acquired to carry out
the governmental purpose of the Funding Loan.
“Other Charges” shall mean all maintenance charges, impositions other than Taxes, and any other
charges, including vault charges and license fees for the use of vaults, chutes and similar areas adjoining
the Project, now or hereafter levied or assessed or imposed against the Project or any part thereof.
“Partnership Agreement” shall mean that certain Amended and Restated Agreement of Limited
Partnership of the Borrower dated the Delivery Date, as the same may be amended, restated or modified in
accordance with its terms.
“Patriot Act” shall mean the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act (USA PATRIOT ACT) of 2001, as the same may be
amended from time to time, and corresponding provisions of future laws.
“Patriot Act Offense” shall have the meaning set forth in Section 4.1.48 hereof.
“Permanent Phase Borrower Loan” shall mean the leasehold mortgage loan made by the
Governmental Lender to the Borrower pursuant to this Borrower Loan Agreement, in the principal amount
of $___________, as evidenced by the Permanent Phase Borrower Note as of the Conversion Date.
“Permanent Phase Borrower Loan Amount” shall mean $______________, the aggregate original
maximum principal amount of the Permanent Phase Borrower Note.
“Permitted Encumbrances” shall have the meaning given to that term in the Security Instrument.
“Permitted Lease” shall mean a lease and occupancy agreement pursuant to the form approved by
Funding Lender, to a residential tenant in compliance with the Legal Requirements, providing for an initial
term of not less than six (6) months nor more than two (2) years.
“Person” shall mean a natural person, a partnership, a joint venture, an unincorporated association,
a limited liability company, a corporation, a trust, any other legal entity, or any Governmental Authority.
“Plan” shall mean (i) an employee benefit or other plan established or maintained by the Borrower
or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate makes or is obligated to make
contributions and (ii) which is covered by Title IV of ERISA or Section 302 of ERISA or Section 412 of
the Code.
“Potential Default” shall mean the occurrence of an event which, under this Borrower Loan
Agreement or any other Borrower Loan Document, would, but for the giving of notice or the passage of
time, or both, be an Event of Default.
11
4894-2953-3827.5
“Prepayment Premium” shall mean any premium payable by the Borrower pursuant to the
Borrower Loan Documents in connection with a prepayment of the Permanent Phase Borrower Note
(including any prepayment premium as set forth in the Permanent Phase Borrower Note).
“Project” shall mean the Mortgaged Property and Improvements thereon owned by the Borrower
and encumbered by the Security Instrument, together with all rights pertaining to such real property and
Improvements, as more particularly described in the Granting Clauses of the Security Instrument and
referred to therein as the “Mortgaged Property.”
“Project Agreements and Licenses” shall mean any and all Construction Contracts, Engineer’s
Contracts and Management Agreements, and all other rights, licenses, permits, franchises, authorizations,
approvals and agreements relating to use, occupancy, operation or leasing of the Project or the Mortgaged
Property.
“Property Manager” shall mean Atlantic Pacific Community Management, LLC, or any other
management company to be employed by the Borrower and approved by the Funding Lender in accordance
with the terms of the Security Instrument, this Borrower Loan Agreement or any of the other Borrower
Loan Documents.
“Provided Information” shall have the meaning set forth in Section 9.1.1(a) hereof.
“Qualified Project Costs” shall mean costs paid with respect to the Project that meet each of the
following requirements: (i) the costs are properly chargeable to capital account (or would be so chargeable
with a proper election by the Borrower or but for a proper election by the Borrower to deduct such costs)
in accordance with general federal income tax principles and in accordance with Section 1.103-8(a)(1) of
the Regulations, provided, however, that only such portion of the interest accrued during rehabilitation or
construction of the Project (in the case of rehabilitation, with respect to vacated units only) shall be eligible
to be a Qualified Project Cost as bears the same ratio to all such interest as the Qualified Project Costs bear
to all costs of the acquisition and construction or rehabilitation of the Project; and provided further that
interest accruing after the date of completion of the Project shall not be a Qualified Project Cost; and
provided still further that if any portion of the Project is being constructed or rehabilitated by an Affiliate
(whether as general contractor or a subcontractor), Qualified Project Costs shall include only (A) the actual
out of pocket costs incurred by such affiliate in constructing or rehabilitating the Project (or any portion
thereof), (B) any reasonable fees for supervisory services actually rendered by such affiliate, and (C) any
overhead expenses incurred by such affiliate which are directly attributable to the work performed on the
Project, and shall not include, for example, intercompany profits resulting from members of an “affiliated
group” (within the meaning of Section 1504 of the Code) participating in the rehabilitation or construction
of the Project or payments received by such affiliate due to early completion of the Project (or any portion
thereof); (ii) the costs are paid with respect to a qualified residential rental project or projects within the
meaning of Section 142(d) of the Code, (iii) the costs are paid after the earlier of 60 days prior to March
28, 2022, being the date on which the Governmental Lender first declared its “official intent” to reimburse
costs paid with respect to the Project (within the meaning of Section 1.150-2 of the Regulations) or the date
or dates of issue of the Funding Loan, and (iv) if the costs of the acquisition and construction or
rehabilitation of the Project were previously paid and are to be reimbursed with proceeds of the Funding
Loan such costs were (A) “preliminary expenditures” (within the meaning of Section 1.150-2(f)(2) of the
Regulations) with respect to the Project (such as architectural, engineering and soil testing services)
incurred before commencement of acquisition and construction or rehabilitation of the Project that do not
exceed twenty percent (20%) of the issue price of the Funding Loan (as defined in Section 1.148-1 of the
Regulations), or (B) were capital expenditures with respect to the Project that are reimbursed no later than
18 months after the later of the date the expenditure was paid or the date the Project is placed in service
(but no later than three years after the expenditures is paid); provided, however, that (w) costs of issuance
12
4894-2953-3827.5
shall not be deemed to be Qualified Project Costs; (x) fees, charges or profits (including, without limitation,
developer fees) payable to the Borrower or a “related person” (within the meaning of Section 144(a)(3) of
the Code) shall not be deemed to be Qualified Project Costs; (y) letter of credit fees and municipal bond
insurance premiums which represent a transfer of credit risk shall be allocated between Qualified Project
Costs and other costs and expenses to be paid from the proceeds of the Funding Loan; and (z) letter of credit
fees and municipal bond insurance premiums which do not represent a transfer of credit risk (including,
without limitation, letter of credit fees payable to a “related person” to the Borrower) shall not constitute
Qualified Project Costs.
“Rebate Amount” shall mean, for any given period, the amount determined by the Rebate Analyst
as required to be rebated or paid as a yield reduction payment to the United States of America with respect
to the Funding Loan.
“Rebate Analyst” shall mean the rebate analyst, if any, selected by the Borrower pursuant to Section
5.35(d) and acceptable to the Governmental Lender and the Funding Lender. The initial Rebate Analyst
shall be __________________.
“Rebate Analyst’s Fee” shall mean the annual fee of the Rebate Analyst payable by the Borrower
to the Rebate Analyst.
“Rebate Fund” shall mean the Rebate Fund created pursuant to Section 5.36(b) hereof.
“Regulations” shall have the meaning given to the term in the definition of the “Code” in this
Section 1.2.
“Regulatory Agreement” shall mean that certain Land Use Restriction Agreement, dated as of the
date hereof, among the Governmental Lender, the Fiscal Agent and the Borrower.
“Related Documents” shall mean, collectively, any agreement or other document (other than the
Borrower Loan Documents) granting a security interest (including each agreement that is the subject of any
Borrower Loan Document), the Partnership Agreement, and any other agreement, instrument or other
document (not constituting a Borrower Loan Document) relating to or executed in connection with the
transactions contemplated by this Borrower Loan Agreement.
“Replacement Reserve Agreement” shall mean any Replacement Reserve Agreement between the
Borrower and the Funding Lender, as the same may be amended, restated or supplemented from time to
time.
“Replacement Reserve Fund Requirement” means the Borrower’s funding obligations from time
to time under the Replacement Reserve Agreement.
“Resolution” shall mean the resolution of the Governmental Lender authorizing the Funding Loan,
as evidenced by the Governmental Lender Note and the execution and delivery of the Funding Loan
Documents to which the Governmental Lender is a party.
“Review Fee” shall mean the three thousand dollar ($3,000) fee payable to Funding Lender in
connection with the review of requests from the Borrower in connection with events requiring the consent
and/or approval of the Funding Lender, including, but not limited to, subordinate financings and easements.
“SAIL Loan” means the subordinate loan in the aggregate principal amount of $___________ made
by Florida Housing Finance Corporation to the Borrower, as evidenced by the SAIL Loan Documents.
13
4894-2953-3827.5
“SAIL Loan Documents” means, collectively, all instruments, agreements and other documents
evidencing, securing or otherwise relating to the SAIL Loan or executed and delivered by the Borrower in
connection with the SAIL Loan.
“Secondary Market Disclosure Document” shall have the meaning set forth in Section 9.1.2 hereof.
“Secondary Market Transaction” shall have the meaning set forth in Section 9.1.1 hereof.
“Securities” shall have the meaning set forth in Section 9.1.1 hereof.
“Securities Act” shall mean the Securities Act of 1933, as amended.
“Security Documents” shall mean the Security Instrument, the Replacement Reserve Agreement,
the Collateral Agreements, the Collateral Assignments, this Borrower Loan Agreement, the Guaranty, the
Governmental Lender Guarantees, the Agreement of Environmental Indemnification, and such other
security instruments that Funding Lender may reasonably request.
“Security Instrument” shall have the meaning set forth in the recitals to this Borrower Loan
Agreement.
“Servicer” shall mean the servicer contracting with or appointed by the Funding Lender to service
the Permanent Phase Borrower Loan. The initial Servicer shall be Citibank, N.A.
“Servicing Agreement” shall mean any servicing agreement or master servicing agreement,
between the Servicer and the Funding Lender relating to the servicing of the Permanent Phase Borrower
Loan and any amendments thereto or any replacement thereof.
“Standard & Poor’s” or “S&P” shall mean S&P Global Ratings, its successors and assigns.
“State” shall mean the State of Florida.
“Submission Date” shall have the meaning assigned to such term in the Partnership Agreement.
“Subordinate Lender” shall mean, as applicable with respect to the Subordinate Loans, Miami-
Dade County, Florida, Florida Housing Finance Corporation and the City of Miami Beach, Florida.
“Subordinate Loans” shall mean collectively, the City HOME Loan, the ELI Loan, the NHTF Loan,
the Viability Loan, the SAIL Loan, the HACMB Loan and the Surtax Loan.
“Subordinate Loan Documents” shall mean the Surtax Loan Documents, the City HOME Loan
Documents, the SAIL Loan Documents, the HACMB Loan Documents and the Viability Loan Documents.
“Surtax Loan” means the subordinate loan in the aggregate principal amount of $___________
made by Miami-Dade County to the Borrower, as evidenced by the Surtax Loan Documents.
“Surtax Loan Documents” means, collectively, all instruments, agreements and other documents
evidencing, securing or otherwise relating to the Surtax Loan or executed and delivered by the Borrower in
connection with the Surtax Loan.
“Tax Counsel” shall have the meaning set forth in the Funding Loan Agreement.
14
4894-2953-3827.5
“Taxes” shall mean all real estate and personal property taxes, assessments, water rates or sewer
rents, now or hereafter levied or assessed or imposed against all or part of the Project.
“Term” shall mean the term of this Borrower Loan Agreement pursuant to Section 10.13.
“Title Company” means Chicago Title Insurance Company.
“Title Insurance Policy” shall mean the mortgagee title insurance policy, or marked title insurance
commitment, in form acceptable to the Funding Lender, issued with respect to the Mortgaged Property and
insuring the lien of the Security Instrument.
“Transfer” shall have the meaning given to that term in the Security Instrument.
“UCC” shall mean the Uniform Commercial Code as in effect in the State.
“Underwritten Management Fee” shall have the meaning set forth in the Loan Covenant
Agreement.
“Unit” shall mean a residential apartment unit within the Improvements.
“Viability Loan” means the subordinate loan in the aggregate principal amount of $___________
made by Florida Housing Finance Corporation to the Borrower.
“Viability Loan Documents” means, collectively, all instruments, agreements and other documents
evidencing, securing or otherwise relating to the Viability Loan or executed and delivered by the Borrower
in connection with the Viability Loan.
“Written Consent” and “Written Notice” shall mean a written consent or notice signed by an
Authorized Borrower Representative or an authorized representative of the Governmental Lender or the
Funding Lender, as appropriate.
ARTICLE II
GENERAL
Section 2.1 Origination of the Permanent Phase Borrower Loan. In order to provide
funds for the purposes provided in the Construction Phase Borrower Loan Agreement and herein, the
Governmental Lender, pursuant to the County Authorization and in accordance with the Act, entered into
the Construction Phase Funding Loan Agreement and accepted the Funding Loan from the Initial Funding
Lender. The proceeds of the Funding Loan were advanced by the Initial Funding Lender to the Fiscal
Agent for payment to or for the benefit of the Borrower in accordance with the terms of the Construction
Phase Funding Loan Agreement and the Construction Phase Borrower Loan Agreement. Upon the
purchase of the Governmental Lender Note by the funding Lender on the Conversion Date, the Permanent
Phase Borrower Loan will be governed by this Borrower Loan Agreement, which amends and restates
the Construction Phase Borrower Loan Agreement in its entirety.
The Governmental Lender hereby appoints the Funding Lender as its agent with full authority and
power to act on its behalf to take certain actions and exercise certain remedies with respect to the Permanent
Phase Borrower Loan, and for the other purposes set forth in this Borrower Loan Agreement and to do all
other acts necessary or incidental to the performance and execution thereof (in all cases other than actions
relating to Unassigned Rights). This appointment is coupled with an interest and is irrevocable except as
expressly set forth herein. Accordingly, references to the rights of the Funding Lender to take actions under
15
4894-2953-3827.5
this Borrower Loan Agreement shall refer to Funding Lender in its role as agent of the Governmental
Lender. The Funding Lender may designate Servicer to fulfill the rights and responsibilities granted by
Governmental Lender to Funding Lender pursuant to this Section 2.1.
Section 2.2 Security for the Funding Loan.
(a) As security for the Funding Loan, the Governmental Lender has pledged and assigned to
the Funding Lender under and pursuant to the Funding Loan Agreement (a) the Permanent Phase Borrower
Note and all of its right, title and interest in and to this Borrower Loan Agreement and the Borrower Loan
Documents (except for the Unassigned Rights) and all revenues and receipts therefrom and the security
therefor (including the Security Instrument) and (b) the amounts on deposit from time to time in any and
all funds established under the Funding Loan Agreement other than the Rebate Fund and Expense Fund
created and established thereunder. All revenues and assets pledged and assigned thereby shall
immediately be subject to the lien of such pledge without any physical delivery thereof or any further act,
except in the case of the Permanent Phase Borrower Note, which shall be delivered to the Funding Lender.
The Borrower hereby acknowledges and consents to such assignment to the Funding Lender.
(b) With respect to the Unassigned Rights, subject to the limitations set forth in this Section
2.2, the Governmental Lender may:
(i) Tax Covenants. Seek specific performance of, and enforce, the tax covenants of
the Funding Loan Agreement, the Regulatory Agreement, the Tax Certificate and this Borrower Loan
Agreement, seek injunctive relief against acts which may be in violation of any of the tax covenants, and
enforce the Borrower’s obligation to pay amounts for credit to the Rebate Fund; and
(ii) Regulatory Agreement. Seek specific performance of the obligations of the
Borrower or any other owner of the Project under the Regulatory Agreement and injunctive relief against
acts which may be in violation of the Regulatory Agreement or otherwise in accordance with the provisions
of the Regulatory Agreement; provided, however, that the Governmental Lender may enforce any right it
may have under the Regulatory Agreement for monetary damages (which term shall not be deemed to
include fees, expenses and indemnification obligations payable by the Borrower to the Governmental
Lender or Fiscal Agent under the Regulatory Agreement, the Funding Loan Agreement or this Borrower
Loan Agreement) only against Excess Revenues (defined below), if any, of the Borrower, unless the
Funding Lender otherwise specifically consents in writing to the use of other funds; and
(iii) Unassigned Rights. Take whatever action at law or in equity which appears
necessary or desirable to enforce the other Unassigned Rights, provided, however, that the Governmental
Lender or any person under its control may only enforce any right it may have for monetary damages (which
term shall not be deemed to include fees, expenses and indemnification obligations payable by the Borrower
to the Governmental Lender or Fiscal Agent under the Regulatory Agreement, the Governmental Lender
Guaranties, the Governmental Lender Environmental Indemnity Agreement, the Funding Loan Agreement
or this Borrower Loan Agreement) against Excess Revenues, if any, of the Borrower, unless the Funding
Lender otherwise specifically consents in writing to the enforcement against other funds of the Borrower.
(c) In no event shall the Governmental Lender, except at the express written direction of the
Funding Lender:
(i) prosecute its action to a lien on the Project; or
(ii) take any action which has a substantial likelihood of or that has a result of,
impairing the ability of the Borrower to timely pay the principal of, interest on, or other amounts due under,
16
4894-2953-3827.5
the Permanent Phase Borrower Loan or of causing the Borrower to file a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Borrower under any applicable liquidation,
insolvency, bankruptcy, rehabilitation, composition, reorganization, conservation or other similar law in
effect now or in the future; or
(iii) interfere with the exercise by the Fiscal Agent, the Funding Lender or the Servicer
of any of their rights under the Borrower Loan Documents upon the occurrence of an event of default by
the Borrower under the Borrower Loan Documents or the Funding Loan Documents; or
(iv) take any action to accelerate or otherwise enforce payment or seek other remedies
with respect to the Permanent Phase Borrower Loan or the Funding Loan.
(d) The Governmental Lender shall provide Written Notice to the Funding Lender and the
Servicer immediately upon taking any action at law or in equity to exercise any remedy or direct any
proceeding under the Borrower Loan Documents or the Funding Loan Documents.
(e) As used in this Section 2.2, the term “Excess Revenues” means, for any period, the net
cash flow of the Borrower available for distribution to shareholders, members or partners (as the case may
be) for such period, after the payment of all interest expense, the amortization of all principal of all
indebtedness coming due, including but not limited to, the Subordinate Loan, during such period (whether
by maturity, mandatory sinking fund payment, acceleration or otherwise), the payment of all fees, costs
and expenses on an occasional or recurring basis in connection with the Permanent Phase Borrower Loan
or the Funding Loan, the payment of all operating, overhead, ownership and other expenditures of the
Borrower directly or indirectly in connection with the Project (whether any such expenditures are current,
capital or extraordinary expenditures), and the setting aside of all reserves for taxes, insurance, water and
sewer charges or other similar impositions, capital expenditures, repairs and replacements and all other
amounts which the Borrower is required to set aside pursuant to agreement, but excluding depreciation
and amortization of intangibles.
Section 2.3 Loan; the Permanent Phase Borrower Note.
(a) As evidence of its obligation to repay the Permanent Phase Borrower Loan, simultaneously
with the delivery of this Borrower Loan Agreement to the Governmental Lender, the Borrower hereby
agrees to execute and deliver the Permanent Phase Borrower Note, which amends and restates the
Construction Phase Borrower Note in its entirety. The Permanent Phase Borrower Loan shall mature and
be payable at the times and in the amounts required under the terms hereof and of the Permanent Phase
Borrower Note. The Governmental Lender shall assign the Permanent Phase Borrower Note to the
Funding Lender on the Conversion Date as a condition to Conversion.
Section 2.4 Borrower Loan Payments.
(a) The Borrower shall make Borrower Loan Payments in accordance with the Permanent
Phase Borrower Note. Each Borrower Loan Payment made by the Borrower shall be made in funds
immediately available to the Servicer by 2:00 p.m., New York City time, on the date that is two (2)
Business Days prior to the Borrower Loan Payment Date. Each such payment shall be made to the Fiscal
Agent or Servicer, as applicable, by deposit to such account as the Fiscal Agent or Servicer, as applicable,
may designate by Written Notice to the Borrower. Whenever any Borrower Loan Payment shall be stated
to be due on a day that is not a Business Day, such payment shall be due on the first Business Day
immediately thereafter. In addition, the Borrower shall make Borrower Loan Payments in accordance
with the Permanent Phase Borrower Note in the amounts and at the times necessary to make all payments
due and payable on the Funding Loan. All payments made by the Borrower hereunder or by the Borrower
17
4894-2953-3827.5
under the other Borrower Loan Documents, shall be made irrespective of, and without any deduction for,
any set-offs or counterclaims, but such payment shall not constitute a waiver of any such set offs or
counterclaims.
(b) Unless there is no Servicer, payments of principal and interest on the Permanent Phase
Borrower Note shall be paid to the Servicer and the Servicer shall then remit such funds to the Fiscal
Agent for deposit into the Funding Loan Payment Fund created under the Funding Loan Agreement. If
there is no Servicer, payments of principal and interest on the Permanent Phase Borrower Note shall be
paid to the Fiscal Agent.
Section 2.5 Additional Borrower Payments.
(a) The Borrower shall pay the following amounts:
(i) to the Fiscal Agent, the Rebate Amount then due, if any, to be deposited in the
Rebate Fund as specified in Section 5.36 hereof and the Rebate Analyst’s Fee to be deposited in the Expense
Fund and any other costs incurred to calculate such Rebate Amount (to the extent such costs are not included
in the Borrower Loan Payment);
(ii) to the Fiscal Agent for remittance to the Governmental Lender, the Governmental
Lender Fee, the Compliance Monitoring Fee and, on demand, all fees, charges, costs, advances, indemnities
and expenses, including agent and counsel fees, of the Governmental Lender incurred under the Borrower
Loan Documents or the Funding Loan Documents, and any taxes and assessments with respect to the
Project, as and when the same become due;
(iii) all costs of issuance and fees, charges and expenses, including agent and counsel
fees incurred in connection with the origination of the Permanent Phase Borrower Loan and the Funding
Loan, as and when the same become due;
(iv) to the Funding Lender, on demand, all charges, costs, advances, indemnities and
expenses, including agent and counsel fees, of the Funding Lender incurred by the Funding Lender at any
time in connection with the Permanent Phase Borrower Loan, the Funding Loan or the Project, including,
without limitation, any Review Fee, reasonable counsel fees and expenses incurred in connection with the
interpretation, performance, or amendment and all counsel fees and expenses relating to the enforcement
of the Borrower Loan Documents or the Funding Loan Documents or any other documents relating to the
Project or the Borrower Loan or in connection with questions or other matters arising under such documents
or in connection with any federal or state tax audit;
(v) all Late Charges due and payable under the terms of the Permanent Phase Borrower
Note and Section 2.6 hereof; provided, however, that all payments made pursuant to this subsection (v)
shall be made to the Servicer, and, if there is no Servicer, such payments shall be made to the Funding
Lender; and
(vi) to the Fiscal Agent, the Fiscal Agent’s Fees as and when the same become due.
(b) The Borrower shall pay to the party entitled thereto as expressly set forth in this Borrower
Loan Agreement or the other Borrower Loan Documents or Funding Loan Documents:
(i) all expenses incurred in connection with the enforcement against the Borrower of
any rights under this Borrower Loan Agreement or any other Borrower Loan Document, the Regulatory
18
4894-2953-3827.5
Agreement, or any Funding Loan Document by the Governmental Lender, Funding Lender, Fiscal Agent
or the Servicer, as applicable;
(ii) all other payments of whatever nature that the Borrower has agreed to pay or
assume under the provisions of this Borrower Loan Agreement or any other Borrower Loan Document or
Funding Loan Document; and
(iii) all expenses, costs and fees relating to inspections of the Project required by the
Governmental Lender, the Funding Lender, the Fiscal Agent, the Servicer, in accordance with the Borrower
Loan Documents or the Funding Loan Documents or to reimburse such parties for such expenses, costs and
fees.
Section 2.6 Overdue Payments; Payments in Default. If any Borrower Payment
Obligation is not paid by or on behalf of the Borrower when due, the Borrower shall pay to the Servicer,
a Late Charge in the amount and to the extent set forth in the Permanent Phase Borrower Note, if any.
Section 2.7 Calculation of Interest Payments and Deposits to Real Estate Related
Reserve Funds. The Borrower acknowledges as follows: (a) calculation of all interest payments shall
be made by the Funding Lender in accordance with the terms of the Permanent Phase Borrower Note; (b)
deposits with respect to the Taxes and Other Charges shall be calculated by the Servicer or if there is no
Servicer, the Funding Lender in accordance with the Security Instrument; and (c) deposits with respect
to any replacement reserve funds required by the Funding Lender shall be calculated by the Servicer in
accordance with the Replacement Reserve Agreement. In the event and to the extent that the Servicer or
the Funding Lender, pursuant to the terms hereof, shall determine at any time that there exists a deficiency
in amounts previously owed but not paid with respect to deposits to such replacement reserve fund, such
deficiency shall be immediately due and payable hereunder following Written Notice to the Borrower.
Section 2.8 Grant of Security Interest; Application of Funds. To the extent not
inconsistent with the Security Instrument and as security for payment of the Borrower Payment
Obligations and the performance by the Borrower of all other terms, conditions and provisions of the
Borrower Loan Documents, the Borrower hereby pledges and assigns to the Funding Lender, and grants
to the Funding Lender, a security interest in, all the Borrower’s right, title and interest in and to all
payments to or moneys held in the funds and accounts (other than the Rebate Fund and the Expense Fund)
created and held by the Fiscal Agent, the Funding Lender or the Servicer for the Project. This Borrower
Loan Agreement is, among other things, intended by the parties to be a security agreement for purposes
of the UCC. Upon the occurrence and during the continuance of an Event of Default hereunder, the Fiscal
Agent, the Funding Lender and the Servicer shall apply or cause to be applied any sums held by the Fiscal
Agent (other than sums held in the Rebate Fund and the Expense Fund), the Funding Lender and the
Servicer with respect to the Project in any manner and in any order determined by Funding Lender, in
Funding Lender’s sole and absolute discretion.
Section 2.9 Marshalling; Payments Set Aside. The Governmental Lender, the Fiscal Agent
and the Funding Lender shall be under no obligation to marshal any assets in favor of the Borrower or
any other Person or against or in payment of any or all of the proceeds. To the extent that the Borrower
makes a payment or payments or transfers any assets to the Governmental Lender or Funding Lender, or
the Governmental Lender, the Fiscal Agent or the Funding Lender enforces its liens, and such payment
or payments or transfers, or the proceeds of such enforcement or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver
or any other party in connection with any insolvency proceeding, or otherwise, then: (i) any and all
obligations owed to the Governmental Lender, the Fiscal Agent or the Funding Lender and any and all
remedies available to the Governmental Lender, the Fiscal Agent or the Funding Lender under the terms
19
4894-2953-3827.5
of the Borrower Loan Documents and the Funding Loan Documents or in law or equity against the
Borrower, Guarantor or General Partner and/or any of their properties shall be automatically revived and
reinstated to the extent (and only to the extent) of any recovery permitted under clause (ii) below; and (ii)
the Governmental Lender, the Fiscal Agent and the Funding Lender shall be entitled to recover (and shall
be entitled to file a proof of claim to obtain such recovery in any applicable bankruptcy, insolvency,
receivership or fraudulent conveyance or fraudulent transfer proceeding) either: (x) the amount of
payments or the value of the transfer or (y) if the transfer has been undone and the assets returned in
whole or in part, the value of the consideration paid to or received by the Borrower for the initial asset
transfer, plus in each case any deferred interest from the date of the disgorgement to the date of
distribution to the Governmental Lender, the Fiscal Agent or the Funding Lender in any bankruptcy,
insolvency, receivership or fraudulent conveyance or fraudulent transfer proceeding, and any costs and
expenses due and owing, including, without limitation, any reasonable attorneys’ fees incurred by the
Governmental Lender, the Fiscal Agent or the Funding Lender in connection with the exercise by the
Governmental Lender, the Fiscal Agent or the Funding Lender of its rights under this Section 2.9.
ARTICLE III
RESERVED
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Borrower Representations. To induce the Governmental Lender, the Fiscal
Agent and the Funding Lender to execute this Borrower Loan Agreement, the Borrower represents and
warrants for the benefit of the Governmental Lender, the Funding Lender, the Fiscal Agent and the
Servicer, that the representations and warranties set forth in this Section 4.1 are complete and accurate as
of the Conversion Date.
Section 4.1.1 Organization; Special Purpose. The Borrower is a Florida limited
partnership in good standing under the laws of the State, has full legal right, power and authority to enter
into the Borrower Loan Documents to which it is a party, and to carry out and consummate all transactions
contemplated by the Borrower Loan Documents to which it is a party, and by proper company action, has
duly authorized the execution, delivery and performance of the Borrower Loan Documents to which it is a
party. The Person(s) executing the Borrower Loan Documents and the Funding Loan Documents to which
the Borrower is a party, in the name of and on behalf of the General Partner, is(are) fully authorized to
execute the same. The Borrower Loan Documents and the Funding Loan Documents to which the Borrower
is a party have been duly authorized, executed and delivered by the Borrower. The sole business of the
Borrower is the ownership, management and operation of the Project.
Section 4.1.2 Proceedings; Enforceability. Assuming due execution and delivery by
the other parties thereto, the Borrower Loan Documents and the Funding Loan Documents to which the
Borrower is a party will constitute the legal, valid and binding agreements of the Borrower enforceable
against the Borrower in accordance with their terms; except in each case as enforcement may be limited by
bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights generally, by the
application of equitable principles regardless of whether enforcement is sought in a proceeding at law or in
equity and by public policy.
Section 4.1.3 No Conflicts. The execution and delivery of the Borrower Loan
Documents and the Funding Loan Documents to which the Borrower is a party, the consummation of the
transactions herein and therein contemplated and the fulfillment of or compliance with the terms and
conditions hereof and thereof, will not conflict with or constitute a violation or breach of or default (with
due notice or the passage of time or both) under the Partnership Agreement of the Borrower, or to the best
20
4894-2953-3827.5
knowledge of the Borrower and with respect to the Borrower, any applicable law or administrative rule or
regulation, or any applicable court or administrative decree or order, or any mortgage, deed of trust, loan
agreement, lease, contract or other agreement or instrument to which the Borrower is a party or by which it
or its properties are otherwise subject or bound, or 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 Borrower, which
conflict, violation, breach, default, lien, charge or encumbrance might have consequences that would
materially and adversely affect the consummation of the transactions contemplated by the Borrower Loan
Documents and the Funding Loan Documents, or the financial condition, assets, properties or operations of
the Borrower.
Section 4.1.4 Litigation; Adverse Facts. There is no Legal Action, nor is there a basis
known to the Borrower for any Legal Action, before or by any court or federal, state, municipal or other
governmental authority, pending, or to the knowledge of the Borrower, after reasonable investigation,
threatened in writing, against or affecting the Borrower, any General Partner or the Guarantor, or their
respective assets, properties or operations which, if determined adversely to the Borrower or its interests,
would have a material adverse effect upon the consummation of the transactions contemplated by, or the
validity of, the Borrower Loan Documents or the Funding Loan Documents, upon the ability of each of the
Borrower, each General Partner and Guarantor to perform their respective obligations under the Borrower
Loan Documents, the Funding Loan Documents and the Related Documents to which it is a party, or upon
the financial condition, assets (including the Project), properties or operations of the Borrower, the General
Partner or the Guarantor. None of the Borrower, any General Partner or Guarantor is in default (and to the
Borrower’s knowledge no event has occurred and is continuing which with the giving of notice or the
passage of time or both could constitute a default) with respect to any order or decree of any court or any
order, regulation or demand of any federal, state, municipal or other governmental authority, which default
might have consequences that would materially and adversely affect the consummation of the transactions
contemplated by the Borrower Loan Documents and the Funding Loan Documents, the ability of each of
the Borrower, any General Partner and Guarantor to perform their respective obligations under the
Borrower Loan Documents, the Funding Loan Documents and the Related Documents to which it is a party,
or the financial condition, assets, properties or operations of the Borrower, any General Partner or
Guarantor. None of the Borrower, any General Partner or Guarantor are (a) in violation of any applicable
law, which violation materially and adversely affects or may materially and adversely affect the business,
operations, assets (including the Project), or condition (financial or otherwise) of the Borrower, any General
Partner or Guarantor, as applicable; (b) subject to, or in default with respect to, any other Legal Requirement
that would have a material adverse effect on the business, operations, assets (including the Project), or
condition (financial or otherwise) of the Borrower, any General Partner or Guarantor, as applicable; or (c)
in default with respect to any agreement to which the Borrower, any General Partner or Guarantor, as
applicable, are a party or by which they are bound, which default would have a material adverse effect on
the business, operations, assets (including the Project), or condition (financial or otherwise) of the
Borrower, any General Partner or Guarantor, as applicable; and (d) there is no Legal Action pending or, to
the knowledge of the Borrower, threatened against or affecting the Borrower, any General Partner or
Guarantor questioning the validity or the enforceability of this Borrower Loan Agreement or any of the
other Borrower Loan Documents or the Funding Loan Documents or of any of the Related Documents. All
tax returns (federal, state and local) required to be filed by or on behalf of the Borrower have been filed,
and all taxes shown thereon to be due, including interest and penalties, except such, if any, as are being
actively contested by the Borrower in good faith, have been paid or adequate reserves have been made for
the payment thereof which reserves, if any, are reflected in the audited financial statements described
therein. The Borrower enjoys the peaceful and undisturbed possession of all of the premises upon which it
is operating its facilities.
Section 4.1.5 Agreements; Consents; Approvals. Except as contemplated by the
Borrower Loan Documents and the Funding Loan Documents, the Borrower is not a party to any agreement
21
4894-2953-3827.5
or instrument or subject to any restriction that would materially adversely affect the Borrower, the Project,
or the Borrower’s business, properties, operations or financial condition, except the Permitted
Encumbrances. The Borrower is not in default in any material respect in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any Permitted Encumbrance or
any other agreement or instrument to which it is a party or by which it or the Project is bound.
No consent or approval of any trustee or holder of any indebtedness of the Borrower, and to the
best knowledge of the Borrower and only with respect to the Borrower, no consent, permission,
authorization, order or license of, or filing or registration with, any governmental authority (except no
representation is made with respect to any state securities or “blue sky” laws) is necessary in connection
with the execution and delivery of the Borrower Loan Documents or the Funding Loan Documents, or the
consummation of any transaction herein or therein contemplated, or the fulfillment of or compliance with
the terms and conditions hereof or thereof, except as have been obtained or made and as are in full force
and effect.
Section 4.1.6 Title. The Borrower shall have a leasehold interest in the land and fee
simple title to the Project, free and clear of all Liens except the Permitted Encumbrances. The Security
Instrument, when properly recorded in the appropriate records, together with any UCC financing statements
required to be filed in connection therewith, will create (i) a valid, perfected first priority lien on the Project
and (ii) perfected security interests in and to, and perfected collateral assignments of, all personalty included
in the Project (including the Leases), all in accordance with the terms thereof, in each case subject only to
any applicable Permitted Encumbrances. To the Borrower’s knowledge, there are no delinquent real
property taxes or assessments, including water and sewer charges, with respect to the Project, nor are there
any claims for payment for work, labor or materials affecting the Project which are or may become a Lien
prior to, or of equal priority with, the Liens created by the Borrower Loan Documents and the Funding
Loan Documents.
Section 4.1.7 Survey. To the best knowledge of the Borrower, the survey for the
Project delivered to the Governmental Lender and the Funding Lender does not fail to reflect any material
matter affecting the Project or the title thereto.
Section 4.1.8 No Bankruptcy Filing. The Borrower is not contemplating either the
filing of a petition by it under any state or federal bankruptcy or insolvency law or the liquidation of all or
a major portion of its property (a “Bankruptcy Proceeding”), and the Borrower has no knowledge of any
Person contemplating the filing of any such petition against it. As of the Delivery Date, the Borrower has
the ability to pay its debts as they become due.
Section 4.1.9 Full and Accurate Disclosure. No statement of fact made by the
Borrower in any Borrower Loan Document or any Funding Loan Document contains any untrue statement
of a material fact or omits to state any material fact necessary to make statements contained therein in light
of the circumstances in which they were made, not misleading. There is no material fact or circumstance
presently known to the Borrower that has not been disclosed to the Governmental Lender and the Funding
Lender which materially and adversely affects the Project or the business, operations or financial condition
of the Borrower or the Borrower’s ability to meet its obligations under this Borrower Loan Agreement and
the other Borrower Loan Documents and Funding Loan Documents to which it is a party in a timely manner.
Section 4.1.10 No Plan Assets. The Borrower is not an “employee benefit plan,” as
defined in Section 3(3) of ERISA, subject to Title I of ERISA, and none of the assets of the Borrower
constitutes or will constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R.
Section 2510.3-101.
22
4894-2953-3827.5
Section 4.1.11 Compliance. The Borrower, the Project and the use thereof will
comply, to the extent required, in all material respects with all applicable Legal Requirements. The
Borrower is not in default or violation of any order, writ, injunction, decree or demand of any Governmental
Authority, the violation of which would materially adversely affect the financial condition or the business
of the Borrower. There has not been committed by the Borrower or any Borrower Affiliate involved with
the operation or use of the Project any act or omission affording any Governmental Authority the right of
forfeiture as against the Project or any part thereof or any moneys paid in performance of the Borrower’s
obligations under any Borrower Loan Document or any Funding Loan Documents.
Section 4.1.12 Contracts. All service, maintenance or repair contracts affecting the
Project have been entered into at arm’s length (except for such contracts between the Borrower its affiliates
or the affiliates of the Borrower Controlling Entity of the Borrower) in the ordinary course of the Borrower’s
business and provide for the payment of fees in amounts and upon terms comparable to existing market
rates.
Section 4.1.13 Financial Information. All financial data, including any statements of
cash flow and income and operating expense, that have been delivered to the Governmental Lender or the
Funding Lender in respect of the Project by or on behalf of the Borrower, to the best knowledge of the
Borrower, (i) are accurate and complete in all material respects, (ii) accurately represent the financial
condition of the Project as of the date of such reports, and (iii) to the extent prepared by an independent
certified public accounting firm, have been prepared in accordance with GAAP consistently applied
throughout the periods covered, except as disclosed therein. Other than pursuant to or permitted by the
Borrower Loan Documents or the Funding Loan Documents or the Borrower organizational documents,
the Borrower has no contingent liabilities, unusual forward or long-term commitments or unrealized or
anticipated losses from any unfavorable commitments. Since the date of such financial statements, there
has been no materially adverse change in the financial condition, operations or business of the Borrower
from that set forth in said financial statements.
Section 4.1.14 Condemnation. No Condemnation or other proceeding has been
commenced or, to the Borrower’s knowledge, is contemplated, threatened or pending with respect to all or
part of the Project or for the relocation of roadways providing access to the Project.
Section 4.1.15 Federal Reserve Regulations. No part of the proceeds of the Permanent
Phase Borrower Loan will be used for the purpose of purchasing or acquiring any “margin stock” within
the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other
purpose that would be inconsistent with such Regulation U or any other regulation of such Board of
Governors, or for any purpose prohibited by Legal Requirements or any Borrower Loan Document or
Funding Loan Document.
Section 4.1.16 Utilities and Public Access. To the best of the Borrower’s knowledge,
the Project is or will be served by water, sewer, sanitary sewer and storm drain facilities adequate to service
it for its intended uses. All public utilities necessary or convenient to the full use and enjoyment of the
Project are or will be located in the public right-of-way abutting the Project, and all such utilities are or will
be connected so as to serve the Project without passing over other property absent a valid easement. All
roads necessary for the use of the Project for its current purpose have been or will be completed and
dedicated to public use and accepted by all Governmental Authorities. Except for Permitted Encumbrances,
the Project does not share ingress and egress through an easement or private road or share on-site or off-
site recreational facilities and amenities that are not located on the Project and under the exclusive control
of the Borrower, or where there is shared ingress and egress or amenities, there exists an easement or joint
use and maintenance agreement under which (i) access to and use and enjoyment of the easement or private
road and/or recreational facilities and amenities is perpetual, (ii) the number of parties sharing such
23
4894-2953-3827.5
easement and/or recreational facilities and amenities must be specified, (iii) the Borrower’s responsibilities
and share of expenses are specified, and (iv) the failure to pay any maintenance fee with respect to an
easement will not result in a loss of usage of the easement.
Section 4.1.17 Not a Foreign Person. The Borrower is not a “foreign person” within
the meaning of Section 1445(f)(3) of the Code.
Section 4.1.18 Separate Lots. As of the Conversion Date each parcel comprising the
Land will be a separate tax lot and is not a portion of any other tax lot that is not a part of the Land.
Section 4.1.19 Assessments. There are no pending or, to the Borrower’s best
knowledge, proposed special or other assessments for public improvements or otherwise affecting the
Project, or any contemplated improvements to the Project that may result in such special or other
assessments, other than the Borrower’s pending application for a special taxing district for lighting.
Section 4.1.20 Enforceability. The Borrower Loan Documents and the Funding Loan
Documents are not subject to, and the Borrower has not asserted, any right of rescission, set-off,
counterclaim or defense, including the defense of usury.
Section 4.1.21 Insurance. The Borrower has obtained the insurance required by this
Borrower Loan Agreement, if applicable, and the Security Instrument and has delivered to the Servicer
copies of insurance policies or certificates of insurance reflecting the insurance coverages, amounts and
other requirements set forth in this Borrower Loan Agreement, if applicable, and the Security Instrument.
Section 4.1.22 Use of Property; Licenses. The Project will be used exclusively as a
multifamily residential rental project and other appurtenant and related uses, which use is consistent with
the zoning classification for the Project. To the Borrower’s knowledge, all Licenses obtained by the
Borrower have been validly issued and are in full force and effect. No Licenses will terminate, or become
void or voidable or terminable, upon any sale, transfer or other disposition of the Project, including any
transfer pursuant to foreclosure sale under the Security Instrument or deed in lieu of foreclosure thereunder.
The Project does not violate any density or building setback requirements of the applicable zoning law
except to the extent, if any, shown on the survey. No proceedings are, to the best of the Borrower’s
knowledge, pending or threatened that would result in a change of the zoning of the Project.
Section 4.1.23 Flood Zone. No structure within the Mortgaged Property lies or is
located in an identifiable or designated Special Flood Hazard Area, or if the Mortgaged Property is
determined to be in a Special Flood Hazard Area, Borrower will obtain appropriate flood insurance as
required under the National Flood Insurance Act of 1968, Flood Disaster Protection Act of 1973, or the
National Flood Insurance Reform Act of 1994, as amended, or as required by the Servicer pursuant to its
underwriting guidelines.
Section 4.1.24 Physical Condition. The Project, including all Improvements, parking
facilities, systems, fixtures, Equipment and landscaping, are in good and habitable condition in all material
respects and in good order and repair in all material respects (reasonable wear and tear excepted). The
Borrower has not received notice from any insurance company or bonding company of any defect or
inadequacy in the Project, or any part thereof, which would adversely affect its insurability or cause the
imposition of extraordinary premiums or charges thereon or any termination of any policy of insurance or
bond. The physical configuration of the Project is not in material violation of the ADA, if required under
applicable law.
24
4894-2953-3827.5
Section 4.1.25 Encroachments. All of the Improvements included in determining the
appraised value of the Project lie wholly within the boundaries and building restriction lines of the Project,
and no improvement on an adjoining property encroaches upon the Project, and no easement or other
encumbrance upon the Project encroaches upon any of the Improvements, so as to affect the value or
marketability of the Project, except those insured against by the Title Insurance Policy or disclosed in the
survey of the Project as approved by the Servicer.
Section 4.1.26 State Law Requirements. The Borrower hereby represents, covenants
and agrees to comply with the provisions of all applicable state laws relating to the Permanent Phase
Borrower Loan, the Funding Loan and the Project.
Section 4.1.27 Filing and Recording Taxes. All transfer taxes, deed stamps, intangible
taxes or other amounts in the nature of transfer taxes required to be paid by any Person under applicable
Legal Requirements in connection with the transfer of the Project to the Borrower have been paid. All
mortgage, mortgage recording, stamp, intangible or other similar taxes required to be paid by any Person
under applicable Legal Requirements in connection with the execution, delivery, recordation, filing,
registration, perfection or enforcement of any of the Borrower Loan Documents and the Funding Loan
Documents have been or will be paid.
Section 4.1.28 Investment Company Act. The Borrower is not (i) an “investment
company” or a company “controlled” by an “investment company,” within the meaning of the Investment
Company Act of 1940, as amended; or (ii) a “holding company” or a “subsidiary company” of a “holding
company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
Section 4.1.29 Fraudulent Transfer. The Borrower has not accepted the Permanent
Phase Borrower Loan or entered into any Borrower Loan Document or Funding Loan Document with the
actual intent to hinder, delay or defraud any creditor, and the Borrower has received reasonably equivalent
value in exchange for its obligations under the Borrower Loan Documents and the Funding Loan
Documents. Giving effect to the transactions contemplated by the Borrower Loan Documents and the
Funding Loan Documents, the fair saleable value of the Borrower’s assets exceeds and will, immediately
following the execution and delivery of the Borrower Loan Documents and the Funding Loan Documents,
exceed the Borrower’s total liabilities, including subordinated, unliquidated, disputed or contingent
liabilities. The fair saleable value of the Borrower’s assets is and will, immediately following the execution
and delivery of the Borrower Loan Documents and the Funding Loan Documents, be greater than the
Borrower’s probable liabilities, including the maximum amount of its contingent liabilities or its debts as
such debts become absolute and matured. The Borrower’s assets do not and, immediately following the
execution and delivery of the Borrower Loan Documents and the Funding Loan Documents will not,
constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted.
The Borrower does not intend to, and does not believe that it will, incur debts and liabilities (including
contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking
into account the timing and amounts to be payable on or in respect of obligations of the Borrower).
Section 4.1.30 Ownership of the Borrower. Except as set forth in the Partnership
Agreement of the Borrower, the Borrower has no obligation to any Person to purchase, repurchase or issue
any ownership interest in the Borrower.
Section 4.1.31 Environmental Matters. To the best of the Borrower’s knowledge, the
Project is not in violation of any Legal Requirement pertaining to or imposing liability or standards of
conduct concerning environmental regulation, contamination or clean-up, and will comply with covenants
and requirements relating to environmental hazards as set forth in the Security Instrument. The Borrower
25
4894-2953-3827.5
will execute and deliver the Fee Guaranty and Environmental Indemnity Agreement and the Agreement of
Environmental Indemnification on the Delivery Date.
Section 4.1.32 Name; Principal Place of Business. Unless prior Written Notice is
given to the Funding Lender, the Borrower does not use and will not use any trade name, and has not done
and will not do business under any name other than its actual name set forth herein. The principal place of
business of the Borrower is its primary address for notices as set forth in Section 10.1 hereof, and the
Borrower has no other place of business, other than the Project and such principal place of business.
Section 4.1.33 Subordinated Debt. There is no secured or unsecured indebtedness
with respect to the Project or any residual interest therein, other than Permitted Encumbrances and the
permitted indebtedness described in Section 6.7 hereof.
Section 4.1.34 Filing of Taxes. The Borrower has filed (or has obtained effective
extensions for filing) all federal, state and local tax returns required to be filed and has paid or made
adequate provision for the payment of all federal, state and local taxes, charges and assessments, if any,
payable by the Borrower.
Section 4.1.35 General Tax. All representations, warranties and certifications of the
Borrower set forth in the Regulatory Agreement and the Tax Certificate are incorporated by reference herein
and the Borrower will comply with such as if set forth herein.
Section 4.1.36 Approval of Borrower Loan Documents and Funding Loan
Documents. By its execution and delivery of this Borrower Loan Agreement, the Borrower approves the
form and substance of the Borrower Loan Documents and the Funding Loan Documents, and agrees to
carry out the responsibilities and duties specified in the Borrower Loan Documents and the Funding Loan
Documents to be carried out by the Borrower. The Borrower acknowledges that (a) it understands the
nature and structure of the transactions relating to the financing of the Project, (b) it is familiar with the
provisions of all of the Borrower Loan Documents and the Funding Loan Documents and other documents
and instruments relating to the financing, (c) it understands the risks inherent in such transactions, including
without limitation the risk of loss of the Project, and (d) it has not relied on the Governmental Lender, the
Funding Lender, the Fiscal Agent or the Servicer for any guidance or expertise in analyzing the financial
or other consequences of the transactions contemplated by the Borrower Loan Documents and the Funding
Loan Documents or otherwise relied on the Governmental Lender, the Funding Lender, the Fiscal Agent
or the Servicer in any manner.
Section 4.1.37 Funding Loan Agreement. The Borrower has read and accepts and
agrees that it is bound by the Funding Loan Agreement and the Funding Loan Documents.
Section 4.1.38 American with Disabilities Act. The Project, as designed, will conform
in all material respects, with all applicable zoning, planning, building and environmental laws, ordinances
and regulations of governmental authorities having jurisdiction over the Project, including, but not limited
to, the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq., and its implementing regulations
and the American Disabilities Act Amendments Act (ADAAA) Pub. L. 10-325 and all subsequent
amendments (the “ADA”), to the extent required (as evidenced by an architect’s certificate to such effect).
Section 4.1.39 Requirements of Act, County Authorization, Code and Regulations.
The Project satisfies all requirements of the Act, the County Authorization, the Code and the Regulations
applicable to the Project.
26
4894-2953-3827.5
Section 4.1.40 Regulatory Agreement. The Project is, as of the date of origination of
the Funding Loan, in compliance with all requirements of the Regulatory Agreement to the extent such
requirements are applicable; and the Borrower intends to cause the residential units in the Project to be
rented or available for rental on a basis which satisfies the requirements of the Regulatory Agreement,
including all applicable requirements of the Act, the County Authorization, the Code and the Regulations,
and pursuant to leases which comply with all applicable laws.
Section 4.1.41 Intention to Hold Project. The Borrower intends to hold the Project for
its own account and has no current plans, and has not entered into any agreement, to sell the Project or any
part of it other than a purchase option/right of first refusal in favor of the Housing Authority of the City of
Miami Beach and/or its affiliates; and the Borrower intends to occupy the Project or cause the Project to be
occupied and to operate it or cause it to be operated at all times during the term of this Borrower Loan
Agreement in compliance with the terms of this Borrower Loan Agreement and the Regulatory Agreement
and does not know of any reason why the Project will not be so used by it in the absence of circumstances
not now anticipated by it or totally beyond its control.
Section 4.1.42 Concerning General Partner.
(a) The General Partner of the Borrower is a Florida not for profit corporation, duly organized
and validly existing under the laws of the State of Florida. The General Partner has all requisite power
and authority, rights and franchises to enter into and perform its obligations under the Borrower Loan
Documents and the Funding Loan Documents to be executed by the General Partner for its own account
and on behalf of the Borrower, as authorized member of the Borrower, under this Borrower Loan
Agreement and the other Borrower Loan Documents and the Funding Loan Documents.
(b) The General Partner has made all filings (including, without limitation, all required filings
related to the use of fictitious business names) and is in good standing in the State and in each other
jurisdiction in which the character of the property it owns or the nature of the business it transacts makes
such filings necessary or where the failure to make such filings could have a material adverse effect on
the business, operations, assets, condition (financial or otherwise) or prospects of General Partner.
(c) The Borrower General Partner is duly authorized to do business in the State.
(d) The execution, delivery and performance by the Borrower of the Borrower Loan
Documents and the Funding Loan Documents have been duly authorized by all necessary action of the
General Partner on behalf of the Borrower, and by all necessary action on behalf of the General Partner.
(e) The execution, delivery and performance by the General Partner, on behalf of the
Borrower, of the Borrower Loan Documents and the Funding Loan Documents will not violate (i) the
General Partner’s organizational documents; (ii) any other Legal Requirement affecting the Borrower
General Partner or any of its properties; or (iii) any agreement to which the General Partner is bound or to
which it is a party; and will not result in or require the creation (except as provided in or contemplated by
this Borrower Loan Agreement) of any Lien upon any of such properties, any of the Collateral or any of
the property or funds pledged or delivered to Funding Lender pursuant to the Security Documents.
Section 4.1.43 Government and Private Approvals. All governmental or regulatory
orders, consents, permits, authorizations and approvals required for the construction, rehabilitation, use,
occupancy and operation of the Improvements, that may be granted or denied in the discretion of any
Governmental Authority, have been obtained and are in full force and effect (or, in the case of any of the
foregoing that the Borrower is not required to have as of the Delivery Date, will be obtained), and will be
maintained in full force and effect at all times during the construction or rehabilitation of the Improvements.
27
4894-2953-3827.5
All such orders, consents, permits, authorizations and approvals that may not be denied in the discretion of
any Governmental Authority shall be obtained prior to the commencement of any work for which such
orders, consents, permits, authorizations or approvals are required, and, once obtained, such orders,
consents, permits, authorizations and approvals will be maintained in full force and effect at all times during
the construction or rehabilitation of the Improvements. Except as set forth in the preceding two sentences,
no additional governmental or regulatory actions, filings or registrations with respect to the Improvements,
and no approvals, authorizations or consents of any trustee or holder of any indebtedness or obligation of
the Borrower, are required for the due execution, delivery and performance by the Borrower or General
Partner of any of the Borrower Loan Documents or the Funding Loan Documents or the Related Documents
executed by the Borrower or General Partner, as applicable. All required zoning approvals have been
obtained, and the zoning of the Land for the Project is not conditional upon the happening of any further
event.
Section 4.1.44 Concerning Guarantor. The Borrower Loan Documents and the
Funding Loan Documents to which the Guarantor is a party or a signatory executed simultaneously with
this Borrower Loan Agreement have been duly executed and delivered by the Guarantor and are legally
valid and binding obligations of the Guarantor, enforceable against the Guarantor in accordance with their
terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors’ rights generally and by general principles of equity.
Section 4.1.45 No Material Defaults. Except as previously disclosed to Funding
Lender in writing, there exists no material violation of or material default by the Borrower under, and, to
the best knowledge of the Borrower, no event has occurred which, upon the giving of notice or the passage
of time, or both, would constitute a material default with respect to: (i) the terms of any instrument
evidencing, securing or guaranteeing any indebtedness secured by the Project or any portion or interest
thereof or therein; (ii) any lease or other agreement affecting the Project or to which the Borrower is a party;
(iii) any license, permit, statute, ordinance, law, judgment, order, writ, injunction, decree, rule or regulation
of any Governmental Authority, or any determination or award of any arbitrator to which the Borrower or
the Project may be bound; or (iv) any mortgage, instrument, agreement or document by which the Borrower
or any of its respective properties is bound; in the case of any of the foregoing: (1) which involves any
Borrower Loan Document or Funding Loan Document; (2) which involves the Project and is not adequately
covered by insurance; (3) that might materially and adversely affect the ability of the Borrower, General
Partner or Guarantor or to perform any of its respective obligations under any of the Borrower Loan
Documents or the Funding Loan Documents or any other material instrument, agreement or document to
which it is a party; or (4) which might adversely affect the priority of the Liens created by this Borrower
Loan Agreement or any of the Borrower Loan Documents or the Funding Loan Documents.
Section 4.1.46 Payment of Taxes. Except as previously disclosed to Funding Lender
in writing: (i) all tax returns and reports of the Borrower, General Partner and Guarantor required to be
filed have been timely filed, and all taxes, assessments, fees and other governmental charges upon the
Borrower, General Partner and Guarantor, and upon their respective properties, assets, income and
franchises, which are due and payable have been paid when due and payable; and (ii) the Borrower knows
of no proposed tax assessment against it or against General Partner or Guarantor, that would be material to
the condition (financial or otherwise) of the Borrower, General Partner or Guarantor, and neither the
Borrower nor General Partner have contracted with any Government Authority in connection with such
taxes.
Section 4.1.47 Rights to Project Agreements and Licenses. The Borrower is the legal
and beneficial owner of all rights in and to the plans and specifications of the Project and all existing Project
Agreements and Licenses and will be the legal and beneficial owner of all rights in and to all future Project
Agreements and Licenses. The Borrower’s interest in the plans and specifications of the Project and all
28
4894-2953-3827.5
Project Agreements and Licenses is not subject to any present claim (other than under the Borrower Loan
Documents and the Funding Loan Documents or as otherwise approved by Funding Lender in its sole
discretion), set-off or deduction other than in the ordinary course of business.
Section 4.1.48 Patriot Act Compliance. The Borrower is not now, nor has ever been
(i) listed on any Government Lists (as defined below), (ii) a person who has been determined by a
Governmental Authority to be subject to the prohibitions contained in Presidential Executive Order No.
13224 (Sept. 23, 2001) or any other similar prohibitions contained in the rules and regulations of OFAC (as
defined below) or in any enabling legislation or other Presidential Executive Orders in respect thereof, (iii)
indicted for or convicted of any felony involving a crime or crimes of moral turpitude or for any Patriot Act
Offense, or (iv) under investigation by any Governmental Authority for alleged criminal activity. For
purposes hereof, the term “Patriot Act Offense” shall mean any violation of the criminal laws of the United
States of America or of any of the several states, or that would be a criminal violation if committed within
the jurisdiction of the United States of America or any of the several states, relating to terrorism or the
laundering of monetary instruments, including any offense under (A) the criminal laws against terrorism;
(B) the criminal laws against money laundering, (C) Bank Representative Secrecy Act, as amended, (D)
the Money Laundering Control Act of 1986, as amended, or (E) the Patriot Act. “Patriot Act Offense” also
includes the crimes of conspiracy to commit, or aiding and abetting another to commit, a Patriot Act
Offense. For purposes hereof, the term “Government Lists” shall mean (1) the Specially Designated
Nationals and Blocked Persons Lists maintained by the Office of Foreign Assets Control (“OFAC”), (2)
any other list of terrorists, terrorist organizations or narcotics traffickers maintained pursuant to any of the
Rules and Regulations of OFAC that Funding Lender notified the Borrower in writing is now included in
“Government Lists,” or (3) any similar lists maintained by the United States Department of State, the United
States Department of Commerce or any other Governmental Authority or pursuant to any Executive Order
of the President of the United States of America that the Funding Lender notified the Borrower in writing
is now included in “Government Lists.”
Section 4.1.49 Reserved.
Section 4.1.50 Subordinate Loan Documents. The Subordinate Loan Documents are
in full force and effect and the Borrower has paid all commitment fees and other amounts due and payable
to the Subordinate Lender(s) thereunder. There exists no material violation of or material default by the
Borrower under, and no event has occurred which, upon the giving of notice of the passage of time, or both,
would constitute a material default under the Subordinate Loan Documents.
Section 4.1.51 Other Documents. Each of the representations and warranties of the
Borrower or the General Partner contained in any of the other Borrower Loan Documents or the Funding
Loan Documents or Related Documents is true and correct in all material respects (or, in the case of
representations or warranties contained in any of the other Borrower Loan Documents or Funding Loan
Documents or Related Documents that speak as of a particular date, were true and correct in all material
respects as of such date). All of such representations and warranties are incorporated herein for the benefit
of the Funding Lender.
Section 4.1.52 Subordinate Loan Documents. There exists no material violation of or
material default by the Borrower under, and no event has occurred which, upon the giving of notice or the
passage of time, or both, would constitute a material default under the Subordinate Loan Documents.
Section 4.1.53 Ground Lease. The Ground Lease is in full force and effect and the
Borrower has paid all rent and other amounts due and payable to the ground lessor thereunder. There exists
no material violation of or material default by the Borrower under the Ground Lease, and no event has
29
4894-2953-3827.5
occurred which, upon the giving of notice or the passage of time, or both, would constitute a material default
by any other party under the Ground Lease
Section 4.2 Survival of Representations and Covenants. All of the representations and
warranties in Section 4.1 hereof and elsewhere in the Borrower Loan Documents (i) shall survive for so
long as any portion of the Borrower Payment Obligations remains due and owing and (ii) shall be deemed
to have been relied upon by the Governmental Lender and the Servicer notwithstanding any investigation
heretofore or hereafter made by the Governmental Lender or the Servicer or on its or their behalf,
provided, however, that the representations, warranties and covenants set forth in Section 4.1.31 hereof
shall survive in perpetuity and shall not be subject to the exculpation provisions of Section 11.1 hereof.
ARTICLE V
AFFIRMATIVE COVENANTS
During the term of this Borrower Loan Agreement, the Borrower hereby covenants and agrees with
the Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer that:
Section 5.1 Existence. The Borrower shall (i) do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its existence and its material rights, and franchises, (ii)
continue to engage in the business presently conducted by it, (iii) obtain and maintain all material
Licenses, and (iv) qualify to do business and remain in good standing under the laws of the State.
Section 5.2 Taxes and Other Charges. The Borrower shall pay all Taxes and Other Charges
as the same become due and payable and prior to their becoming delinquent in accordance with the
Security Instrument, except to the extent that the amount, validity or application thereof is being contested
in good faith as permitted by the Security Instrument.
The Borrower covenants to pay all Taxes and Other Charges of any type or character charged to
the Funding Lender affecting the amount available to the Funding Lender from payments to be received
hereunder or in any way arising due to the transactions contemplated hereby (including Taxes and Other
Charges assessed or levied by any public agency or governmental authority of whatsoever character having
power to levy taxes or assessments) but excluding franchise taxes based upon the capital and/or income of
the Funding Lender and taxes based upon or measured by the net income or gross receipts (to the extent
such Taxes are assessed outside the Property Jurisdiction) of the Funding Lender; provided, however, that
the Borrower shall have the right to protest any such Taxes or Other Charges and to require the Funding
Lender, at the Borrower’s expense, to protest and contest any such Taxes or Other Charges levied upon
them and that the Borrower shall have the right to withhold payment of any such Taxes or Other Charges
pending disposition of any such protest or contest unless such withholding, protest or contest would
adversely affect the rights or interests of the Funding Lender. This obligation shall remain valid and in
effect notwithstanding repayment of the Permanent Phase Borrower Loan hereunder or termination of this
Borrower Loan Agreement.
Section 5.3 Repairs; Maintenance and Compliance; Physical Condition. The Borrower
shall cause the Project to be maintained in a good, habitable and safe (so as to not threaten the health or
safety of the Project’s tenants or their invited guests) condition and repair (reasonable wear and tear
excepted) as set forth in the Security Instrument and shall not remove, demolish or materially alter the
Improvements or Equipment (except for removal of aging or obsolete equipment or furnishings in the
normal course of business), except as provided in the Security Instrument.
Section 5.4 Litigation. The Borrower shall give prompt Written Notice to the Governmental
Lender, the Funding Lender and the Servicer of any litigation, governmental proceedings or claims or
30
4894-2953-3827.5
investigations regarding an alleged actual violation of a Legal Requirement pending or, to the Borrower’s
knowledge, threatened against the Borrower which might materially adversely affect the Borrower’s
condition (financial or otherwise) or business or the Project.
Section 5.5 Performance of Other Agreements. The Borrower shall observe and perform
in all material respects each and every term to be observed or performed by it pursuant to the terms of
any agreement or instrument affecting or pertaining to the Project.
Section 5.6 Notices. The Borrower shall promptly advise the Governmental Lender, the
Funding Lender and the Servicer of (i) any Material Adverse Change in the Borrower’s financial
condition, assets, properties or operations other than general changes in the real estate market, (ii) any
fact or circumstance affecting the Borrower or the Project that materially and adversely affects the
Borrower’s ability to meet its obligations hereunder or under any of the other Borrower Loan Document
to which it is a party in a timely manner, or (iii) the occurrence of any Potential Default or Event of
Default of which the Borrower has actual knowledge. If the Borrower becomes subject to federal or state
securities law filing requirements, the Borrower shall cause to be delivered to the Governmental Lender,
the Funding Lender and the Servicer any Securities and Exchange Commission or other public filings, if
any, of the Borrower within two (2) Business Days of such filing.
Section 5.7 Cooperate in Legal Proceedings. The Borrower shall cooperate fully with the
Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer with respect to, and permit
the Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer at their option, to
participate in, any proceedings before any Governmental Authority that may in any way affect the rights
of the Governmental Lender, the Funding Lender, the Fiscal Agent and/or the Servicer under any
Borrower Loan Document or Funding Loan Document.
Section 5.8 Further Assurances. The Borrower shall, at the Borrower’s sole cost and
expense (except as provided in Section 9.1 hereof), (i) furnish to the Servicer and the Funding Lender all
instruments, documents, boundary surveys, footing or foundation surveys (to the extent that the
Borrower’s construction or renovation of the Project alters any existing building foundations or
footprints), certificates, plans and specifications, appraisals, title and other insurance reports and
agreements relating to the Project, reasonably requested by the Servicer or the Funding Lender for the
better and more efficient carrying out of the intents and purposes of the Borrower Loan Documents and
the Funding Loan Documents; (ii) execute and deliver to the Servicer, the Fiscal Agent and the Funding
Lender such documents, instruments, certificates, assignments and other writings, and do such other acts
necessary or desirable, to evidence, preserve and/or protect the collateral at any time securing or intended
to secure the Permanent Phase Borrower Loan, as the Servicer, the Fiscal Agent and the Funding Lender
may reasonably require from time to time; (iii) do and execute all and such further lawful and reasonable
acts, conveyances and assurances for the better and more effective carrying out of the intents and purposes
of the Borrower Loan Documents and the Funding Loan Documents, as the Servicer, the Fiscal Agent or
the Funding Lender shall reasonably require from time to time; provided, however, with respect to clauses
(i)-(iii) above, the Borrower shall not be required to do anything that has the effect of (A) changing the
essential economic terms of the Permanent Phase Borrower Loan or (B) imposing upon the Borrower
greater liability under the Borrower Loan Documents and the Funding Loan Documents or decreasing
Borrower’s rights under the Borrower Loan Documents and the Funding Loan Documents; and (iv) upon
the Servicer’s, the Fiscal Agent’s or the Funding Lender’s request therefor given from time to time after
the occurrence of any Potential Default or Event of Default for so long as such Potential Default or Event
of Default, as applicable, is continuing pay for (a) reports of UCC, federal tax lien, state tax lien, judgment
and pending litigation searches with respect to the Borrower and (b) searches of title to the Project, each
31
4894-2953-3827.5
such search to be conducted by search firms reasonably designated by the Servicer or the Funding Lender
in each of the locations reasonably designated by the Servicer or the Funding Lender.
Section 5.9 Delivery of Financial Information. After notice to the Borrower of a Secondary
Market Disclosure Document, the Borrower shall, concurrently with any delivery to the Funding Lender
or the Servicer, deliver copies of all financial information required under Article IX.
Section 5.10 Environmental Matters. So long as the Borrower owns or is in possession of
the Project, the Borrower shall (a) keep the Project in compliance with all Hazardous Materials Laws (as
defined in the Security Instrument), (b) promptly notify the Funding Lender, the Fiscal Agent, the
Governmental Lender and the Servicer if the Borrower shall become aware that any Hazardous Materials
(as defined in the Security Instrument) are on or near the Project in violation of Hazardous Materials
Laws, and (c) commence and thereafter diligently prosecute to completion all remedial work necessary
with respect to the Project required under any Hazardous Material Laws, in each case as set forth in the
Security Instrument, the Fee Guaranty and Environmental Indemnity Agreement or the Agreement of
Environmental Indemnification.
Section 5.11 Title to the Project. The Borrower will warrant and defend the title to the
Project, subject only to Permitted Encumbrances against the claims of all Persons.
Section 5.12 Governmental Lender’s, Fiscal Agent’s and Funding Lender’s Fees. The
Borrower covenants to pay the Governmental Lender Fee and fees and expenses of the Fiscal Agent and
the Funding Lender or any agents, attorneys, accountants, consultants selected by the Governmental
Lender, the Fiscal Agent or the Funding Lender to act on its behalf in connection with this Borrower
Loan Agreement and the other Borrower Loan Documents, the Regulatory Agreement and the Funding
Loan Documents, including, without limitation, any and all reasonable expenses incurred in connection
with the making of the Permanent Phase Borrower Loan or in connection with any litigation which may
at any time be instituted involving the Permanent Phase Borrower Loan, this Borrower Loan Agreement,
the other Borrower Loan Documents, the Regulatory Agreement and the Funding Loan Documents or
any of the other documents contemplated thereby, or in connection with the reasonable supervision or
inspection of the Borrower, its properties, assets or operations or otherwise in connection with the
administration of the foregoing. This obligation shall remain valid and in effect notwithstanding
repayment of the Permanent Phase Borrower Loan hereunder or termination of this Borrower Loan
Agreement.
Section 5.13 Estoppel Statement. The Borrower shall furnish to the Funding Lender or the
Servicer for the benefit of the Funding Lender or the Servicer within ten (10) days after written request
by the Funding Lender and the Servicer, with a statement, duly acknowledged and certified, setting forth
(i) the unpaid principal of the Permanent Phase Borrower Note, (ii) the applicable Interest Rate, (iii) the
date installments of interest and/or principal were last paid, (iv) any offsets or defenses to the payment of
the Borrower Payment Obligations, and (v) that the Borrower Loan Documents and the Funding Loan
Documents to which the Borrower is a party are valid, legal and binding obligations of the Borrower and
have not been modified or, if modified, giving particulars of such modification, and no Event of Default
exists thereunder or specify any Event of Default that does exist thereunder. The Borrower shall use
commercially reasonable efforts to furnish to the Funding Lender or the Servicer, within 30 days of a
request by the Funding Lender or Servicer, tenant estoppel certificates from each commercial tenant at
the Project in form and substance reasonably satisfactory to the Funding Lender and the Servicer;
32
4894-2953-3827.5
provided that the Funding Lender and the Servicer shall not make such requests more frequently than
twice in any year.
Section 5.14 Defense of Actions. The Borrower shall appear in and defend any action or
proceeding purporting to affect the security for this Borrower Loan Agreement hereunder or under the
Borrower Loan Documents and the Funding Loan Documents, and shall pay, in the manner required by
Section 2.4 hereof, all reasonable costs and expenses, including the cost of evidence of title and attorneys’
fees, in any such action or proceeding in which Funding Lender may appear. If the Borrower fails to
perform any of the covenants or agreements contained in this Borrower Loan Agreement or any other
Borrower Loan Document, or if any action or proceeding is commenced that is not diligently defended
by the Borrower which affects the Funding Lender’s interest in the Project or any part thereof, including
eminent domain, code enforcement or proceedings of any nature whatsoever under any Federal or state
law, whether now existing or hereafter enacted or amended, then the Funding Lender may make such
appearances, disburse such sums and take such action as the Funding Lender deems necessary or
appropriate to protect its interests. Such actions include disbursement of attorneys’ fees, entry upon the
Project to make repairs or take other action to protect the security of the Project, and payment, purchase,
contest or compromise of any encumbrance, charge or lien which in the judgment of Funding Lender
appears to be prior or superior to the Borrower Loan Documents or the Funding Loan Documents. The
Funding Lender shall have no obligation to do any of the above. The Funding Lender may take any such
action without notice to or demand upon the Borrower, but the Funding Lender shall endeavor to notify
the Borrower upon taking any of such action (but the Funding Lender shall have no liability for any
failure to do so). No such action shall release the Borrower from any obligation under this Borrower
Loan Agreement or any of the other Borrower Loan Documents or Funding Loan Documents. In the
event (i) that the Security Instrument is foreclosed in whole or in part or that any Borrower Loan
Document is put into the hands of an attorney for collection, suit, action or foreclosure, or (ii) of the
foreclosure of any mortgage, deed of trust or deed to secure debt prior to or subsequent to the Security
Instrument or any Borrower Loan Document in which proceeding the Funding Lender is made a party or
(iii) of the bankruptcy of the Borrower or an assignment by the Borrower for the benefit of its creditors,
the Borrower shall be chargeable with and agrees to pay all costs of collection and defense, including
actual attorneys’ fees in connection therewith and in connection with any appellate proceeding or post-
judgment action involved therein, which shall be due and payable together with all required service or
use taxes.
Section 5.15 Expenses. The Borrower shall pay all reasonable expenses incurred by the
Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer (except as provided in
Section 9.1 hereof) in connection with the Permanent Phase Borrower Loan and the Funding Loan,
including reasonable fees and expenses of the Governmental Lender’s, the Fiscal Agent’s, the Funding
Lender’s and the Servicer’s attorneys, environmental, engineering and other consultants, and fees,
charges or taxes for the recording or filing of the Borrower Loan Documents and the Funding Loan
Documents. The Borrower shall pay or cause to be paid all reasonable expenses of the Governmental
Lender, the Funding Lender, the Fiscal Agent and the Servicer (except as provided in Section 9.1 hereof)
in connection with the issuance or administration of the Permanent Phase Borrower Loan and the Funding
Loan, including audit costs, inspection fees, settlement of condemnation and casualty awards, and
premiums for title insurance and endorsements thereto. The Borrower shall, upon request, promptly
reimburse the Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer for all
reasonable amounts expended, advanced or incurred by the Governmental Lender, the Funding Lender,
the Fiscal Agent and the Servicer to collect the Permanent Phase Borrower Note, or to enforce the rights
of the Governmental Lender, the Fiscal Agent, the Funding Lender, the Fiscal Agent and the Servicer
under this Borrower Loan Agreement or any other Borrower Loan Document, or to defend or assert the
rights and claims of the Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer
under the Borrower Loan Documents and the Funding Loan Documents arising out of an Event of Default
33
4894-2953-3827.5
or with respect to the Project (by litigation or other proceedings) arising out of an Event of Default, which
amounts will include all court costs, attorneys’ fees and expenses, fees of auditors and accountants, and
investigation expenses as may be reasonably incurred by the Governmental Lender, the Funding Lender,
the Fiscal Agent and the Servicer in connection with any such matters (whether or not litigation is
instituted), together with interest at the Default Rate on each such amount from the date of disbursement
until the date of reimbursement to the Governmental Lender, the Funding Lender, the Fiscal Agent and
the Servicer, all of which shall constitute part of the Permanent Phase Borrower Loan and the Funding
Loan and shall be secured by the Borrower Loan Documents and the Funding Loan Documents. The
obligations and liabilities of the Borrower under this Section 5.15 shall survive the Term of this Borrower
Loan Agreement and the exercise by the Governmental Lender, the Funding Lender, the Fiscal Agent or
the Servicer, as the case may be, of any of its rights or remedies under the Borrower Loan Documents
and the Funding Loan Documents, including the acquisition of the Project by foreclosure or a conveyance
in lieu of foreclosure. Notwithstanding the foregoing, the Borrower shall not be obligated to pay amounts
incurred as a result of the gross negligence or willful misconduct of any other party, and any obligations
of the Borrower to pay for environmental inspections or audits will be governed by the Security
Instrument. Notwithstanding anything to the contrary in this Agreement, the Borrower shall not be
responsible for any costs associated with any securitization of the Permanent Phase Borrower Loan.
Section 5.16 Indemnity. In addition to its other obligations hereunder, and in addition to any
and all rights of reimbursement, indemnification, subrogation and other rights of the Governmental
Lender, the Fiscal Agent or the Funding Lender pursuant hereto and under law or equity, to the fullest
extent permitted by law, the Borrower agrees to indemnify, hold harmless and defend the Servicer, the
Beneficiary Parties, Citigroup, Inc., and each of their respective officers, directors, employees, attorneys
and agents (each an “Indemnified Party”), against any and all losses, damages, claims, actions, liabilities,
reasonable costs and expenses of any nature, kind or character (including, without limitation, reasonable
attorneys’ fees, litigation and court costs, amounts paid in settlement (to the extent that the Borrower has
consented to such settlement) and amounts paid to discharge judgments) (hereinafter, the “Liabilities”)
to which the Indemnified Parties, or any of them, may become subject under federal or state securities
laws or any other statutory law or at common law or otherwise, to the extent arising out of or based upon
or in any way relating to:
(a) The Borrower Loan Documents and the Funding Loan Documents or the execution or
amendment thereof or in connection with transactions contemplated thereby, including the sale, transfer
or resale of the Permanent Phase Borrower Loan or the Funding Loan, except with respect to any
Secondary Market Disclosure Document (other than any of the Borrower’s obligations under Article IX);
(b) Any act or omission of the Borrower or any of its agents, contractors, servants, employees
or licensees in connection with the Permanent Phase Borrower Loan, the Funding Loan or the Project, the
operation of the Project, or the condition, environmental or otherwise, occupancy, use, possession, conduct
or management of work done in or about, or from the planning, design, acquisition, construction,
installation or rehabilitation of, the Project or any part thereof;
(c) Any lien (other than a Permitted Lien) or charge upon payments by the Borrower to the
Governmental Lender, the Fiscal Agent or the Funding Lender hereunder, or any taxes (including, without
limitation, all ad valorem taxes and sales taxes, but excluding income taxes other than those covered by
(g)), assessments, impositions and Other Charges imposed on the Governmental Lender, the Fiscal Agent
or the Funding Lender in respect of any portion of the Project;
(d) Any violation of any environmental law, rule or regulation with respect to, or the release
of any toxic substance or hazardous material from, the Project or any part thereof; provided, however,
Borrower’s liability under this provision shall not extend to cover the period of any violation that first
34
4894-2953-3827.5
arose, commenced or occurred as a result of actions of the Indemnified Party, after the satisfaction,
discharge, release, assignment, termination or cancellation of the Security Instrument following the
payment in full of the Permanent Phase Borrower Note and all other sums payable under the Borrower
Loan Documents or after the actual dispossession from the entire Mortgaged Property of Borrower and
all entities which control, are controlled by, or are under common control with Borrower following
foreclosure of the Security Instrument or acquisition of the Mortgaged Property by a deed in lieu of
foreclosure;
(e) The enforcement of, or any action taken by the Governmental Lender, the Fiscal Agent or
the Funding Lender related to remedies under, this Borrower Loan Agreement and the other Borrower
Loan Documents and the Funding Loan Documents;
(f) Any untrue statement or misleading statement or alleged untrue statement or alleged
misleading statement of a material fact by the Borrower made in the course of the Borrower applying for
the Permanent Phase Borrower Loan or the Funding Loan or contained in any of the Borrower Loan
Documents or Funding Loan Documents to which the Borrower is a party;
(g) Any Determination of Taxability;
(h) Any breach (or alleged breach) by the Borrower of any representation, warranty or
covenant made in or pursuant to this Borrower Loan Agreement or in connection with any written
representation, presentation, report, appraisal or other information given or delivered by the Borrower,
General Partner, Guarantor or their Affiliates to the Governmental Lender, the Funding Lender, the Fiscal
Agent, the Servicer or any other Person in connection with the Borrower’s application for the Permanent
Phase Borrower Loan and the Funding Loan (including, without limitation, any breach or alleged breach
by the Borrower of any agreement with respect to the provision of any substitute credit enhancement);
(i) any failure (or alleged failure) by the Borrower, the Funding Lender or Governmental
Lender to comply with applicable federal and state laws and regulations pertaining to the making of the
Permanent Phase Borrower Loan and the Funding Loan;
(j) the Project, or the condition, occupancy, use, possession, conduct or management of, or
work done in or about, or from the planning, design, acquisition, installation, construction or rehabilitation
of, the Project or any part thereof; or
(k) the use of the proceeds of the Permanent Phase Borrower Loan and the Funding Loan,
except (A) in the case of the foregoing indemnification of the Fiscal Agent, or any of its respective
officers, commissioners, members, directors, officials, employees, attorneys and agents, to the extent such
Liabilities are caused by the negligence, unlawful acts or willful misconduct of such Indemnified Party; or
(B) in the case of the foregoing indemnification of the Servicer, the Funding Lender, the Governmental
Lender Servicer, or the Governmental Lender or any of their respective officers, commissioners, members,
directors, officials, employees, attorneys and agents, to the extent such Liabilities are caused by the gross
negligence or willful misconduct of such Indemnified Party
Notwithstanding anything herein to the contrary, the Borrower’s indemnification obligations to the
parties specified in Section 9.1.4 hereof with respect to any securitization or Secondary Market Transaction
described in Article IX hereof shall be limited to the indemnity set forth in Section 9.1.4 hereof. In the
event that any action or proceeding is brought against any Indemnified Party with respect to which
indemnity may be sought hereunder, the Borrower, upon written notice from the Indemnified Party (which
notice shall be timely given so as not to materially impair the Borrower’s right to defend), shall assume the
35
4894-2953-3827.5
investigation and defense thereof, including the employment of counsel reasonably approved by the
Indemnified Party, and shall assume the payment of all expenses related thereto, with full power to litigate,
compromise or settle the same in its sole discretion; provided that the Indemnified Party shall have the right
to review and approve or disapprove any such compromise or settlement, which approval shall not be
unreasonably withheld. Each Indemnified Party shall have the right to employ separate counsel in any such
action or proceeding and to participate in the investigation and defense thereof. The Borrower shall pay
the reasonable fees and expenses of such separate counsel; provided, however, that such Indemnified Party
may only employ separate counsel at the expense of the Borrower if and only if in such Indemnified Party’s
good faith judgment (based on the advice of counsel) a conflict of interest exists or could arise by reason
of common representation.
Notwithstanding any transfer of the Project to another owner in accordance with the provisions of
this Borrower Loan Agreement or the Regulatory Agreement, the Borrower shall remain obligated to
indemnify each Indemnified Party pursuant to this Section 5.16 if such subsequent owner fails to indemnify
any party entitled to be indemnified hereunder, unless the Governmental Lender and the Funding Lender
have consented to such transfer and to the assignment of the rights and obligations of the Borrower
hereunder.
The rights of any persons to indemnity hereunder shall survive the final payment or defeasance of
the Permanent Phase Borrower Loan and the Funding Loan and in the case of the Servicer, any resignation
or removal. The provisions of this Section 5.16 shall survive the termination of this Borrower Loan
Agreement.
Section 5.17 No Warranty of Condition or Suitability by the Governmental Lender or
Funding Lender. Neither the Governmental Lender nor the Funding Lender make any warranty, either
express or implied, as to the condition of the Project or that it will be suitable for the Borrower’s purposes
or needs.
Section 5.18 Right of Access to the Project. The Borrower agrees that the Governmental
Lender, the Funding Lender, the Fiscal Agent, and the Servicer and their duly authorized agents,
attorneys, experts, engineers, accountants and representatives shall have the right, but no obligation at all
reasonable times during business hours and upon not less than five (5) days prior written notice and
subject to the rights of residential tenants, to enter onto the Land (a) to examine, test and inspect the
Project without material interference or prejudice to the Borrower’s operations and (b) to perform such
work in and about the Project made necessary by reason of the Borrower’s default under any of the
provisions of this Borrower Loan Agreement. The Governmental Lender, the Funding Lender, the Fiscal
Agent, the Servicer, and their duly authorized agents, attorneys, accountants and representatives shall
also be permitted, without any obligation to do so, at all reasonable times and upon reasonable notice
during business hours, to examine the books and records of the Borrower with respect to the Project.
Section 5.19 Notice of Default. The Borrower will provide the Governmental Lender, the
Funding Lender and the Servicer as soon as possible, and in any event not later than five (5) Business
Days after the occurrence of any Potential Default or Event of Default, with a statement of an Authorized
Representative of Borrower describing the details of such Potential Default or Event of Default and any
curative action Borrower proposes to take.
Section 5.20 Covenant with Governmental Lender, the Fiscal Agent and the Funding
Lender. The Borrower agrees that this Borrower Loan Agreement is executed and delivered in part to
induce the purchase by others of the Governmental Lender Note and, accordingly, all covenants and
agreements of the Borrower contained in this Borrower Loan Agreement are hereby declared to be for
36
4894-2953-3827.5
the benefit of the Governmental Lender, the Funding Lender, the Fiscal Agent and any lawful owner,
holder or pledgee of the Borrower Note or the Governmental Lender Note from time to time.
Section 5.21 Reserved.
Section 5.22 Maintenance of Insurance. Borrower will maintain the insurance required by
the Security Instrument.
Section 5.23 Information; Statements and Reports. The Borrower shall furnish or cause to
be furnished to the Funding Lender and, upon the written request, the Governmental Lender:
(a) Financial Statements; Rent Rolls. In the manner and to the extent required under the
Security Instrument, such financial statements, expenses statements, rent rolls, reports and other financial
documents and information as required by the Security Instrument and the other Borrower Loan
Documents and Funding Loan Documents, in the form and within the time periods required therein;
(b) Reserved.
(c) Audit Reports. Promptly upon receipt thereof, copies of all reports, if any, submitted to
Borrower by independent public accountants in connection with each annual, interim or special audit of
the financial statements of Borrower made by such accountants, including the comment letter submitted
by such accountants to management in connection with their annual audit;
(d) Notices; Certificates or Communications. Immediately upon giving or receipt thereof,
copies of any notices, certificates or other communications delivered at the Project or to the Borrower or
General Partner naming the Governmental Lender or the Funding Lender as addressee or which could
reasonably be deemed to affect the structural integrity of the Project or the ability of the Borrower to
perform its obligations under the Borrower Loan Documents and the Funding Loan Documents;
(e) Certification of Non-Foreign Status. Promptly upon request of the Funding Lender from
time to time, a Certification of Non-Foreign Status, executed on or after the date of such request by the
Funding Lender;
(f) Compliance Certificates. Together with each of the documents required pursuant to
Section 5.23(a) hereof submitted by or on behalf of the Borrower, a statement, in form and substance
satisfactory to the Funding Lender and certified by an Authorized Borrower Representative, to the effect
that the Borrower is in compliance with all covenants, terms and conditions applicable to the Borrower,
under or pursuant to the Borrower Loan Documents and the Funding Loan Documents and under or
pursuant to any other Debt owing by the Borrower to any Person, and disclosing any noncompliance
therewith, and any Event of Default or Potential Default, and describing the status of the Borrower’s
actions to correct such noncompliance, Event of Default or Potential Default, as applicable; and
(g) Other Items and Information. Such other information concerning the assets, business,
financial condition, operations, property, prospects and results of operations of the Borrower, General
Partner, Guarantor or the Project, as the Funding Lender or the Governmental Lender reasonably requests
from time to time.
In addition, and notwithstanding the foregoing, the Governmental Lender shall receive from the
Borrower all reports required under the Regulatory Agreement.
37
4894-2953-3827.5
Section 5.24 Additional Notices. The Borrower will, promptly after becoming aware thereof,
give notice to the Funding Lender and the Governmental Lender of:
(a) any Lien affecting the Project, or any part thereof, other than Liens expressly permitted
under this Borrower Loan Agreement;
(b) any Legal Action which is instituted by or against the Borrower, General Partner or
Guarantor, or any Legal Action which is threatened against the Borrower, General Partner or Guarantor
which, in any case, if adversely determined, could have a material adverse effect upon the business,
operations, properties, assets, management, ownership or condition (financial or otherwise) of the
Borrower, General Partner, Guarantor or the Project;
(c) any Legal Action which constitutes an Event of Default or a Potential Default or a default
under any other Contractual Obligation to which the Borrower, General Partner or Guarantor is a party or
by or to which the Borrower, General Partner or Guarantor, or any of their respective properties or assets,
may be bound or subject, which default would have a material adverse effect on the business, operations,
assets (including the Project), condition (financial or otherwise) or prospects of the Borrower, General
Partner or Guarantor, as applicable;
(d) any default, alleged default or potential default on the part of the Borrower under the
Subordinate Loan Documents or any of the CC&R’s (together with a copy of each notice of default,
alleged default or potential default received from any other party thereto);
(e) any notice of material default, alleged material default or potential material default on the
part of the Borrower received from any tenant or occupant of the Project under or relating to its lease or
occupancy agreement (together with a copy of any such notice), if, in the aggregate, notices from at least
fifteen percent (15%) of the tenants at the Project have been received by the Borrower with respect to, or
alleging, the same default, alleged default or potential default;
(f) any change or contemplated change in (i) the location of the Borrower’s or General
Partner’s executive headquarters or principal place of business; (ii) the legal, trade, or fictitious business
names used by the Borrower or General Partner; or (iii) the nature of the trade or business of the Borrower;
and
(g) any default, alleged default or potential default on the part of any partner (including,
without limitation, General Partner and the Equity Investor) under the Partnership Agreement.
Section 5.25 Compliance with Other Agreements; Legal Requirements.
(a) The Borrower shall timely perform and comply with and shall cause General Partner to
timely perform and comply with the covenants, agreements, obligations and restrictions imposed on them
under the Partnership Agreement, and the Borrower shall not do or permit to be done anything to impair
any such party’s rights or interests under any of the foregoing.
(b) The Borrower will comply and, to the extent it is able, will require others to comply with,
all Legal Requirements of all Governmental Authorities having jurisdiction over the Project, and will
furnish the Funding Lender with reports of any official searches for or notices of violation of any
requirements established by such Governmental Authorities. The Borrower will comply and, to the extent
it is able, will use commercially reasonable efforts to cause others to comply, with applicable CC&R’s
and all restrictive covenants and all obligations created by private contracts and leases which affect
ownership, construction, rehabilitation, equipping, fixturing, use or operation of the Project, and all other
38
4894-2953-3827.5
agreements requiring a certain percentage of the Units to be rented to persons of low or moderate income.
The Improvements comply with all applicable building, zoning and other Legal Requirements, and do not
violate any restrictions of record against the Project or the terms of any other lease of all or any portion of
the Project. The Funding Lender shall at all times have the right to audit, at the Borrower’s expense, the
Borrower’s compliance with any agreement requiring a certain percentage of the Units to be rented to
persons of low or moderate income, and the Borrower shall supply all such information with respect
thereto as Funding Lender may request and otherwise cooperate with the Funding Lender in any such
audit; provided, however, that so long as no Event of Default has occurred and is continuing, the Borrower
shall have no obligation to bear the expense of more than one (1) audit ever three years. Without limiting
the generality of the foregoing, the Borrower shall properly obtain, comply with and keep in effect (and
promptly deliver copies to the Funding Lender of) all permits, licenses and approvals which are required
to be obtained from Governmental Authorities in order to construct, occupy, operate, market and lease the
Project.
Section 5.26 Maintenance of Project. The Borrower shall maintain the Project as a
residential apartment complex in good order and condition, ordinary wear and tear excepted. A
maintenance program shall be in place at all times to assure the continuation of first class maintenance.
Section 5.27 Fixtures. The Borrower shall deliver to the Funding Lender, on demand, any
contracts, bills of sale, statements, receipted vouchers or agreements under which the Borrower or any
other Person claims title to any materials, fixtures or articles incorporated into the Improvements.
Section 5.28 Income from Project. The Borrower shall first apply all Gross Income to
Expenses of the Project, including all amounts then required to be paid under the Borrower Loan
Documents and the Funding Loan Documents and the funding of all sums necessary to meet the
Replacement Reserve Fund Requirement, before using or applying such Gross Income for any other
purpose
Section 5.29 Leases and Occupancy Agreements.
(a) Lease Approval.
(i) Borrower may enter into leases of space within the Improvements (and
amendments to such leases) in the ordinary course of business with bona fide third-party tenants without
the Funding Lender’s prior Written Consent if:
(A) The lease is a Permitted Lease;
(B) The Borrower, acting in good faith following the exercise of due diligence,
has determined that the tenant meets requirements imposed under any applicable CC&R and is financially
capable of performing all of its obligations under the lease; and
(ii) If any Event of Default has occurred and is continuing, the Funding Lender may
make written demand on the Borrower to submit all future leases for the Funding Lender’s approval prior
to execution. The Borrower shall comply with any such demand by the Funding Lender.
(iii) No approval of any lease by the Funding Lender shall be for any purpose other
than to protect the Funding Lender’s security for the Permanent Phase Borrower Loan and to preserve the
Funding Lender’s rights under the Borrower Loan Documents and the Funding Loan Documents. No
approval by the Funding Lender shall result in a waiver of any default of the Borrower. In no event shall
39
4894-2953-3827.5
any approval by Funding Lender of a lease be a representation of any kind with regard to the lease or its
enforceability, or the financial capacity of any tenant or guarantor.
(b) Landlord’s Obligations. The Borrower shall perform all obligations required to be
performed by it as landlord under any lease affecting any part of the Project or any space within the
Improvements.
(c) Leasing and Marketing Agreements. Except as may be contemplated in the Management
Agreement with the Property Manager, the Borrower shall not without the approval of the Funding Lender
enter into any leasing or marketing agreement and the Funding Lender reserves the right to approve the
qualifications of any marketing or leasing agent.
Section 5.30 Project Agreements and Licenses. To the extent not heretofore delivered to the
Funding Lender, the Borrower will furnish to the Funding Lender, as soon as available, true and correct
copies of all Project Agreements and Licenses and the Plans and Specifications, together with
assignments thereof to the Funding Lender and consents to such assignments where required by the
Funding Lender, all in form and substance acceptable to the Funding Lender. Neither the Borrower nor
General Partner has assigned or granted, or will assign or grant, a security interest in any of the Project
Agreements and Licenses, other than to Funding Lender.
Section 5.31 Payment of Debt Payments. In addition to its obligations under the Permanent
Phase Borrower Note, the Borrower will (i) duly and punctually pay or cause to be paid all principal of
and interest on any Debt of the Borrower as and when the same become due on or before the due date;
(ii) comply with and perform all conditions, terms and obligations of other instruments or agreements
evidencing or securing such Debt; (iii) promptly inform the Funding Lender of any default, or anticipated
default, under any such note, agreement, instrument; and (iv) forward to the Funding Lender a copy of
any notice of default or notice of any event that might result in default under any such note, agreement,
instrument, including Liens encumbering the Project, or any portion thereof, which have been
subordinated to the Security Instrument (regardless of whether or not permitted under this Borrower Loan
Agreement).
Section 5.32 ERISA. To the extent applicable, the Borrower will comply, and will cause each
of its ERISA Affiliates to comply, in all respects with the provisions of ERISA.
Section 5.33 Patriot Act Compliance. The Borrower shall use its good faith and
commercially reasonable efforts to comply with the Patriot Act and all applicable requirements of
Governmental Authorities having jurisdiction over the Borrower and/or the Project, including those
relating to money laundering and terrorism. The Funding Lender shall have the right to audit the
Borrower’s compliance with the Patriot Act and all applicable requirements of Governmental Authorities
having jurisdiction over the Borrower and/or the Project, including those relating to money laundering
and terrorism. In the event that the Borrower fails to comply with the Patriot Act or any such requirements
of Governmental Authorities, then the Funding Lender may, at its option, cause Borrower to comply
therewith and any and all costs and expenses incurred by Funding Lender in connection therewith shall
be secured by the Security Instrument and shall be immediately due and payable.
Borrower covenants that it shall comply with all Legal Requirements and internal requirements of
Funding Lender relating to money laundering, anti-terrorism, trade embargos and economic sanctions, now
or hereafter in effect. Without limiting the foregoing, Borrower shall not take any action, or permit any
action to be taken, that would cause Borrower’s representations and warranties in Section 4.1.48 and this
Section 5.32 to become untrue or inaccurate at any time during the term of the Funding Loan. Upon any
Beneficiary Party’s request from time to time during the term of the Funding Loan, Borrower shall certify
40
4894-2953-3827.5
in writing to such Beneficiary Party that Borrower’s representations, warranties and obligations under
Section 4.1.48 and this Section 5.32 remain true and correct and have not been breached, and in addition,
upon request of any Beneficiary Party, Borrower covenants to provide all information required to satisfy
obligations under all Legal Requirements and internal requirements of Funding Lender relating to money
laundering, anti-terrorism, trade embargos and economic sanctions, now or hereafter in effect, during the
term of the Funding Loan. Borrower shall immediately notify the Funding Lender in writing of (a)
Borrower’s actual knowledge that any of such representations, warranties or covenants are no longer true
and have been breached, (b) Borrower has a reasonable basis to believe that they may no longer be true and
have been breached or (c) Borrower becomes the subject of an investigation by Governmental Authorities
related to money laundering, anti-terrorism, trade embargos and economic sanctions. Borrower shall also
reimburse Funding Lender for any reasonable expense incurred by Funding Lender in evaluating the effect
of an investigation by Governmental Authorities on the Funding Loan and Funding Lender’s interest in the
collateral for the Funding Loan, in obtaining necessary license from Governmental Authorities as may be
necessary for Funding Lender to enforce its rights under the Funding Loan Documents, and in complying
with all Legal Requirements and internal requirements of Funding Lender relating to money laundering,
anti-terrorism, trade embargos and economic sanctions, now or hereafter in effect applicable to Funding
Lender as a result of the existence of such an event and for any penalties or fines imposed upon Funding
Lender as a result thereof.
Section 5.34 Funds from Equity Investor. The Borrower shall cause the Equity Investor to
fund all installments of the Equity Contributions in the amounts and at the times subject and according
to the terms of the Partnership Agreement.
Section 5.35 Tax Covenants. The Borrower further represents, warrants and covenants as
follows:
(a) General. The Borrower shall not take any action or omit to take any action which, if taken
or omitted, respectively, would adversely affect the exclusion of interest on the Governmental Lender
Note from gross income (as defined in Section 61 of the Code), for federal income tax purposes and, if it
should take or permit any such action, the Borrower will take all lawful actions that it can take to rescind
such action promptly upon having knowledge thereof and that the Borrower will take such action or
actions, including amendment of this Borrower Loan Agreement, the Security Instrument and the
Regulatory Agreement, as may be necessary, in the opinion of Tax Counsel, to comply fully with all
applicable rules, rulings, policies, procedures, regulations or other official statements promulgated or
proposed by the Department of the Treasury or the Internal Revenue Service applicable to the
Governmental Lender Note, the Funding Loan or affecting the Project. Capitalized terms used in this
Section 5.35 shall have the respective meanings assigned to them in the Regulatory Agreement or, if not
defined therein, in the Funding Loan Agreement. With the intent not to limit the generality of the
foregoing, the Borrower covenants and agrees that, prior to the final maturity of the Governmental Lender
Note, unless it has received and filed with the Governmental Lender and the Funding Lender a Tax
Counsel No Adverse Effect Opinion (other than with respect to interest on any portion of the
Governmental Lender Note for a period during which such portion of the Governmental Lender Note is
held by a “substantial user” of any facility financed with the proceeds of the Governmental Lender Note
or a “related person,” as such terms are used in Section 147(a) of the Code), the Borrower will comply
with this Section 5.35.
(b) Use of Proceeds. The use of the net proceeds of the Funding Loan at all times will satisfy
the following requirements:
(i) Limitation on Net Proceeds. At least ninety-five percent (95%) of the net proceeds
of the Funding Loan (within the meaning of the Code) actually expended shall be used to pay Qualified
41
4894-2953-3827.5
Project Costs that are costs of a “qualified residential rental project” (within the meaning of Sections
142(a)(7) and 142(d) of the Code) and property that is “functionally related and subordinate” thereto (within
the meaning of Sections 1.103-8(a)(3) and 1.103-8(b)(4)(iii) of the Regulations).
(ii) Limit on Costs of Issuance. The proceeds of the Funding Loan will be expended
for the purposes set forth in this Borrower Loan Agreement and in the Funding Loan Agreement and no
portion thereof in excess of two percent (2%) of the proceeds of the Funding Loan, within the meaning of
Section 147(g) of the Code, will be expended to pay costs of issuance of the Funding Loan.
(iii) Prohibited Facilities. The Borrower shall not use or permit the use of any proceeds
of the Funding Loan or any income from the investment thereof to provide any airplane, skybox, or other
private luxury box, health club facility, any facility primarily used for gambling, or any store the principal
business of which is the sale of alcoholic beverages for consumption off premises.
(iv) Limitation on Land. Less than twenty-five percent (25%) of the net proceeds of
the Funding Loan actually expended will be used, directly or indirectly, for the acquisition of land or an
interest therein, nor will any portion of the net proceeds of the Funding Loan be used, directly or indirectly,
for the acquisition of land or an interest therein to be used for farming purposes.
(v) Limitation on Existing Facilities. No portion of the net proceeds of the Funding
Loan will be used for the acquisition of any existing property or an interest therein unless (A) the first use
of such property is pursuant to such acquisition or (B) the construction expenditures with respect to any
building and the equipment therefor equal or exceed fifteen percent (15%) of the cost of acquiring such
building financed with the proceeds of the Funding Loan (with respect to structures other than buildings,
this clause shall be applied by substituting one hundred percent (100%) for fifteen percent (15%)). For
purposes of the preceding sentence, the term “construction expenditures” shall have the meaning set forth
in Section 147(d)(3) of the Code.
(vi) Accuracy of Information. The information furnished by the Borrower and used by
the Governmental Lender in preparing its certifications with respect to Section 148 of the Code and the
Borrower’s information statement pursuant to Section 149(e) of the Code is accurate and complete as of
the date of origination of the Funding Loan.
(vii) Limitation of Project Expenditures. The acquisition, construction and equipping
of the Project were not commenced (each within the meaning of Section 144(a) of the Code) prior to the
60th day preceding the adoption of the resolution of the Governmental Lender with respect to the Project
on March 28, 2022, and no obligation for which reimbursement will be sought from proceeds of the Funding
Loan relating to the acquisition, construction or equipping of the Project was paid or incurred prior to 60
days prior to such date, except for permissible “preliminary expenditures” not in excess of 20% of the
aggregate issue price of the Funding Loan which include architectural, engineering surveying, soil testing,
reimbursement bond issuance and similar costs (other than land acquisition, site preparation and similar
costs incident to commencement of construction) incurred prior to the commencement of the construction
or acquisition of the Project.
(viii) Qualified Costs. The Borrower hereby represents, covenants and warrants that the
proceeds of the Funding Loan shall be used or deemed used exclusively to pay costs which (i) are (A)
capital expenditures (as defined in Section 1.150-1(a) of the Code’s regulations) and (B) not made for the
acquisition of existing property, to the extent prohibited in Section 147(d) of the Code, and that for the
greatest number of buildings the proceeds of the Funding Loan shall be deemed allocated on a pro rata basis
to each building in the Project and the land on which it is located so that the buildings (including eligible
furniture and fixtures and functionally related subordinate facilities) and the land on which they are located
42
4894-2953-3827.5
will have been financed fifty percent (50%) or more by the proceeds of the Funding Loan for the purpose
of complying with Section 42(h)(4)(B) of the Code; provided however, the foregoing representation,
covenant and warranty is made for the benefit of the Borrower and its partners and neither the Funding
Lender nor the Governmental Lender shall have any obligation to enforce this statement nor shall they incur
any liability to any person, including without limitation, the Borrower, the partners of the Borrower, any
other affiliate of the Borrower or the holders or payees of the Funding Loan and the Permanent Phase
Borrower Note for any failure to meet the intent expressed in the foregoing representation, covenant and
warranty; and provided further, failure to comply with this representation, covenant and warranty shall not
constitute a default or event of default under this Borrower Loan Agreement or the Funding Loan
Agreement.
(c) Limitation on Maturity. The average maturity of the Governmental Lender Note does not
exceed 120 percent of the average reasonably expected economic life of the Project to be financed by the
Funding Loan, weighted in proportion to the respective cost of each item comprising the property the cost
of which has been or will be financed, directly or indirectly, with the Net Proceeds of the Funding Loan.
For purposes of the preceding sentence, the reasonably expected economic life of property shall be
determined as of the later of (A) the Delivery Date for the Funding Loan or (B) the date on which such
property is placed in service (or expected to be placed in service). In addition, land shall not be taken into
account in determining the reasonably expected economic life of property.
(d) No Arbitrage. The Borrower shall not take any action or omit to take any action with
respect to the Gross Proceeds of the Governmental Lender Note or of any amounts expected to be used to
pay the principal thereof or the interest thereon which, if taken or omitted, respectively, would cause a
Governmental Lender Note to be classified as an “arbitrage bond” within the meaning of Section 148 of
the Code. Except as provided in the Funding Loan Agreement and this Borrower Loan Agreement, the
Borrower shall not pledge or otherwise encumber, or permit the pledge or encumbrance of, any money,
investment, or investment property as security for payment of any amounts due under this Borrower Loan
Agreement or the Permanent Phase Borrower Note relating to the Funding Loan, shall not establish any
segregated reserve or similar fund for such purpose and shall not prepay any such amounts in advance of
the redemption date of an equal principal amount of the Funding Loan, unless the Borrower has obtained
in each case a Tax Counsel No Adverse Effect Opinion with respect to such action, a copy of which shall
be provided to the Governmental Lender and the Funding Lender. The Borrower shall not, at any time
prior to the final maturity of the Funding Loan, invest or cause any Gross Proceeds to be invested in any
investment (or to use Gross Proceeds to replace money so invested), if, as a result of such investment the
Yield of all investments acquired with Gross Proceeds (or with money replaced thereby) on or prior to the
date of such investment exceeds the Yield of the Funding Loan to the Maturity Date, except as permitted
by Section 148 of the Code and Regulations thereunder or as provided in the Regulatory Agreement. The
Borrower further covenants and agrees that it will comply with all applicable requirements of said Section
148 and the rules and Regulations thereunder relating to the Funding Loan and the interest thereon,
including, subject to the second paragraph of this Section 5.35(d), the employment of a Rebate Analyst
acceptable to the Governmental Lender and Funding Lender at all times from and after the Delivery Date
for the calculation of rebatable amounts to the United States Treasury Department. Subject to the second
paragraph of this Section 5.35(d), The Borrower agrees that it will cause the Rebate Analyst to calculate
the rebatable amounts not later than forty-five days after the fifth anniversary of the Delivery Date and each
five years thereafter and not later than forty-five days after the final Computation Date and agrees that the
Borrower will pay all costs associated therewith. Subject to the second paragraph of this Section 5.35(d),
The Borrower agrees to provide evidence of the employment of the Rebate Analyst satisfactory to the
Governmental Lender and Funding Lender.
Notwithstanding the foregoing provisions of this subparagraph (d) with respect to the engagement
of a Rebate Analyst, the Borrower shall not be required to engage a Rebate Analyst so long as on each
43
4894-2953-3827.5
Computation Date, the Borrower provides to the Funding Lender and the Fiscal Agent a written certification
that, as of such Computation Date, no moneys have been received with respect to the Permanent Phase
Borrower Loan or, to the Borrower’s knowledge, after diligent inquiry, the Funding Loan which, under the
Funding Loan Documents, are pledged directly or indirectly to pay principal and/or interest on the
Permanent Phase Borrower Loan or the Funding Loan, other than regularly scheduled payments of principal
and interest on the Permanent Phase Borrower Loan. If such certification is not given when due, the
Borrower agrees to immediately (and no later than 15 days after such Computation Date) engage a Rebate
Analyst and to have the Rebate Analyst remain engaged to calculate any Rebate Amount which might be
owed with respect to the Governmental Lender Note with respect to such Computation Date.
(e) No Federal Guarantee. Except to the extent permitted by Section 149(b) of the Code and
the Regulations and rulings thereunder, the Borrower shall not take or omit to take any action which would
cause the Governmental Lender Note to be “federally guaranteed” within the meaning of Section 149(b)
of the Code and the Regulations and rulings thereunder.
(f) Representations. The Borrower has supplied or caused to be supplied to Tax Counsel all
documents, instruments and written information requested by Tax Counsel, and all such documents,
instruments and written information supplied by or on behalf of the Borrower at the request of Tax
Counsel, which have been reasonably relied upon by Tax Counsel in rendering its opinion with respect to
the exclusion from gross income of the interest on the Governmental Lender Note for federal income tax
purposes, are true and correct in all material respects, do not contain any untrue statement of a material
fact and do not omit to state any material fact necessary to be stated therein in order to make the
information provided therein, in light of the circumstances under which such information was provided,
not misleading, and the Borrower is not aware of any other pertinent information which Tax Counsel has
not requested.
(g) Qualified Residential Rental Project. The Borrower hereby covenants and agrees that the
Project will be operated as a “qualified residential rental project” within the meaning of Section 142(d) of
the Code, on a continuous basis during the longer of the Qualified Project Period (as defined in the
Regulatory Agreement) or any period during which any portion of the Governmental Lender Note remains
outstanding, to the end that the interest on the Governmental Lender Note shall be excluded from gross
income for federal income tax purposes. The Borrower hereby covenants and agrees, continuously during
the Qualified Project Period, to comply with all the provisions of the Regulatory Agreement.
(h) Information Reporting Requirements. The Borrower will comply with the information
reporting requirements of Section 149(e)(2) of the Code requiring certain information regarding the
Governmental Lender Note to be filed with the Internal Revenue Service within prescribed time limits.
(i) Funding Loan Not a Hedge Bond. The Borrower covenants and agrees that not more than
50% of the proceeds of the Funding Loan will be invested in Nonpurpose Investments having a
substantially guaranteed Yield for four years or more within the meaning of Section 149(f)(3)(A)(ii) of
the Code, and the Borrower reasonably expects that at least 85% of the spendable proceeds of the Funding
Loan will be used to carry out the governmental purposes of the Funding Loan within the three-year period
beginning on the Delivery Date.
(j) Termination of Restrictions. Although the parties hereto recognize that, subject to the
provisions of the Regulatory Agreement, the provisions of this Borrower Loan Agreement shall terminate
in accordance with Section 10.13 hereof, the parties hereto recognize that pursuant to the Regulatory
Agreement, certain requirements, including the requirements incorporated by reference in this Section,
may continue in effect beyond the term hereof.
44
4894-2953-3827.5
(k) Public Approval. The Borrower covenants and agrees that the proceeds of the Funding
Loan will not be used in a manner that deviates in any substantial degree from the Project described in the
written notice of a public hearing regarding the Funding Loan.
(l) 40/60 Test Election. The Borrower and the Governmental Lender hereby elect to apply the
requirements of Section 142(d)(1)(B) to the Project. The Borrower hereby represents, covenants and
agrees, continuously during the Qualified Project Period, to comply with all the provisions of the
Regulatory Agreement.
(m) Modification of Tax Covenants. Subsequent to the origination of the Funding Loan and
prior to its payment in full (or provision for the payment thereof having been made in accordance with the
provisions of the Funding Loan Agreement), this Section 5.35 hereof may not be amended, changed,
modified, altered or terminated except as permitted herein and by the Funding Loan Agreement and with
the Written Consent of the Governmental Lender and the Funding Lender. Anything contained in this
Borrower Loan Agreement or the Funding Loan Agreement to the contrary notwithstanding, the
Governmental Lender, the Funding Lender and the Borrower hereby agree to amend this Borrower Loan
Agreement and, if appropriate, the Funding Loan Agreement and the Regulatory Agreement, to the extent
required, in the opinion of Tax Counsel, in order for interest on the Governmental Lender Note to remain
excludable from gross income for federal income tax purposes. The party requesting such amendment,
which may include the Funding Lender, shall notify the other parties to this Borrower Loan Agreement of
the proposed amendment and send a copy of such requested amendment to Tax Counsel. After review of
such proposed amendment, Tax Counsel shall render to the Funding Lender and the Governmental Lender
an opinion to the effect that such proposed amendment will not adversely impact the excludability of
interest on the Governmental Lender Note in the gross income of the recipient thereof for federal income
tax purposes. The Borrower shall pay all necessary fees and expenses incurred with respect to such
amendment. The Borrower, the Governmental Lender and, where applicable, the Funding Lender per
written instructions from the Governmental Lender shall execute, deliver and, if applicable, the Borrower
shall file of record, any and all documents and instruments, including without limitation, an amendment
to the Regulatory Agreement, with a file-stamped copy to the Funding Lender, necessary to effectuate the
intent of this Section 5.35, and the Borrower and the Governmental Lender hereby appoint the Funding
Lender as their true and lawful attorney-in-fact to execute, deliver and, if applicable, file of record on
behalf of the Borrower or the Governmental Lender, as is applicable, any such document or instrument
(in such form as may be approved by and upon instruction of Tax Counsel) if either the Borrower or the
Governmental Lender defaults in the performance of its obligation under this Section 5.35; provided,
however, that the Funding Lender shall take no action under this Section 5.35 without first notifying the
Borrower or the Governmental Lender, as is applicable, of its intention to take such action and providing
the Borrower or the Governmental Lender, as is applicable, a reasonable opportunity to comply with the
requirements of this Section 5.35.
The Borrower irrevocably authorizes and directs the Funding Lender and any other agent
designated by the Governmental Lender to make payment of such amounts from funds of the Borrower, if
any, held by the Funding Lender, or any agent of the Governmental Lender or the Funding Lender. The
Borrower further covenants and agrees that, pursuant to the requirements of Treasury Regulation Section
1.148-1(b), it (or any related person contemplated by such regulations) will not purchase interests in the
Funding Loan in an amount related to the amount of the Permanent Phase Borrower Loan.
Section 5.36 Payment of Rebate.
(a) Arbitrage Rebate. The Borrower agrees to take all steps necessary to compute and pay any
rebatable arbitrage relating to the Governmental Lender Note in accordance with Section 148(f) of the
Code including:
45
4894-2953-3827.5
(i) Delivery of Documents and Money on Computation Dates. The Borrower will
deliver to the Fiscal Agent, the Governmental Lender, the Servicer, or, if there is no Servicer, to the Funding
Lender, within 55 days after each Computation Date:
(A) a statement, signed by the Borrower, stating the Rebate Amount as of such
Computation Date;
(B) (1) if such Computation Date is an Installment Computation Date, an
amount that, together with any amount then held for the credit of the Rebate Fund, is equal to at least 90%
of the Rebate Amount as of such Installment Computation Date, less the future value of any “previous
rebate payments” made to the United States (as that term is used in Section 1.148-3(f)(1) of the
Regulations), or (2) if such Computation Date is the final Computation Date, an amount that, together with
any amount then held for the credit of the Rebate Fund, is equal to the Rebate Amount as of such final
Computation Date, less the future value of any “previous rebate payments” made to the United States (as
that term is used in Section 1.148-3(f)(1) of the Regulations); and
(C) an Internal Revenue Service Form 8038-T properly signed and completed
as of such Computation Date.
(ii) Correction of Underpayments. If the Borrower shall discover or be notified as of
any date that any payment paid to the United States Treasury pursuant to this Section 5.36 of an amount
described in Section 5.36(a)(i)(A) or (B) above shall have failed to satisfy any requirement of Section 1.148-
3 of the Regulations (whether or not such failure shall be due to any default by the Borrower, the
Governmental Lender or the Funding Lender), the Borrower shall (1) pay to the Servicer (for deposit to the
Rebate Fund) and cause the Fiscal Agent to pay to the United States Treasury from the Rebate Fund the
underpayment of the Rebate Amount, together with any penalty and/or interest due, as specified in Section
1.148-3(h) of the Regulations, within 175 days after any discovery or notice and (2) deliver to the Servicer
an Internal Revenue Service Form 8038-T completed as of such date. If such underpayment of the Rebate
Amount, together with any penalty and/or interest due, is not paid to the United States Treasury in the
amount and manner and by the time specified in the Regulations, the Borrower shall take such steps as are
necessary to prevent the Governmental Lender Note from becoming an arbitrage bond within the meaning
of Section 148 of the Code.
(iii) Records. The Borrower shall retain all of its accounting records relating to the
funds established under this Borrower Loan Agreement and all calculations made in preparing the
statements described in this Section 5.36 for at least six years after the later of the final maturity of the
Governmental Lender Note or the date the Funding Loan is retired in full.
(iv) Costs. The Borrower agrees to pay all of the fees and expenses of a nationally
recognized Tax Counsel, the Rebate Analyst, a certified public accountant and any other necessary
consultant employed by the Borrower or the Funding Lender in connection with computing the Rebate
Amount.
(v) No Diversion of Rebatable Arbitrage. The Borrower will not indirectly pay any
amount otherwise payable to the federal government pursuant to the foregoing requirements to any person
other than the federal government by entering into any investment arrangement with respect to the Gross
Proceeds of the Funding Loan which is not purchased at Fair Market Value or includes terms that the
Borrower would not have included if the Funding Loan were not subject to Section 148(f) of the Code.
(vi) Modification of Requirements. If at any time during the term of this Borrower
Loan Agreement, the Governmental Lender, the Funding Lender or the Borrower desires to take any action
46
4894-2953-3827.5
which would otherwise be prohibited by the terms of this Section 5.36, such Person shall be permitted to
take such action if it shall first obtain and provide to the other Persons named herein a Tax Counsel No
Adverse Effect Opinion with respect to such action.
(b) Rebate Fund. The Fiscal Agent shall establish under the Funding Loan Agreement and
hold a separate fund designated as the “Rebate Fund.” The Servicer shall deposit or transfer to the credit
of the Rebate Fund each amount delivered to the Servicer by the Borrower for deposit thereto and each
amount directed by the Borrower to be transferred thereto.
(c) Within fifteen (15) days after each receipt or transfer of funds to the Rebate Fund, the Fiscal
Agent shall withdraw from the Rebate Fund and pay to the United States of America the entire balance of
the Rebate Fund.
(d) All payments to the United States of America pursuant to this Section 5.36 shall be made
by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid through
the United States Mail (return receipt requested or overnight delivery), addressed to the appropriate
Internal Revenue Service Center and accompanied by the appropriate Internal Revenue Service forms
(such forms to be provided to the Servicer by the Borrower or the Rebate Analyst as set forth in this
Section 5.36).
(e) The Borrower shall preserve all statements, forms and explanations received or delivered
pursuant this Section 5.36 and all records of transactions in the Rebate Fund until six years after the
retirement of the Funding Loan.
(f) Moneys and securities held in the Rebate Fund shall not be deemed funds of the Funding
Lender, the Fiscal Agent or of the Governmental Lender and are not pledged or otherwise subject to any
security interest in favor of the Funding Lender to secure the Funding Loan or any other obligations.
(g) Notwithstanding anything to the contrary in this Borrower Loan Agreement, no payment
shall be made to the United States if the Borrower shall furnish to the Governmental Lender, the Fiscal
Agent and the Funding Lender an opinion of Tax Counsel to the effect that such payment is not required
under Section 148(d) and (f) of the Code in order to maintain the exclusion from gross income for federal
income tax purposes of interest on the Governmental Lender Note. In such event, the Borrower shall be
entitled to withdraw funds from the Rebate Fund to the extent the Borrower shall provide a Tax Counsel
No Adverse Effect Opinion to the Governmental Lender, the Fiscal Agent and the Funding Lender with
respect to such withdrawal.
(h) Notwithstanding the foregoing, the computations and payments of rebate amounts referred
to in this Section 5.36 need not be made to the extent that neither the Governmental Lender nor the
Borrower will thereby fail to comply with any requirements of Section 148(f) of the Code based on a Tax
Counsel No Adverse Effect Opinion, a copy of which shall be provided to the Funding Lender and the
Fiscal Agent.
Section 5.37 Covenants under Funding Loan Agreement. The Borrower will fully and
faithfully perform all the duties and obligations which the Governmental Lender has covenanted and
agreed in the Funding Loan Agreement to cause the Borrower to perform and any duties and obligations
which the Borrower is required in the Funding Loan Agreement to perform. The foregoing will not apply
47
4894-2953-3827.5
to any duty or undertaking of the Governmental Lender which by its nature cannot be delegated or
assigned.
Section 5.38 Continuing Disclosure Agreement. The Borrower and the Funding Lender
shall enter into the Continuing Disclosure Agreement to provide for the continuing disclosure of
information about the Funding Loan, the Borrower and other matters as specifically provided for in such
agreement. The duties and obligations of the Borrower under the Continuing Disclosure Agreement shall
be as set forth in the Continuing Disclosure Agreement. The Governmental Lender shall be a third-party
beneficiary under the Continuing Disclosure Agreement and as such shall be entitled to copies of all
filings and reports required thereunder.
Section 5.39 Subordinate Loans. Borrower shall comply in all respects with all of the
covenants contained in the Subordinate Loan Documents. Borrower shall deliver to Funding Lender for
its prior written approval all requests for proceeds of the Subordinate Loans, together with copies of any
other forms for construction-related or non-construction-related disbursements submitted by Borrower in
connection with the Subordinate Loans.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees as follows, which covenants shall remain in effect so
long as any Borrower Payment Obligation or other obligation of the Borrower under any of the other
Borrower Loan Documents or the Funding Loan Documents remains outstanding or unperformed. The
Borrower covenants and agrees that it will not, directly or indirectly:
Section 6.1 Management Agreement. Without first obtaining the Funding Lender’s prior
Written Consent, enter into the Management Agreement, and thereafter the Borrower shall not, without
the Funding Lender’s prior Written Consent (which consent shall not be unreasonably withheld) and
subject to the Regulatory Agreement: (i) surrender, terminate or cancel the Management Agreement or
otherwise replace the Property Manager or enter into any other management agreement; (ii) reduce or
consent to the reduction of the term of the Management Agreement; (iii) increase or consent to the
increase of the amount of any charges under the Management Agreement; (iv) otherwise modify, change,
supplement, alter or amend in any material respect, or waive or release in any material respect any of its
rights and remedies under, the Management Agreement; or (v) suffer or permit the occurrence and
continuance of a default beyond any applicable cure period under the Management Agreement (or any
successor management agreement) if such default permits the Property Manager to terminate the
Management Agreement (or such successor management agreement); provided, however, that Funding
Lender’s prior Written Consent shall not be required for any extension or renewal of the Management
Agreement on the same terms and conditions.
Section 6.2 Dissolution. Dissolve or liquidate, in whole or in part, merge with or consolidate
into another Person.
Section 6.3 Change in Business or Operation of Property. Enter into any line of business
other than the ownership and operation of the Project, or make any material change in the scope or nature
of its business objectives, purposes or operations, or undertake or participate in activities other than the
48
4894-2953-3827.5
continuance of its present business and activities incidental or related thereto or otherwise cease to operate
the Project as a multi-family property or terminate such business for any reason whatsoever.
Section 6.4 Debt Cancellation. Cancel or otherwise forgive or release any claim or debt
owed to the Borrower by a Person, except for adequate consideration or in the ordinary course of the
Borrower’s business in its reasonable judgment.
Section 6.5 Assets. Purchase or own any real property or personal property incidental thereto
other than the Project.
Section 6.6 Transfers. Make, suffer or permit the occurrence of any Transfer other than a
transfer permitted under the Security Instrument, nor transfer any material License required for the
operation of the Project.
Section 6.7 Debt. Other than as expressly approved in writing by the Funding Lender, create,
incur or assume any indebtedness for borrowed money (including subordinate debt) whether unsecured
or secured by all or any portion of the Project or interest therein or in the Borrower or any partner thereof
(including subordinate debt) other than (i) the Borrower Payment Obligations, (ii) secured indebtedness
incurred pursuant to or permitted by the Borrower Loan Documents and the Funding Loan Documents,
(iii) trade payables incurred in the ordinary course of business, (iv) the Subordinate Loans, and (v)
unsecured deferred developer fees as permitted pursuant to the terms of the Development Services
Agreement. Partners of the Borrower may make unsecured loans to the Borrower in accordance with the
Partnership Agreement.
Section 6.8 Assignment of Rights. Without the Funding Lender’s prior Written Consent,
attempt to assign the Borrower’s rights or interest under any Borrower Loan Document or Funding Loan
Document in contravention of any Borrower Loan Document or Funding Loan Document.
Section 6.9 Principal Place of Business. Change its principal place of business without
providing 30 days’ prior Written Notice of the change to the Funding Lender, the Governmental Lender,
the Fiscal Agent and the Servicer.
Section 6.10 Partnership Agreement. Without the Funding Lender’s prior Written Consent
(which consent shall not be unreasonably withheld, conditioned or delayed) surrender, terminate, cancel,
modify, change, supplement, alter or amend in any material respect, or waive or release in any material
respect, any of its rights or remedies under the Partnership Agreement; provided, however, the consent
of the Funding Lender is not required for (i) modifications necessary to reflect the occurrence of a
“Permitted Transfer” as defined in and permitted by the Security Instrument or (ii) modifications that do
not: (A) impose any additional or greater obligations on the Borrower or any of the partners, managers
or members of Borrower, (B) reduce or relieve the Borrower or any of the partners of the Borrower of
any of their obligations, (C) modify the timing, amounts, number, conditions or other terms of the
installments or other payment obligations of the partners or members of the Borrower or (D) impair the
collateral for the loan from the Funding Lender; provided, however, that the Borrower shall promptly
provide to the Funding Lender a copy of any modifications to the Borrower’s organizational documents
that do not require the Funding Lender’s consent.
Section 6.11 ERISA. To the extent applicable, maintain, sponsor, contribute to or become
obligated to contribute to, or suffer or permit any ERISA Affiliate of the Borrower to, maintain, sponsor,
49
4894-2953-3827.5
contribute to or become obligated to contribute to, any Plan, or permit the assets of the Borrower to
become “plan assets,” whether by operation of law or under regulations promulgated under ERISA.
Section 6.12 No Hedging Arrangements. Without the prior Written Consent of the Funding
Lender or unless otherwise required by this Borrower Loan Agreement, the Borrower will not enter into
or guarantee, provide security for or otherwise undertake any form of contractual obligation with respect
to any interest rate swap, interest rate cap or other arrangement that has the effect of an interest rate swap
or interest rate cap or that otherwise (directly or indirectly, derivatively or synthetically) hedges interest
rate risk associated with being a debtor of variable rate debt or any agreement or other arrangement to
enter into any of the above on a future date or after the occurrence of one or more events in the future.
Section 6.13 Loans and Investments; Distributions; Related Party Payments. Without the
prior Written Consent of the Funding Lender in each instance, the Borrower shall not (i) lend money,
make investments, or extend credit, other than in the ordinary course of its business as presently
conducted; or (ii) repurchase, redeem or otherwise acquire any interest in the Borrower, any Borrower
Affiliate or any other Person owning an interest, directly or indirectly, in the Borrower, or make any
distribution, in cash or in kind, in respect of interests in the Borrower, any Borrower Affiliate or any other
Person owning an interest, directly or indirectly, in the Borrower (except to the extent permitted by the
Security Instrument and subject to the limitations set forth in Section 5.28 hereof).
Section 6.14 Amendment of Related Documents or CC&R’s. Without the prior Written
Consent of Funding Lender in each instance, except as provided herein or in the Loan Covenant
Agreement, Borrower shall not enter into or consent to any amendment, termination, modification, or
other alteration of any of the Related Documents or any of the CC&R’s (including, without limitation,
those contained in this Borrower Loan Agreement, any Architect’s Agreement or Engineer’s Contract,
any Construction Contract, and any Management Agreement, but excluding the Partnership Agreement,
which is covered by Section 6.10 hereof), or any assignment, transfer, pledge or hypothecation of any of
its rights thereunder, if any.
Section 6.15 Personal Property. The Borrower shall not install materials, personal property,
equipment or fixtures subject to any security agreement or other agreement or contract wherein the right
is reserved to any Person other than the Borrower to remove or repossess any such materials, equipment
or fixtures, or whereby title to any of the same is not completely vested in the Borrower at the time of
installation, without the Funding Lender’s prior Written Consent; provided, however, that this Section
6.15 shall not apply to laundry equipment or other equipment that is owned by a third-party vendor and
commercial tenants.
Section 6.16 Fiscal Year. Without the Funding Lender’s Written Consent, which shall not be
unreasonably withheld, neither the Borrower nor the General Partner shall change the times of
commencement or termination of its fiscal year or other accounting periods, or change its methods of
accounting, other than to conform to GAAP.
Section 6.17 Publicity. Neither the Borrower nor the General Partner shall issue any publicity
release or other communication to any print, broadcast or on-line media, post any sign or in any other
way identify the Funding Lender or any of its Affiliates as the source of the financing provided for herein,
without the prior written approval of the Funding Lender in each instance (provided that nothing herein
shall prevent the Borrower or the General Partner from identifying the Funding Lender or its Affiliates
50
4894-2953-3827.5
as the source of such financing to the extent that the Borrower or the General Partner are required to do
so by disclosure requirements applicable to publicly held companies).
Section 6.18 Subordinate Loan Documents. Without the Funding Lender’s prior Written
Consent, Borrower will not surrender, terminate, cancel, modify, change, supplement, alter, amend,
waive, release, assign, transfer, pledge or hypothecate any of its rights or remedies under the Subordinate
Loan Documents.
Section 6.19 Ground Lease. Without the Funding Lender’s prior written consent, the
Borrower will not surrender, terminate, cancel, modify, change, supplement, alter, amend, waive, release,
assign, transfer, pledge or hypothecate any of its rights or remedies under the Ground Lease.
ARTICLE VII
RESERVED
ARTICLE VIII
DEFAULTS
Section 8.1 Events of Default. Each of the following events shall constitute an “Event of
Default” under this Borrower Loan Agreement:
(a) failure by the Borrower to pay any Borrower Loan Payment in the manner and on the date
such payment is due in accordance with the terms and provisions of the Permanent Phase Borrower Note,
or the failure by the Borrower to pay any Additional Borrower Payment on the date such payment is due
in accordance with the terms and provisions of the Permanent Phase Borrower Note, the Security
Instrument, this Borrower Loan Agreement or any other Borrower Loan Document;
(b) failure by or on behalf of the Borrower to pay when due any amount (other than as provided
in subsections (a) above or elsewhere in this Section 8.1) required to be paid by the Borrower under this
Borrower Loan Agreement, the Permanent Phase Borrower Note, the Security Instrument or any of the
other Borrower Loan Documents or Funding Loan Documents, including a failure to repay any amounts
that have been previously paid but are recovered, attached or enjoined pursuant to any insolvency,
receivership, liquidation or similar proceedings, which default remains uncured for a period of five (5)
days after Written Notice thereof shall have been given to the Borrower;
(c) an Event of Default, as defined or described in the Permanent Phase Borrower Note, the
Security Instrument or any other Borrower Loan Document, occurs (or to the extent an “Event of Default”
is not defined in any other Borrower Loan Document, any default or breach by the Borrower or any
Guarantor of its obligations, covenants, representations or warranties under such Borrower Loan
Document occurs and any applicable notice and/or cure period has expired);
(d) any representation or warranty made by any of the Borrower, the Guarantor or the General
Partner in any Borrower Loan Document or Funding Loan Document to which it is a party, or in any
report, certificate, financial statement or other instrument, agreement or document furnished by the
Borrower, the Guarantor or the General Partner in connection with any Borrower Loan Document or
Funding Loan Document, shall be false or misleading in any material respect as of the Delivery Date;
(e) the Borrower shall make a general assignment for the benefit of creditors, or shall generally
not be paying its debts as they become due;
51
4894-2953-3827.5
(f) a Borrower Controlling Entity shall make a general assignment for the benefit of creditors,
shall generally not be paying its debts as they become due, or an Act of Bankruptcy with respect to the
Borrower Controlling Entity shall occur, unless in all cases the Borrower Controlling Entity is replaced
with a substitute Borrower Controlling Entity that satisfies the requirements of the Security Instrument;
which, in the case of a non-profit controlled by the Borrower Controlling Entity, may be replaced within
sixty (60) days of such event with another non-profit not controlled by the Borrower Controlling Entity
acceptable to the Funding Lender, in which case no Event of Default shall be deemed to have occurred;
(g) the failure by the Borrower or any ERISA Affiliate of the Borrower to comply in all
respects with ERISA, if applicable, or the occurrence of any other event (with respect to the failure of the
Borrower or any ERISA Affiliate to pay any amount required to be paid under ERISA or with respect to
the termination of, or withdrawal of the Borrower or any ERISA Affiliate from, any employee benefit or
welfare plan subject to ERISA) the effect of which is to impose upon the Borrower (after giving effect to
the tax consequences thereof) for the payment of any amount in excess of Fifty Thousand Dollars
($50,000);
(h) a Bankruptcy Event shall occur with respect to the Borrower, any General Partner or
Guarantor, or there shall be a change in the assets, liabilities or financial position of any such Person which
has a material adverse effect upon the ability of such Person to perform such Person’s obligations under
this Borrower Loan Agreement, any other Borrower Loan Document or any Related Document, provided
that any such Bankruptcy Event with respect to a Guarantor shall not constitute an Event of Default: (i) if
such Bankruptcy Event occurs on or after the date upon which the Guaranty terminates in accordance with
its terms (or the date upon which all of the Guaranties have terminated in accordance with their terms, if
more than one Guaranty was executed by such Guarantor), or (ii) if such Bankruptcy Event occurs prior
to the date upon which the Guaranty terminates in accordance with its terms (or the date upon which the
Guaranties have terminated in accordance with their terms, if more than one Guaranty was executed by
such Guarantor) and the Borrower replaces such Guarantor with a person or entity satisfying the Funding
Lender’s mortgage credit standards for principals and acceptable to the Funding Lender in its sole and
absolute discretion within thirty (30) days after notice thereof from the Funding Lender;
(i) all or any part of the property of the Borrower is attached, levied upon or otherwise seized
by legal process, and such attachment, levy or seizure is not quashed, stayed or released within thirty (30)
days of the date thereof;
(j) subject to Section 10.15 hereof, the Borrower fails to pay when due any monetary
obligation (other than pursuant to this Borrower Loan Agreement) to any Person in excess of One Hundred
Thousand Dollars ($100,000), and such failure continues beyond the expiration of any applicable cure or
grace periods;
(k) any material litigation or proceeding is commenced before any Governmental Authority
against or affecting Borrower, any General Partner or Guarantor, or property of Borrower, any General
Partner or Guarantor, or any part thereof, and such litigation or proceeding is not defended diligently and
in good faith by Borrower, any General Partner or Guarantor, as applicable, provided that any such
material litigation or proceeding against a Guarantor shall not constitute an Event of Default: (i) if such
material litigation is commenced on or after the date upon which the Guaranty terminates in accordance
with its terms (or the date upon which all of the Guaranties have terminated in accordance with their terms,
if more than one Guaranty was executed by such Guarantor), or (ii) if such material litigation or proceeding
is commenced prior to the date upon which the Guaranty terminates in accordance with its terms (or the
date upon which all of the Guaranties have terminated in accordance with their terms, if more than one
Guaranty was executed by such Guarantor) and the Borrower replaces such Guarantor with a person or
entity satisfying the Funding Lender’s mortgage credit standards for principals and acceptable to the
52
4894-2953-3827.5
Funding Lender in its sole and absolute discretion within thirty (30) days after notice thereof from the
Funding Lender;
(l) a final judgment or decree for monetary damages in excess of Fifty Thousand Dollars
($50,000) or a monetary fine or penalty (not subject to appeal or as to which the time for appeal has
expired) is entered against Borrower, any General Partner or Guarantor by any Governmental Authority,
and such judgment, decree, fine or penalty is not paid and discharged or stayed within thirty (30) days
after entry thereof (or such longer period as may be permitted for payment by the terms of such judgment,
fine or penalty) , provided that any such judgment, decree, fine or penalty against a Guarantor shall not
constitute an Event of Default: (i) if such judgment, decree, fine or penalty is entered on or after the date
upon which the Guaranty terminates in accordance with its terms (or the date upon which each Guaranty
has terminated in accordance with their terms, if more than one Guaranty was executed by such
Guarantor), or (ii) if such judgment, decree, fine or penalty is entered prior to the date upon which the
Guaranty terminates in accordance with its terms (or the date upon which each Guaranty has terminated
in accordance with their terms, if more than one Guaranty was executed by such Guarantor) and the
Borrower replaces such Guarantor with a person or entity satisfying the Funding Lender’s mortgage credit
standards for principals and acceptable to the Funding Lender in its sole and absolute discretion within
thirty (30) days after notice thereof from the Funding Lender;
(m) a final, un-appealable and uninsured money judgment or judgments, in favor of any Person
other than a Governmental Authority, in the aggregate sum of Fifty Thousand Dollars ($50,000) or more
shall be rendered against the Borrower, any General Partner or Guarantor, or against any of their respective
assets, that is not paid, superseded or stayed within thirty (30) days after entry thereof (or such longer
period as may be permitted for payment by the terms of such judgment); or any levy of execution, writ or
warrant of attachment, or similar process, is entered or filed against the Borrower, any General Partner or
Guarantor, or against any of their respective assets (that is likely to have a material adverse effect upon
the ability of the Borrower, any General Partner or Guarantor to perform their respective obligations under
this Borrower Loan Agreement, any other Borrower Loan Document or any Related Document), and such
judgment, writ, warrant or process shall remain unsatisfied, unsettled, unvacated, unhanded and unstayed
for a period of thirty (30) days, or in any event later than five (5) Business Days prior to the date of any
proposed sale thereunder, provided that any such judgment, levy, writ, warrant, attachment or similar
process against a Guarantor shall not constitute an Event of Default: (i) if such judgment, levy, writ,
warrant, attachment or similar process is entered on or after the date upon which the Guaranty terminates
in accordance with its terms (or the date upon which all of the Guaranties have terminated in accordance
with their terms, if more than one Guaranty was executed by such Guarantor), or (ii) if such judgment,
levy, writ, warrant, attachment or similar process is entered prior to the date upon which the Guaranty
terminates in accordance with its terms (or the date upon which all of the Guaranties have terminated in
accordance with their terms, if more than one Guaranty was executed by such Guarantor) and the Borrower
replaces such Guarantor with a person or entity satisfying the Funding Lender’s mortgage credit standards
for principals and acceptable to the Funding Lender in its sole and absolute discretion within thirty (30)
days after notice thereof from the Funding Lender;
(n) the Borrower shall fail to keep in force and effect any material permit, license, consent or
approval required under this Borrower Loan Agreement, or any required approval, license, or permit shall
be withdrawn or suspended, and the order, requirement, withdrawal or suspension remains in effect for a
period of thirty (30) days;
(o) a default shall occur under any of the Subordinate Loan Documents, which shall continue
beyond the expiration of all applicable notice and cure periods and which shall not be waived by the
Subordinate Lender; or
53
4894-2953-3827.5
(p) any failure by the Borrower to perform or comply with any of its obligations under this
Borrower Loan Agreement (other than those specified in this Section 8.1), as and when required, which
continues for a period of thirty (30) days after written notice of such failure by Funding Lender or the
Servicer on its behalf to the Borrower; provided, however, if such failure is susceptible of cure but cannot
reasonably be cured within such thirty (30) day period, and the Borrower shall have commenced to cure
such failure within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure
the same, such thirty (30) day period shall be extended for an additional period of time as is reasonably
necessary for the Borrower in the exercise of due diligence to cure such failure, such additional period not
to exceed sixty (60) days. However, no such notice or grace period shall apply to the extent such failure
could, in the Funding Lender’s judgment, absent immediate exercise by the Funding Lender of a right or
remedy under this Borrower Loan Agreement, result in harm to the Funding Lender, impairment of the
Permanent Phase Borrower Note or this Borrower Loan Agreement or any security given under any other
Borrower Loan Document. Notwithstanding anything to the contrary contained herein, the Equity
Investor shall have the right in its sole discretion to cure an Event of Default and the Funding Lender
agrees to accept such performance as if provided by the Borrower itself.
Section 8.2 Remedies.
Section 8.2.1 Acceleration. Upon the occurrence of an Event of Default (other than
an Event of Default described in paragraph (e), (f) or (i) of Section 8.1) and at any time and from time to
time thereafter, as long as such Event of Default continues to exist, in addition to any other rights or
remedies available to the Governmental Lender pursuant to the Borrower Loan Documents or at law or in
equity, the Funding Lender may, take such action (whether directly or by directing the actions of the Fiscal
Agent), without notice or demand, as the Funding Lender deems advisable to protect and enforce its rights
against the Borrower and in and to the Project, including declaring the Borrower Payment Obligations to
be immediately due and payable (including, without limitation, the principal of, Prepayment Premium, if
any, and interest on and all other amounts due on the Permanent Phase Borrower Note to be immediately
due and payable), without notice or demand, and apply such payment of the Borrower Payment Obligations
in any manner and in any order determined by Funding Lender, in Funding Lender’s sole and absolute
discretion; and upon any Event of Default described in paragraph (e), (f) or (i) of Section 8.1, the Borrower
Payment Obligations shall become immediately due and payable, without notice or demand, and the
Borrower hereby expressly waives any such notice or demand, anything contained in any Borrower Loan
Document to the contrary notwithstanding. Notwithstanding anything herein to the contrary, enforcement
of remedies hereunder and under the Funding Loan Agreement shall be controlled by the Funding Lender.
Section 8.2.2 Remedies Cumulative. Upon the occurrence of an Event of Default,
all or any one or more of the rights, powers, privileges and other remedies available to the Funding Lender
or the Fiscal Agent against the Borrower under the Borrower Loan Documents or at law or in equity may
be exercised by the Funding Lender, at any time and from time to time, whether or not all or any of the
Borrower Payment Obligations shall be declared due and payable, and whether or not the Funding Lender
shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and
remedies under any of the Borrower Loan Documents. Any such actions taken by the Funding Lender shall
be cumulative and concurrent and may be pursued independently, singly, successively, together or
otherwise, at such time and in such order as the Funding Lender may determine in its sole discretion, to the
fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of
the Funding Lender permitted by law, equity or contract or as set forth in the Borrower Loan Documents.
Without limiting the generality of the foregoing, the Borrower agrees that if an Event of Default is
continuing, all Liens and other rights, remedies or privileges provided to the Funding Lender shall remain
in full force and effect until it has exhausted all of its remedies, the Security Instrument has been foreclosed,
the Project has been sold and/or otherwise realized upon satisfaction of the Borrower Payment Obligations
or the Borrower Payment Obligations have been paid in full. To the extent permitted by applicable law,
54
4894-2953-3827.5
nothing contained in any Borrower Loan Document shall be construed as requiring the Funding Lender to
resort to any portion of the Project for the satisfaction of any of the Borrower Payment Obligations in
preference or priority to any other portion, and the Funding Lender may seek satisfaction out of the entire
Project or any part thereof, in its absolute discretion.
Notwithstanding any provision herein to the contrary, the Governmental Lender, the Fiscal Agent
and the Funding Lender agree that any cure of any default made or tendered by the Equity Investor shall be
deemed to be a cure by the Borrower and shall be accepted or rejected on the same basis as if made or
tendered by the Borrower.
Section 8.2.3 Delay. No delay or omission to exercise any remedy, right, power
accruing upon an Event of Default, or the granting of any indulgence or compromise by the Funding Lender
or the Fiscal Agent shall impair any such remedy, right or power hereunder or be construed as a waiver
thereof, but any such remedy, right or power may be exercised from time to time and as often as may be
deemed expedient. A waiver of one Potential Default or Event of Default shall not be construed to be a
waiver of any subsequent Potential Default or Event of Default or to impair any remedy, right or power
consequent thereon. Notwithstanding any other provision of this Borrower Loan Agreement, the Funding
Lender and the Fiscal Agent reserve the right to seek a deficiency judgment or preserve a deficiency claim,
in connection with the foreclosure of the Security Instrument to the extent necessary to foreclose on the
Project, the Rents, the funds or any other collateral.
Section 8.2.4 Setoff; Waiver of Setoff. Upon the occurrence of an Event of Default,
the Funding Lender may, at any time and from time to time, without notice to the Borrower or any other
Person (any such notice being expressly waived), set off and appropriate and apply (against and on account
of any obligations and liabilities of the Borrower to the Funding Lender or the Fiscal Agent arising under
or connected with this Borrower Loan Agreement and the other Borrower Loan Documents and the Funding
Loan Documents, irrespective of whether or not the Funding Lender shall have made any demand therefor,
and although such obligations and liabilities may be contingent or unmatured), and the Borrower hereby
grants to the Funding Lender, as security for the Borrower Payment Obligations, a security interest in, any
and all deposits (general or special, including but not limited to Debt evidenced by certificates of deposit,
whether matured or unmatured, but not including trust accounts) and any other Debt at any time held or
owing by the Funding Lender to or for the credit or the account of the Borrower.
Section 8.2.5 Assumption of Obligations. In the event that the Funding Lender, the
Fiscal Agent or the assignee or designee of either shall become the legal or beneficial owner of the Project
by foreclosure or deed in lieu of foreclosure, such party shall succeed to the rights and the obligations of
the Borrower under this Borrower Loan Agreement, the Permanent Phase Borrower Note, the Regulatory
Agreement, and any other Borrower Loan Documents and Funding Loan Documents to which the Borrower
is a party. Such assumption shall be effective from and after the effective date of such acquisition and shall
be made with the benefit of the limitations of liability set forth therein and without any liability for the prior
acts of the Borrower.
Section 8.2.6 Accounts Receivable. Upon the occurrence of an Event of Default, the
Funding Lender shall have the right, to the extent permitted by law, to impound and take possession of
books, records, notes and other documents evidencing the Borrower’s accounts, accounts receivable and
other claims for payment of money, arising in connection with the Project, and to make direct collections
on such accounts, accounts receivable and claims for the benefit of Funding Lender.
Section 8.2.7 Defaults under Other Documents. The Funding Lender shall have the
right to cure any default under any of the Related Documents and Subordinate Loan Documents, but shall
have no obligation to do so.
55
4894-2953-3827.5
Section 8.2.8 Reserved.
Section 8.2.9 Reserved.
Section 8.2.10 Right to Directly Enforce. Notwithstanding any other provision hereof
to the contrary, the Funding Lender shall have the right to directly enforce all rights and remedies hereunder
with or without involvement of the Governmental Lender or the Fiscal Agent, provided that only the
Governmental Lender may enforce the Unassigned Rights. In the event that any of the provisions set forth
in this Section 8.2.10 are inconsistent with the covenants, terms and conditions of the Security Instrument,
the covenants, terms and conditions of the Security Instrument shall prevail.
Section 8.2.11 Power of Attorney. Effective upon the occurrence of an Event of
Default, and continuing until and unless such Event of Default is cured or waived, the Borrower hereby
constitutes and appoints Funding Lender, or an independent contractor selected by the Funding Lender, as
its true and lawful attorney-in-fact with full power of substitution, for the purposes of completion of the
Project and performance of the Borrower’s obligations under this Borrower Loan Agreement in the name
of the Borrower, and hereby empowers said attorney-in-fact to do any or all of the following upon the
occurrence and continuation of an Event of Default (it being understood and agreed that said power of
attorney shall be deemed to be a power coupled with an interest which cannot be revoked until full payment
and performance of all obligations under this Borrower Loan Agreement and the other Borrower Loan
Documents and the Funding Loan Documents):
(a) to employ attorneys to defend against attempts to interfere with the exercise of power
granted hereby;
(b) to pay, settle or compromise all existing bills and claims which are or may be liens against
the Project or the Improvements, or may be necessary or desirable for the completion of the construction
or rehabilitation, as the case may be, of the Improvements, or clearance of objections to or encumbrances
on title;
(c) to execute all applications and certificates in the name of the Borrower, which may be
required by any other construction contract;
(d) to prosecute and defend all actions or proceedings in connection with the Project and to
take such action, require such performance and do any and every other act as is deemed necessary with
respect to the completion of the construction or rehabilitation, as the case may be, of the Improvements,
which the Borrower might do on its own behalf;
(e) to let new or additional contracts to the extent not prohibited by their existing contracts;
(f) to employ watchmen and erect security fences to protect the Project from injury; and
(g) to take such action and require such performance as it deems necessary under any of the
bonds or insurance policies to be furnished hereunder, to make settlements and compromises with the
sureties or insurers thereunder, and in connection therewith to execute instruments of release and
satisfaction.
It is the intention of the parties hereto that upon the occurrence and continuance of an Event of
Default, rights and remedies may be pursued pursuant to the terms of the Borrower Loan Documents and
the Funding Loan Documents. The parties hereto acknowledge that, among the possible outcomes to the
pursuit of such remedies, is the situation where the Funding Lender assignees or designees become the
56
4894-2953-3827.5
owner of the Project and assume the obligations identified above, and the Permanent Phase Borrower Note,
the Permanent Phase Borrower Loan and the other Borrower Loan Documents and Funding Loan
Documents remain outstanding.
ARTICLE IX
SPECIAL PROVISIONS
Section 9.1 Sale of Note and Secondary Market Transaction.
Section 9.1.1 Cooperation. Subject to the restrictions of Section 2.5 and Section 2.6
of the Funding Loan Agreement, at the Funding Lender’s or the Servicer’s request (to the extent not already
required to be provided by the Borrower under this Borrower Loan Agreement), the Borrower shall use
reasonable efforts to satisfy the market standards to which the Funding Lender or the Servicer customarily
adheres or which may be reasonably required in the marketplace or by the Funding Lender or the Servicer
in connection with one or more permitted sales or assignments of all or a portion of the Governmental
Lender Note or participations therein or securitizations of single or multi-class securities (the “Securities”)
secured by or evidencing ownership interests in all or a portion of the Permanent Phase Borrower Loan
(each such sale, assignment and/or securitization, a “Secondary Market Transaction”); provided that the
Borrower shall not incur any third party or other out-of-pocket costs and expenses in connection with a
Secondary Market Transaction, including the costs associated with the delivery of any Provided
Information or any opinion required in connection therewith, and all such costs shall be paid by the Funding
Lender or the Servicer, and shall not materially modify the Borrower’s rights or obligations. Without
limiting the generality of the foregoing, the Borrower shall, so long as the Permanent Phase Borrower Loan
is still outstanding:
(a) (i) provide such financial and other information with respect to the Permanent Phase
Borrower Loan, and with respect to the Project, the Borrower, the Property Manager, the contractor of the
Project or the Borrower Controlling Entity, (ii) provide financial statements, audited, if available, relating
to the Project with customary disclaimers for any forward looking statements or lack of audit, and (iii),
at the expense of the Funding Lender or the Servicer, perform or permit or cause to be performed or
permitted such site inspection, appraisals, surveys, market studies, environmental reviews and reports
(Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of
the Project, as may be reasonably requested from time to time by the Funding Lender or the Servicer or
the Rating Agencies or as may be necessary or appropriate in connection with a Secondary Market
Transaction or Exchange Act requirements (the items provided to the Funding Lender or the Servicer
pursuant to this paragraph (a) being called the “Provided Information”), together, if customary, with
appropriate verification of and/or consents (including, without limitation, auditor consents) to include or
incorporate by reference the Provided Information in an offering document or otherwise provided the
Provided Information to investors and potential investors or opinions of counsel of independent attorneys
acceptable to the Funding Lender or the Servicer and the Rating Agencies;
(b) make such representations and warranties as of the closing date of any Secondary Market
Transaction with respect to the Project, the Borrower, the Borrower Loan Documents and the Funding
Loan Documents reasonably acceptable to the Funding Lender or the Servicer, consistent with the facts
covered by such representations and warranties as they exist on the date thereof; and
(c) execute such amendments to the Borrower Loan Documents and the Funding Loan
Documents to accommodate such Secondary Market Transaction so long as such amendment does not
affect the economic terms of the Borrower Loan Documents and the Funding Loan Documents, does not
impose any additional administrative burden on the Borrower, and is not otherwise adverse to the
Borrower in its reasonable discretion.
57
4894-2953-3827.5
Section 9.1.2 Use of Information. The Borrower understands that certain of the
Provided Information and the required records may be included in disclosure documents in connection with
a Secondary Market Transaction, including a prospectus or private placement memorandum (each, a
“Secondary Market Disclosure Document”), or provided or made available to investors or prospective
investors in the Securities, the Rating Agencies and service providers or other parties relating to the
Secondary Market Transaction. In the event that the Secondary Market Disclosure Document is required
to be revised, the Borrower shall cooperate, subject to Section 9.1.1(c) hereof, with the Funding Lender and
the Servicer in updating the Provided Information or required records for inclusion or summary in the
Secondary Market Disclosure Document or for other use reasonably required in connection with a
Secondary Market Transaction by providing all current information pertaining to the Borrower and the
Project necessary to keep the Secondary Market Disclosure Document accurate and complete in all material
respects with respect to such matters. The Borrower hereby consents to any and all such disclosures of
such information.
Section 9.1.3 Borrower Obligations Regarding Secondary Market Disclosure
Documents. In connection with a Secondary Market Disclosure Document, the Borrower shall provide, or
in the case of a Borrower-engaged third party such as the Property Manager, cause it to provide, information
reasonably requested by the Funding Lender pertaining to the Borrower, the Project or such third party (and
portions of any other sections reasonably requested by the Funding Lender pertaining to the Borrower, the
Project or the third party); provided that the Borrower shall not be required to incur any third party or other
out of pocket costs or expenses in connection therewith. The Borrower shall, if requested by the Funding
Lender and the Servicer, certify in writing that the Borrower has carefully examined those portions of such
Secondary Market Disclosure Document, pertaining to the Borrower, the Project or the Property Manager,
and such portions (and portions of any other sections reasonably requested and pertaining to the Borrower,
the Project or the Property Manager) do not contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements made, in the light of the circumstances under
which they were made, not misleading; provided that the Borrower shall not be required to make any
representations or warranties regarding any Provided Information obtained from a third party except with
respect to information it provided to such parties. Furthermore, the Borrower hereby indemnifies the
Funding Lender and the Servicer for any Liabilities to which any such parties may become subject to the
extent such Liabilities arise out of or are based upon a misrepresentation by the Borrower in the Provided
Information in a Secondary Market Disclosure Document; provided that the Borrower shall not provide any
indemnification regarding any Provided Information obtained from unrelated third parties (except with
respect to the information it provided to such parties).
Section 9.1.4 Borrower Indemnity Regarding Filings. In connection with filings
under the Exchange Act or the Securities Act, the Borrower shall (i) indemnify the Funding Lender, the
Governmental Lender, the Fiscal Agent, the underwriter group for any securities (the “Underwriter Group”)
for any Liabilities to which Funding Lender, the Governmental Lender, the Fiscal Agent, the Servicer or
the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the
omission or alleged omission to state in the Provided Information of a material fact required to be stated in
the Provided Information in order to make the statements in the Provided Information, in the light of the
circumstances under which they were made not misleading and (ii) reimburse the Funding Lender, the
Servicer, the Governmental Lender, the Fiscal Agent, the Underwriter Group and other indemnified parties
listed above for any legal or other expenses reasonably incurred by the Funding Lender, the Governmental
Lender, the Fiscal Agent, the Servicer or the Underwriter Group in connection with defending or
investigating the Liabilities; provided that the Borrower shall not provide any indemnification regarding
any Provided Information obtained from unrelated third parties except with respect to information it
provided to such parties.
58
4894-2953-3827.5
Section 9.1.5 Indemnification Procedure. Promptly after receipt by an indemnified
party under Sections 9.1.3 and 9.1.4 hereof of notice of the commencement of any action for which a claim
for indemnification is to be made against the Borrower, such indemnified party shall notify the Borrower
in writing of such commencement, but the omission to so notify the Borrower will not relieve the Borrower
from any liability that it may have to any indemnified party hereunder except to the extent that failure to
notify causes prejudice to the Borrower. In the event that any action is brought against any indemnified
party, and it notifies the Borrower of the commencement thereof, the Borrower will be entitled, jointly with
any other indemnifying party, to participate therein and, to the extent that it (or they) may elect by Written
Notice delivered to the indemnified party promptly after receiving the aforesaid notice of commencement,
to assume the defense thereof with counsel selected by the Borrower and reasonably satisfactory to such
indemnified party in its sole discretion. After notice from the Borrower to such indemnified party under
this Section 9.1.5, the Borrower shall not be responsible for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof other than reasonable costs of
investigation. No indemnified party shall settle or compromise any claim for which the Borrower may be
liable hereunder without the prior Written Consent of the Borrower.
Section 9.1.6 Contribution. In order to provide for just and equitable contribution
in circumstances in which the indemnity agreement provided for in Section 9.1.4 hereof is for any reason
held to be unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof)
referred to therein which would otherwise be indemnifiable under Section 9.1.4 hereof, the Borrower shall
contribute to the amount paid or payable by the indemnified party as a result of such Liabilities (or action
in respect thereof); provided, however, that no Person guilty of fraudulent misrepresentation (within the
meaning of Section 10(f) of the Securities Act) shall be entitled to contribution from any Person not guilty
of such fraudulent misrepresentation. In determining the amount of contribution to which the respective
parties are entitled, the following factors shall be considered: (i) the indemnified parties and the Borrower’s
relative knowledge and access to information concerning the matter with respect to which the claim was
asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable
considerations appropriate in the circumstances. The parties hereto hereby agree that it may not be equitable
if the amount of such contribution were determined by pro rata or per capita allocation.
ARTICLE X
MISCELLANEOUS
Section 10.1 Notices. All notices, consents, approvals and requests required or permitted
hereunder or under any other Borrower Loan Document or Funding Loan Document (a “notice”) shall be
deemed to be given and made when delivered by hand, by recognized overnight delivery service,
confirmed facsimile transmission (provided any telecopy or other electronic transmission received by any
party after 4:00 p.m., local time, as evidenced by the time shown on such transmission, shall be deemed
to have been received the following Business Day), or five (5) calendar days after deposited in the United
States mail, registered or certified, postage prepaid, with return receipt requested, addressed as follows:
If to the Borrower: Vista Breeze HACMB, Inc.
c/o Atlantic Pacific Communities, LLC
161 NW 6th Street, Suite 1020
Miami, Florida 33136
Attention: Kenneth Naylor
Telephone: (305) 357-4700
Email: knaylor@apcompanies.com
59
4894-2953-3827.5
with a copy to: Klein Hornig LLP
1325 G. Street NW, Suite 770
Washington, DC 20005
Attention: Chris Hornig
Email: chornig@kleinhornig.com
Tel: (202) 926-3402
Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
(which copy shall not constitute notice to Borrower)
150 W. Flagler Street
Miami, Florida 33130
Attention: Brian McDonough, Esq.
Email: bmcdonough@stearnsweaver.com
Telephone: (305) 789-3350
with a copy to: Vista Breeze, Ltd.
c/o Atlantic Pacific Communities, LLC
161 NW 6th Street, Suite 1020
Miami, Florida 33136
Attention: Kenneth Naylor
Telephone: (305) 357-4700
Email: knaylor@apcompanies.com
with a copy to: Klein Hornig LLP
1325 G. Street NW, Suite 770
Washington, DC 20005
Attention: Chris Hornig
Email: chornig@kleinhornig.com
Tel: (202) 926-3402
Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
(which copy shall not constitute notice to Borrower)
150 W. Flagler Street
Miami, Florida 33130
Attention: Brian McDonough, Esq.
Email: bmcdonough@stearnsweaver.com
Telephone: (305) 789-3350
Fox Rothschild LLP
BNY Mellon Center
500 Grant Street, Suite 2500
Pittsburg, Pennsylvania 15219
Attention: Alec Stone
Email: ajstone@foxrothschild.com
Telephone: (412) 391-2523
60
4894-2953-3827.5
with copy to: Bank of America, N.A.
MA5-100-04-11
100 Federal Street
Boston, MA 02110
Attention: Tax Credit Asset Management (Vista Breeze)
Email: LIHTCreporting@bofa.com
with copy to: Holland & Knight LLP
10 St. James Avenue
Boston, MA 02116
Attention: Sara C. Heskett, Esq.
Email: sara.heskett@hklaw.com
If to the Governmental Lender: Housing Finance Authority of Miami-Dade County, Florida
7855 NW 12th Street, Suite 202
Doral, Florida 33126
Attention: Cheree Gulley, Executive Director
Facsimile: (305) 392-2722
Email: cgulley@hfamiami.com
and a copy to: Miami-Dade County Attorney’s Office
111 N.W. First Street
Suite 2810
Orlando, Florida 32801
Attention: David S. Hope, Esq.
Email: dhope@miamidade.gov
If to Funding Lender:
Citibank, N.A.
388 Greenwich Street, Trading 4th Floor
New York, New York 10013
Attention: Transaction and Asset Management Group
Re: Vista Breeze
Deal ID# _____________
Facsimile: (212) 723-8209
61
4894-2953-3827.5
with a copy to:
:
Citibank, N.A.
325 East Hillcrest Drive, Suite 160
Thousand Oaks, California 91360
Attention: Operations Manager/Asset Manager
Re: Vista Breeze
Deal ID# ___________
Facsimile: (805) 557-0924
and
Citibank, N.A
c/o Berkadia Commercial Mortgage LLC
323 Norristown Road, Suite 300
Ambler, Pennsylvania 19002
Attention: Client Relations Manager
Re: Vista Breeze
Deal ID# _____________
Facsimile: (215) 328-0305
And a copy of any notices of
default sent to:
Citibank, N.A.
388 Greenwich Street, 17th Floor
New York, New York 10013
Attention: General Counsel’s Office
Re: Vista Breeze
Deal ID# _____________
Facsimile: (646) 291-5754
If to Fiscal Agent: The Bank of New York Mellon Trust Company, N.A.
4655 Salisbury Road, Suite 300
Jacksonville, Florida 33256
Attention: Corporate Trust Department
Email: heidi.bowers@bnymellon.com
Telephone: (904) 645-1983
Any party may change such party’s address for the notice or demands required under this Borrower
Loan Agreement by providing written notice of such change of address to the other parties by written notice
as provided herein.
The Fiscal Agent shall have the right to accept and act upon instructions, including funds transfer
instructions (“Instructions”) given pursuant to this Borrower Loan Agreement and related financing
documents and delivered using Electronic Means; provided, however, that Borrower, and/or the
Governmental Lender, as applicable, or and such other party giving such instruction (the “Sender”) shall
provide to the Fiscal Agent an incumbency certificate listing officers with the authority to provide such
Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers,
which incumbency certificate shall be amended by Governmental Lender and/or the Borrower, as
applicable, the Sender whenever a person is to be added or deleted from the listing. ”Electronic Means”
shall mean the following communications methods: S.W.I.F.T., e-mail, facsimile transmission, secure
electronic transmission containing applicable authorization codes, passwords and/or authentication keys
issued by the Fiscal Agent, or another method or system specified by the Fiscal Agent as available for use
in connection with its services hereunder. If the Governmental Lender and/or the Borrower, as applicable,
62
4894-2953-3827.5
elects to give the Fiscal Agent Instructions using Electronic Means and the Fiscal Agent in its discretion
elects to act upon such Instructions, the Fiscal Agent’s understanding of such Instructions shall be deemed
controlling. The Governmental Lender and the Borrower understand and agree that the Fiscal Agent cannot
determine the identity of the actual sender of such Instructions and that the Fiscal Agent shall conclusively
presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency
certificate provided to the Fiscal Agent have been sent by such Authorized Officer. The Governmental
Lender and the Borrower shall be responsible for ensuring that only Authorized Officers transmit such
Instructions to the Fiscal Agent and that the Governmental Lender, the Borrower and all Authorized
Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization
codes, passwords and/or authentication keys upon receipt by the Governmental Lender and/or the Borrower,
as applicable. The Fiscal Agent shall not be liable for any losses, costs or expenses arising directly or
indirectly from the Fiscal Agent’s reliance upon and compliance with such Instructions notwithstanding
such directions conflict or are inconsistent with a subsequent written instruction. The Governmental Lender
and the Borrower agree: (i) to assume all risks arising out of the use of Electronic Means to submit
Instructions to the Fiscal Agent, including without limitation the risk of the Fiscal Agent acting on
unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully
informed of the protections and risks associated with the various methods of transmitting Instructions to
the Fiscal Agent and that there may be more secure methods of transmitting Instructions than the method(s)
selected by the Governmental Lender and/or the Borrower, as applicable; (iii) that the security procedures
(if any) to be followed in connection with its transmission of Instructions provide to it a commercially
reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the
Fiscal Agent immediately upon learning of any compromise or unauthorized use of the security procedures.
Section 10.2 Brokers and Financial Advisors. The Borrower hereby represents that it has
dealt with no financial advisors, brokers, underwriters, placement agents, agents or finders in connection
with the Permanent Phase Borrower Loan, other than those disclosed to the Funding Lender and whose
fees shall be paid by the Borrower pursuant to separate agreements. The Borrower and the Funding
Lender shall indemnify and hold the other harmless from and against any and all claims, liabilities, costs
and expenses of any kind in any way relating to or arising from a claim by any Person that such Person
acted on behalf of the indemnifying party in connection with the transactions contemplated herein. The
provisions of this Section 10.2 shall survive the expiration and termination of this Borrower Loan
Agreement and the repayment of the Borrower Payment Obligations.
Section 10.3 Survival. This Borrower Loan Agreement and all covenants, agreements,
representations and warranties made herein and in the certificates delivered pursuant hereto shall survive
the making by the Governmental Lender of the Permanent Phase Borrower Loan and the execution and
delivery to the Governmental Lender of the Permanent Phase Borrower Note and the assignment of the
Permanent Phase Borrower Note to the Funding Lender, and shall continue in full force and effect so
long as all or any of the Borrower Payment Obligations is unpaid. All the Borrower’s covenants and
agreements in this Borrower Loan Agreement shall inure to the benefit of the respective legal
representatives, successors and assigns of the Governmental Lender, the Fiscal Agent the Funding Lender
and the Servicer.
Section 10.4 Preferences. To the extent the Borrower makes a payment to the Governmental
Lender, the Fiscal Agent or the Servicer, or the Governmental Lender, the Fiscal Agent or the Servicer
receives proceeds of any collateral, which is in whole or part subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under
any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such
payment or proceeds received, the Borrower Payment Obligations or part thereof intended to be satisfied
shall be revived and continue in full force and effect, as if such payment or proceeds had not been received
by the Governmental Lender or the Servicer. In furtherance of the preceding sentence, the Governmental
63
4894-2953-3827.5
Lender shall have the continuing and exclusive right to apply or reverse and reapply any and all payments
by the Borrower to any portion of the Borrower Payment Obligations.
Section 10.5 Waiver of Notice. The Borrower shall not be entitled to any notices of any
nature whatsoever from the Funding Lender, the Fiscal Agent or the Servicer except with respect to
matters for which this Borrower Loan Agreement or any other Borrower Loan Document specifically and
expressly provides for the giving of notice by the Funding Lender, the Fiscal Agent or the Servicer, as
the case may be, to the Borrower and except with respect to matters for which the Borrower is not,
pursuant to applicable Legal Requirements, permitted to waive the giving of notice. The Borrower hereby
expressly waives the right to receive any notice from the Funding Lender, the Fiscal Agent or the Servicer,
as the case may be, with respect to any matter for which no Borrower Loan Document specifically and
expressly provides for the giving of notice by the Funding Lender, the Fiscal Agent or the Servicer to the
Borrower.
Section 10.6 Offsets, Counterclaims and Defenses. The Borrower hereby waives the right
to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought
against it by the Funding Lender, the Fiscal Agent, the Governmental Lender or the Servicer with respect
to a Borrower Loan Payment. Any assignee of the Funding Lender’s, the Governmental Lender’s or the
Fiscal Agent’s interest in and to the Borrower Loan Documents or the Funding Loan Documents shall
take the same free and clear of all offsets, counterclaims or defenses that are unrelated to the Borrower
Loan Documents or the Funding Loan Documents which the Borrower may otherwise have against any
assignor of such documents, and no such unrelated offset, counterclaim or defense shall be interposed or
asserted by the Borrower in any action or proceeding brought by any such assignee upon such documents,
and any such right to interpose or assert any such unrelated offset, counterclaim or defense in any such
action or proceeding is hereby expressly waived by the Borrower.
Section 10.7 Publicity. The Funding Lender and the Servicer (and any Affiliates of either
party) shall have the right to issue press releases, advertisements and other promotional materials
describing the Funding Lender’s or the Servicer’s participation in the making of the Permanent Phase
Borrower Loan or the Permanent Phase Borrower Loan’s inclusion in any Secondary Market Transaction
effectuated by the Funding Lender or the Servicer or one of its or their Affiliates. All news releases,
publicity or advertising by the Borrower or its Borrower Affiliates through any media intended to reach
the general public, which refers to the Borrower Loan Documents or the Funding Loan Documents, the
Permanent Phase Borrower Loan, the Funding Lender or the Servicer in a Secondary Market Transaction,
shall be subject to the prior Written Consent of the Funding Lender or the Servicer, as applicable.
Section 10.8 Construction of Documents. The parties hereto acknowledge that they were
represented by counsel in connection with the negotiation and drafting of the Borrower Loan Documents
and the Funding Loan Documents and that the Borrower Loan Documents and the Funding Loan
Documents shall not be subject to the principle of construing their meaning against the party that drafted
them.
Section 10.9 No Third Party Beneficiaries. The Borrower Loan Documents and the Funding
Loan Documents are solely for the benefit of the Governmental Lender, the Funding Lender, the Fiscal
Agent, the Servicer and the Borrower and, with respect to Sections 9.1.3 and 9.1.4 hereof, the Underwriter
Group, and nothing contained in any Borrower Loan Document shall be deemed to confer upon anyone
other than the Governmental Lender, the Funding Lender, the Fiscal Agent, the Servicer, and the
64
4894-2953-3827.5
Borrower any right to insist upon or to enforce the performance or observance of any of the obligations
contained therein.
Section 10.10 Assignment. The Permanent Phase Borrower Loan, the Security Instrument, the
Borrower Loan Documents and the Funding Loan Documents and all Funding Lender’s or Fiscal Agent’s
rights, title, obligations and interests therein may be assigned by the Funding Lender or the Fiscal Agent,
as appropriate, at any time in its sole discretion, whether by operation of law (pursuant to a merger or
other successor in interest) or otherwise, subject to the requirements of Article II of the Funding Loan
Agreement. Upon such assignment, all references to Funding Lender or the Fiscal Agent, as appropriate,
in this Borrower Loan Agreement and in any Borrower Loan Document shall be deemed to refer to such
assignee or successor in interest and such assignee or successor in interest shall thereafter stand in the
place of the Funding Lender or the Fiscal Agent, as appropriate. The Borrower shall accord full
recognition to any such assignment, and all rights and remedies of Funding Lender in connection with
the interest so assigned shall be as fully enforceable by such assignee as they were by Funding Lender
before such assignment. In connection with any proposed assignment, Funding Lender may disclose to
the proposed assignee any information that Borrower has delivered, or caused to be delivered, to Funding
Lender with reference to the Borrower, General Partner, Guarantor or any Borrower Affiliate, or the
Project, including information that the Borrower is required to deliver to Funding Lender pursuant to this
Borrower Loan Agreement, provided that such proposed assignee agrees to treat such information as
confidential. The Borrower may not assign its rights, interests or obligations under this Borrower Loan
Agreement or under any of the Borrower Loan Documents or Funding Loan Documents, or the
Borrower’s interest in any moneys to be disbursed or advanced hereunder, except only as may be
expressly permitted hereby.
Section 10.11 Governmental Lender, Funding Lender, Fiscal Agent and Servicer Not in
Control; No Partnership. None of the covenants or other provisions contained in this Borrower Loan
Agreement shall, or shall be deemed to, give the Governmental Lender, the Funding Lender, the Fiscal
Agent or the Servicer the right or power to exercise control over the affairs or management of the
Borrower, the power of the Governmental Lender, the Funding Lender and the Servicer being limited to
the rights to exercise the remedies referred to in the Borrower Loan Documents and the Funding Loan
Documents. The relationship between the Borrower and the Governmental Lender, the Funding Lender,
the Fiscal Agent and the Servicer is, and at all times shall remain, solely that of debtor and creditor. No
covenant or provision of the Borrower Loan Documents or the Funding Loan Documents is intended, nor
shall it be deemed or construed, to create a partnership, joint venture, agency or common interest in profits
or income between the Borrower and the Governmental Lender, the Funding Lender, the Fiscal Agent or
the Servicer or to create an equity interest in the Project in the Governmental Lender, the Funding Lender,
the Fiscal Agent or the Servicer. Neither the Governmental Lender, the Funding Lender, the Fiscal Agent
nor the Servicer undertakes or assumes any responsibility or duty to the Borrower or to any other person
with respect to the Project or the Permanent Phase Borrower Loan, except as expressly provided in the
Borrower Loan Documents or the Funding Loan Documents; and notwithstanding any other provision of
the Borrower Loan Documents and the Funding Loan Documents: (1) the Governmental Lender, the
Funding Lender, the Fiscal Agent and the Servicer are not, and shall not be construed as, a partner, joint
venturer, alter ego, manager, controlling person or other business associate or participant of any kind of
the Borrower or its stockholders, members, or partners and the Governmental Lender, the Funding
Lender, the Fiscal Agent and the Servicer do not intend to ever assume such status; (2) the Governmental
Lender, the Funding Lender, the Fiscal Agent and the Servicer shall in no event be liable for any the
Borrower Payment Obligations, expenses or losses incurred or sustained by the Borrower; and (3) the
Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer shall not be deemed
responsible for or a participant in any acts, omissions or decisions of the Borrower, the Borrower
Controlling Entities or its stockholders, members, or partners. The Governmental Lender, the Funding
Lender, the Fiscal Agent and the Servicer and the Borrower disclaim any intention to create any
65
4894-2953-3827.5
partnership, joint venture, agency or common interest in profits or income between the Governmental
Lender, the Funding Lender, the Fiscal Agent, the Servicer and the Borrower, or to create an equity
interest in the Project in the Governmental Lender, the Funding Lender, the Fiscal Agent or the Servicer,
or any sharing of liabilities, losses, costs or expenses.
Section 10.12 Release. The Borrower hereby acknowledges that it is executing this Borrower
Loan Agreement and each of the Borrower Loan Documents and the Funding Loan Documents to which
it is a party as its own voluntary act free from duress and undue influence.
Section 10.13 Term of the Amended and Restated Borrower Loan Agreement. This
Borrower Loan Agreement shall be in full force and effect until all payment obligations of the Borrower
hereunder have been paid in full and the Permanent Phase Borrower Loan and the Funding Loan have
been retired or the payment thereof has been provided for; except that on and after payment in full of the
Permanent Phase Borrower Note, this Borrower Loan Agreement shall be terminated, without further
action by the parties hereto; provided, however, that the obligations of the Borrower under Sections 5.12,
5.15, 5.16, 9.1.4, 9.1.5, 9.1.6 and 10.14 hereof shall survive the termination of this Borrower Loan
Agreement.
Section 10.14 Reimbursement of Expenses. If, upon or after the occurrence of any Event of
Default or Potential Default, the Governmental Lender, the Funding Lender, the Fiscal Agent or the
Servicer shall employ attorneys or incur other expenses for the enforcement of performance or observance
of any obligation or agreement on the part of the Borrower contained herein, the Borrower will on demand
therefor reimburse the Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer for
fees of such attorneys and such other expenses so incurred.
Section 10.15 Permitted Contests. Notwithstanding anything to the contrary contained in this
Borrower Loan Agreement, Borrower shall have the right to contest or object in good faith to any claim,
demand, levy or assessment (other than in respect of Debt or Contractual Obligations of Borrower under
any Borrower Loan Document or Related Document) by appropriate legal proceedings that are not
prejudicial to Funding Lender’s rights, but this shall not be deemed or construed as in any way relieving,
modifying or providing any extension of time with respect to the Borrower’s covenant to pay and comply
with any such claim, demand, levy or assessment, unless the Borrower shall have given prior Written
Notice to the Governmental Lender and the Funding Lender of the Borrower’s intent to so contest or
object thereto, and unless (i) the Borrower has, in the Funding Lender’s judgment, a reasonable basis for
such contest, (ii) the Borrower pays when due any portion of the claim, demand, levy or assessment to
which the Borrower does not object, (iii) the Borrower demonstrates to Funding Lender’s reasonable
satisfaction that such legal proceedings shall conclusively operate to prevent enforcement prior to final
determination of such proceedings, (iv) if required by the Funding Lender, the Borrower furnishes such
bond, surety, undertaking or other security in connection therewith as required by law, or as reasonably
requested by and satisfactory to Funding Lender, to stay such proceeding, which bond, surety,
undertaking or other security shall be issued by a bonding company, insurer or surety company reasonably
satisfactory to Funding Lender and shall be sufficient to cause the claim, demand, levy or assessment to
be insured against by the Title Company or removed as a lien against the Project, (v) the Borrower at all
times prosecutes the contest with due diligence, and (vi) the Borrower pays, promptly following a
determination of the amount of such claim, demand, levy or assessment due and owing by the Borrower,
the amount so determined to be due and owing by the Borrower. In the event that the Borrower does not
make, promptly following a determination of the amount of such claim, demand, levy or assessment due
and owing by the Borrower, any payment required to be made pursuant to clause (vi) of the preceding
sentence, an Event of Default shall have occurred, and Funding Lender may draw or realize upon any
66
4894-2953-3827.5
bond or other security delivered to Funding Lender in connection with the contest by the Borrower, in
order to make such payment.
Section 10.16 Funding Lender Approval of Instruments and Parties. All proceedings taken
in accordance with transactions provided for herein, and all surveys, appraisals and documents required
or contemplated by this Borrower Loan Agreement and the persons responsible for the execution and
preparation thereof, shall be satisfactory to and subject to approval by the Funding Lender. The Funding
Lender’s approval of any matter in connection with the Project shall be for the sole purpose of protecting
the security and rights of the Funding Lender. No such approval shall result in a waiver of any default
of the Borrower. In no event shall the Funding Lender’s approval be a representation of any kind with
regard to the matter being approved.
Section 10.17 Funding Lender Determination of Facts. The Funding Lender shall at all times
be free to establish independently, to its reasonable satisfaction, the existence or nonexistence of any fact
or facts, the existence or nonexistence of which is a condition of this Borrower Loan Agreement.
Section 10.18 Calendar Months. With respect to any payment or obligation that is due or
required to be performed within a specified number of Calendar Months after a specified date, such
payment or obligation shall become due on the day in the last of such specified number of Calendar
Months that corresponds numerically to the date so specified; provided, however, that with respect to any
obligation as to which such specified date is the 29th, 30th or 31st day of any Calendar Month: if the
Calendar Month in which such payment or obligation would otherwise become due does not have a
numerically corresponding date, such obligation shall become due on the first day of the next succeeding
Calendar Month.
Section 10.19 Determinations by Lender. Except to the extent expressly set forth in this
Borrower Loan Agreement to the contrary, in any instance where the consent or approval of the
Governmental Lender and the Funding Lender may be given or is required, or where any determination,
judgment or decision is to be rendered by the Governmental Lender and the Funding Lender under this
Borrower Loan Agreement, the granting, withholding or denial of such consent or approval and the
rendering of such determination, judgment or decision shall be made or exercised by the Governmental
Lender and the Funding Lender, as applicable (or its designated representative) at its sole and exclusive
option and in its sole and absolute discretion.
Section 10.20 Governing Law. This Borrower Loan Agreement shall be governed by and
enforced in accordance with the laws of the State, without giving effect to the choice of law principles of
the State that would require the application of the laws of a jurisdiction other than the State.
Section 10.21 Consent to Jurisdiction and Venue. The Borrower agrees that any controversy
arising under or in relation to this Borrower Loan Agreement shall be litigated exclusively in the county
in which the Project is located. The state and federal courts and authorities with jurisdiction in the State
shall have exclusive jurisdiction over all controversies which shall arise under or in relation to this
Borrower Loan Agreement. The Borrower irrevocably consents to service, jurisdiction, and venue of
such courts for any such litigation and waives any other venue to which it might be entitled by virtue of
domicile, habitual residence or otherwise. However, nothing herein is intended to limit Beneficiary
Parties’ right to bring any suit, action or proceeding relating to matters arising under this Borrower Loan
Agreement against the Borrower or any of the Borrower’s assets in any court of any other jurisdiction.
Section 10.22 Successors and Assigns. This Borrower Loan Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective heirs, legal representatives,
successors, successors-in-interest and assigns, as appropriate. The terms used to designate any of the
67
4894-2953-3827.5
parties herein shall be deemed to include the heirs, legal representatives, successors, successors-in-
interest and assigns, as appropriate, of such parties. References to a “person” or “persons” shall be
deemed to include individuals and entities.
Section 10.23 Severability. The invalidity, illegality or unenforceability of any provision of
this Borrower Loan Agreement shall not affect the validity, legality or enforceability of any other
provision, and all other provisions shall remain in full force and effect.
Section 10.24 Entire Agreement; Amendment and Waiver. This Borrower Loan Agreement
contains the complete and entire understanding of the parties with respect to the matters covered. This
Borrower Loan Agreement may not be amended, modified or changed without the written consent of the
parties hereto, nor shall any waiver of any provision hereof be effective, except by a written instrument
signed by the party against whom enforcement of the waiver, amendment, change, or modification is
sought, and then only to the extent set forth in that instrument. No specific waiver of any of the terms of
this Borrower Loan Agreement shall be considered as a general waiver.
Section 10.25 Counterparts. This Borrower Loan Agreement may be executed in multiple
counterparts, each of which shall constitute an original document and all of which together shall constitute
one agreement.
Section 10.26 Captions. The captions of the sections of this Borrower Loan Agreement are for
convenience only and shall be disregarded in construing this Borrower Loan Agreement.
Section 10.27 Servicer. The Borrower hereby acknowledges and agrees that, pursuant to the
terms of the Security Instrument: (a) from time to time, the Governmental Lender or the Funding Lender
may appoint a servicer to collect payments, escrows and deposits, to give and to receive notices under
the Permanent Phase Borrower Note, this Borrower Loan Agreement or the other Borrower Loan
Documents, and to otherwise service the Permanent Phase Borrower Loan and (b) unless the Borrower
receives Written Notice from the Governmental Lender or the Funding Lender to the contrary, any action
or right which shall or may be taken or exercised by the Governmental Lender or the Funding Lender
may be taken or exercised by such servicer with the same force and effect.
Section 10.28 Beneficiary Parties as Third Party Beneficiary. Each of the Beneficiary
Parties shall be a third party beneficiary of this Borrower Loan Agreement for all purposes.
Section 10.29 Waiver of Trial by Jury. TO THE MAXIMUM EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF BORROWER AND THE BENEFICIARY PARTIES OTHER
THAN THE GOVERNMENTAL LENDER (A) COVENANTS AND AGREES NOT TO ELECT A
TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS BORROWER LOAN
AGREEMENT OR THE RELATIONSHIP BETWEEN THE PARTIES THAT IS TRIABLE OF RIGHT
BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH
ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS
WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY OTHER
68
4894-2953-3827.5
THAN THE GOVERNMENTAL LENDER, KNOWINGLY AND VOLUNTARILY WITH THE
BENEFIT OF COMPETENT LEGAL COUNSEL.
Section 10.30 Time of the Essence. Time is of the essence with respect to this Borrower Loan
Agreement.
Section 10.31 Reference Date. This Borrower Loan Agreement is dated for reference purposes
only as of the ____ day of __________, 202___, and will not be effective and binding on the parties
hereto unless and until the Conversion Date (as defined herein) occurs.
Section 10.32 Americans with Disabilities Act. The Borrower hereby certifies that it will
comply with the ADA. The Borrower will provide reasonable accommodations to allow qualified
individuals with disabilities to have access to and to participate in its programs, services and activities in
accordance with the provisions of the ADA. The Borrower will not discriminate against persons with
disabilities nor against persons due to their relationship to or association with a person with a disability.
Any subcontract entered into by the Borrower, relating to this Borrower Loan Agreement, to the extent
allowed hereunder, shall be subject to the provisions of this Section.
ARTICLE XI
LIMITATIONS ON LIABILITY
Section 11.1 Limitation on Liability. Notwithstanding anything to the contrary herein, the
liability of the Borrower hereunder and under the other Borrower Loan Documents and the Funding Loan
Documents shall be limited to the extent set forth in the Permanent Phase Borrower Note.
Section 11.2 Limitation on Liability of Governmental Lender. The Governmental Lender
shall not be obligated to pay the principal (or Prepayment Amount) of or interest on the Funding Loan,
except from moneys and assets received by the Fiscal Agent or the Funding Lender on behalf of the
Governmental Lender pursuant to this Borrower Loan Agreement. Any obligation or liability of the
Governmental Lender created by or arising out of this Borrower Loan Agreement (including, without
limitation, any liability created by or arising out of the representations, warranties or covenants set forth
herein or otherwise) shall not impose a debt or pecuniary liability upon the Governmental Lender or a
charge upon its general credit, but shall be payable solely out of the moneys due and to become due under
the Funding Loan Documents (and not from any moneys due or to become due to the Governmental
Lender pursuant to the Unassigned Rights). Neither the issuance of the Funding Loan nor the delivery
of this Borrower Loan Agreement shall, directly or indirectly or contingently, obligate the Governmental
Lender to make any appropriation for payment of the Funding Loan. No agreements or provisions
contained in this Borrower Loan Agreement, the Funding Loan Agreement, any other Funding Loan
Document, nor any agreement, covenant or undertaking by the Governmental lender contained in any
document executed by the Governmental Lender in connection with the Project or the issuance, sale and
delivery of the Governmental Lender Note shall give rise to any pecuniary liability of the Governmental
Lender or a charge against its general credit or taxing powers, or shall obligate the Governmental Lender
financially in any way. Nothing in the Funding Loan or this Borrower Loan Agreement or the proceedings
of the Governmental Lender authorizing the Funding Loan or in the Act or the Law or in any other related
document shall be construed to authorize the Governmental Lender to create a debt of the Governmental
Lender within the meaning of constitutional or statutory provision of the State. No covenant, agreement
or obligation contained herein shall be deemed to be a covenant, agreement or obligation of any present
or future director, officer, employee or agent of the Governmental Lender in his or her individual capacity,
and neither any employee or officer of the Governmental Lender nor any officer thereof executing the
Governmental Lender Note shall be liable personally on the Governmental Lender Note or be subject to
any personal liability or accountability by reason of the issuance thereof. No director, officer, employee
69
4894-2953-3827.5
or agent of the Governmental Lender shall incur any personal liability with respect to any other action
taken by him or her pursuant to this Borrower Loan Agreement, the Funding Loan Agreement, the Act
or the Law. No breach of any pledge, obligation or agreement of the Governmental Lender hereunder
may impose any pecuniary liability upon the Governmental Lender or any charge upon its general credit.
The Governmental Lender shall not be liable for any costs, expenses, losses, damages, claims or actions,
of any conceivable kind on any conceivable theory, under or by reason of or in connection with this
Borrower Loan Agreement, Funding Loan or the Funding Loan Agreement, except only to the extent
amounts are received for the payment thereof from the Borrower under this Borrower Loan Agreement.
The Borrower hereby acknowledges that the Governmental Lender’s sole source of moneys to
repay the Funding Loan will be provided by the payments made by the Borrower pursuant to this Borrower
Loan Agreement and the Permanent Phase Borrower Note, together with investment income on certain
funds and accounts held by the Fiscal Agent under the Funding Loan Agreement, and hereby agrees that if
the payments to be made hereunder shall ever prove insufficient to pay all principal (or Prepayment
Amount) of and interest on the Funding Loan as the same shall become due (whether by maturity,
prepayment, acceleration or otherwise), then upon notice from the Fiscal Agent, the Borrower shall pay
such amounts as are required from time to time to prevent any deficiency or default in the payment of such
principal (or Prepayment Amount) of or interest on the Funding Loan, including, but not limited to, any
deficiency caused by acts, omissions, nonfeasance or malfeasance on the part of the Fiscal Agent, the
Borrower, the Governmental Lender or any third party, subject to any right of reimbursement from the
Fiscal Agent, the Governmental Lender or any such third party, as the case may be, therefor.
THE FUNDING LOAN IS ORIGINATED PURSUANT TO THE ACT AND IN ACCORDANCE
WITH THE COUNTY AUTHORIZATION, THE RESOLUTION AND THE ACT AND IS A REVENUE
OBLIGATION OF THE GOVERNMENTAL LENDER. NEITHER THE GOVERNMENTAL LENDER,
THE COUNTY NOR ANY OFFICIAL OR EMPLOYEE OF THE GOVERNMENTAL LENDER, NOR
ANY PERSON EXECUTING THE FUNDING LOAN, SHALL BE LIABLE PERSONALLY ON THE
FUNDING LOAN OR SUBJECT TO ANY PERSONAL LIABILITY OR ACCOUNTABILITY BY
REASON OF ITS ISSUANCE. THE FUNDING LOAN, THE GOVERNMENTAL LENDER NOTE
AND THE INTEREST THEREON ARE LIMITED OBLIGATIONS OF THE GOVERNMENTAL
LENDER, PAYABLE ONLY FROM THE SOURCES DESCRIBED IN THE FUNDING LOAN
AGREEMENT. NEITHER THE GOVERNMENTAL LENDER, THE COUNTY, THE STATE NOR
ANY OTHER POLITICAL CORPORATION OR SUBDIVISION OR AGENCY THEREOF SHALL BE
OBLIGATED TO PAY THE PRINCIPAL OF SUCH FUNDING LOAN, THE GOVERNMENTAL
LENDER NOTE OR THE INTEREST THEREON OR OTHER COSTS INCIDENT THERETO EXCEPT
FROM THE MONEY PLEDGED THEREFOR. THE FUNDING LOAN, THE GOVERNMENTAL
LENDER NOTE AND THE INTEREST THEREON DO NOT AND SHALL NEVER CONSTITUTE A
DEBT OF INDEBTEDNESS OR A GENERAL OBLIGATION OF THE GOVERNMENTAL LENDER,
THE COUNTY, THE STATE OR ANY MUNICIPAL OR POLITICAL CORPORATION OR
SUBDIVISION OF THE STATE. NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER
OF THE GOVERNMENTAL LENDER, THE COUNTY, THE STATE NOR ANY POLITICAL
CORPORATION OR SUBDIVISION OR AGENCY THEREOF OR THE FAITH AND CREDIT OF THE
ISSUER IS PLEDGED TO THE PAYMENT THE PRINCIPAL OF PREMIUM, IF ANY, OR INTEREST
ON THE FUNDING LOAN, THE GOVERNMENTAL LENDER NOTE OR OTHER COSTS INCIDENT
THERETO. THE FUNDING LOAN AND GOVERNMENTAL LENDER NOTE ARE NOT DEBTS OF
THE UNITED STATES OF AMERICA. THE GOVERNMENTAL LENDER HAS NO TAXING
POWER.
No recourse shall be had for the payment of the principal of, premium, if any, or interest on the
Funding Loan or for any claim based thereon or upon any obligation, covenant or agreement in this
Borrower Loan Agreement contained, against any past, present or future member of the Governmental
70
4894-2953-3827.5
Lender, the County, its respective governing body, officers, attorneys, accountants, financial advisors,
agents or staff or the officers, attorneys, accountants, financial advisors, agents or staff of any successor
public entity, as such, either directly or through the Governmental Lender, the County or any successor
public entity, under any rule of law or penalty of otherwise, and all such liability of any member of the
Governmental Lender, its governing body and its officers, attorneys, accountants, financial advisors, agents
and staff is hereby, and by the acceptance of the Funding Loan, expressly waived and released as a condition
of, and in consideration for, the execution of this Borrower Loan Agreement and the issuance of the Funding
Loan. It is recognized that notwithstanding any other provision of this Borrower Loan Agreement, neither
the Borrower, the Funding Lender nor the Fiscal Agent shall look to the members of the Governmental
Lender or the County or its officers, program participants, attorneys, accountants, financial advisors, agents
or staff, past, present or future, for damages suffered by the Borrower, the holders or such Fiscal Agent as
a result of the failure of the Governmental Lender to perform any covenant, undertaking or obligation under
this Borrower Loan Agreement, the Funding Loan, the Regulatory Agreement, any of the other Funding
Loan Documents or any of the other documents referred to herein, or as a result of the incorrectness of any
representation made by the Governmental Lender in any of such documents, nor for any other reason except
for representations made by the Governmental Lender in any certificate of the Governmental Lender and
the opinion of counsel to the Governmental Lender delivered on the date of origination of the Funding
Loan. Although this Borrower Loan Agreement recognizes that such documents shall not give rise to any
pecuniary liability of the Governmental Lender, nothing contained in this Borrower Loan Agreement shall
be construed to preclude in any way any action or proceeding (other than that element of any action or
proceeding involving a claim for monetary damages against the Governmental Lender) in any court or
before any governmental body, agency or instrumentality or otherwise against the Governmental Lender or
any of its officers or employees to enforce the provisions of any of such documents which the Governmental
Lender is obligated to perform and the performance of which the Governmental Lender has not assigned to
the Fiscal Agent or any other person.
Section 11.3 Waiver of Personal Liability. No member, director, officer, agent, elected
official or employee of the Governmental Lender shall be individually or personally liable for the
payment of any principal (or prepayment price) of or interest on the Funding Loan or any other sum
hereunder or be subject to any personal liability or accountability by reason of the execution and delivery
of this Borrower Loan Agreement; but nothing herein contained shall relieve any such member, director,
officer, agent or employee from the performance of any official duty provided by law or by this Borrower
Loan Agreement.
Section 11.4 Limitation on Liability of Funding Lender’s Officers, Employees, Etc.
(a) The Borrower assumes all risks of the acts or omissions of the Governmental Lender and
the Funding Lender, provided, however, this assumption is not intended to, and shall not, preclude
Borrower from pursuing such rights and remedies as it may have against the Governmental Lender and
the Funding Lender at law or under any other agreement. None of Governmental Lender and the Funding
Lender, nor the other Beneficiary Parties or their respective officers, directors, employees or agents shall
be liable or responsible for (i) for any acts or omissions of the Governmental Lender and the Funding
Lender; or (ii) the validity, sufficiency or genuineness of any documents, or endorsements, even if such
documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged. In
furtherance and not in limitation of the foregoing, the Governmental Lender and the Funding Lender may
accept documents that appear on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, unless acceptance in light of such notice or
information constitutes gross negligence or willful misconduct on the part of the Governmental Lender or
the Funding Lender.
71
4894-2953-3827.5
(b) None of the Governmental Lender the Funding Lender, the other Beneficiary Parties or
any of their respective officers, directors, employees or agents shall be liable to any contractor,
subcontractor, supplier, laborer, architect, engineer or any other party for services performed or materials
supplied in connection with the Project. The Governmental Lender and the Funding Lender shall not be
liable for any debts or claims accruing in favor of any such parties against Borrower or others or against
the Project. Borrower is not and shall not be an agent of the Governmental Lender and the Funding Lender
for any purpose. Neither the Governmental Lender nor the Funding Lender is a joint venture partner or
member with Borrower in any manner whatsoever. Prior to default by Borrower under this Borrower
Loan Agreement and the exercise of remedies granted herein, the Governmental Lender and the Funding
Lender shall not be deemed to be in privity of contract with any contractor or provider of services to the
Project, nor shall any payment of funds directly to a contractor, subcontractor or provider of services be
deemed to create any third party beneficiary status or recognition of same by the Governmental Lender
and the Funding Lender. Approvals granted by the Governmental Lender and the Funding Lender for any
matters covered under this Borrower Loan Agreement shall be narrowly construed to cover only the parties
and facts identified in any written approval or, if not in writing, such approvals shall be solely for the
benefit of Borrower.
(c) Any obligation or liability whatsoever of the Governmental Lender and the Funding Lender
that may arise at any time under this Borrower Loan Agreement, or any other Borrower Loan Document
shall be satisfied, if at all, out of the Funding Lender’s assets only. No such obligation or liability shall
be personally binding upon, nor shall resort for the enforcement thereof be had to, the Project or any of
the Governmental Lender’s or the Funding Lender’s shareholders (if any), directors, officers, employees
or agents, regardless of whether such obligation or liability is in the nature of contract, tort or otherwise.
Section 11.5 Delivery of Reports, Etc. The delivery of reports, information and documents
to the Governmental Lender and the Funding Lender as provided herein is for informational purposes
only and the Governmental Lender’s and the Funding Lender’s receipt of such shall not constitute
constructive knowledge of any information contained therein or determinable from information contained
therein. The Governmental Lender and the Funding Lender shall have no duties or responsibilities except
those that are specifically set forth herein, and no other duties or obligations shall be implied in this
Borrower Loan Agreement against the Governmental Lender and the Funding Lender.
Section 11.6 Restatement of Construction Phase Borrower Loan Agreement. The parties
hereto do hereby amend and restate the Construction Phase Borrower Loan Agreement by substituting
this Borrower Loan Agreement in its entirety for the Construction Phase Borrower Loan Agreement.
Section 11.7 Electronic Transactions. The transactions described in this Borrower Loan
Agreement may be conducted and the related documents may be stored by electronic means. Copies,
telecopies, facsimiles, electronic files and other reproductions of original executed documents shall be
deemed to be authentic and valid counterparts of such original documents for all purposes, including the
filing of any claim, action or suit in the appropriate court of law. Notwithstanding the foregoing, original
executed versions of each of the Funding Loan Agreement and the Borrower Loan Agreement shall be
delivered to the Funding Lender in connection with the closing of the transactions described herein.
[The remainder of this page is intentionally left blank; signature pages follow.]
S-1
4894-2953-3827.5
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Borrower Loan
Agreement or caused this Borrower Loan Agreement to be duly executed and delivered by its authorized
representative as of the date first set forth above. The undersigned intends that this instrument shall be
deemed to be signed and delivered as a sealed instrument.
BORROWER:
VISTA BREEZE, LTD.,
a Florida limited partnership
By: APC Vista Breeze, LLC, a Florida limited
liability company, it’s authorized partner
By:
Kenneth Naylor, Vice President
[Signature Page to Amended and Restated Borrower Loan Agreement – Vista Breeze]
S-2
4894-2953-3827.5
GOVERNMENTAL LENDER:
HOUSING FINANCE AUTHORITY OF
MIAMI-DADE COUNTY, FLORIDA,
as the Governmental Lender
By:
Name:
Title:
[Signature Page to Amended and Restated Borrower Loan Agreement – Vista Breeze]
S-3
4894-2953-3827.5
Agreed to and Acknowledged by:
FUNDING LENDER:
CITIBANK, N.A.
By:
Name:
Title:
[Signature Page to Amended and Restated Borrower Loan Agreement – Vista Breeze]
S-4
4894-2953-3827.5
Agreed to and Acknowledged by:
FISCAL AGENT:
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
By:
Name:
Title:
[Signature Page to Amended and Restated Borrower Loan Agreement –Vista Breeze]
D
Forward Purchase Agreement Vista Breeze
EXHIBIT D-3 TO FORWARD PURCHASE AGREEMENT
FORM OF AMENDED AND RESTATED MULTIFAMILY NOTE
[See attached]
EXHIBIT D-3 TO FORWARD PURCHASE AGREEMENT
FORM OF
AMENDED AND RESTATED MULTIFAMILY NOTE
$[11,875,000][NOTE: AS MAY BE INCREASED PER THE EARN-OUT] [Month] [Day], 202[_]
FOR VALUE RECEIVED, the undersigned (“Borrower”) promises to pay to the order
of the HOUSING FINANCE AUTHORITY OF MIAMI-DADE COUNTY, FLORIDA, a
public body corporate and politic organized and existing under the laws of the State of Florida, in
the principal sum of [ELEVEN MILLION EIGHT HUNDRED SEVENTY FIVE THOUSAND
AND NO/100 DOLLARS ($11,875,000)], with interest on the unpaid principal balance from
time to time outstanding at the annual rate as set forth on Schedule A. The terms of this Note
incorporate the Modifications, if any, set forth on Schedule C to this Note.
1. Defined Terms. As used in this Note, the following terms shall have the
following definitions:
(a) “Beneficiary Parties” shall have the meaning set forth in the Security
Instrument.
(b) “Borrower Loan” means the loan evidenced by this Note, the proceeds of
which shall be disbursed in accordance with the Borrower Loan Agreement.
(c) “Borrower Loan Agreement” means that certain Amended and Restated
Borrower Loan Agreement, dated as of [Month] [Day], 20[_], by and between Borrower
and Governmental Lender.
(d) “Business Day” means any day other than (i) a Saturday or a Sunday, or
(ii) a day on which federally insured depository institutions in New York, New York are
authorized or obligated by law, regulation, governmental decree or executive order to be
closed.
(e) “Closing Date” shall mean the date of this Note.
(f) “Default Rate” shall have the meaning set forth in Section 8 of this Note.
(g) “First Payment Date” means the first Business Day of the first month
following the Closing Date.
(h) “Fiscal Agent” means The Bank of New York Mellon Trust Company,
N.A., a national banking association, and its successors.
(i) “Funding Lender” means Citibank, N.A., a national banking association,
and its successors and assigns.
2 Vista Breeze
(j) “Governmental Lender” means the Housing Finance Authority of
Miami-Dade County, Florida, a public body corporate and politic organized and existing
under the laws of the State of Florida.
(k) “Indebtedness” means the principal of, interest on, and any other amounts
due at any time under, this Note, the Security Instrument or any other Borrower Loan
Document, including prepayment premiums, late charges, default interest, and advances
to protect the security of the Security Instrument as described in Section 12 of the
Security Instrument.
(l) “Interest-Only Period End Date” means the date that is twenty-four (24)
months after the First Payment Date.
(m) “Interest Rate” shall have the meaning set forth in Schedule A to this
Note.
(n) “Lender” means the Funding Lender, as assignee of this Note, and any
subsequent holder of this Note.
(o) “Loan Month” means the period commencing on a Loan Payment Date
and ending on the day preceding the next succeeding Loan Payment Date (without
adjustment in either case for Business Day conventions).
(p) “Loan Payment Date” means the first Business Day of each month,
commencing on the First Payment Date.
(q) “Lock-Out Period” means the tenth (10th) anniversary of the Closing
Date.
(r) “Mandatory Prepayment Date” means January 1, 2042, or if such day is
not a Business Day, the first Business Day following means January 2, 2042.
(s) “Maturity Date” means the earlier to occur of (i) July 1, 2057, or (ii) any
earlier date on which the unpaid principal balance of this Note becomes due and payable,
by acceleration or otherwise.
(t) “Maximum Rate” means the lesser of (i) twelve percent (12%) per
annum or (ii) the maximum interest rate that may be paid on the Borrower Loan under the
laws of the Property Jurisdiction.
(u) “Note” means this Amended and Restated Multifamily Note.
(v) “Note Interest” shall have the meaning set forth in Paragraph 1 of
Schedule A to this Note.
3 Vista Breeze
(w) “Original Funding Lender” means Bank of America, N.A., a national
banking association, in its capacity as initial funding lender.
(x) “Prepayment Premium Period” means the period commencing on the
Closing Date and ending on the date that is six (6) months prior to the Mandatory
Prepayment Date.
(y) “Property Jurisdiction” shall have the meaning set forth in the Security
Instrument.
(z) “Security Instrument” means the Amended and Restated Multifamily
Leasehold Mortgage, Assignment of Rents Security Agreement and Fixture Filing
(Florida), dated as of [_] 1, 202[_], made by Borrower and Landlord for the benefit of
Governmental Lender, as assigned to the Fiscal Agent.
(aa) “Servicer Remittance Date” means two (2) Business Days prior to each
Loan Payment Date.
All other capitalized terms used but not defined in this Note shall have the meanings
given to such terms in the Borrower Loan Agreement.
2. Method of Payment. All payments due under this Note shall be payable to
Servicer, or, if there is no Servicer, to the Lender, or its successor. Each such payment shall be
made by wire transfer of immediately available funds in accordance with wire transfer
instructions that the Lender or Servicer shall supply by Written Notice to the Borrower from time
to time.
3. Payment of Principal and Interest. Principal and interest shall be paid as
follows:
(a) Borrower shall pay all amounts due under this Note at the times and in the
amounts set forth herein and in the Borrower Loan Agreement. Borrower shall make its
payments under this Note in immediately available funds.
(b) Commencing on the First Payment Date and continuing on each Loan
Payment Date thereafter until and including the Interest-Only Period End Date, Borrower
shall pay monthly payments of interest only, as interest only, at the Interest Rate set forth
on Schedule A attached hereto, in successive monthly installments. Such payments shall
be made to the Lender or the Servicer by 2:00 p.m., New York City time, on each
Servicer Remittance Date.
(c) Commencing on the first Loan Payment Date following the Interest-Only
Period End Date, and continuing on each Loan Payment Date thereafter until and
including the Maturity Date, Borrower shall pay monthly payments of principal and
interest as set forth on Schedule A attached hereto, in successive monthly installments.
Such payments shall be made to the Lender or the Servicer by 2:00 p.m., New York City
time, on each Servicer Remittance Date.
4 Vista Breeze
(d) Any accrued interest remaining past due may, at Lender’s discretion, be
added to and become part of the unpaid principal balance and shall bear interest at the
rate or rates specified in this Note, and any reference below to “accrued interest” shall
refer to accrued interest that has not become part of the unpaid principal balance.
(e) Borrower shall pay all unpaid principal of and interest on this Note on the
Maturity Date and any other amounts due under subsection 3(a) hereof.
(f) Any regularly scheduled monthly installment of principal and interest that
is received by Lender before the date it is due shall be deemed to have been received on
the due date solely for the purpose of calculating interest due.
(g) Borrower shall make all payments of principal and interest under this Note
without relief from valuation and appraisement laws.
(h) Borrower acknowledges that the calculation of all interest payments shall
be made by the Lender and shall be final and conclusive, absent manifest error.
4. Application of Payments. If at any time Lender receives, from Borrower or
otherwise, any amount applicable to the Indebtedness which is less than all amounts due and
payable at such time, Lender may apply that payment to amounts then due and payable under
this Note in any manner and in any order determined by Lender, in Lender’s discretion.
Borrower agrees that neither Lender’s acceptance of a payment from Borrower in an amount that
is less than all amounts then due and payable nor Lender’s application of such payment shall
constitute or be deemed to constitute either a waiver of the unpaid amounts or an accord and
satisfaction.
5. Security. The Indebtedness is secured by, among other things, the Security
Instrument, and reference is made to the Security Instrument for other rights of Lender as to
collateral for the Indebtedness.
6. Acceleration. If an Event of Default has occurred and is continuing (it being
acknowledged and agreed that in no event shall Lender have any obligation to accept a cure of an
Event of Default), the entire unpaid principal balance, any accrued interest, the prepayment
premium payable under Section 10, if any, and all other amounts payable under this Note and
any other Borrower Loan Document shall at once become due and payable, at the option of
Lender, without any prior notice to Borrower (except if notice is required by applicable law, then
after such notice). Lender may exercise this option to accelerate regardless of any prior
forbearance.
7. Late Charge. If any amount payable under this Note or under the Security
Instrument or any other Borrower Loan Document is not received by Lender when such amount
is due (unless applicable law requires a longer period of time before a late charge may be
imposed, in which event, such longer period shall be substituted), Borrower shall pay to Lender,
immediately and without demand by Lender, a late charge equal to five percent (5.0%) of such
amount (unless applicable law requires a lesser amount be charged, in which event such lesser
amount shall be substituted). Notwithstanding the foregoing, with regard to each regularly
scheduled monthly installment of principal and/or interest payable pursuant to this Note, such
5 Vista Breeze
late charge shall not become due and payable to Lender so long as the Borrower makes such
payment on or prior to the tenth (10th) calendar day following the date upon which such payment
is due (or the Business Day immediately following such tenth (10th) calendar day if such tenth
(10th) calendar day is not a Business Day). Any accrued but unpaid late charges shall be added
to and become part of the unpaid principal balance of this Note, shall bear interest at the rate or
rates specified in this Note, and shall be secured by the Security Instrument and the other
applicable Borrower Loan Documents. Borrower acknowledges that its failure to make timely
payments will cause Lender to incur additional expenses in servicing and processing the
Borrower Loan, and that it is extremely difficult and impractical to determine those additional
expenses. Borrower agrees that the late charge payable pursuant to this Section represents a fair
and reasonable estimate, taking into account all circumstances existing on the Closing Date, of
the additional expenses Lender will incur by reason of such late payment, and such late charge
shall be deemed liquidated damages and not additional interest or a penalty. The late charge is
payable in addition to, and not in lieu of, any interest payable at the Default Rate pursuant to
Section 8. Notwithstanding anything to the contrary in any other Borrower Loan Document, if a
Servicer has been appointed by Lender, any late charges payable hereunder shall not be remitted
to Lender and shall instead be paid directly to Servicer, who shall apply such late charges in
accordance with the terms of the applicable servicing agreement. Any action regarding the
collection of a Late Charge will be without prejudice to any other rights, and shall not act as a
waiver of any other rights that the Servicer or the Lender may have as provided herein, in the
other Borrower Loan Documents, or at law or in equity.
8. Default Rate. So long as (a) any monthly installment under this Note remains
past due, or (b) any other Event of Default has occurred and is continuing (it being
acknowledged and agreed that in no event shall Lender have any obligation to accept a cure of an
Event of Default), interest under this Note shall accrue on the unpaid principal balance from the
earlier of the due date of the first unpaid monthly installment or the occurrence of such other
Event of Default, as applicable, at a rate per annum (the “Default Rate”) equal to the lesser of
the Maximum Rate or a rate equal to the Interest Rate plus four percent (4%), in each case
compounded monthly (computed in accordance with Schedule A in the same manner in which
Note Interest is computed). In accordance with Section 55.03(1), Florida Statutes, Borrower
hereby expressly agrees that the Default Rate shall be applicable to interest accruing on any
judgment entered with respect to the indebtedness evidenced hereby or by any of the other
Borrower Loan Documents. If the unpaid principal balance and all accrued interest are not paid
in full on the Maturity Date, the unpaid principal balance and all accrued interest shall bear
interest from the Maturity Date at the Default Rate until the unpaid principal balance and all
accrued interest is paid in full. Borrower also acknowledges that its failure to make timely
payments will cause Lender to incur additional expenses in servicing and processing the
Borrower Loan, that, during the time that any monthly installment under this Note is delinquent,
Lender will incur additional costs and expenses arising from its loss of the use of the money due
and from the adverse impact on Lender’s ability to meet its other obligations and to take
advantage of other investment opportunities, and that it is extremely difficult and impractical to
determine those additional costs and expenses. Borrower also acknowledges that, during the
time that any monthly installment under this Note is delinquent or any other Event of Default has
occurred and is continuing (it being acknowledged and agreed that in no event shall Lender have
any obligation to accept a cure of an Event of Default), Lender’s risk of nonpayment of this Note
will be materially increased and Lender is entitled to be compensated for such increased risk.
6 Vista Breeze
Borrower agrees that the increase in the rate of interest payable under this Note to the Default
Rate as provided above represents a fair and reasonable estimate, taking into account all
circumstances existing on the Closing Date, of the additional costs and expenses Lender will
incur by reason of Borrower’s delinquent payment and the additional compensation Lender is
entitled to receive for the increased risks of nonpayment associated with a delinquent loan.
9. Personal Liability of Borrower.
(a) Intentionally Omitted.
(b) Except as otherwise provided in this Section 9, neither Borrower nor any
of its partners, members and/or managers shall have any personal liability under this
Note, the Security Instrument or any other Borrower Loan Document for the repayment
of the Indebtedness or for the performance of any other obligations of Borrower under the
Borrower Loan Documents, and Lender’s only recourse for the satisfaction of the
Indebtedness and the performance of such obligations shall be Lender’s exercise of its
rights and remedies with respect to the Mortgaged Property and any other collateral held
by Lender as security for the Indebtedness. This limitation on Borrower’s liability shall
not limit or impair Lender’s enforcement of its rights against any guarantor of the
Indebtedness or any guarantor of any obligations of Borrower.
(c) Borrower shall at all times be personally liable to Lender for the
repayment of a portion of the Indebtedness equal to any loss or damage suffered by
Lender (the “Losses”) as a result of (1) failure of Borrower to pay to Lender upon
demand after an Event of Default all Rents to which Lender is entitled under Section 3(a)
of the Security Instrument and the amount of all security deposits collected by Borrower
from tenants then in residence; (2) failure of Borrower to apply all insurance proceeds
and condemnation proceeds as required by the Security Instrument; (3) failure of
Borrower to comply with Section 14(d) or (e) of the Security Instrument relating to the
delivery of books and records, statements, schedules, and reports; (4) fraud or material
misrepresentation by Borrower or Guarantor or any general partner, managing member,
manager, officer, director, partner, member, agent or employee of Borrower or Guarantor
in connection with the application for or creation of the Indebtedness or any request for
any action or consent by or on behalf of Lender; (5) failure to apply Rents (as defined in
the Security Instrument), first, to the payment of reasonable operating expenses (other
than property management fees that are not currently payable pursuant to the terms of an
Assignment of Management Agreement or any other Borrower Loan Document) and then
to amounts (“Debt Service Amounts”) payable under this Note, the Security Instrument
or any other Borrower Loan Document (except that Borrower will not be personally
liable (i) to the extent that Borrower lacks the legal right to direct the disbursement of
such sums because of a bankruptcy, receivership or similar judicial proceeding, or (ii)
with respect to Rents that are distributed on account of any calendar year if Borrower has
paid all operating expenses and Debt Service Amounts for that calendar year); (6) failure
of Borrower to comply with the provisions of Section 17(a) of the Security Instrument
prohibiting the commission of waste or allowing the impairment or deterioration of the
Mortgaged Property; or (7) failure of Borrower to obtain and maintain any local real
estate tax abatement or exemption required under the Security Instrument, or the
7 Vista Breeze
reduction, revocation, cancellation or other termination of such abatement or exemption,
as a result of any act or omission by or on behalf of Borrower, Guarantor or any of their
respective partners, members, managers, directors, officers, agents, employees or
representatives.
(d) For purposes of determining Borrower’s personal liability under this
Section 9, all payments made by Borrower with respect to the Indebtedness and all
amounts received by Lender from the enforcement of its rights under the Security
Instrument shall be applied first to the portion of the Indebtedness for which Borrower
has no personal liability.
(e) Borrower shall at all times be personally liable to Lender for the
repayment of all of the Indebtedness upon the occurrence of any of the following Events
of Default: (1) Borrower’s acquisition of any property or operation of any business not
permitted by Section 32 of the Security Instrument; or (2) a Transfer (including, but not
limited to, a lien or encumbrance) that is an Event of Default under Section 21 of the
Security Instrument, other than a Transfer consisting solely of the involuntary removal or
involuntary withdrawal of a general partner in a limited partnership or a manager in a
limited liability company; or (3) a Bankruptcy Event, as defined in the Security
Instrument (but only if the Bankruptcy Event occurs with the consent or active
participation of Borrower, its General Partner, Guarantor or any Borrower Affiliate.
(f) In addition to the Borrower’s personal liability pursuant to the other
provisions of this Note, Borrower shall at all times be personally liable to Lender for (1)
the performance of all of Borrower’s obligations under Section 18 of the Security
Instrument (relating to environmental matters) and the Agreement of Environmental
Indemnification; (2) the costs of any audit under Section 14(d) of the Security
Instrument; and (3) any costs and expenses incurred by Lender in connection with the
collection of all amounts for which Borrower is personally liable under this Section 9,
including out of pocket expenses and reasonable fees of attorneys and expert witnesses
and the costs of conducting any independent audit of Borrower’s books and records to
determine the amount for which Borrower has personal liability.
(g) To the extent that Borrower has personal liability under this Section 9,
Lender may exercise its rights against Borrower personally without regard to whether
Lender has exercised any rights against the Mortgaged Property or any other security, or
pursued any rights against any guarantor, or pursued any other rights available to Lender
under this Note, the Security Instrument, any other Borrower Loan Document or
applicable law. For purposes of this Section 9, the term “Mortgaged Property” shall not
include any funds that (1) have been applied by Borrower as required or permitted by the
Security Instrument prior to the occurrence of an Event of Default or (2) Borrower was
unable to apply as required or permitted by the Security Instrument because of a
bankruptcy, receivership, or similar judicial proceeding. To the fullest extent permitted
by applicable law, in any action to enforce Borrower’s personal liability under this
Section 9, Borrower waives any right to set off the value of the Mortgaged Property
against such personal liability.
8 Vista Breeze
(h) Nothing herein or in the other Borrower Loan Documents shall be deemed
to be a waiver of any right which the Lender or the Servicer may have under Sections
506(a), 506(b), 1111(b) or any other provision of the United States Bankruptcy Code, as
such sections may be amended, or corresponding or superseding sections of the
Bankruptcy Amendments and Federal Judgeship Act of 1984, to file a claim for the full
amount due to the Lender and the Servicer hereunder and under the other Borrower Loan
Documents or to require that all collateral shall continue to secure the amounts due
hereunder and under the other Borrower Loan Documents.
10. Prepayments.
(a) In connection with any prepayment (i.e., any receipt by Lender of
principal, other than principal required to be paid in monthly installments pursuant to
Section 3, prior to the Maturity Date) made under this Note, whether voluntary or
involuntary, a prepayment premium shall be payable to the extent provided below.
EXCEPT AS OTHERWISE PERMITTED HEREIN, NO VOLUNTARY
PREPAYMENTS OF THIS NOTE, IN WHOLE OR IN PART, SHALL BE
PERMITTED.
(b) Intentionally Omitted.
(c) Intentionally Omitted.
(d) No voluntary prepayments of this Note, in whole or in part, shall be
permitted during the Lock-Out Period. After the Lock-Out Period, Borrower may
voluntarily prepay all (but not less than all) of the unpaid principal balance of this Note
if: (i) Borrower has given Lender prior Written Notice of its intention to make such
prepayment at least thirty (30) days prior to the proposed prepayment date (or such
shorter time as agreed to by Lender in its sole discretion) and (ii) Borrower pays (A) the
entire unpaid principal balance of this Note, (B) all accrued interest, (C) if applicable, the
prepayment premium calculated pursuant to Schedule B, and (D) all other sums due
Lender at the time of such prepayment. If Lender, in Lender’s sole and absolute
discretion, agrees in writing to waive the foregoing provisions and allow any prepayment
that is not permitted hereunder, a prepayment premium calculated pursuant to Schedule B
shall be due and payable by Borrower on the amount of principal being prepaid. In
connection with any prepayment pursuant to this Section 10(d), the Borrower shall wire
transfer the amount required hereunder in immediately available funds by no later than
12:00 p.m., New York City time, on the date of prepayment. For all purposes including
the accrual of interest, any prepayment received by Lender on any day other than the last
calendar day of a Loan Month shall be deemed to have been received on the last calendar
day of such Loan Month.
(e) Upon Lender’s exercise of any right of acceleration under this Note,
Borrower shall pay to Lender, in addition to the entire unpaid principal balance of this
Note outstanding at the time of the acceleration, (i) all accrued interest and all other sums
due Lender, and (ii) if applicable, the prepayment premium calculated pursuant to
Schedule B.
9 Vista Breeze
(f) Any application by Lender of any collateral or other security to the
repayment of any portion of the unpaid principal balance of this Note in the absence of
acceleration shall be deemed to be a partial prepayment by Borrower, requiring the
payment to Lender by Borrower of a prepayment premium, calculated pursuant to
Schedule B.
(g) Intentionally Omitted.
(h) The Borrower shall prepay the entire outstanding principal balance of this
Note, at the direction of the Lender, at a price equal to the outstanding principal balance
of this Note, plus (i) accrued interest and any other amounts payable under this Note or
the Borrower Loan Agreement through the date of prepayment, and (ii) if applicable, the
prepayment premium calculated pursuant to Schedule B, upon the occurrence of any
event or condition described below:
(1) no later than the day before (a) any sale of the Project,
restructuring of the Borrower or any other event that would cause or be deemed to
cause an assumption of obligations of an unrelated party for purposes of Section
1.150-1(d)(2) of the Regulations (any such event referred to herein as a
“Transfer”) which Transfer would occur within six months of a “refinancing” (as
contemplated by such Regulation), or (b) any “refinancing” that would occur
within six months of a Transfer; or
(2) in whole, upon a Determination of Taxability.
In connection with any such prepayment, the Borrower shall wire transfer
immediately available funds by no later than 12:00 p.m., New York City time, on the date
fixed by the Lender, which date shall be communicated by the Lender in writing to the
Borrower.
(i) The Borrower shall prepay the outstanding principal balance of this Note
at the direction of the Lender, in whole or in part, at a price equal to the amount of
principal being prepaid plus accrued interest and any other amounts payable under this
Note or the other Borrower Loan Documents, upon the occurrence of any event or
condition described below:
(1) in whole or in part, if the Mortgaged Property shall have been
damaged or destroyed to the extent that it is not practicable or feasible to rebuild,
repair or restore the damaged or destroyed property within the period and under
the conditions described in the Security Instrument following such event of
damage or destruction; or
(2) in whole or in part, if title to, or the use of, all or a portion of the
Mortgaged Property shall have been taken under the exercise of the power of
eminent domain by any Governmental Authority which results in a prepayment of
this Note under the conditions described in the Security Instrument; or
10 Vista Breeze
(3) in whole or in part, to the extent that insurance proceeds or
proceeds of any condemnation award with respect to the Mortgaged Property are
not applied to restoration of the Mortgaged Property in accordance with the
provisions of the Security Instrument.
In connection with any such prepayment, the Borrower shall wire transfer
immediately available funds by no later than 12:00 p.m., New York City time, on the date
fixed by the Lender, which date shall be communicated by the Lender in writing to the
Borrower. To the extent that the Borrower receives any insurance proceeds or
condemnation awards that are to be applied to the prepayment of this Note, such amounts
shall be applied to the prepayment of this Note. No prepayment premium shall be
payable with respect to any prepayment required by this Section 10(i).
(j) Any permitted or required prepayment of less than the unpaid principal
balance of this Note shall not extend or postpone the due date of any subsequent monthly
installments or change the amount of such installments, unless Lender agrees otherwise
in writing.
(k) Borrower recognizes that any prepayment of the unpaid principal balance
of this Note, whether voluntary, involuntary or resulting from a default by Borrower, will
result in Lender incurring a loss, including reinvestment loss, additional expense and
frustration or impairment of Lender’s ability to meet its commitments to third parties.
Borrower agrees to pay to Lender upon demand damages for the detriment caused by any
prepayment, and agrees that it is extremely difficult and impractical to ascertain the
extent of such damages. Borrower therefore acknowledges and agrees that the formula
for calculating prepayment premiums set forth on Schedule B represents a reasonable
estimate of the damages Lender will incur because of a prepayment.
(l) Borrower further acknowledges that the prohibition of voluntary
prepayment and the prepayment premium provisions of this Note are a material part of
the consideration for the Borrower Loan, and acknowledges that the terms of this Note
are in other respects more favorable to Borrower as a result of Borrower’s voluntary
agreement to such provisions.
(m) Notwithstanding anything herein to the contrary, Borrower shall prepay
this Note, together with all amounts due under the Borrower Loan Documents, in full on
the Mandatory Prepayment Date.
(n) Any prepayment premium payable hereunder shall be remitted to Servicer,
or if a Servicer has not been appointed by Lender, to Lender.
11. Costs and Expenses. To the fullest extent allowed by applicable law, Borrower
shall pay all expenses and costs, including, without limitation, out-of-pocket expenses and
reasonable fees of attorneys (including, without limitation, in-house attorneys) and expert
witnesses and costs of investigation, incurred by Lender as a result of any default under this Note
or in connection with efforts to collect any amount due under this Note, or to enforce the
provisions of any of the other Borrower Loan Documents, including those incurred in post-
11 Vista Breeze
judgment collection efforts and in any bankruptcy proceeding (including any action for relief
from the automatic stay of any bankruptcy proceeding) or judicial or non-judicial foreclosure
proceeding. For purposes of Section 9(f) and this Section 11, attorneys’ out-of-pocket expenses
shall include, but are not limited to, support staff costs, costs of preparing for litigation,
computerized research, telephone and facsimile transmission expenses, mileage, deposition
costs, postage, duplicating, process service, videotaping and similar costs and expenses.
12. Forbearance. Any forbearance by Lender in exercising any right or remedy
under this Note, the Security Instrument, or any other Borrower Loan Document or otherwise
afforded by applicable law, shall not be a waiver of or preclude the exercise of that or any other
right or remedy. The acceptance by Lender of any payment after the due date of such payment,
or in an amount which is less than the required payment, shall not be a waiver of Lender’s right
to require prompt payment when due of all other payments or to exercise any right or remedy
with respect to any failure to make prompt payment. Enforcement by Lender of any security for
Borrower’s obligations under this Note shall not constitute an election by Lender of remedies so
as to preclude the exercise of any other right or remedy available to Lender.
13. Waivers. Presentment, demand, notice of dishonor, protest, notice of
acceleration, notice of intent to demand or accelerate payment or maturity, presentment for
payment, notice of nonpayment, grace, and diligence in collecting the Indebtedness are waived
by Borrower and all endorsers and guarantors of this Note and all other third party obligors.
14. Borrower Loan Charges. Neither this Note nor any of the other Borrower Loan
Documents shall be construed to create a contract for the use, forbearance or detention of money
requiring payment of interest at a rate greater than the maximum interest permitted to be charged
under applicable law. If any applicable law limiting the amount of interest or other charges
permitted to be collected from Borrower in connection with the Borrower Loan is interpreted so
that any interest or other charge provided for in any Borrower Loan Document, whether
considered separately or together with other charges provided for in any other Borrower Loan
Document, violates that law, and Borrower is entitled to the benefit of that law, that interest or
charge is hereby reduced to the extent necessary to eliminate that violation. The amounts, if any,
previously paid to Lender in excess of the permitted amounts shall be applied by Lender to
reduce the unpaid principal balance of this Note. For the purpose of determining whether any
applicable law limiting the amount of interest or other charges permitted to be collected from
Borrower has been violated, all Indebtedness that constitutes interest, as well as all other charges
made in connection with the Indebtedness that constitute interest, shall be deemed to be allocated
and spread ratably over the stated term of this Note. Unless otherwise required by applicable
law, such allocation and spreading shall be effected in such a manner that the rate of interest so
computed is uniform throughout the stated term of this Note.
15. Obligations of the Borrower Absolute and Unconditional. Subject to Section
9, the obligations of the Borrower to make all payments required under this Note and the other
Borrower Loan Documents on or before the date the same become due, and to perform all of its
other obligations, covenants and agreements hereunder and under the other Borrower Loan
Documents shall be primary, absolute, unconditional and irrevocable, and shall be paid or
performed strictly in accordance with the terms of this Note and the other Borrower Loan
Documents under any and all circumstances, without notice or demand, and without abatement,
12 Vista Breeze
deduction, set-off, counterclaim, recoupment or defense or any right of termination or
cancellation arising from any circumstance whatsoever, whether now existing or hereafter
arising, and irrespective of whether the Borrower’s title to the Mortgaged Property or to any part
thereof is defective or nonexistent, and notwithstanding any damage due to loss, theft or
destruction of the Mortgaged Property or any part thereof, any failure of consideration or
frustration of commercial purpose, the taking by eminent domain of title to or of the right of
temporary use of all or any part of the Mortgaged Property, legal curtailment of the Borrower’s
use thereof, the eviction or constructive eviction of the Borrower, any change in the tax or other
laws of the United States of America, the State or any political subdivision thereof, any change
in the Lender’s legal organization or status, or any default of the Lender hereunder or under any
other Borrower Loan Document, and regardless of the invalidity of any action of the Lender or
the invalidity of any portion of this Note or the other Borrower Loan Documents. Provided
further, the obligations of Borrower under this Note and the other Borrower Loan Documents
shall not be affected by:
(a) any lack of validity or enforceability of any Borrower Loan Document or
any of the Related Documents;
(b) any amendment of, or any waiver or consent with respect to, any of the
Borrower Loan Documents or Related Documents;
(c) the existence of any claim, set-off, defense or other rights which
Borrower, General Partner or Guarantor may have at any time against Lender (other than
the defense of payment in accordance with the terms of this Note or the other Borrower
Loan Documents) or any other Person, whether in connection with this Note or any other
Borrower Loan Document, the Related Documents or any transaction contemplated
thereby or any unrelated transaction;
(d) any breach of contract or other dispute between Borrower, General Partner
or Guarantor, and Lender;
(e) any Funding Requisition or any document presented in connection
therewith, proving to be forged, fraudulent, untrue, inaccurate, invalid or insufficient in
any respect (except in the event of willful misconduct by Lender with respect to same); or
(f) any exchange, release or nonperfection of any lien or security interest in
any collateral pledged or otherwise provided to secure any of the obligations
contemplated herein, in any other Borrower Loan Document or in any Related Document.
The Borrower hereby waives the application to it of the provisions of any statute or other law
now or hereafter in effect contrary to any of its obligations, covenants or agreements under this
Note or the other Borrower Loan Documents or which releases or purports to release the
Borrower therefrom. Nothing contained herein shall be construed as prohibiting the Borrower
from pursuing any rights or remedies it may have against any Person in a separate legal
proceeding.
13 Vista Breeze
16. Commercial Purpose. Borrower represents that the Indebtedness is being
incurred by Borrower solely for the purpose of carrying on a business or commercial enterprise,
and not for personal, family, household or agricultural purposes.
17. Counting of Days. Except where otherwise specifically provided, any reference
in this Note to a period of “days” means calendar days, not Business Days.
18. Notices. All notices, demands and other communications required or permitted to
be given pursuant to this Note shall be in writing and addressed as set forth below. Each notice
shall be deemed given on the earliest to occur of (a) the date when the notice is received by the
addressee; (b) the first Business Day after the notice is delivered to a recognized overnight
courier service, with arrangements made for payment of charges for next Business Day delivery;
or (c) the third Business Day after the notice is deposited in the United States mail with postage
prepaid, certified mail, return receipt requested.
If to Borrower: Vista Breeze, LTD.
c/o Atlantic Pacific Communities
161 NW 6th Street, Suite 1020
Miami, Florida 33136
Attention: Kenneth Naylor
With a copy to:
With a copy to:
With a copy to:
Klein Hornig LLP
1325 G Street NW, Suite 770
Washington, D.C. 20005
Attention: Chris Hornig, Esq.
Vista Breeze HACMB, Inc.
c/o 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
Fox Rothschild LLP
BNY Mellon Center
500 Grant Street, Suite 2500
Pittsburgh, PA 15219
Attention: Michael H. Syme, Esq.
Email: msyme@foxrothschild.com
Phone: (412) 391-2450
If to Lender: Citibank, N.A.
388 Greenwich Street, Trading 4th Floor
New York, New York 10013
Attention: Transaction Management Group
Re: Vista Breeze ID No. 60001596
14 Vista Breeze
Facsimile: (212) 723-8209
And to: Citibank, N.A.
325 East Hillcrest Drive, Suite 160
Thousand Oaks, California 91360
Attention: Operations Manager/Asset Manager
Re: Vista Breeze ID No. 60001596
Facsimile: (805) 557-0924
With a copy to: Citibank, N.A.
388 Greenwich Street, Trading 4th Floor
New York, New York 10013
Attention: Account Specialist
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (212) 723-8209
And a copy of any notices
of default sent to:
Citibank, N.A.
388 Greenwich Street, 17th Floor
New York, New York 10013
Attention: General Counsel’s Office
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (646) 291-5754
The Borrower or the Lender may change the address to which notices intended for it are
to be directed by means of notice given to the other party in accordance with this Section 18.
Each party agrees that it will not refuse or reject delivery of any notice given in accordance with
this Section 18, that it will acknowledge, in writing, the receipt of any notice upon request by the
other party and that any notice rejected or refused by it shall be deemed for purposes of this
Section 18 to have been received by the rejecting party on the date so refused or rejected, as
conclusively established by the records of the U.S. Postal Service or the courier service.
19. Payments on Non-Business Day. If the date for the making of any payment
under this Note is not a Business Day, such payment shall be due and payable on the next
succeeding Business Day.
20. Terms of Note Governing Payment Matters Control in the Event of any
Conflict. In the event the provisions of the Borrower Loan Agreement or the other Borrower
Loan Documents (other than this Note) conflict with the provisions of this Note which govern
the terms of repayment of the Borrower Loan or the payment of other amounts due in connection
with the Borrower Loan (including, without limitation, the provisions of this Note which govern
the required payments of principal, interest and other amounts due in connection with the
Borrower Loan, the manner of payment, the calculation of interest, the payment of the Lender’s
costs and expenses, the application of payments received by the Lender, the acceleration of
amounts owed by the Borrower, late charges, default rates of interest, prepayments, prepayment
premiums or maximum rates of interest or similar charges), the provisions of this Note shall
govern and control.
15 Vista Breeze
21. Local Law Provisions (Florida). THIS NOTE IS GIVEN TO SECURE THE
FINANCING OF HOUSING UNDER PART IV OF CHAPTER 159, FLORIDA STATUTES,
AND IS EXEMPT FROM TAXATION PURSUANT TO SECTION 159.621, FLORIDA
STATUTES. ACCORDINGLY, NO DOCUMENTARY STAMP TAX OR INTANGIBLE TAX
IS DUE IN CONNECTION WITH THIS NOTE.
22. Determinations by Lender. Except to the extent expressly set forth in this Note
to the contrary, in any instance where the consent or approval of Lender may be given or is
required, or where any determination, judgment or decision is to be rendered by Lender under
this Note, the granting, withholding or denial of such consent or approval and the rendering of
such determination, judgment or decision shall be made or exercised by Lender, as applicable (or
its designated representative) at its sole and exclusive option and in its sole and absolute
discretion.
23. Release; Indemnity.
(a) Release. Borrower covenants and agrees that, in performing any of its
rights or duties under this Note, neither the Beneficiary Parties, nor their respective
agents or employees, shall be liable for any losses, claims, damages, liabilities and
expenses that may be incurred by any of them as a result of such performance, except to
the extent such liability for any losses, claims, damages, liabilities or expenses arises out
of the willful misconduct or gross negligence of such party.
(b) Indemnity. Borrower hereby agrees to indemnify and hold harmless the
Beneficiary Parties and their respective agents and employees from and against any and
all losses, claims, damages, liabilities and expenses including, without limitation,
reasonable attorneys’ fees and costs and disbursements, which may be imposed or
incurred by any of them in connection with this Note, except that no such party will be
indemnified for any losses, claims, damages, liabilities or expenses arising out of the
willful misconduct or gross negligence of such party.
24. Governing Law. This Note shall be governed by and enforced in accordance
with the laws of the Property Jurisdiction, without giving effect to the choice of law principles of
the Property Jurisdiction that would require the application of the laws of a jurisdiction other
than the Property Jurisdiction.
25. Consent to Jurisdiction and Venue. Borrower agrees that any controversy
arising under or in relation to this Note shall be litigated exclusively in the Property Jurisdiction.
The state and federal courts and authorities with jurisdiction in the Property Jurisdiction shall
have exclusive jurisdiction over all controversies which shall arise under or in relation to this
Note. Borrower irrevocably consents to service, jurisdiction, and venue of such courts for any
such litigation and waives any other venue to which it might be entitled by virtue of domicile,
habitual residence or otherwise. However, nothing herein is intended to limit Lender’s right to
bring any suit, action or proceeding relating to matters arising under this Note against Borrower
or any of Borrower’s assets in any court of any other jurisdiction.
16 Vista Breeze
26. Severability. The invalidity, illegality or unenforceability of any provision of
this Note shall not affect the validity, legality or enforceability of any other provision, and all
other provisions shall remain in full force and effect.
27. Remedies Cumulative. In the event of Borrower’s default under this Note, the
Lender may exercise all or any one or more of its rights and remedies available under this Note,
at law or in equity. Such rights and remedies shall be cumulative and concurrent, and may be
enforced separately, successively or together, and the exercise of any particular right or remedy
shall not in any way prevent the Lender from exercising any other right or remedy available to
the Lender. The Lender may exercise any such remedies from time to time as often as may be
deemed necessary by the Lender.
28. No Agency or Partnership. Nothing contained in this Note shall constitute
Lender as a joint venturer, partner or agent of Borrower, or render Lender liable for any debts,
obligations, acts, omissions, representations or contracts of Borrower.
29. Entire Agreement; Amendment and Waiver. This Note contains the complete
and entire understanding of the parties with respect to the matters covered. This Note may not be
amended, modified or changed, nor shall any waiver of any provision hereof be effective, except
by a written instrument signed by the party against whom enforcement of the waiver,
amendment, change, or modification is sought, and then only to the extent set forth in that
instrument. No specific waiver of any of the terms of this Note shall be considered as a general
waiver.
30. Further Assurances. Borrower shall at any time and from time to time,
promptly execute and deliver all further instruments and documents, and take all further action
that may be reasonably necessary or desirable, or that Lender may reasonably request, in order to
protect any right or interest granted by this Note or to enable Lender to exercise and enforce its
rights and remedies under this Note.
31. Captions. The captions of the sections of this Note are for convenience only and
shall be disregarded in construing this Note.
32. Servicer. Borrower hereby acknowledges and agrees that, pursuant to the terms
of the Security Instrument: (a) from time to time, Lender may appoint a servicer to collect
payments, escrows and deposits, to give and to receive notices under this Note or the other
Borrower Loan Documents, and to otherwise service the Borrower Loan and (b) unless Borrower
receives written notice from Lender to the contrary, any action or right which shall or may be
taken or exercised by Lender may be taken or exercised by such servicer with the same force and
effect.
33. Waiver of Trial by Jury. TO THE MAXIMUM EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF BORROWER AND LENDER (A) COVENANTS
AND AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE
ARISING OUT OF THIS NOTE OR THE RELATIONSHIP BETWEEN THE PARTIES THAT
IS TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY
WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS
17 Vista Breeze
NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS
SEPARATELY GIVEN BY EACH PARTY KNOWINGLY AND VOLUNTARILY WITH
THE BENEFIT OF COMPETENT LEGAL COUNSEL.
34. Time of the Essence. Time is of the essence with respect to this Note.
35. Modifications. All modifications (if any) to the terms of this Note
(“Modifications”) are set forth on Schedule C attached to this Note. In the event of a Transfer
under the terms of the Security Instrument (other than a Permitted Transfer that does not require
the consent of the Funding Lender), some or all of the Modifications to this Note may be
modified or rendered void by Lender at its option by notice to Borrower or such transferee.
36. Amended and Restated Note. This Note amends and restates that certain
Construction Phase Project Loan Note, dated as of December 15, 2023 in the original maximum
principal amount of $32,500,000 the (“Original Note”) made by Borrower in favor of
Governmental Lender and endorsed to Fiscal Agent for the benefit of Original Funding Lender.
Pursuant to that certain Funding Loan Agreement dated as of December 1, 2023, among Original
Funding Lender, Governmental Lender and Fiscal Agent, the Original Funding Lender made a
loan to the Governmental Lender, the proceeds of which Governmental Lender used to make a
loan to the Borrower pursuant to that certain Construction Phase Borrower Loan Agreement,
dated as of December 1, 2023, by and between Borrower and Governmental Lender.
Contemporaneously with the execution and delivery of this Note, Original Funding Lender has
assigned all of its right, title and interest in and to the Original Note to Fiscal Agent for the
benefit of Funding Lender pursuant to the provisions of a certain Assignment of Mortgage and
Collateral Loan Documents, dated as of the December 15, 2023, and intended to be recorded in
the Official Records of Miami-Dade County, Florida. This Note does not create any new or
additional indebtedness but evidences the reduced outstanding indebtedness established by the
Original Note so that this Note evidences a single consolidated debt in the principal amount of
$[11,875,000]. This Note amends and restates in its entirety the terms, obligations, agreements,
covenants and conditions set forth in the Original Note so that the terms of this Note supersede
the terms, obligations, agreements, covenants and conditions of the Original Note. This Note
does not extinguish the outstanding indebtedness evidenced by the Original Note or discharge or
release any security therefor, and the parties do not intend this Note to be a substitution or
novation of the original indebtedness or instruments securing the same.
37. Attached Schedules. The following Schedules are attached to this Note and are
incorporated by reference herein as if more fully set forth in the text hereof:
Schedule A – Principal and Interest Payments
Schedule B – Prepayment Premium
Schedule C – Modifications to Amended and Restated Multifamily Note
The terms of this Note are modified and supplemented as set forth in said Schedules. To the
extent of any conflict or inconsistency between the terms of said Schedules and the text of this
Note, the terms of said Schedules shall be controlling in all respects.
18 Vista Breeze
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
S-1 Vista Breeze
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Amended and Restated Multifamily Note or caused this Amended and Restated Multifamily
Note to be duly executed and delivered by its authorized representative as of the date first set
forth above.
BORROWER:
VISTA BREEZE, LTD.,
a Florida limited partnership
By: APC Vista Breeze, LLC,
a Florida limited liability company,
Duly Authorized
By: ________________________
Name:
Title:
S-2 Vista Breeze
PAY TO THE ORDER OF:
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., AS FISCAL AGENT AND
ASSIGNEE, FOR THE BENEFIT OF CITIBANK,
N.A. UNDER THAT CERTAIN
AMENDED AND RESTATED FUNDING LOAN
AGREEMENT DATED AS OF ________ 1, 202[_]
WITHOUT RECOURSE
HOUSING FINANCE AUTHORITY OF MIAMI-
DADE COUNTY, FLORIDA
By:
Name:
Title:
A-1 Vista Breeze
SCHEDULE A
PRINCIPAL AND INTEREST PAYMENTS
Except as provided in Sections 8 and 14 of this Note, interest (“Note Interest”) shall
accrue on the unpaid principal of this Note from, and including, the Closing Date until paid in
full at an annual rate (the “Interest Rate”) as follows:
A. Interest Rate and Principal Payments on and after the Closing Date. From,
and including, the Closing Date, until the Maturity Date, the following provisions shall apply:
1. Interest Rate. Note Interest shall accrue on the unpaid principal of this Note
from, and including, the Closing Date, until the Maturity Date, at an annual rate, as follows:
(a) Fixed Rate. Interest shall accrue at annual rate of six and 27/100 percent
(6.27%1). [NOTE: IF THE TERMINATION DATE IS EXTENDED TO THE FIRST
EXTENDED TERMINATION DATE IN ACCORDANCE WITH SECTION 4.1 OF THE
FORWARD PURCHASE AGREEMENT, AN ADDITIONAL 0.05% WILL BE ADDED TO
THE INTEREST RATE SET FORTH HEREUNDER, SUCH THAT INTEREST WILL
ACCRUE AT AN ANNUAL INTEREST RATE OF SIX AND 32/100 PERCENT (6.32%). IF
THE TERMINATION DATE IS FURTHER EXTENDED FROM THE FIRST EXTENDED
TERMINATION DATE TO THE SECOND EXTENDED TERMINATION DATE IN
ACCORDANCE WITH SECTION 4.1 OF THE FORWARD PURCHASE AGREEMENT, AN
ADDITIONAL 0.05% WILL BE ADDED TO THE INTEREST RATE SET FORTH
HEREUNDER, SUCH THAT INTEREST WILL ACCRUE AT A N ANNUAL INTEREST
RATE OF SIX AND 37/100 PERCENT (6.37%). IN ADDITION, IF THE EARN-OUT RIGHT
IS EXERCISED, THE PRINCIPAL AMOUNT OF THIS LOAN WILL BE INCREASED BY
THE EARN-OUT AMOUNT AND THE RATE WILL BE A BLENDED RATE BETWEEN
THE RATE LISTED AND THE RATE OF THE EARN-OUT AS DESCRIBED IN THE
FORWARD PURCHASE AGREEMENT].
(b) Maximum Rate. Notwithstanding any other provision of this Note to the contrary,
Note Interest shall not exceed the Maximum Rate, as the Maximum Rate may change in
accordance with this Note.
(c) Interest Accrual. Note Interest shall be computed on the basis of the actual
number of days in the period in respect of which payment is being made, divided by 360.
B. Monthly Interest Only Payments Until and Including the Interest-Only
Period End Date.
Commencing on the First Payment Date following the Closing Date and on each Loan Payment
Date thereafter until and including the Interest-Only Period End Date, consecutive monthly
1 NOTE: The interest rate shall be a fixed rate equal to the sum of 18 year SOFR Swap Index (which shall have a
floor of 0.75%) plus a spread of 2.40%. The rate does not include Issuer, Trustee, or miscellaneous third-party fees.
A-2 Vista Breeze
installments of interest only that has accrued on the outstanding principal balance of the
Borrower Loan during the applicable accrual period shall be payable.
C. Monthly Payments Following the Interest-Only Period End Date.
Commencing on the first Loan Payment Date following the Interest-Only Period End Date and
on each Loan Payment Date thereafter until and including the Maturity Date, consecutive
monthly installments of principal and interest in the amount of $67,586.57 [NOTE: THIS
AMOUNT CONSTITUTES THE ORIGINAL AMOUNT WITH NO EXTENSIONS. IF THE
TERMINATION DATE IS EXTENDED TO THE FIRST EXTENDED TERMINATION
DATE IN ACCORDANCE WITH SECTION 4.1 OF THE FORWARD PURCHASE
AGREEMENT, MONTHLY INSTALLMENTS OF PRINCIPAL AND INTEREST WILL BE
PAID IN THE AMOUNT OF $68,005.93. IF THE TERMINATION DATE IS FURTHER
EXTENDED TO THE SECOND EXTENDED TERMINATION DATE IN ACCORDANCE
WITH SECTION 4.1 OF THE FORWARD PURCHASE AGREEMENT, MONTHLY
INSTALLMENTS OF PRINCIPAL AND INTEREST WILL BE PAID IN THE AMOUNT OF
$68,426.18.] shall be payable on each Loan Payment Date until the entire unpaid principal
balance evidenced by this Note is fully paid. Any remaining principal and interest, if not sooner
paid, shall be due and payable on the Maturity Date. In the event that the Borrower Loan is
reamortized at any time as a result of the application of any insurance proceeds or condemnation
award in accordance with Section 10(i) of this Note, equal monthly payments of principal and
interest in installments in the amount necessary to fully amortize the remaining principal balance
of this Note over the remainder of the original forty (40) year amortization period, assuming, for
these purposes only, a 360-day year comprised of twelve 30-day months, and a final installment
on the Maturity Date in the amount of the remaining principal balance of this Note, which
amortization schedule shall be determined by Lender and which determination shall be final and
conclusive absent manifest error.
D. Loss of Tax Exclusion. Borrower understands that the interest rates provided
under this Note are based on the assumption that interest income paid on the Funding Loan and
received by the Funding Lender will be excludable from Funding Lender’s gross income under
Section 103 of the Internal Revenue Code and applicable state law. In the event that Borrower
receives notice from Funding Lender that a Determination of Taxability (as defined in the
Borrower Loan Agreement) has occurred, then, notwithstanding any provision to the contrary
contained herein, the interest rate on this Note and on all obligations of Borrower under the
Borrower Loan Documents (other than those to which the Default Rate applies) shall be equal to
the Fixed Rate plus a number of basis points equal to the value of the exclusion of interest on the
Funding Loan from Funding Lender’s gross taxable income.
Borrower shall, in addition, pay to Lender, promptly upon demand, an amount equal to
the difference between the amount of interest payable on this Note from the date on which such
loss of tax exemption on the Funding Loan shall be applicable to the date on which the interest
rate on this Note was increased and the amount of interest that would have been payable on this
Note during such period had this Note borne interest during such period at such higher rate. The
Borrower shall also indemnify, defend and hold Lender harmless from any penalties, interest
expense or other costs, including attorneys’ fees (including all allocated time and charges of “in-
house” and “outside” counsel) and accountants’ costs, resulting from any dispute with the
A-3 Vista Breeze
Internal Revenue Service concerning the proper tax treatment of the Funding Loan and the
interest payable to Funding Lender on the Funding Loan. The obligations of the Borrower under
this paragraph shall survive any termination of the Borrower Loan Documents, release of the
Security Instrument and repayment of the Borrower Loan and/or Funding Loan.
B-1 Vista Breeze
SCHEDULE B
PREPAYMENT PREMIUM
Any prepayment premium payable under Section 10 of this Note shall be computed as follows:
(a) If the prepayment is made at any time after the date of this Note and before the
end of the Prepayment Premium Period (the “Yield Maintenance Period End
Date”) the prepayment premium shall be the greater of:
(i) 1% of the amount of principal being prepaid; or
(ii) The product obtained by multiplying:
(A) the amount of principal being prepaid,
by
(B) the difference obtained by subtracting the Yield Rate (as defined
below) from the Interest Rate on this Note on the twenty-fifth
Business Day preceding (x) the date upon which any voluntary
prepayment will be made, determined in accordance with Section
10 of this Note, or (y) the date Lender accelerates the Borrower
Loan or otherwise accepts a prepayment pursuant to Section 10 of
this Note,
by
(C) the present value factor calculated using the following formula:
1 - (1 + r)-n/12
r
r = Yield Rate
n = the number of months remaining between (1) either
of the following: (x) in the case of a voluntary prepayment,
the last calendar day of the month during which the
prepayment is made, or (y) in any other case, the date on
which Lender accelerates the unpaid principal balance of
this Note and (2) the Yield Maintenance Period End Date.
For purposes of this clause (ii), the “Yield Rate” means the yield
calculated by interpolating the yields for the immediately shorter
and longer term U.S. “Treasury constant maturities” (as reported in
the Federal Reserve Statistical Release H.15 Selected Interest
Rates (the “Fed Release”) under the heading “U.S. government
B-2 Vista Breeze
securities”) closest to the remaining term of the Prepayment
Premium Period, as follows (rounded to three decimal places):
{ ( (a – b) ÷ (x – y) ) × (z – y) } + b
a = the yield for the longer U.S. Treasury constant maturity
b = the yield for the shorter U.S. Treasury constant maturity
x = the term of the longer U.S. Treasury constant maturity
y = the term of the shorter U.S. Treasury constant maturity
z = “n” (as defined in the present value factor calculation
above) divided by 12.
Notwithstanding any provision to the contrary, if “z” equals a term
reported under the U.S. “Treasury constant maturities” subheading
in the Fed Release, the yield for such term shall be used, and
interpolation shall not be necessary. If publication of the Fed
Release is discontinued by the Federal Reserve Board, Lender shall
determine the Yield Rate from another source selected by Lender.
Any determination of the Yield Rate by Lender will be binding
absent manifest error.
(b) Notwithstanding the provisions of Section 10 of this Note, no prepayment
premium shall be payable with respect to any prepayment made on or after the Yield
Maintenance Period End Date.
C-1 Vista Breeze
SCHEDULE C
MODIFICATIONS TO AMENDED AND RESTATED MULTIFAMILY NOTE
The following modifications are made to the text of the Note that precedes this Schedule:
1. The following new clause (8) is hereby added to Section 9(c) of this Note “or (8)
any adverse material effect on Lender resulting from terms contained in the HAP Contract that
(i) may have a material adverse effect on Lender’s projections of income from the HAP Contract
and (ii) were not previously known due to Borrower’s failure to provide Lender with full,
complete, and accurate copies of the HAP Contract, including all amendments, renewals, and
assignments thereof.”
2. Section 9 is amended by adding the following sentence to the end of subsection
(e) thereof:
Borrower shall be personally liable to Lender for the payment of any payments made to
Borrower under the HAP Contract to the extent such payments are not made to the Lender as
provided for under that certain Housing Assistance Payments Contract (pertaining to the HAP
Contract, as defined therein), dated as of [_], 20[_], by Borrower (as Owner) for the benefit of
Funding Lender.
3. The following new clause (4) is hereby added to Section 9(e) of this Note “or (4)
any failure by Borrower to comply with the provisions of Sections 61{Covenants to Protect
Leasehold Estate}, 62(b) {Ground Lessee’s Bankruptcy section}, 63(a) {Ground Lessor’s
Bankruptcy section} or 64 {Option to Renew or Extend Ground Lease section} of the Security
Instrument.”
Capitalized terms used and not defined herein shall have the respective meanings
ascribed to them in the Note.
4884-4417-5242v.4
D
Forward Purchase Agreement Vista Breeze
EXHIBIT D-4 TO FORWARD PURCHASE AGREEMENT
FORM OF AMENDED AND RESTATED MULTIFAMILY LEASEHOLD MORTGAGE,
ASSIGNMENT OF RENTS AND SECURITY AGREEMENT (FLORIDA)
[See attached]
i
EXHIBIT D-4 TO FORWARD PURCHASE AGREEMENT
FORM OF
AMENDED AND RESTATED MULTIFAMILY LEASEHOLD MORTGAGE,
ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
(FLORIDA)
THIS INSTRUMENT PREPARED BY:
Aviva Yakren, Esq.
Sidley Austin LLP
787 Seventh Avenue
New York, New York 10019
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Citibank, N.A.
Transaction and Asset Management Group/Post Closing
Citi Community Capital
3800 Citibank Center
Tampa, Florida 33610
Re: Vista Breeze Deal ID No. 60001596
ABOVE SPACE RESERVED FOR
RECORDING PURPOSES ONLY
AMENDED AND RESTATED MULTIFAMILY LEASEHOLD MORTGAGE,
ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
(FLORIDA)
THIS MORTGAGE IS EXECUTED AND DELIVERED IN CONNECTION WITH AND
PURSUANT TO THE ISSUANCE OF A CERTAIN NOTE BY THE HOUSING
FINANCE AUTHORITY OF MIAMI-DADE COUNTY, FLORIDA AND IS EXEMPT
FROM DOCUMENTARY STAMP TAXES AND INTANGIBLE TAX PURSUANT TO
SECTION 159.621 FLORIDA STATUTES.
ii
Table of Contents
1. DEFINITIONS ................................................................................................................... 3
2. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT ................................. 12
3. ASSIGNMENT OF RENTS; APPOINTMENT OF RECEIVER; LENDER IN
POSSESSION .................................................................................................................. 13
4. ASSIGNMENT OF LEASES; LEASES AFFECTING THE MORTGAGED
PROPERTY ..................................................................................................................... 15
5. PAYMENT OF INDEBTEDNESS; PERFORMANCE UNDER LOAN
DOCUMENTS; PREPAYMENT PREMIUM ................................................................ 17
6. EXCULPATION.............................................................................................................. 18
7. DEPOSITS FOR TAXES, INSURANCE AND OTHER CHARGES ............................ 18
8. COLLATERAL AGREEMENTS ................................................................................... 19
9. APPLICATION OF PAYMENTS ................................................................................... 19
10. COMPLIANCE WITH LAWS ........................................................................................ 19
11. USE OF PROPERTY ...................................................................................................... 20
12. PROTECTION OF LENDER’S SECURITY; INSTRUMENT SECURES
FUTURE ADVANCES ................................................................................................... 20
13. INSPECTION .................................................................................................................. 21
14. BOOKS AND RECORDS; FINANCIAL REPORTING ................................................ 22
15. TAXES; OPERATING EXPENSES ............................................................................... 24
16. LIENS; ENCUMBRANCES ........................................................................................... 25
17. PRESERVATION, MANAGEMENT AND MAINTENANCE OF
MORTGAGED PROPERTY........................................................................................... 25
18. ENVIRONMENTAL HAZARDS ................................................................................... 26
19. PROPERTY AND LIABILITY INSURANCE ............................................................... 35
20. CONDEMNATION ......................................................................................................... 38
21. TRANSFERS OF THE MORTGAGED PROPERTY OR INTERESTS IN
BORROWER ................................................................................................................... 40
22. EVENTS OF DEFAULT ................................................................................................. 45
23. REMEDIES CUMULATIVE .......................................................................................... 48
24. FORBEARANCE ............................................................................................................ 48
25. WAIVER OF STATUTE OF LIMITATIONS ................................................................ 48
26. WAIVER OF MARSHALLING ..................................................................................... 48
27. FURTHER ASSURANCES ............................................................................................ 49
iii
28. ESTOPPEL CERTIFICATE ............................................................................................ 49
29. GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE ........................ 49
30. NOTICE ........................................................................................................................... 50
31. CHANGE IN SERVICER ............................................................................................... 51
32. SINGLE ASSET BORROWER ...................................................................................... 51
33. SUCCESSORS AND ASSIGNS BOUND ...................................................................... 52
34. JOINT AND SEVERAL LIABILITY ............................................................................. 52
35. RELATIONSHIP OF PARTIES; NO THIRD PARTY BENEFICIARY ....................... 52
36. SEVERABILITY; AMENDMENTS............................................................................... 52
37. CONSTRUCTION ........................................................................................................... 52
38. SERVICER ...................................................................................................................... 53
39. DISCLOSURE OF INFORMATION .............................................................................. 53
40. NO CHANGE IN FACTS OR CIRCUMSTANCES ...................................................... 54
41. SUBROGATION ............................................................................................................. 54
42. FINANCING STATEMENT ........................................................................................... 54
43. STATE SPECIFIC PROVISIONS (FLORIDA) ............................................................. 54
44. WAIVER OF TRIAL BY JURY ..................................................................................... 55
45. ATTACHED EXHIBITS ................................................................................................. 55
EXHIBITS
EXHIBIT A Description of the Land
EXHIBIT B Modifications to Instrument
EXHIBIT C Financing Statement Information
EXHIBIT D Modifications to Instrument (Ground Lease)
EXHIBIT E Description of Ground Lease
Amended and Restated Mortgage 1 Vista Breeze
AMENDED AND RESTATED MULTIFAMILY LEASEHOLD MORTGAGE,
ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING
(FLORIDA)
This AMENDED AND RESTATED MULTIFAMILY LEASEHOLD MORTGAGE,
ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING
(FLORIDA) (this “Instrument”) is dated for reference purposes only as of the [__] day of
[Month], 202[__], by VISTA BREEZE, LTD., a Florida limited partnership, whose address is
c/o Atlantic Pacific Communities, 161 NW 6th Street, Suite 1020, Miami, Florida 33136, as
grantor (“Borrower”), to HOUSING FINANCE AUTHORITY OF MIAMI-DADE
COUNTY, FLORIDA, a public body corporate and politic organized and existing under the
laws of the State of Florida, whose address is 7855 NW 12th Street, Suite 202, Doral, Florida
33126, as beneficiary, and its successors and assigns (“Lender” or “Governmental Lender”).
Borrower’s organizational identification number is A20000000470.
The Borrower previously applied to the Governmental Lender for a loan (the “Borrower
Loan”) for the acquisition, construction, rehabilitation, development and/or equipping of the
Mortgaged Property (as hereinafter defined).
The Borrower previously requested that the Governmental Lender enter into that certain
Funding Loan Agreement, dated as of December 1, 2023 (the “Original Funding Loan
Agreement”), among the Governmental Lender, 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 Governmental Lender in the original
principal amount of $32,500,000 (the “Funding Loan”), the proceeds of which Governmental
Lender used to make the Borrower Loan pursuant to that certain Construction Phase Borrower
Loan Agreement, dated as of December 1, 2023 (the “Original Borrower Loan Agreement”),
by and between the Governmental Lender and the Borrower.
The Borrower Loan was evidenced by that certain Construction Phase Project Loan Note
dated as of December 15, 2023 (the “Original Borrower Note”) made by Borrower payable to
the order of Governmental Lender, as endorsed and assigned to Fiscal Agent for the benefit of
the Original Funding Lender.
The Borrower Loan was secured by, among other things, that certain Leasehold
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated as of December
15, 2023, executed by Borrower for the benefit of Governmental Lender, and recorded in the
Official Records of Miami-Dade County on [_], 2023, as Instrument No. [_] (the “Original
Security Instrument”), which Original Security Instrument encumbers the Mortgaged Property
and was assigned to the Fiscal Agent for the benefit of the Original Funding Lender pursuant to
that certain Assignment of Mortgage and Collateral Loan Documents, dated as of December 15,
2023 and recorded in the Official Records of Miami-Dade County on December [_], 2023 as
Instrument No. [_].
At the request of Borrower, the Borrower, Original Funding Lender and Citibank, N.A., a
national banking association (“Funding Lender”) entered into that certain Forward Purchase
Amended and Restated Mortgage 2 Vista Breeze
Agreement, dated as of December 1, 2023, pursuant to which the Funding Lender agreed to
acquire Original Funding Lender’s interests in the Funding Loan and Funding Loan Documents
(as defined in the Original Funding Loan Agreement) upon satisfaction of the terms and
conditions set forth therein (the “Loan Purchase Conditions”).
Insofar as the Loan Purchase Conditions have been satisfied or waived, Funding Lender
has acquired the Funding Loan from the Original Funding Lender, and in connection therewith,
(i) Funding Lender has agreed to enter into a certain Amended and Restated Funding Loan
Agreement, dated as of the date hereof (the “Funding Loan Agreement”), by and among
Governmental Lender, Fiscal Agent and the Funding Lender, which amends and restates the
Original Funding Loan Agreement; (ii) Borrower and Governmental Lender have entered into an
Amended and Restated Borrower Loan Agreement, dated as of the date hereof (the “Borrower
Loan Agreement”), which amends and restates the Original Borrower Loan Agreement; and
(iii) Borrower has executed and delivered an Amended and Restated Multifamily Note, dated as
of [Month] [Day], 20[_], in the principal amount of [ELEVEN MILLION EIGHT HUNDRED
SEVENTY FIVE THOUSAND AND 00/100 DOLLARS ($11,875,000)][NOTE: AS MAY BE
INCREASED PER THE EARN-OUT], which amends and restates the Borrower Note (the
“Note”), and which matures on the earlier to occur of July 1, 2057, or any earlier date on which
the unpaid principal balance of the Note becomes due and payable, by acceleration or otherwise
(the “Maturity Date”).
The terms, covenants, agreements, rights, obligations and conditions contained in this
Instrument supersede and control the terms, covenants, agreements, rights, obligations and
conditions contained in the Original Security Instrument, it being agreed that the amendment and
restatement of the Original Security Instrument hereby shall neither impair the Indebtedness
secured by the Original Security Instrument nor constitute a novation of the Indebtedness.
NOW THEREFORE:
Granting Clause. Borrower, in consideration of the Indebtedness and the trust created
by this Instrument, irrevocably grants, conveys and assigns to Lender, in trust, with power of
sale, the Mortgaged Property, including the Land located in the City of Miami Beach, Miami-
Dade County, Florida, and described in Exhibit A attached to this Instrument, to have and to hold
the Mortgaged Property unto Lender, Lender’s successor in trust and Lender’s assigns forever.
TO SECURE TO LENDER and its successors and assigns the repayment of the
Indebtedness evidenced by the Note executed by Borrower and maturing on the Maturity Date,
and all renewals, extensions and modifications of the Indebtedness, including, without limitation,
the payment of all sums advanced by or on behalf of Lender to protect the security of this
Instrument under Section 12 and the performance of the covenants and agreements of Borrower
contained in the Loan Documents.
Borrower represents and warrants that Borrower is lawfully seized of the Mortgaged
Property and has the right, power and authority to grant, convey and assign the Mortgaged
Property, and that the Mortgaged Property is unencumbered except for the Permitted
Encumbrances. Borrower covenants that Borrower will warrant and defend generally the title to
the Mortgaged Property against all claims and demands, subject to any Permitted Encumbrances.
Amended and Restated Mortgage 3 Vista Breeze
This Instrument is also a financing statement and a fixture filing under the Uniform
Commercial Code of the Property Jurisdiction and the information set forth on Exhibit C is
included for that purpose.
Covenants. Borrower and Lender covenant and agree as follows:
1. DEFINITIONS. The following terms, when used in this Instrument (including
when used in the above recitals), shall have the following meanings:
(a) “Affiliate” means, as to any Person, any other Person that, directly or
indirectly, is in Control of, is Controlled by or is under common Control with such
Person.
(b) “Agreement of Environmental Indemnification” means that certain
Agreement of Environmental Indemnification, dated as of the date hereof, by Borrower
and Guarantor for the benefit of Beneficiary Parties.
(c) “Bankruptcy Event” means any one or more of the following:
(i) (A) the commencement of a voluntary case under one or more of
the Insolvency Laws by the Borrower; (B) the acknowledgment in
writing by the Borrower that it is unable to pay its debts generally
as they mature; (C) the making of a general assignment for the
benefit of creditors by the Borrower; (D) the commencement of an
involuntary case under one or more Insolvency Laws against the
Borrower; or (E) the appointment of a receiver, liquidator,
custodian, sequestrator, trustee or other similar officer who
exercises control over the Borrower or any substantial part of the
assets of the Borrower provided that any proceeding or case under
(D) or (E) above is not dismissed within 90 days after filing;
(ii) Any Guarantor or any Affiliate of a Guarantor files an involuntary
petition against Borrower under one or more of the Insolvency
Laws; or
(iii) Both (A) an involuntary petition under any one or more of the
Insolvency Laws is filed against Borrower or Borrower directly or
indirectly becomes the subject of any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt, dissolution,
liquidation or similar proceeding relating to it under the laws of
any jurisdiction, or in equity, and (B) Borrower or any Affiliate of
Borrower has acted in concert or conspired with such creditors of
Borrower (other than Lender) to cause the filing thereof with the
intent to interfere with enforcement rights of Lender after the
occurrence of an Event of Default.
Amended and Restated Mortgage 4 Vista Breeze
(d) “Beneficiary Parties” means Lender, Governmental Lender, Funding
Lender, Fiscal Agent, any Servicer and their respective successors and assigns, together
with any lawful owner, holder or pledgee of the Note.
(e) “Borrower” means all persons or entities identified as “Borrower” in the
first paragraph of this Instrument, together with their successors and assigns.
(f) “Borrower’s Agreement of Limited Partnership” means that certain
Amended and Restated Agreement of Limited Partnership, dated as of December 15,
2023, as the same may be amended and/or restated from time to time.
(g) “Borrower’s Organizational Documents” means, collectively: (i) the
certificate of limited partnership of Borrower filed with the Office of the Secretary of
State of Florida on October 21, 2020; and (ii) Borrower’s Agreement of Limited
Partnership.
(h) “Business Day” means any day other than (i) a Saturday or a Sunday, or
(ii) a day on which federally insured depository institutions in New York, New York are
authorized or obligated by law, regulation, governmental decree or executive order to be
closed.
(i) “Closing Date” means [_____], 202[_].
(j) “Collateral Agreement” means any separate agreement between
Borrower and Funding Lender and/or Lender or Servicer for the purpose of establishing
tax, repair or replacement reserve or escrow accounts for the Mortgaged Property or
granting Lender a security interest in any such accounts (including, without limitation,
the Replacement Reserve Agreement), or any other agreement or agreements between
Borrower, Funding Lender and/or Lender or Servicer which provide for the establishment
of any other fund, reserve or account.
(k) “Collateral Assignment” means the (i) Assignment of Management
Agreement, dated as of the date hereof, by Borrower and the Manager (as defined
therein) to Funding Lender, and (ii) Assignment of HAP Contract, dated as of the date
hereof.
(l) “Control” means, with respect to any Person, either (i) ownership directly
or through other entities of more than 50% of all beneficial equity interest in such Person,
or (ii) the possession, directly or indirectly, of the power to direct or cause the direction
of the management or policies of such Person, through the ownership of voting securities,
by contract or otherwise, including the power to elect a majority of the directors of a
corporation, to select the managing partner of a partnership, or otherwise to have the
power independently to remove and then select a majority of those individuals exercising
managerial authority over an entity.
(m) “Credit Enhancer” means a government sponsored enterprise that at any
time, directly or indirectly, purchases the Loan or provides credit enhancement with
respect to the Loan.
Amended and Restated Mortgage 5 Vista Breeze
(n) “Credit Enhancer Insurance Standards” means the insurance standards
and requirements set forth in the multifamily underwriting guidelines generated by the
Credit Enhancer, as in effect from time to time.
(o) “Environmental Permit” means any permit, license, or other
authorization issued under any Hazardous Materials Law with respect to any activities or
businesses conducted on or in relation to the Mortgaged Property.
(p) “Event of Default” means the occurrence of any event listed in
Section 22.
(q) “Fiscal Agent” has the meaning ascribed in the Recitals hereof.
(r) “Fixtures” means all property which is so attached to the Land or the
Improvements as to constitute a fixture under applicable law, including: machinery,
equipment, engines, boilers, incinerators, installed building materials; systems and
equipment for the purpose of supplying or distributing heating, cooling, electricity, gas,
water, air, or light; antennas, cable, wiring and conduits used in connection with radio,
television, security, fire prevention, or fire detection or otherwise used to carry electronic
signals; telephone systems and equipment; elevators and related machinery and
equipment; fire detection, prevention and extinguishing systems and apparatus; security
and access control systems and apparatus; plumbing systems; water heaters, ranges,
stoves, microwave ovens, refrigerators, dishwashers, garbage disposers, washers, dryers
and other appliances; light fixtures, awnings, storm windows and storm doors; pictures,
screens, blinds, shades, curtains and curtain rods; mirrors; cabinets, paneling, rugs and
floor and wall coverings; fences, trees and plants; swimming pools; and exercise
equipment.
(s) “Funding Lender” has the meaning ascribed in the Recitals hereof.
(t) “Governmental Authority” means any board, commission, department or
body of any municipal, county, state or federal governmental unit, or any subdivision of
any of them, that has or acquires jurisdiction over the Mortgaged Property or the use,
operation or improvement of the Mortgaged Property.
(u) “Guarantor” means (i) Howard D. Cohen Revocable Trust U/A/D/
4/6/1993, and/or (ii) any other person or entity which may hereafter become a guarantor,
and the successors and assigns of Guarantor.
(v) “Hazardous Materials” means petroleum and petroleum products and
compounds containing them, including gasoline, diesel fuel and oil; explosives;
flammable materials; radioactive materials; polychlorinated biphenyls (“PCBs”) and
compounds containing them; lead and lead-based paint; asbestos or asbestos-containing
materials in any form that is or could become friable; underground or above-ground
storage tanks, whether empty or containing any substance; radon; Mold; toxic or
mycotoxin spores; any substance the presence of which on the Mortgaged Property is
prohibited by any federal, state or local authority; any substance that requires special
handling; and any other material or substance (whether or not naturally occurring) now or
Amended and Restated Mortgage 6 Vista Breeze
in the future that (i) is defined as a “hazardous substance,” “hazardous material,”
“hazardous waste,” “toxic substance,” “toxic pollutant,” “solid waste”, “pesticide”,
“contaminant,” or “pollutant”, or otherwise classified as hazardous or toxic by or within
the meaning of any Hazardous Materials Law, or (ii) is regulated in any way by or within
the meaning of any Hazardous Materials Law.
(w) “Hazardous Materials Laws” means all federal, state, and local laws,
ordinances and regulations and standards, rules, policies and other governmental
requirements, rule of common law (including, without limitation, nuisance and trespass),
consent order, administrative rulings and court judgments and decrees or other
government directive in effect now or in the future and including all amendments, that
relate to Hazardous Materials or to the protection or conservation of the environment or
human health and apply to Borrower or to the Mortgaged Property, including, without
limitation, those relating to industrial hygiene, or the use, analysis, generation,
manufacture, storage, discharge, release, disposal, transportation, treatment,
investigation, or remediation of Hazardous Materials. Hazardous Materials Laws
include, but are not limited to, the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601, et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., the Toxic Substances
Control Act, 15 U.S.C. Section 2601, et seq., the Clean Water Act, 33 U.S.C.
Section 1251, et seq., the Hazardous Materials Transportation Act, 49 U.S.C.
Section 5101, et seq., the Superfund Amendments and Reauthorization Act, the Solid
Waste Disposal Act, the Clean Air Act, the Occupational Safety and Health Act, and their
state analogs.
(x) “Impositions” and “Imposition Deposits” shall have the meanings
ascribed thereto in Section 7(a).
(y) “Improvements” means the buildings, structures, improvements, and
alterations now constructed or at any time in the future constructed or placed upon the
Land, including any future replacements and additions.
(z) “Indebtedness” means collectively, the principal of, interest on, and all
other amounts due at any time under, the Note, this Instrument or any other Loan
Document, including prepayment premiums, late charges, default interest, and advances
as provided in Section 12 to protect the security of this Instrument, and any fees or
expenses paid by Lender on behalf of Borrower to Lender, or any other party for the
Loan or other amounts relating to the Loan Documents which are paid by Lender;
(aa) “Initial Owners” means, with respect to Borrower or any other entity, the
persons or entities who on the date of the Note, directly or indirectly, own in the
aggregate 100% of the ownership interests in Borrower or that entity.
(bb) “Insolvency Laws” means the United States Bankruptcy Code, 11 U.S.C.
§ 101, et seq., together with any other federal or state law affecting debtor and creditor
rights or relating to the bankruptcy, insolvency, reorganization, arrangement,
Amended and Restated Mortgage 7 Vista Breeze
readjustment of debt, dissolution, liquidation or similar proceeding, as amended from
time to time, to the extent applicable to the Borrower.
(cc) “Land” means the land described in Exhibit A.
(dd) “Leases” means all present and future leases, subleases, licenses,
concessions or grants or other possessory interests now or hereafter in force, whether oral
or written, covering or affecting the Mortgaged Property, or any portion of the Mortgaged
Property (including proprietary leases or occupancy agreements if Borrower is a
cooperative housing corporation), and all modifications, extensions or renewals.
(ee) “Lender” means the entity identified as “Lender” in the first paragraph of
this Instrument, or any subsequent holder of the Note.
(ff) “Loan” means the loan made by Lender to Borrower in an amount not to
exceed the original principal amount of the Note, which loan is evidenced by the Note
and secured by, among other things, this Instrument.
(gg) “Loan Agreement” means that certain Amended and Restated Borrower
Loan Agreement, dated as of the date hereof, by and between Governmental Lender and
Borrower, relating, to the Loan, as the same may be amended, modified or supplemented
from time to time.
(hh) “Loan Covenant Agreement” means that certain Loan Covenant
Agreement, dated as of the date hereof, between the Funding Lender and Borrower, as
such agreement may be amended, modified, supplemented and replaced from time to
time.
(ii) “Loan Documents” means collectively, the Loan Agreement, the Note,
this Instrument, the Loan Covenant Agreement, the Agreement of Environmental
Indemnification, all guaranties, all indemnity agreements, all Collateral Agreements, the
Collateral Assignment, the Replacement Reserve Agreement, all O&M Programs, the
MMP, and any other documents now or in the future executed by Borrower, any
guarantor or any other person in connection with the Loan, as such documents may be
amended from time to time.
(jj) “Material Property Agreements” means any agreement which, in
Lender’s sole discretion, acting in good faith, materially affects the Mortgaged Property,
the use thereof or otherwise materially affects the rights of Borrower or Beneficiary
Parties in, to, and with respect to the Mortgaged Property or the proceeds therefrom,
including, without limitation, each of the following: (i) any agreement regarding the
payment in lieu of taxes (“PILOT”), (ii) all covenants, conditions and restrictions,
including, without limitation, any declaration subjecting the Mortgaged Property to an
association of owners or other community governance, (iii) any agreement regarding the
abatement or exemption of real estate taxes, (iv) any easement pursuant to which the
Mortgaged Property is granted access to a public right of way, (v) any material lease of
all or any portion of the Mortgaged Property, (vi) any operating agreements relating to
the Land or the Improvements and (vii) any regulatory agreements, declarations, land use
Amended and Restated Mortgage 8 Vista Breeze
restriction agreements or similar instruments affecting the Mortgaged Property including
the operation or use thereof.
(kk) “Maturity Date” has the meaning ascribed thereto in the recitals to this
Instrument.
(ll) “MMP” means an operations and maintenance plan, moisture
management program and/or microbial operations and maintenance program approved by
Lender to control water intrusion and prevent the development of Mold or moisture at the
Mortgaged Property throughout the term of this Instrument. If required by Lender, the
MMP shall contain a provision for (i) staff training, (ii) information to be provided to
tenants, (iii) documentation of the plan, (iv) the appropriate protocol for incident response
and remediation and (v) routine, scheduled inspections of common space and unit
interiors.
(mm) “Mold” means mold, fungus, microbial contamination or pathogenic
organisms.
(nn) “Mortgaged Property” means all of Borrower’s present and future right,
title and interest in and to all of the following:
(i) the Land;
(ii) the Improvements;
(iii) the Fixtures;
(iv) the Personalty;
(v) all current and future rights, including air rights, development
rights, zoning rights and other similar rights or interests,
easements, tenements, rights-of-way, strips and gores of land,
streets, alleys, roads, sewer rights, waters, watercourses, and
appurtenances related to or benefiting the Land or the
Improvements, or both, and all rights-of-way, streets, alleys and
roads which may have been or may in the future be vacated;
(vi) all proceeds paid or to be paid by any insurer of the Land, the
Improvements, the Fixtures, the Personalty or any other part of the
Mortgaged Property, whether or not Borrower obtained the
insurance pursuant to Lender’s requirements;
(vii) all awards, payments and other compensation made or to be made
by any municipal, state or federal authority with respect to the
Land, the Improvements, the Fixtures, the Personalty or any other
part of the Mortgaged Property, including any awards or
settlements resulting from condemnation proceedings or the total
or partial taking of the Land, the Improvements, the Fixtures, the
Amended and Restated Mortgage 9 Vista Breeze
Personalty or any other part of the Mortgaged Property under the
power of eminent domain or otherwise and including any
conveyance in lieu thereof;
(viii) all contracts, options and other agreements for the sale of the Land,
the Improvements, the Fixtures, the Personalty or any other part of
the Mortgaged Property entered into by Borrower now or in the
future, including cash or securities deposited to secure
performance by parties of their obligations;
(ix) all Rents and Leases;
(x) all earnings, royalties, accounts receivable, issues and profits from
the Land, the Improvements or any other part of the Mortgaged
Property, whether the foregoing are now due, past due, or to
become due, all undisbursed proceeds of the loan secured by this
Instrument, deposits forfeited by tenants, and, if Borrower is a
cooperative housing corporation, maintenance charges or
assessments payable by shareholders or residents;
(xi) all refunds or rebates of Impositions by any municipal, state or
federal authority or insurance company (other than refunds
applicable to periods before the real property tax year in which this
Instrument is dated);
(xii) all tenant security deposits which have not been forfeited by any
tenant under any Lease and any bond or other security in lieu of
such deposits;
(xiii) all names under or by which any of the above Mortgaged Property
may be operated or known, and all trademarks, trade names, and
goodwill relating to any of the Mortgaged Property;
(xiv) all documents, writings, books, files, records and other documents
arising from or relating to any of the foregoing, whether now
existing or hereafter created; and
(xv) all proceeds from the conversion, voluntary or involuntary, of any
of the above into cash or liquidated claims, and the right to collect
such proceeds, and all other cash and non-cash proceeds and
products of any of the foregoing.
(oo) “Note” means that certain Amended and Restated Multifamily Note, dated
as of the Closing Date, executed and delivered by the Borrower, payable to Lender in an
amount not to exceed the maximum principal amount of the Loan set forth in the recitals
to this Instrument, including all schedules, riders, allonges and addenda, as the same may
be amended, modified, or supplemented from time to time.
Amended and Restated Mortgage 10 Vista Breeze
(pp) “O&M Program” has the meaning ascribed thereto in Section 18(d).
(qq) “Permitted Encumbrances” means any easements, encumbrances or
restrictions listed on the schedule of exceptions in the title insurance policy issued to
Lender as of the date of recordation of this Instrument insuring Lender’s interest in the
Mortgaged Property, any extended low-income housing commitment (as such term is
defined in Section 42(h)(6)(B) of the Internal Revenue Code), the Regulatory Agreement
(defined herein) and the liens securing the Subordinate Loans (defined herein), and such
other title and survey exceptions as Lender has approved or may approve in writing in
Lender’s sole and absolute discretion.
(rr) “Permitted Transfer” has the meaning ascribed thereto in Section 21(b).
(ss) “Person” means any individual, corporation, limited liability company,
partnership, joint venture, estate, trust, unincorporated association, any federal, state,
county or municipal government or any bureau, department or agency thereof and any
fiduciary acting in such capacity on behalf of any of the foregoing.
(tt) “Personalty” means all of Borrower’s right, title, and interest in and to all:
(i) accounts (including deposit accounts) of Borrower related to the
Mortgaged Property;
(ii) Imposition Deposits;
(iii) equipment, goods, supplies and inventory owned by Borrower that
are used now or in the future in connection with the ownership,
management or operation of the Land or the Improvements or are
located on the Land or in the Improvements (other than Fixtures),
including furniture, furnishings, machinery, building materials,
tools, books, records (whether in written or electronic form),
computer equipment (hardware and software);
(iv) other tangible personal property owned by Borrower which are
used now or in the future in connection with the ownership,
management or operation of the Land or Improvements or are
located on the Land or in the Improvements (other than Fixtures),
including ranges, stoves, microwave ovens, refrigerators,
dishwashers, garbage disposers, washers, dryers and other
appliances;
(v) any operating agreements relating to the Land or the
Improvements;
(vi) any surveys, plans and specifications and contracts for
architectural, engineering and construction services relating to the
Land or the Improvements;
Amended and Restated Mortgage 11 Vista Breeze
(vii) documents, instruments, chattel paper, claims, deposits, deposit
accounts, payment intangibles, other intangible property, general
intangibles, and rights relating to the operation of, or used in
connection with, the Land or the Improvements, including all
governmental permits relating to any activities on the Land and
including subsidy or similar payments received from any sources,
including a Governmental Authority; and
(viii) any rights of Borrower in or under letters of credit.
(uu) “Project” means the 119-unit multifamily residential project known or to
be known as Vista Breeze, and located in the City of Miami Beach, Miami-Dade County,
State of Florida.
(vv) “Property Jurisdiction” means the State of Florida.
(ww) “Regulatory Agreement” means the Land Use Restriction Agreement,
dated as of December 1, 2023, by and among Governmental Lender, Fiscal Agent and the
Borrower, regulating or restricting the use or manner of operation of the Mortgaged
Property and containing requirements that specified percentages of the dwelling units in
the Mortgaged Property be occupied by tenants whose incomes are below specified
levels.
(xx) “Rents” means all rents (whether from residential or non-residential
space), revenues and other income of the Land or the Improvements, including subsidy
payments received from any sources (including, but not limited to payments under any
Housing Assistance Payments Contract or similar agreements), parking fees, laundry and
vending machine income and fees and charges for food, health care and other services
provided at the Mortgaged Property, whether now due, past due, or to become due, and
deposits forfeited by tenants.
(yy) “Replacement Reserve Agreement” means that certain Replacement
Reserve Agreement, dated as of the date hereof, by and between Borrower and Funding
Lender.
(zz) “Replacement Reserve Fund” has the meaning ascribed thereto by the
Replacement Reserve Agreement.
(aaa) “Servicer” means the servicing party that is designated by Lender to
service the Loan, together with its successors in such capacity.
(bbb) “Subordinate Loans” has the meaning ascribed to that term in the
Borrower Loan Agreement.
(ccc) “Taxes” means, collectively, all taxes, assessments, vault rentals and other
charges, if any, general, special or otherwise, including all assessments for schools,
public betterments and general or local improvements, which are levied, assessed or
Amended and Restated Mortgage 12 Vista Breeze
imposed by any public authority or quasi-public authority, and which, if not paid, will
become a lien, on the Land or the Improvements.
(ddd) “Transfer” means (i) a sale, assignment, transfer, or other disposition
(whether voluntary, involuntary or by operation of law); (ii) the grant, creation, or
attachment of a lien, encumbrance, or security interest (whether voluntary, involuntary or
by operation of law); (iii) the issuance or other creation of a direct or indirect ownership
interest; or (iv) the withdrawal, retirement, removal or involuntary resignation of any
owner or manager of a legal entity.
(eee) “Uniform Commercial Code” means the Florida Uniform Commercial
Code.
(fff) “United States Bankruptcy Code” means the United States Bankruptcy
Code, 11 U.S.C. Section 101 et seq., as amended from time to time.
2. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT.
(a) This Instrument is also a security agreement under the Uniform
Commercial Code for any of the Mortgaged Property which, under applicable law, may
be subjected to a security interest under the Uniform Commercial Code, whether such
Mortgaged Property is owned now or acquired in the future, and all products and cash
and non-cash proceeds thereof (collectively, “UCC Collateral”), and Borrower hereby
grants to Lender a security interest in the UCC Collateral. Borrower hereby authorizes
Lender to prepare and file any and all financing statements, continuation statements and
financing statement amendments, in such form as Lender may require to perfect or
continue the perfection of this security interest without execution by Borrower. Borrower
shall pay all filing costs and all costs and expenses of any record searches for financing
statements and/or amendments that Lender may require. Without the prior written
consent of Lender, Borrower shall not create or permit to exist any other lien or security
interest in any of the UCC Collateral except for the Permitted Encumbrances. If an Event
of Default has occurred and is continuing (it being acknowledged and agreed that in no
event shall Funding Lender have any obligation to accept a cure of an Event of Default),
Lender shall have the remedies of a secured party under the Uniform Commercial Code,
in addition to all remedies provided by this Instrument or existing under applicable law.
In exercising any remedies, Lender may exercise its remedies against the UCC Collateral
separately or together, and in any order, without in any way affecting the availability of
Lender’s other remedies. This Instrument constitutes a financing statement with respect
to any part of the Mortgaged Property which is or may become a Fixture.
(b) Unless Borrower gives at least thirty (30) days’ prior written notice to
Lender and subject to Section 21 hereof, Borrower shall not: (i) change its name,
identity, or structure of organization; (ii) change its state of organization through
dissolution, merger, transfer of assets or otherwise; (iii) change its principal place of
business (or chief executive office if more than one place of business); or (iv) add to or
change any location at which any of the Mortgaged Property is stored, held or located.
Such notice shall be accompanied by new financing statements and/or financing
Amended and Restated Mortgage 13 Vista Breeze
statement amendments in the same form as the financing statements delivered to Lender
on the date hereof. Without limiting the foregoing, upon the occurrence and during the
continuance of an Event of Default (it being acknowledged and agreed that in no event
shall Funding Lender have any obligation to accept a cure of an Event of Default),
Borrower hereby authorizes and irrevocably appoints Lender and each of its officers
attorneys-in-fact for Borrower to execute, deliver, and file, as applicable, such financing
statements, continuation statements or amendments deemed necessary by Lender in its
sole discretion for and on behalf of Borrower, without execution by Borrower. Borrower
shall also execute and deliver to Lender modifications or supplements of this Instrument
as Lender may require in connection with any change described in this Section.
3. ASSIGNMENT OF RENTS; APPOINTMENT OF RECEIVER; LENDER
IN POSSESSION.
(a) As part of the consideration for the Indebtedness, Borrower absolutely and
unconditionally assigns and transfers to Lender all Rents. It is the intention of Borrower
to establish a present, absolute and irrevocable transfer and assignment to Lender of all
Rents and to authorize and empower Lender to collect and receive all Rents without the
necessity of further action on the part of Borrower. Promptly upon request by Lender,
Borrower agrees to execute and deliver such further assignments of Rents as Lender may
from time to time require. Borrower and Lender intend this assignment of Rents to be
immediately effective and to constitute an absolute present assignment and not an
assignment for additional security only. For purposes of giving effect to this absolute
assignment of Rents, and for no other purpose, Rents shall not be deemed to be a part of
the Mortgaged Property. However, if this present, absolute and unconditional assignment
of Rents is not enforceable by its terms under the laws of the Property Jurisdiction, then
the Rents shall be included as a part of the Mortgaged Property and it is the intention of
Borrower that in this circumstance this Instrument create and perfect a lien on Rents in
favor of Lender, which lien shall be effective as of the date of this Instrument.
(b) Borrower authorizes Lender to collect, sue for and compromise Rents and
directs each tenant of the Mortgaged Property to pay all Rents to, or as directed by,
Lender. However, until the occurrence of an Event of Default, Lender hereby grants to
Borrower a revocable license to collect and receive all Rents, to hold all Rents in trust for
the benefit of Lender and to apply all Rents to pay the installments of interest and
principal then due and payable under the Note and the other amounts then due and
payable under the other Loan Documents, including Imposition Deposits, and to pay the
current costs and expenses of managing, operating and maintaining the Mortgaged
Property, including utilities, Taxes and insurance premiums (to the extent not included in
Imposition Deposits), tenant improvements and other capital expenditures. So long as no
Event of Default has occurred and is continuing (it being acknowledged and agreed that
in no event shall Funding Lender have any obligation to accept a cure of an Event of
Default), the Rents remaining after application pursuant to the preceding sentence may be
retained by Borrower free and clear of, and released from, Lender’s rights with respect to
Rents under this Instrument. During the continuation of an Event of Default (it being
acknowledged and agreed that in no event shall Funding Lender have any obligation to
accept a cure of an Event of Default), and without the necessity of Lender entering upon
Amended and Restated Mortgage 14 Vista Breeze
and taking and maintaining control of the Mortgaged Property directly, or by a receiver,
Borrower’s license to collect Rents shall automatically terminate and Lender shall
without notice be entitled to all Rents as they become due and payable, including Rents
then due and unpaid (such license shall be reinstated upon Borrower’s cure of the Event
of Default to the satisfaction of Lender). Borrower shall pay to Lender upon demand all
Rents to which Lender is entitled. At any time during the continuation of an Event of
Default (it being acknowledged and agreed that in no event shall Funding Lender have
any obligation to accept a cure of an Event of Default), Lender may give, and Borrower
hereby irrevocably authorizes Lender to give, notice to all tenants of the Mortgaged
Property instructing them to pay all Rents to Lender, no tenant shall be obligated to
inquire further as to the right of Lender to collect Rents, and no tenant shall be obligated
to pay to Borrower any amounts which are actually paid to Lender in response to such a
notice. Any such notice by Lender shall be delivered to each tenant personally, by mail
or by delivering such demand to each rental unit. Borrower shall not interfere with and
shall cooperate with Lender’s collection of such Rents.
(c) Borrower represents and warrants to Lender that Borrower has not
executed any prior assignment of Rents (other than an assignment of Rents securing
indebtedness that will be paid off and discharged with the proceeds of the Loan or in
connection with the Subordinate Loans), that Borrower has not performed, and Borrower
covenants and agrees that it will not perform, any acts and has not executed, and shall not
execute, any instrument which would prevent Lender from exercising its rights under this
Section 3, and that at the time of execution of this Instrument there has been no
anticipation or prepayment of any Rents for more than two months prior to the due dates
of such Rents (other than a security deposit not in excess of one month’s rent). Borrower
shall not collect or accept payment of any Rents more than two months prior to the due
dates of such Rents (other than a security deposit not in excess of one month’s rent).
(d) If an Event of Default has occurred and is continuing (it being
acknowledged and agreed that in no event shall Funding Lender have any obligation to
accept a cure of an Event of Default), Lender may, but shall in no event be required to,
regardless of the adequacy of Lender’s security or the solvency of Borrower and even in
the absence of waste, enter upon and take and maintain full control of the Mortgaged
Property in order to perform all acts that Lender in its discretion determines to be
necessary or desirable for the operation and maintenance of the Mortgaged Property,
including the execution, cancellation or modification of Leases, the collection of all
Rents, the making of repairs to the Mortgaged Property and the execution or termination
of contracts providing for the management, operation or maintenance of the Mortgaged
Property, for the purposes of enforcing the assignment of Rents pursuant to Section 3(a),
protecting the Mortgaged Property or the security of this Instrument, or for such other
purposes as Lender in its discretion may deem necessary or desirable. Alternatively, if an
Event of Default has occurred and is continuing (it being acknowledged and agreed that
in no event shall Funding Lender have any obligation to accept a cure of an Event of
Default), regardless of the adequacy of Lender’s security, without regard to Borrower’s
solvency and without the necessity of giving prior notice (oral or written) to Borrower,
Lender may apply to any court having jurisdiction for the appointment of a receiver for
the Mortgaged Property to take any or all of the actions set forth in the preceding
Amended and Restated Mortgage 15 Vista Breeze
sentence. If Lender elects to seek the appointment of a receiver for the Mortgaged
Property at any time after an Event of Default has occurred and is continuing (it being
acknowledged and agreed that in no event shall Funding Lender have any obligation to
accept a cure of an Event of Default), Borrower, by its execution of this Instrument,
expressly consents to the appointment of such receiver, including the appointment of a
receiver ex parte if permitted by applicable law. Lender or the receiver, as the case may
be, shall be entitled to receive a reasonable fee for managing the Mortgaged Property.
Immediately upon appointment of a receiver or immediately upon Lender’s entering upon
and taking possession and control of the Mortgaged Property, Borrower shall surrender
possession of the Mortgaged Property to Lender or the receiver, as the case may be, and
shall deliver to Lender or the receiver, as the case may be, all documents, records
(including records on electronic or magnetic media), accounts, surveys, plans, and
specifications relating to the Mortgaged Property and all security deposits and prepaid
Rents. In the event Lender takes possession and control of the Mortgaged Property,
Lender may exclude Borrower and its representatives from the Mortgaged Property.
Borrower acknowledges and agrees that the exercise by Lender of any of the rights
conferred under this Section 3 shall not be construed to make Lender a mortgagee-in-
possession of the Mortgaged Property so long as Lender has not itself entered into actual
possession of the Land and Improvements.
(e) If Lender enters the Mortgaged Property, Lender shall be liable to account
only to Borrower and only for those Rents actually received. Lender shall not be liable to
Borrower, anyone claiming under or through Borrower or anyone having an interest in
the Mortgaged Property, by reason of any act or omission of Lender under this Section 3,
and Borrower hereby releases and discharges Lender from any such liability to the fullest
extent permitted by law, except for the gross negligence or willful misconduct of Lender
or its agents.
(f) If the Rents are not sufficient to meet the costs of taking control of and
managing the Mortgaged Property and collecting the Rents, any funds expended by
Lender for such purposes shall become an additional part of the Indebtedness as provided
in Section 12.
(g) Any entering upon and taking of control of the Mortgaged Property by
Lender or the receiver, as the case may be, and any application of Rents as provided in
this Instrument shall not cure or waive any Event of Default or invalidate any other right
or remedy of Lender under applicable law or provided for in this Instrument.
4. ASSIGNMENT OF LEASES; LEASES AFFECTING THE MORTGAGED
PROPERTY.
(a) As part of the consideration for the Indebtedness, Borrower absolutely and
unconditionally assigns and transfers to Lender all of Borrower’s right, title and interest
in, to and under the Leases, including Borrower’s right, power and authority to modify
the terms of any such Lease, or extend or terminate any such Lease. It is the intention of
Borrower to establish a present, absolute and irrevocable transfer and assignment to
Lender of all of Borrower’s right, title and interest in, to and under the Leases. Borrower
Amended and Restated Mortgage 16 Vista Breeze
and Lender intend this assignment of the Leases to be immediately effective and to
constitute an absolute present assignment and not an assignment for additional security
only. For purposes of giving effect to this absolute assignment of the Leases, and for no
other purpose, the Leases shall not be deemed to be a part of the “Mortgaged Property” as
that term is defined in Section 1. However, if this present, absolute and unconditional
assignment of the Leases is not enforceable by its terms under the laws of the Property
Jurisdiction, then the Leases shall be included as a part of the Mortgaged Property and it
is the intention of Borrower that in this circumstance this Instrument create and perfect a
lien on the Leases in favor of Lender, which lien shall be effective as of the date of this
Instrument.
(b) Unless an Event of Default has occurred and is continuing (it being
acknowledged and agreed that in no event shall Funding Lender have any obligation to
accept a cure of an Event of Default), Borrower shall have all rights, power and authority
granted to Borrower under any Lease (except as otherwise limited by this Section or any
other provision of this Instrument), including the right, power and authority to modify the
terms of any Lease or extend or terminate any Lease. During the continuance of an Event
of Default (it being acknowledged and agreed that in no event shall Funding Lender have
any obligation to accept a cure of an Event of Default), the permission given to Borrower
pursuant to the preceding sentence to exercise all rights, power and authority under
Leases shall automatically terminate. Borrower shall comply with and observe
Borrower’s obligations under all Leases, including Borrower’s obligations pertaining to
the maintenance and disposition of tenant security deposits.
(c) Borrower acknowledges and agrees that the exercise by Lender, either
directly or by a receiver, of any of the rights conferred under this Section 4 shall not be
construed to make Lender a mortgagee-in-possession of the Mortgaged Property so long
as Lender has not itself entered into actual possession of the Land and the Improvements.
The acceptance by Lender of the assignment of the Leases pursuant to Section 4(a) shall
not at any time or in any event obligate Lender to take any action under this Instrument or
to expend any money or to incur any expenses. Lender shall not be liable in any way for
any injury or damage to person or property sustained by any person or persons, firm or
corporation in or about the Mortgaged Property, except to the extent arising from the
gross negligence or willful misconduct of Lender. Prior to Lender’s actual entry into and
taking possession of the Mortgaged Property, Lender shall not (i) be obligated to perform
any of the terms, covenants and conditions contained in any Lease (or otherwise have any
obligation with respect to any Lease); (ii) be obligated to appear in or defend any action
or proceeding relating to the Lease or the Mortgaged Property; or (iii) be responsible for
the operation, control, care, management or repair of the Mortgaged Property or any
portion of the Mortgaged Property. The execution of this Instrument by Borrower shall
constitute conclusive evidence that all responsibility for the operation, control, care,
management and repair of the Mortgaged Property is and shall be that of Borrower, prior
to such actual entry and taking of possession.
(d) Upon delivery of notice by Lender to Borrower of Lender’s exercise of
Lender’s rights under this Section 4, at any time during the continuance of an Event of
Default (it being acknowledged and agreed that in no event shall Funding Lender have
Amended and Restated Mortgage 17 Vista Breeze
any obligation to accept a cure of an Event of Default), and without the necessity of
Lender entering upon and taking and maintaining control of the Mortgaged Property
directly, by a receiver, or by any other manner or proceeding permitted by the laws of the
Property Jurisdiction, Lender immediately shall have all rights, powers and authority
granted to Borrower under any Lease, including the right, power and authority to modify
the terms of any such Lease, or extend or terminate any such Lease.
(e) Borrower shall, promptly upon Lender’s request, deliver to Lender an
executed copy of each residential Lease then in effect. All Leases for residential
dwelling units shall (i) be on forms approved by Lender, (ii) be for initial terms of at least
six (6) months and not more than two (2) years, (iii) not include options to purchase, (iv)
be legally valid, binding, and enforceable obligations of the tenants, (v) contain language
expressly stating that such Lease is subordinate to the lien of this Instrument, and (vi)
comply with all applicable laws.
(f) Except for laundry facilities and cable television services for tenants on
market terms and conditions, Borrower shall not lease any portion of the Mortgaged
Property for non-residential use except with the prior written consent of Lender and
Lender’s prior written approval of the Lease agreement. Borrower shall not modify the
terms of, or extend or terminate, any Lease for non-residential use (including any Lease
in existence on the date of this Instrument) without the prior written consent of Lender.
Borrower shall, without request by Lender, deliver an executed copy of each non-
residential Lease to Lender promptly after such Lease is signed. All non-residential
Leases, including renewals or extensions of existing Leases, shall specifically provide
that (i) such Leases are subordinate to the lien of this Instrument; (ii) the tenant shall
attorn to Lender and any purchaser at a foreclosure sale, such attornment to be self-
executing and effective upon acquisition of title to the Mortgaged Property by any
purchaser at a foreclosure sale or by Lender in any manner; (iii) the tenant agrees to
execute such further evidences of attornment as Lender or any purchaser at a foreclosure
sale may from time to time request; (iv) the Lease shall not be terminated by foreclosure
or any other transfer of the Mortgaged Property; (v) after a foreclosure sale of the
Mortgaged Property, Lender or any other purchaser at such foreclosure sale may, at
Lender’s or such purchaser’s option, accept or terminate such Lease; and (vi) the tenant
shall, upon receipt after the occurrence of an Event of Default of a written request from
Lender, pay all Rents payable under the Lease to Lender.
(g) Borrower shall not receive or accept Rent under any Lease (whether
residential or non-residential) for more than two months in advance (other than a security
deposit not in excess of one month’s rent).
5. PAYMENT OF INDEBTEDNESS; PERFORMANCE UNDER LOAN
DOCUMENTS; PREPAYMENT PREMIUM. Borrower shall pay the Indebtedness when due
in accordance with the terms of the Note and the other Loan Documents and shall perform,
observe and comply with all other provisions of the Note and the other Loan Documents. To the
extent required pursuant to the Note, Borrower shall pay a prepayment premium in connection
with certain prepayments of the Indebtedness, including a payment made after Lender’s exercise
of any right of acceleration of the Indebtedness, as provided in the Note.
Amended and Restated Mortgage 18 Vista Breeze
6. EXCULPATION. The personal liability of Borrower for payment of the Note
and for performance of the other obligations to be performed by Borrower under this Instrument
is limited in the manner, and to the extent, provided in the Note.
7. DEPOSITS FOR TAXES, INSURANCE AND OTHER CHARGES.
(a) Borrower shall deposit with Lender on the day monthly installments of
principal or interest, or both, are due under the Note (or on another day designated in
writing by Lender), until the Indebtedness is paid in full, an additional amount sufficient
to accumulate with Lender the entire sum required to pay, when due (i) any water and
sewer charges which, if not paid, may result in a lien on all or any part of the Mortgaged
Property, (ii) the premiums for fire and other hazard insurance, rental loss insurance and
such other insurance as Lender may require under Section 19, (iii) Taxes, and
(iv) amounts for other charges and expenses which Lender at any time reasonably deems
necessary to protect the Mortgaged Property, to prevent the imposition of liens on the
Mortgaged Property, or otherwise to protect Lender’s interests, all as reasonably
estimated from time to time by Lender, plus one-twelfth of such estimate, if required by
Lender. The amounts deposited under the preceding sentence are collectively referred to
in this Instrument as the “Imposition Deposits”. The obligations of Borrower for which
the Imposition Deposits are required are collectively referred to in this Instrument as
“Impositions”. The amount of the Imposition Deposits shall be sufficient to enable
Lender to pay each Imposition before the last date upon which such payment may be
made without any penalty or interest charge being added. Lender shall maintain records
indicating how much of the monthly Imposition Deposits and how much of the aggregate
Imposition Deposits held by Lender are held for the purpose of paying Taxes, insurance
premiums and each other Imposition.
(b) Imposition Deposits shall be held in an institution (which may be Lender,
if Lender is such an institution) whose deposits or accounts are insured or guaranteed by
a federal agency. Lender shall not be obligated to open additional accounts or deposit
Imposition Deposits in additional institutions when the amount of the Imposition
Deposits exceeds the maximum amount of the federal deposit insurance or guaranty.
Lender shall apply the Imposition Deposits to pay Impositions so long as no Event of
Default has occurred and is continuing (it being acknowledged and agreed that in no
event shall Funding Lender have any obligation to accept a cure of an Event of Default).
Unless applicable law requires, Lender shall not be required to pay Borrower any interest,
earnings or profits on the Imposition Deposits. As additional security for all of
Borrower’s obligations under this Instrument and the other Loan Documents, Borrower
hereby pledges and grants to Lender a security interest in the Imposition Deposits and all
proceeds of and all interest and dividends on the Imposition Deposits. Any amounts
deposited with Lender under this Section 7 shall not be trust funds, nor shall they operate
to reduce the Indebtedness, unless applied by Lender for that purpose under Section 7(e).
(c) If Lender receives a bill or invoice for an Imposition, Lender shall pay the
Imposition from the Imposition Deposits held by Lender. Lender shall have no
obligation to pay any Imposition to the extent it exceeds Imposition Deposits then held by
Lender. Lender may pay an Imposition according to any bill, statement or estimate from
Amended and Restated Mortgage 19 Vista Breeze
the appropriate public office or insurance company without inquiring into the accuracy of
the bill, statement or estimate or into the validity of the Imposition.
(d) If at any time the amount of the Imposition Deposits held by Lender for
payment of a specific Imposition exceeds the amount deemed necessary by Lender, plus
one twelfth of such estimate if required by Lender, the excess shall be credited against
future installments of Imposition Deposits. If at any time the amount of the Imposition
Deposits held by Lender for payment of a specific Imposition is less than the amount
estimated by Lender to be necessary, plus one twelfth of such estimate if required by
Lender, Borrower shall pay to Lender the amount of the deficiency within 15 days after
notice from Lender.
(e) If an Event of Default has occurred and is continuing (it being
acknowledged and agreed that in no event shall Funding Lender have any obligation to
accept a cure of an Event of Default), Lender may apply any Imposition Deposits, in any
amounts and in any order as Lender determines, in Lender’s discretion, to pay any
Impositions or as a credit against the Indebtedness. Upon payment in full of the
Indebtedness, Lender shall refund to Borrower any Imposition Deposits held by Lender.
(f) If Lender does not collect an Imposition Deposit pursuant to a separate
written waiver by Lender, then on or before the date each such Imposition is due, or on
the date this Instrument requires each such Imposition to be paid, Borrower shall, if
required by Lender, provide Lender with proof of payment of each such Imposition for
which Lender does not require collection of Imposition Deposits. Lender may, at any
time and in Lender’s discretion, revoke its deferral or waiver and require Borrower to
deposit with Lender any or all of the Imposition Deposits listed in this Section 7.
8. COLLATERAL AGREEMENTS. Borrower shall deposit with Lender such
amounts as may be required by the Loan Agreement and any Collateral Agreement and shall
perform all other obligations of Borrower under the Loan Agreement and each Collateral
Agreement.
9. APPLICATION OF PAYMENTS. If at any time Lender receives, from
Borrower or otherwise, any amount applicable to the Indebtedness which is less than all amounts
due and payable at such time, then Lender may apply that payment to amounts then due and
payable in any manner and in any order determined by Lender, in Lender’s discretion. Neither
Lender’s acceptance of an amount that is less than all amounts then due and payable nor
Lender’s application of such payment in the manner authorized shall constitute or be deemed to
constitute either a waiver of the unpaid amounts or an accord and satisfaction. Notwithstanding
the application of any such amount to the Indebtedness, Borrower’s obligations under this
Instrument and the Note shall remain unchanged.
10. COMPLIANCE WITH LAWS. Borrower shall comply with all laws,
ordinances, regulations and requirements of any Governmental Authority and all recorded lawful
covenants and agreements relating to or affecting the Mortgaged Property, including all laws,
ordinances, regulations, requirements and covenants pertaining to health and safety, construction
of improvements on the Mortgaged Property, fair housing, disability accommodation, zoning and
Amended and Restated Mortgage 20 Vista Breeze
land use, and Leases. Borrower also shall comply with all applicable laws that pertain to the
maintenance and disposition of tenant security deposits. Borrower shall at all times maintain
records sufficient to demonstrate compliance with the provisions of this Section 10. Borrower
shall take appropriate measures to prevent, and shall not engage in or knowingly permit, any
illegal activities at the Mortgaged Property that could endanger tenants or visitors, result in
damage to the Mortgaged Property, result in forfeiture of the Mortgaged Property, or otherwise
materially impair the lien created by this Instrument or Lender’s interest in the Mortgaged
Property. Borrower represents and warrants to Lender that no portion of the Mortgaged Property
has been or will be purchased with the proceeds of any illegal activity.
11. USE OF PROPERTY. Unless required by applicable law, Borrower shall not
(a) allow changes in the use for which all or any part of the Mortgaged Property is being used at
the time this Instrument was executed, except for any change in use approved by Lender,
(b) convert any individual dwelling units or common areas to commercial use, (c) initiate a
change in the zoning classification of the Mortgaged Property or acquiesce in a change in the
zoning classification of the Mortgaged Property, (d) establish any condominium or cooperative
regime with respect to the Mortgaged Property; (e) combine all or any part of the Mortgaged
Property with all or any part of a tax parcel which is not part of the Mortgaged Property, or
(f) subdivide or otherwise split any tax parcel constituting all or any part of the Mortgaged
Property without the prior consent of Lender.
12. PROTECTION OF LENDER’S SECURITY; INSTRUMENT SECURES
FUTURE ADVANCES.
(a) If Borrower fails to perform any of its obligations under this Instrument or
any other Loan Document after the expiration of any applicable notice and cure period, or
if any action or proceeding (including a Bankruptcy Event) is commenced which purports
to affect the Mortgaged Property, Lender’s security or Lender’s rights under this
Instrument, including eminent domain, insolvency, code enforcement, civil or criminal
forfeiture, enforcement of Hazardous Materials Laws, fraudulent conveyance or
reorganizations or proceedings involving a bankrupt or decedent, then Lender at Lender’s
option may make such appearances, file such documents, disburse such sums and take
such actions as Lender deems necessary to perform such obligations of Borrower and to
protect Lender’s interest, including (i) payment of fees, expenses and reasonable fees of
attorneys, accountants, inspectors and consultants, (ii) entry upon the Mortgaged Property
to make repairs or secure the Mortgaged Property, (iii) procurement of the insurance
required by Section 19 (specifically including, without limitation, flood insurance if
required by Section 19), and (iv) payment of amounts which Borrower has failed to pay
under Sections 15 and 17.
(b) Any amounts disbursed by Lender under this Section 12, or under any
other provision of this Instrument that treats such disbursement as being made under this
Section 12, shall be secured by this Instrument, shall be added to, and become part of, the
principal component of the Indebtedness, shall be immediately due and payable and shall
bear interest from the date of disbursement until paid at the “Default Rate”, as defined in
the Note.
Amended and Restated Mortgage 21 Vista Breeze
(c) If the Lender shall elect to pay any sum due with reference to the Project
or the Mortgaged Property, the Lender may do so in reliance on any bill, statement or
assessment procured from the appropriate Governmental Authority or other issuer thereof
without inquiring into the accuracy or validity thereof. Similarly, in making any
payments to protect the security intended to be created by this Instrument and/or the other
Loan Documents, the Lender shall not be bound to inquire into the validity of any
apparent or threatened adverse title, lien, encumbrance, claim or charge before making an
advance for the purpose of preventing or removing the same.
(d) Nothing in this Section 12 shall require Lender to incur any expense or
take any action.
13. INSPECTION.
(a) Lender and its agents, representatives, and designees may make or cause
to be made entries upon and inspections of the Mortgaged Property (including
environmental inspections and tests to the extent permitted under Section 18) during
normal business hours, or at any other reasonable time, upon reasonable notice to
Borrower and subject to the rights of tenants under their respective leases if the
inspection is to include occupied residential units (which notice need not be in writing).
Notice to Borrower shall not be required in the case of an emergency, as determined in
Lender’s discretion, or when an Event of Default has occurred and is continuing (it being
acknowledged and agreed that in no event shall Funding Lender have any obligation to
accept a cure of an Event of Default).
(b) If Lender determines that Mold has developed as a result of a water
intrusion event or leak, Lender, at Lender’s discretion, may require that a professional
inspector inspect the Mortgaged Property as frequently as Lender determines is necessary
until any issue with Mold and its cause(s) are resolved to Lender’s satisfaction. Such
inspection shall be limited to a visual and olfactory inspection of the area that has
experienced the Mold, water intrusion event or leak. Borrower shall be responsible for
the cost of such professional inspection and any remediation deemed to be necessary as a
result of the professional inspection. After any issue with Mold, water intrusion or leaks
is remedied to Lender’s satisfaction, Lender shall not require a professional inspection
any more frequently than once every three years unless Lender is otherwise aware of
Mold as a result of a subsequent water intrusion event or leak.
(c) If Lender determines not to conduct an annual inspection of the
Mortgaged Property, and in lieu thereof Lender requests a certification, Borrower shall be
prepared to provide and must actually provide to Lender a factually correct certification
each year that the annual inspection is waived to the following effect: that Borrower
represents and warrants that Borrower has not received any written complaint, notice,
letter or other written communication from tenants, management agent or any
Governmental Authority regarding odors, indoor air quality, Mold or any activity,
condition, event or omission that causes or facilitates the growth of Mold on or in any
part of the Mortgaged Property, or if Borrower has received any such written complaint,
notice, letter or other written communication, that Borrower has investigated and
Amended and Restated Mortgage 22 Vista Breeze
determined that no Mold activity, condition or event exists or alternatively has fully and
properly remediated such activity, condition, event or omission in compliance with the
MMP for the Mortgaged Property. If Borrower is unwilling or unable to provide such
certification, Lender may require a professional inspection of the Mortgaged Property at
Borrower’s expense.
14. BOOKS AND RECORDS; FINANCIAL REPORTING.
(a) Borrower shall keep and maintain at all times at the Mortgaged Property
or the management agent’s offices, and upon Lender’s request shall make available at the
Mortgaged Property, complete and accurate books of account and records (including
copies of supporting bills and invoices) adequate to reflect correctly the operation of the
Mortgaged Property, and copies of all written contracts, Leases, and other instruments
which affect the Mortgaged Property. The books, records, contracts, Leases and other
instruments shall be subject to examination and inspection at any reasonable time by
Lender upon reasonable advance written notice (which may be via email).
(b) Borrower shall furnish to Lender all of the following:
(i) (1) except as provided in clause (2) below, within 45 days after the
end of each fiscal quarter of Borrower, a statement of income and
expenses for Borrower’s operation of the Mortgaged Property on a
year-to-date basis as of the end of each fiscal quarter, (2) within
120 days after the end of each fiscal year of Borrower, (A) a
statement of income and expenses for Borrower’s operation of the
Mortgaged Property for such fiscal year, (B) a statement of
changes in financial position of Borrower relating to the
Mortgaged Property for such fiscal year, and (C) a balance sheet
showing all assets and liabilities of Borrower relating to the
Mortgaged Property as of the end of such fiscal year; and (3) any
of the foregoing at any other time upon Lender’s request;
(ii) within 45 days after the end of each fiscal quarter of Borrower, and
at any other time upon Lender’s request, a rent schedule for the
Mortgaged Property showing the name of each tenant, and for each
tenant, the space occupied, the lease expiration date, the rent
payable for the current month, the date through which rent has
been paid, and any related information requested by Lender;
(iii) within 120 days after the end of each fiscal year of Borrower, and
at any other time upon Lender’s request, an accounting of all
security deposits held pursuant to all Leases, including the name of
the institution (if any) and the names and identification numbers of
the accounts (if any) in which such security deposits are held and
the name of the person to contact at such financial institution,
along with any authority or release necessary for Lender to access
information regarding such accounts;
Amended and Restated Mortgage 23 Vista Breeze
(iv) within 120 days after the end of each fiscal year of Borrower, and
at any other time upon Lender’s request, a statement that identifies
all owners of any interest in Borrower and the interest held by
each, if Borrower is a corporation, all officers and directors of
Borrower, and if Borrower is a limited liability company, all
managers who are not members;
(v) upon Lender’s request, a monthly property management report for
the Mortgaged Property, showing the number of inquiries made
and rental applications received from tenants or prospective tenants
and deposits received from tenants and any other information
requested by Lender;
(vi) upon Lender’s request, a balance sheet, a statement of income and
expenses for Borrower and a statement of changes in financial
position of Borrower for Borrower’s most recent fiscal year;
(vii) annually, if applicable, within 60 days of the date required for
submission by the agency in the Property Jurisdiction responsible
for monitoring the low income housing tax credit program, a low
income housing tax credit compliance report in form and substance
acceptable to Lender; and
(viii) if required by Lender, within 30 days of the end of each calendar
month, a monthly statement of income and expenses for such
calendar month on a year-to-date basis for Borrower’s operation of
the Mortgaged Property.
(c) Each of the statements, schedules and reports required by Section 14(b)
shall be certified to be complete and accurate by an individual having authority to bind
Borrower and shall be in such form and contain such detail as Lender may require.
Lender also may require that any statements, schedules or reports be audited at
Borrower’s expense by independent certified public accountants acceptable to Lender.
(d) If Borrower fails to provide in a timely manner the statements, schedules
and reports required by Section 14(b), Lender shall have the right to have Borrower’s
books and records audited, at Borrower’s expense, by independent certified public
accountants selected by Lender in order to obtain such statements, schedules and reports,
and all related reasonable costs and expenses of Lender shall become immediately due
and payable and shall become an additional part of the Indebtedness as provided in
Section 12.
(e) If an Event of Default has occurred and is continuing (it being
acknowledged and agreed that in no event shall Funding Lender have any obligation to
accept a cure of an Event of Default), Borrower shall deliver to Lender upon written
demand all books and records relating to the Mortgaged Property or its operation.
Amended and Restated Mortgage 24 Vista Breeze
(f) Borrower authorizes Lender to obtain a credit report on Borrower at any
time.
15. TAXES; OPERATING EXPENSES.
(a) Subject to the provisions of Section 15(c) and Section 15(d), Borrower
shall pay, or cause to be paid, all Taxes when due and before the imposition of any
interest, fine, penalty or cost for nonpayment.
(b) Subject to the provisions of Section 15(c), Borrower shall pay (i) the
expenses of operating, managing, maintaining and repairing the Mortgaged Property
(including insurance premiums, utilities, repairs and replacements) before the last date
upon which each such payment may be made without any penalty or interest charge being
added, and (ii) insurance premiums at least 30 days prior to the expiration date of each
policy of insurance, unless applicable law specifies some lesser period.
(c) If Lender is collecting Imposition Deposits, and to the extent that Lender
holds sufficient Imposition Deposits for the purpose of paying a specific Imposition, then
Borrower shall not be obligated to pay such Imposition, so long as no Event of Default
exists and Borrower has timely delivered to Lender any bills or premium notices that it
has received. If an Event of Default exists, Lender may exercise any rights Lender may
have with respect to Imposition Deposits as expressly provided in this Instrument without
regard to whether Impositions are then due and payable. Lender shall have no liability to
Borrower for failing to pay any Impositions to the extent that any Event of Default has
occurred and is continuing (it being acknowledged and agreed that in no event shall
Funding Lender have any obligation to accept a cure of an Event of Default), insufficient
Imposition Deposits are held by Lender at the time an Imposition becomes due and
payable or Borrower has failed to provide Lender with bills and premium notices as
provided above.
(d) Borrower, at its own expense, may contest by appropriate legal
proceedings, conducted diligently and in good faith, the amount or validity of any
Imposition other than insurance premiums, if (i) Borrower notifies Lender of the
commencement or expected commencement of such proceedings, (ii) the Mortgaged
Property is not in danger of being sold or forfeited, (iii) Borrower deposits with Lender
reserves sufficient to pay the contested Imposition, if requested by Lender, and
(iv) Borrower furnishes whatever additional security is required in the proceedings or is
requested by Lender, which may include the delivery to Lender of the reserves
established by Borrower to pay the contested Imposition.
(e) Borrower shall promptly deliver to Lender copies of all notices of, and
invoices for, Impositions, and if Borrower pays any Imposition directly, Borrower shall
promptly furnish to Lender on or before the date this Instrument requires such
Impositions to be paid, copies of receipts evidencing that such payments were made.
(f) All payments made by Borrower to Lender pursuant to this Instrument or
any of the Loan Documents shall be free and clear of any and all tax liabilities
Amended and Restated Mortgage 25 Vista Breeze
whatsoever (other than United States federal income taxation payable by Lender) and, to
the extent Lender is required to pay any such tax liabilities, Borrower shall reimburse
Lender in respect of any such payment of taxes and, immediately upon request from
Lender, shall deliver to Lender copies of receipts evidencing the payment of such taxes.
16. LIENS; ENCUMBRANCES. Borrower acknowledges that, to the extent
provided in Section 21, the grant, creation or existence of any mortgage, deed of trust, deed to
secure debt, security interest or other lien or encumbrance (a “Lien”) on the Mortgaged Property
(other than the lien of this Instrument and the Permitted Encumbrances) or on certain ownership
interests in Borrower, whether voluntary, involuntary or by operation of law, and whether or not
such Lien has priority over the lien of this Instrument, is a “Transfer” which constitutes an Event
of Default and subjects Borrower to personal liability under the Note. Borrower shall maintain
the lien created by this Instrument as a first mortgage lien upon the Mortgaged Property, subject
to no other Liens or encumbrances other than Permitted Encumbrances.
17. PRESERVATION, MANAGEMENT AND MAINTENANCE OF
MORTGAGED PROPERTY.
(a) Borrower shall not commit waste or permit impairment or deterioration of
the Mortgaged Property.
(b) Borrower shall not abandon the Mortgaged Property.
(c) Borrower shall restore or repair promptly, in a good and workmanlike
manner, any damaged part of the Mortgaged Property to the equivalent of its original
condition, or such other condition as Lender may approve in writing, whether or not
insurance proceeds or condemnation awards are available to cover any costs of such
restoration or repair.
(d) Borrower shall keep the Mortgaged Property in good repair (normal wear
and tear excepted), including the replacement of Personalty and Fixtures with items of
equal or better function and quality.
(e) Borrower shall provide for professional management of the Mortgaged
Property by a residential rental property manager satisfactory to Lender at all times,
under a contract approved by Lender, in writing, which contract must be terminable upon
not more than thirty (30) days’ notice without the necessity of establishing cause and
without payment of a penalty or termination fee by Borrower or its successors. There
shall be no change in the property manager or any contract for the management of the
Mortgaged Property without Lender’s prior written approval. Lender shall have the right
to require that Borrower and any new property manager enter into an Assignment of
Management Agreement on a form approved by Lender. If required by Lender (whether
before or after an Event of Default), Borrower will cause any Affiliate of Borrower to
whom fees are payable for the management of the Mortgaged Property to enter into an
agreement with Lender, in a form approved by Lender, providing for subordination of
those fees and such other provisions as Lender may require.
Amended and Restated Mortgage 26 Vista Breeze
(f) Borrower shall give notice to Lender of and, unless otherwise directed in
writing by Lender, shall appear in and defend any action or proceeding purporting to
affect the Mortgaged Property, Lender’s security or Lender’s rights under this
Instrument. Borrower shall not (and shall not permit any tenant or other person to)
remove, demolish or alter the Mortgaged Property or any part of the Mortgaged Property,
including any removal, demolition or alteration occurring in connection with the
construction or rehabilitation of all or part of the Mortgaged Property, except (i) in
connection with the replacement of tangible Personalty and (ii) repairs and replacements
in connection with making an individual unit ready for a new occupant.
(g) Unless otherwise waived by Lender in writing, Borrower must have or
must establish and must adhere to the MMP. If Borrower is required to have an MMP,
Borrower must keep all MMP documentation at the Mortgaged Property or at the
management agent’s office and available for Lender or its agents to review during any
annual assessment or inspection of the Mortgaged Property that is required by Lender.
18. ENVIRONMENTAL HAZARDS.
(a) Except for matters described in Section 18(b), Borrower shall not cause or
permit any of the following:
(i) the presence, use, generation, release, treatment, processing,
storage (including storage in above ground and underground
storage tanks), handling, or disposal of any Hazardous Materials
on or under the Mortgaged Property (whether as a result of
activities on the Mortgaged Property or on surrounding properties)
or any other property of Borrower that is adjacent to the
Mortgaged Property;
(ii) the transportation of any Hazardous Materials to, from, or across
the Mortgaged Property (whether as a result of activities on the
Mortgaged Property or on surrounding properties);
(iii) any occurrence or condition on the Mortgaged Property (whether
as a result of activities on the Mortgaged Property or on
surrounding properties) or any other property of Borrower that is
adjacent to the Mortgaged Property, which occurrence or condition
is or may be in violation of Hazardous Materials Laws;
(iv) any violation of or noncompliance with the terms of any
Environmental Permit with respect to the Mortgaged Property or
any property of Borrower that is adjacent to the Mortgaged
Property;
(v) the imposition of any environmental lien against the Mortgaged
Property; or
Amended and Restated Mortgage 27 Vista Breeze
(vi) any violation or noncompliance with the terms of any O&M
Program.
The matters described in clauses (i) through (vi) above, except as otherwise provided in
Section 18(b), are referred to collectively in this Section 18 as “Prohibited Activities or
Conditions”.
(b) Prohibited Activities or Conditions shall not include lawful conditions
permitted by an O&M Program or the safe and lawful use and storage of quantities of
(i) pre-packaged supplies, cleaning materials, petroleum products, household products,
paints, solvents, lubricants and other materials customarily used in the construction,
renovation, operation, maintenance or use of comparable multifamily properties,
(ii) cleaning materials, household products, personal grooming items and other items sold
in pre-packaged containers for consumer use and used by tenants and occupants of
residential dwelling units in the Mortgaged Property; and (iii) petroleum products used in
the operation and maintenance of motor vehicles from time to time located on the
Mortgaged Property’s parking areas, so long as all of the foregoing are used, stored,
handled, transported and disposed of in compliance with Hazardous Materials Laws.
(c) Borrower shall take all commercially reasonable actions (including the
inclusion of appropriate provisions in any Leases executed after the date of this
Instrument) to prevent its employees, agents, and contractors, and all tenants and other
occupants from causing or permitting any Prohibited Activities or Conditions. Borrower
shall not lease or allow the sublease or use of all or any portion of the Mortgaged
Property to any tenant or subtenant for nonresidential use by any user that, in the ordinary
course of its business, would cause or permit any Prohibited Activity or Condition.
(d) If and as required by Lender, Borrower shall also establish a written
operations and maintenance program with respect to certain Hazardous Materials. Each
such operations and maintenance program and any additional or revised operations and
maintenance programs established for the Mortgaged Property pursuant to this Instrument
must be approved by Lender and shall be referred to herein as an “O&M Program.”
Borrower shall comply in a timely manner with, and cause all employees, agents, and
contractors of Borrower and any other persons present on the Mortgaged Property to
comply with each O&M Program. Borrower shall pay all costs of performance of
Borrower’s obligations under any O&M Program, and any Beneficiary Party’s out-of-
pocket costs incurred by such Beneficiary Party in connection with the monitoring and
review of each O&M Program and Borrower’s performance shall be paid by Borrower
upon demand by such Beneficiary Party. Any such out-of-pocket costs of such
Beneficiary Party which Borrower fails to pay promptly shall become an additional part
of the Indebtedness as provided in Section 12.
(e) Without limitation of the foregoing, (i) Borrower hereby agrees to
implement and maintain during the entire term of the Loan the O&M Program(s), and
(ii) if asbestos-containing materials are found to exist at the Mortgaged Property, the
O&M Program with respect thereto shall be undertaken consistent with the Guidelines for
Amended and Restated Mortgage 28 Vista Breeze
Controlling Asbestos-Containing Materials in Buildings (USEPA, 1985) and other
relevant guidelines and applicable Hazardous Materials Laws.
(f) With respect to any O&M Program, Lender may require (i) periodic
notices or reports to Lender in form, substance and at such intervals as Lender may
specify; (ii) amendments to such O&M Program to address changing circumstances, laws
or other matters, including, without limitation, variations in response to reports provided
by environmental consultants; and (iii) execution of an Operations and Maintenance
Agreement relating to such O&M Program satisfactory to Lender.
(g) Borrower represents and warrants to Beneficiary Parties that, except as
otherwise disclosed in the Environmental Reports (as defined in the Agreement of
Environmental Indemnification):
(i) Borrower has not at any time engaged in, caused or permitted any
Prohibited Activities or Conditions;
(ii) to the best of Borrower’s knowledge after reasonable and diligent
inquiry, no Prohibited Activities or Conditions exist or have
existed, and Borrower has provided Lender with copies of all
reports and information acquired in such inquiries;
(iii) the Mortgaged Property does not now contain any underground
storage tanks and, to the best of Borrower’s knowledge, the
Mortgaged Property has not contained any underground storage
tanks in the past. If there is an underground storage tank located
on the Mortgaged Property that has been disclosed in Exhibit A to
the Agreement of Environmental Indemnification, that tank
complies with all requirements of Hazardous Materials Laws;
(iv) Borrower has complied with and will continue to comply with all
Hazardous Materials Laws, including all requirements for
notification regarding releases of Hazardous Materials. Without
limiting the generality of the foregoing, Borrower has obtained all
Environmental Permits required for the operation of the Mortgaged
Property in accordance with Hazardous Materials Laws now in
effect and all such Environmental Permits are in full force and
effect;
(v) no event has occurred with respect to the Mortgaged Property that
constitutes, or with the passing of time or the giving of notice
would constitute, noncompliance with the terms of any
Environmental Permit or Hazardous Materials Law;
(vi) there are no actions, suits, claims or proceedings pending or, to the
best of Borrower’s knowledge after reasonable and diligent
inquiry, threatened that involve the Mortgaged Property and allege,
arise out of, or relate to any Prohibited Activity or Condition;
Amended and Restated Mortgage 29 Vista Breeze
(vii) Borrower has not received any complaint, order, notice of violation
or other communication from any Governmental Authority with
regard to air emissions, water discharges, noise emissions or
Hazardous Materials, or any other environmental, health or safety
matters affecting the Mortgaged Property or any other property of
Borrower that is adjacent to the Mortgaged Property;
(viii) no prior Remedial Work (as defined below) has been undertaken,
and no Remedial Work is ongoing, with respect to the Mortgaged
Property during Borrower’s ownership thereof or, to the best of
Borrower’s knowledge, at any time prior to Borrower’s ownership
thereof; and
(ix) Borrower has disclosed in the Agreement of Environmental
Indemnification all material facts known to Borrower or contained
in Borrower’s records the nondisclosure of which could cause any
representation or warranty made herein or any statement made in
the Agreement of Environmental Indemnification to be false or
materially misleading.
The representations and warranties in this Section 18 shall be continuing representations
and warranties that shall be deemed to be made by Borrower throughout the term of the
Loan, until the Indebtedness has been paid in full or otherwise discharged.
(h) Borrower shall promptly notify Lender in writing upon the occurrence of
any of the following events:
(i) Borrower’s discovery of any Prohibited Activity or Condition that
is not described in the Environmental Reports;
(ii) Borrower’s receipt of or knowledge of any complaint, order, notice
of violation or other communication from any tenant, management
agent, Governmental Authority or other person with regard to
present or future alleged Prohibited Activities or Conditions or any
other environmental, health or safety matters affecting the
Mortgaged Property or any other property of Borrower that is
adjacent to the Mortgaged Property;
(iii) Borrower’s receipt of or knowledge of any personal injury claim,
proceeding or cause of action directly or indirectly arising as a
result of the presence of asbestos or other Hazardous Materials on
or from the Mortgaged Property;
(iv) Borrower’s discovery that any representation or warranty in this
Section 18 has become untrue after the date of this Instrument; and
(v) Borrower’s breach of any of its obligations under this Section 18.
Amended and Restated Mortgage 30 Vista Breeze
Any such notice given by Borrower shall not relieve Borrower of, or result in a waiver of,
any obligation under this Instrument, the Note, or any other Loan Document.
(i) Borrower shall pay promptly the actual costs of any environmental
inspections, tests or audits (“Environmental Inspections”) required by Lender or any
Beneficiary Party in connection with any foreclosure or deed in lieu of foreclosure, or as
a condition of Lender’s consent to any Transfer under Section 21, or required by Lender
following a determination by Lender that Prohibited Activities or Conditions may exist.
Any such costs incurred by Lender (including, without limitation, actual fees and
expenses of attorneys, expert witnesses, engineers, technical consultants and
investigatory fees, whether incurred in connection with any judicial or administrative
process or otherwise) that Borrower fails to pay promptly shall become an additional part
of the Indebtedness as provided in Section 12. The results of all Environmental
Inspections made by Lender shall at all times remain the property of Lender and Lender
shall have no obligation to disclose or otherwise make available to Borrower or any other
party such results or any other information obtained by Lender in connection with such
Environmental Inspections. Lender hereby reserves the right, and Borrower hereby
expressly authorizes Lender, to make available to any party, including any prospective
bidder at a foreclosure sale of the Mortgaged Property, the results of any Environmental
Inspections made by Lender with respect to the Mortgaged Property. Borrower consents
to Lender notifying any party (either as part of a notice of sale or otherwise) of the results
of any of Lender’s Environmental Inspections. Borrower acknowledges that Lender
cannot control or otherwise assure the truthfulness or accuracy of the results of any of its
Environmental Inspections and that the release of such results to prospective bidders at a
foreclosure sale of the Mortgaged Property may have a material and adverse effect upon
the amount which a party may bid at such sale. Borrower agrees that Lender shall have
no liability whatsoever as a result of delivering the results of any of its Environmental
Inspections to any third party, and Borrower hereby releases and forever discharges
Lender from any and all claims, damages, or causes of action, arising out of, connected
with or incidental to the results of, the delivery of any of Lender’s Environmental
Inspections.
(j) If any investigation, site monitoring, containment, clean-up, restoration or
other remedial work (“Remedial Work”) is necessary to comply with or cure a violation
of any Hazardous Materials Law or order of any Governmental Authority that has or
acquires jurisdiction over the Mortgaged Property or the use, operation or improvement
of the Mortgaged Property under any Hazardous Materials Law, or is otherwise required
by Lender as a consequence of any Prohibited Activity or Condition or to prevent the
occurrence of a Prohibited Activity or Condition, Borrower shall, by the earlier of (i) the
applicable deadline required by such Hazardous Materials Law or (ii) thirty (30) days
after notice from Lender demanding such action, begin performing the Remedial Work,
and thereafter diligently prosecute it to completion, and shall in any event complete the
work by the time required by such Hazardous Materials Law. Borrower shall promptly
provide Lender with a cost estimate from an environmental consultant acceptable to
Lender to complete any required Remedial Work. If required by Lender, Borrower shall
promptly establish with Lender a reserve fund in the amount of such estimate. If in
Lender’s opinion the amount reserved at any time during the Remedial Work is
Amended and Restated Mortgage 31 Vista Breeze
insufficient to cover the work remaining to complete the Remedial Work or achieve
compliance, Borrower shall increase the amount reserved in compliance with Lender’s
written request. All amounts so held in reserve, until disbursed, are hereby pledged to
Lender as security for payment of Borrower’s obligations under this Instrument. If
Borrower fails to begin on a timely basis or diligently prosecute any required Remedial
Work, Lender may, at its option, cause the Remedial Work to be completed, in which
case Borrower shall reimburse Lender on demand for the cost of doing so. Any
reimbursement due from Borrower to Lender shall become part of the Indebtedness as
provided in Section 12.
(k) Borrower shall comply with all Hazardous Materials Laws applicable to
the Mortgaged Property. Without limiting the generality of the previous sentence,
Borrower shall (i) obtain and maintain all Environmental Permits required by Hazardous
Materials Laws and comply with all conditions of such Environmental Permits;
(ii) cooperate with any inquiry by any Governmental Authority; and (iii) comply with any
governmental or judicial order that arises from any alleged Prohibited Activity or
Condition.
(l) BORROWER SHALL INDEMNIFY, HOLD HARMLESS AND
DEFEND BENEFICIARY PARTIES AND THEIR RESPECTIVE OFFICERS,
DIRECTORS, SHAREHOLDERS, PARTNERS, EMPLOYEES, AGENTS,
ATTORNEYS, TRUSTEES, HEIRS AND LEGAL REPRESENTATIVES
(COLLECTIVELY, THE “INDEMNITEES”) FROM AND AGAINST ALL LOSSES,
PROCEEDINGS, CLAIMS, DAMAGES, PENALTIES AND COSTS (WHETHER
INITIATED OR SOUGHT BY GOVERNMENTAL AUTHORITIES OR PRIVATE
PARTIES), INCLUDING, WITHOUT LIMITATION, ACTUAL FEES AND OUT-OF-
POCKET EXPENSES OF ATTORNEYS AND EXPERT WITNESSES,
ENGINEERING FEES, ENVIRONMENTAL CONSULTANT FEES,
INVESTIGATORY FEES, AND REMEDIATION COSTS (INCLUDING, WITHOUT
LIMITATION, ANY FINANCIAL ASSURANCES REQUIRED TO BE POSTED FOR
COMPLETION OF REMEDIAL WORK AND COSTS ASSOCIATED WITH
ADMINISTRATIVE OVERSIGHT), AND ANY OTHER LIABILITIES OF
WHATEVER KIND AND WHATEVER NATURE, WHETHER INCURRED IN
CONNECTION WITH ANY JUDICIAL OR ADMINISTRATIVE PROCESS OR
OTHERWISE, ARISING DIRECTLY OR INDIRECTLY FROM ANY OF THE
FOLLOWING:
(i) ANY BREACH OF ANY REPRESENTATION OR
WARRANTY OF BORROWER IN THIS SECTION 18;
(ii) ANY FAILURE BY BORROWER TO PERFORM ANY OF ITS
OBLIGATIONS UNDER THIS SECTION 18;
(iii) THE EXISTENCE OR ALLEGED EXISTENCE OF ANY
PROHIBITED ACTIVITY OR CONDITION;
Amended and Restated Mortgage 32 Vista Breeze
(iv) THE PRESENCE OR ALLEGED PRESENCE OF HAZARDOUS
MATERIALS ON OR UNDER THE MORTGAGED PROPERTY
(WHETHER AS A RESULT OF ACTIVITIES ON THE
MORTGAGED PROPERTY OR ON SURROUNDING
PROPERTIES) OR IN ANY OF THE IMPROVEMENTS OR ON
OR UNDER ANY PROPERTY OF BORROWER THAT IS
ADJACENT TO THE MORTGAGED PROPERTY;
(v) THE ACTUAL OR ALLEGED VIOLATION OF ANY
HAZARDOUS MATERIALS LAW;
(vi) ANY LOSS OR DAMAGE RESULTING FROM A LOSS OF
PRIORITY OF THIS INSTRUMENT OR ANY OTHER LOAN
DOCUMENT DUE TO AN IMPOSITION OF AN
ENVIRONMENTAL LIEN AGAINST THE MORTGAGED
PROPERTY; AND
(vii) ANY PERSONAL INJURY CLAIM, PROCEEDING OR CAUSE
OF ACTION DIRECTLY OR INDIRECTLY ARISING AS A
RESULT OF THE PRESENCE OF ASBESTOS OR OTHER
HAZARDOUS MATERIALS ON OR FROM THE
MORTGAGED PROPERTY.
(m) COUNSEL SELECTED BY BORROWER TO DEFEND
INDEMNITEES SHALL BE SUBJECT TO THE APPROVAL OF THOSE
INDEMNITEES. IN ANY CIRCUMSTANCES IN WHICH THE INDEMNITY
UNDER THIS SECTION 18 APPLIES, ANY BENEFICIARY PARTY MAY EMPLOY
ITS OWN LEGAL COUNSEL AND CONSULTANTS TO PROSECUTE, DEFEND
OR NEGOTIATE ANY CLAIM OR LEGAL OR ADMINISTRATIVE PROCEEDING
AT BORROWER’S EXPENSE, AND SUCH BENEFICIARY PARTY, WITH THE
PRIOR WRITTEN CONSENT OF BORROWER (WHICH SHALL NOT BE
UNREASONABLY WITHHELD, DELAYED OR CONDITIONED) MAY SETTLE
OR COMPROMISE ANY ACTION OR LEGAL OR ADMINISTRATIVE
PROCEEDING. BORROWER SHALL REIMBURSE SUCH BENEFICIARY PARTY
UPON DEMAND FOR ALL COSTS AND EXPENSES INCURRED BY SUCH
BENEFICIARY PARTY, INCLUDING, WITHOUT LIMITATION, ALL COSTS OF
SETTLEMENTS ENTERED INTO IN GOOD FAITH, AND THE FEES AND OUT OF
POCKET EXPENSES OF SUCH ATTORNEYS AND CONSULTANTS.
(n) BORROWER SHALL NOT, WITHOUT THE PRIOR WRITTEN
CONSENT OF THOSE INDEMNITEES WHO ARE NAMED AS PARTIES TO A
CLAIM OR LEGAL OR ADMINISTRATIVE PROCEEDING (A “CLAIM”), SETTLE
OR COMPROMISE THE CLAIM IF THE SETTLEMENT (1) RESULTS IN THE
ENTRY OF ANY JUDGMENT THAT DOES NOT INCLUDE AS AN
UNCONDITIONAL TERM THE DELIVERY BY THE CLAIMANT OR PLAINTIFF
TO BENEFICIARY PARTIES OF A WRITTEN RELEASE OF THOSE
INDEMNITEES, SATISFACTORY IN FORM AND SUBSTANCE TO LENDER; OR
Amended and Restated Mortgage 33 Vista Breeze
(2) MAY MATERIALLY AND ADVERSELY AFFECT BENEFICIARY PARTIES,
AS DETERMINED BY LENDER IN ITS DISCRETION.
(o) BORROWER’S OBLIGATION TO INDEMNIFY THE INDEMNITEES
SHALL NOT BE LIMITED OR IMPAIRED BY ANY OF THE FOLLOWING, OR BY
ANY FAILURE OF BORROWER OR ANY GUARANTOR TO RECEIVE NOTICE
OF OR CONSIDERATION FOR ANY OF THE FOLLOWING:
(i) ANY AMENDMENT OR MODIFICATION OF ANY LOAN
DOCUMENT;
(ii) ANY EXTENSIONS OF TIME FOR PERFORMANCE
REQUIRED BY ANY LOAN DOCUMENT;
(iii) ANY PROVISION IN ANY LOAN DOCUMENT LIMITING
BENEFICIARY PARTIES’ RECOURSE TO PROPERTY
SECURING THE INDEBTEDNESS, OR LIMITING THE
PERSONAL LIABILITY OF BORROWER OR ANY OTHER
PARTY FOR PAYMENT OF ALL OR ANY PART OF THE
INDEBTEDNESS;
(iv) THE ACCURACY OR INACCURACY OF ANY
REPRESENTATIONS AND WARRANTIES MADE BY
BORROWER UNDER THIS INSTRUMENT OR ANY OTHER
LOAN DOCUMENT;
(v) THE RELEASE OF BORROWER OR ANY OTHER PERSON,
BY BENEFICIARY PARTIES OR BY OPERATION OF LAW,
FROM PERFORMANCE OF ANY OBLIGATION UNDER ANY
LOAN DOCUMENT;
(vi) THE RELEASE OR SUBSTITUTION IN WHOLE OR IN PART
OF ANY SECURITY FOR THE INDEBTEDNESS; AND
(vii) FAILURE BY BENEFICIARY PARTIES TO PROPERLY
PERFECT ANY LIEN OR SECURITY INTEREST GIVEN AS
SECURITY FOR THE INDEBTEDNESS.
(p) BORROWER SHALL, AT ITS OWN COST AND EXPENSE, DO ALL
OF THE FOLLOWING:
(i) PAY OR SATISFY ANY JUDGMENT OR DECREE THAT
MAY BE ENTERED AGAINST ANY INDEMNITEE OR
INDEMNITEES IN ANY LEGAL OR ADMINISTRATIVE
PROCEEDING INCIDENT TO ANY MATTERS AGAINST
WHICH INDEMNITEES ARE ENTITLED TO BE
INDEMNIFIED UNDER THIS SECTION 18;
Amended and Restated Mortgage 34 Vista Breeze
(ii) REIMBURSE INDEMNITEES FOR ANY AND ALL
EXPENSES PAID OR INCURRED IN CONNECTION WITH
ANY MATTERS AGAINST WHICH INDEMNITEES ARE
ENTITLED TO BE INDEMNIFIED UNDER THIS SECTION 18;
AND
(iii) REIMBURSE INDEMNITEES FOR ANY AND ALL
EXPENSES, INCLUDING, WITHOUT LIMITATION, FEES
AND OUT OF POCKET EXPENSES OF ATTORNEYS AND
EXPERT WITNESSES, PAID OR INCURRED IN
CONNECTION WITH THE ENFORCEMENT BY
INDEMNITEES OF THEIR RIGHTS UNDER THIS
SECTION 18, OR IN MONITORING AND PARTICIPATING IN
ANY LEGAL OR ADMINISTRATIVE PROCEEDING.
(q) THE PROVISIONS OF THIS SECTION 18 SHALL BE IN ADDITION
TO ANY AND ALL OTHER OBLIGATIONS AND LIABILITIES THAT
BORROWER MAY HAVE UNDER APPLICABLE LAW OR UNDER ANY OTHER
LOAN DOCUMENT, AND EACH INDEMNITEE SHALL BE ENTITLED TO
INDEMNIFICATION UNDER THIS SECTION 18 WITHOUT REGARD TO
WHETHER ANY OTHER BENEFICIARY PARTY OR THAT INDEMNITEE HAS
EXERCISED ANY RIGHTS AGAINST THE MORTGAGED PROPERTY OR ANY
OTHER SECURITY, PURSUED ANY RIGHTS AGAINST ANY GUARANTOR, OR
PURSUED ANY OTHER RIGHTS AVAILABLE UNDER THE LOAN DOCUMENTS
OR APPLICABLE LAW. IF BORROWER CONSISTS OF MORE THAN ONE
PERSON OR ENTITY, THE OBLIGATION OF THOSE PERSONS OR ENTITIES TO
INDEMNIFY THE INDEMNITEES UNDER THIS SECTION 18 SHALL BE JOINT
AND SEVERAL. THE OBLIGATION OF BORROWER TO INDEMNIFY THE
INDEMNITEES UNDER THIS SECTION 18 SHALL SURVIVE ANY REPAYMENT
OR DISCHARGE OF THE INDEBTEDNESS, ANY FORECLOSURE PROCEEDING,
ANY FORECLOSURE SALE, ANY DELIVERY OF ANY DEED IN LIEU OF
FORECLOSURE, AND ANY RELEASE OF RECORD OF THE LIEN OF THIS
INSTRUMENT.
(r) Notwithstanding anything herein to the contrary, (i) Borrower shall have
no obligation hereunder to indemnify any Indemnitee for any liability under this
Section 18 to the extent that the Prohibited Activity or Condition giving rise to such
liability resulted solely from the gross negligence or willful misconduct of such
Indemnitee, and (ii) Borrower’s liability under this Section 18 shall not extend to cover
the violation of any Hazardous Materials Laws or Prohibited Activities or Conditions that
first arise, commence or occur as a result of actions of Lender, its successors, assigns or
designees, after the satisfaction, discharge, release, assignment, termination or
cancellation of this Instrument following the payment in full of the Note and all other
sums payable under the Loan Documents or after the actual dispossession from the entire
Mortgaged Property of Borrower and all Affiliates of Borrower following foreclosure of
this Instrument or acquisition of the Mortgaged Property by a deed in lieu of foreclosure.
Amended and Restated Mortgage 35 Vista Breeze
19. PROPERTY AND LIABILITY INSURANCE.
(a) Borrower shall keep the Improvements insured at all times against such
hazards as Lender may from time to time require, which insurance shall include but not
be limited to coverage against loss by fire and allied perils, general boiler and machinery
coverage, business income coverage and extra expense insurance, coverage against acts
of terrorism, mold and earthquake coverage. Borrower acknowledges and agrees that
Lender’s insurance requirements may change from time to time throughout the term of
the Indebtedness. If Lender so requires, such insurance shall also include sinkhole
insurance, mine subsidence insurance, earthquake insurance, and, if the Mortgaged
Property does not conform to applicable zoning or land use laws, building ordinance or
law coverage. If any portion of the Improvements is at any time located in an area
identified by the Federal Emergency Management Agency (or any successor to that
agency) as an area now or hereafter having special flood hazards, and if flood insurance
is available in that area, Borrower shall insure such Improvements against loss by flood
in an amount equal to the maximum amount available under the National Flood Insurance
Program or any successor thereto.
(b) All premiums on insurance policies required under Section 19(a) shall be
paid in the manner provided in Section 7, unless Lender has designated in writing another
method of payment. All such policies shall also be in a form approved by Lender. All
policies of property damage insurance shall include a non-contributing, non-reporting
mortgage clause in favor of, and in a form approved by, Lender. Lender shall have the
right to hold the original policies or duplicate original policies of all insurance required
by Section 19(a). Borrower shall promptly deliver to Lender a copy of all renewal and
other notices received by Borrower with respect to the policies and all receipts for paid
premiums. At least 30 days prior to the expiration date of a policy, Borrower shall
deliver to Lender the original (or a duplicate original) of a renewal policy in form
satisfactory to Lender.
(c) All insurance policies and renewals of insurance policies required by this
Section 19 shall be in such amounts and for such periods as Lender may from time to
time require consistent with Lender’s then current practices and standards, and shall be
issued by insurance companies satisfactory to Lender.
(d) All insurance policies and renewals of insurance policies required by this
Section 19 shall also comply with any applicable Credit Enhancer Insurance Standards.
The following provisions shall apply, in addition to the other provisions of this
Section 19 and without limiting the generality of the other provisions of this Section 19:
(i) Borrower shall provide (or cause to be provided), maintain and
keep in force, the following insurance coverage:
(A) Builder’s “all risk” insurance or the equivalent coverage,
including theft, to insure all buildings, machinery,
equipment, materials, supplies, temporary structures and all
other property of any nature on-site, off-site and while in
Amended and Restated Mortgage 36 Vista Breeze
transit which is to be used in fabrication, erection,
installation and construction and/or rehabilitation of the
Project, and to remain in effect until the entire Project has
been completed and accepted by Borrower and is first
occupied by any tenants (provided that in any event, such
coverage shall remain in effect until such time as Borrower
has provided Lender with evidence of property insurance
covering the Improvements and meeting the requirements
of this Section 19). Such insurance shall be provided on a
replacement cost value basis and shall include foundations,
other underground property, tenant improvements and
personal property. If tenant improvements and personal
property are not included in the above coverage, they may
be insured separately by Borrower provided coverage is
acceptable to Lender. Builders “all risk” insurance shall
(i) be on a nonreporting, completed value form, (ii) cover
soft costs, debris removal expense (including removal of
pollutants), resulting loss and damage to property due to
faulty or defective workmanship or materials and error in
design or specification, loss while the property is in the
care, custody and control of others to whom the property
may be entrusted, (iii) provide that Borrower can complete
and occupy the Mortgaged Property without further written
consent from the insurer, and (iv) cover loss of income
resulting from delay in occupancy and use of the
Mortgaged Property due to loss. During the initial
construction and/or rehabilitation of the Project and until
such time as the Project is first occupied by any tenants, the
Borrower shall not be required to maintain property
insurance as required by this Section 19 for so long as
Builder’s “all risk” insurance or equivalent coverage is
maintained in accordance with this paragraph.
(B) If any portion of the Mortgaged Property is or becomes
located in an area identified by the United States Secretary
of Housing and Urban Development as an area having
special flood hazards and in which flood insurance has
been made available under the National Flood Insurance
Act of 1968 and Flood Disaster Protection Act of 1973, as
amended, Borrower shall also keep the improvements and
the equipment located thereon insured against loss by flood
in an amount at least equal to the principal amount of the
Loan or the maximum limits of coverage available with
respect to the Mortgaged Property, whichever is less. All
such insurance shall also cover continuing expenses not
directly involved in the direct cost of construction,
rehabilitation or renovation, including interest on money
Amended and Restated Mortgage 37 Vista Breeze
borrowed to finance construction, rehabilitation or
renovation, continuing interest on the Loan, advertising,
promotion, real estate taxes and other assessments, the cost
of renegotiating leases, and other expenses incurred as the
result of property loss or destruction by the insured peril.
Such coverage shall not contain any monthly limitation.
(ii) If Lender fails to receive proof and evidence of the insurance
required hereunder, Lender shall have the right, but not the
obligation, to obtain or cause to be obtained current coverage (and,
in its sole discretion, advance funds) to pay the premiums for it. If
Lender makes an advance for such purpose, Borrower shall repay
such advance immediately on demand and such advance shall be
considered to be a demand loan to Borrower bearing interest at the
Default Rate (as defined in the Note) and secured by the
Mortgaged Property.
(e) Borrower shall maintain at all times commercial general liability
insurance, workers’ compensation insurance (to the extent Borrower has employees) and
such other liability, errors and omissions and fidelity insurance coverages as Lender may
from time to time require, consistent with Lender’s then current practices and standards
(and any applicable Credit Enhancer Insurance Standards).
(f) Borrower shall comply with all insurance requirements and shall not
permit any condition to exist on the Mortgaged Property that would invalidate any part of
any insurance coverage that this Instrument requires Borrower to maintain.
(g) In the event of loss, Borrower shall give immediate written notice to the
insurance carrier and to Lender. Borrower hereby authorizes and appoints Lender as
attorney-in-fact for Borrower to make proof of loss, to adjust and compromise any claims
under policies of property damage insurance, to appear in and prosecute any action
arising from such property damage insurance policies, to collect and receive the proceeds
of property damage insurance, and to deduct from such proceeds Lender’s expenses
incurred in the collection of such proceeds. This power of attorney is coupled with an
interest and therefore is irrevocable. However, nothing contained in this Section 19 shall
require Lender to incur any expense or take any action. Lender may, at Lender’s option,
(i) cause the Fiscal Agent to hold the balance of such proceeds to be used to reimburse
Borrower for the cost of restoring and repairing the Mortgaged Property to the equivalent
of its original condition or to a condition approved by Lender (the “Restoration”), or
(ii) apply the balance of such proceeds to the payment of the Indebtedness, whether or not
then due. To the extent Lender determines to apply insurance proceeds to Restoration,
Lender shall authorize the Fiscal Agent to disburse the proceeds in accordance with
Lender’s then-current policies relating to the restoration of casualty damage on similar
multifamily properties.
(h) Lender shall not exercise its option to apply insurance proceeds to the
payment of the Indebtedness if all of the following conditions are met: (i) no Event of
Amended and Restated Mortgage 38 Vista Breeze
Default (or any event which, with the giving of notice or the passage of time, or both,
would constitute an Event of Default) has occurred and is continuing (it being
acknowledged and agreed that in no event shall Funding Lender have any obligation to
accept a cure of an Event of Default); (ii) Lender determines, in its discretion, that there
will be sufficient funds to complete the Restoration; (iii) Lender determines, in its
discretion, that the net operating income generated by the Mortgaged Property after
completion of the Restoration will be sufficient to meet all operating costs and other
expenses, Imposition Deposits, deposits to reserves and loan repayment obligations
relating to the Mortgaged Property; (iv) Lender determines, in its discretion, that the
Restoration will be completed before the earlier of (A) one year before the Mandatory
Prepayment Date set forth in the Note, or (B) one year after the date of the loss or
casualty; and (v) upon Lender’s request, Borrower provides Lender evidence of the
availability during and after the Restoration of the insurance required to be maintained
pursuant to this Instrument.
(i) If the Mortgaged Property is sold at a foreclosure sale or Lender acquires
title to the Mortgaged Property, Lender shall automatically succeed to all rights of
Borrower in and to any insurance policies and unearned insurance premiums and in and
to the proceeds resulting from any damage to the Mortgaged Property prior to such sale
or acquisition.
(j) Unless Lender otherwise agrees in writing, any application of any
insurance proceeds to the Indebtedness shall not extend or postpone the due date of any
monthly installments referred to in the Note, Section 7 of this Instrument or any
Collateral Agreement, or change the amount of such installments, except as provided in
the Note.
(k) Borrower agrees to execute such further evidence of assignment of any
insurance proceeds as Lender may require.
(l) Borrower further agrees that to the extent that Borrower obtains any form
of property damage insurance for the Mortgaged Property or any portion thereof that
insures perils not required to be insured against by Lender, such policy of property
damage insurance shall include a standard mortgagee clause and shall name Lender as
loss payee and, within ten (10) days following Borrower’s purchase of such additional
insurance, Borrower shall cause to be delivered to Lender a duplicate original policy of
insurance with respect to such policy. Any insurance proceeds payable to Borrower
under such policy shall be additional security for the Indebtedness and Lender shall have
the same rights to such policy and proceeds as it has with respect to insurance policies
required by Lender pursuant to this Section 19 (except that Lender shall not require that
the premium for such additional insurance be included among the Imposition Deposits).
20. CONDEMNATION.
(a) Borrower shall promptly notify Lender in writing of any action or
proceeding or notice relating to any proposed or actual condemnation or other taking, or
conveyance in lieu thereof, of all or any part of the Mortgaged Property, whether direct or
Amended and Restated Mortgage 39 Vista Breeze
indirect (a “Condemnation”), and shall deliver to the Lender copies of any and all papers
served in connection with such Condemnation. Borrower shall appear in and prosecute
or defend any action or proceeding relating to any Condemnation unless otherwise
directed by Lender in writing. Borrower authorizes and appoints Lender as attorney-in-
fact for Borrower to commence, appear in and prosecute, in Lender’s or Borrower’s
name, any action or proceeding relating to any Condemnation and to settle or
compromise any claim in connection with any Condemnation. This power of attorney is
coupled with an interest and therefore is irrevocable. However, nothing contained in this
Section 20 shall require Lender to incur any expense or take any action. Borrower hereby
transfers and assigns to Lender all right, title and interest of Borrower in and to any
award or payment with respect to (i) any Condemnation, or any conveyance in lieu of
Condemnation, and (ii) any damage to the Mortgaged Property caused by governmental
action that does not result in a Condemnation.
(b) Subject to the provisions of Section 20(c), Lender may apply such awards
or proceeds, after the deduction of Lender’s expenses incurred in the collection of such
amounts (including, without limitation, fees and out-of-pocket expenses of attorneys and
expert witnesses, investigatory fees, whether incurred in connection with any judicial or
administrative process or otherwise), at Lender’s option, to the restoration or repair of the
Mortgaged Property or to the payment of the Indebtedness in accordance with the
provisions of the Note as to application of payments to the Indebtedness, with the
balance, if any, to Borrower. Unless Lender otherwise agrees in writing, any application
of any awards or proceeds to the Indebtedness shall not extend or postpone the due date
of payments due under the Note, Section 7 of this Instrument or any Collateral
Agreement or any other Loan Document, or change the amount of such payments, except
as otherwise provided in the Note. Borrower agrees to execute such further evidence of
assignment of any awards or proceeds as Lender may require.
(c) Lender shall not exercise its option to apply condemnation awards to
payment of the Indebtedness if all of the following conditions are met (i) no Event of
Default (or any event which, with the giving of notice or passage of time, or both, would
constitute an Event of Default) has occurred and is continuing (it being acknowledged
and agreed that in no event shall Funding Lender have any obligation to accept a cure of
an Event of Default), (ii) Lender determined, in its discretion, that there will be sufficient
funds to complete the Restoration, (iii) Lender determines, in its discretion, that the net
operating income generated by the Mortgaged Property after completion of the
Restoration will be sufficient to meet all operating costs and other expenses, Imposition
Deposits, deposits to reserves and loan repayment obligations relating to the Mortgaged
Property, and (iv) Lender determines, in its discretion, that the Restoration will be
completed before the earlier of (A) one year before the Mandatory Prepayment Date set
forth in the Note, or (B) one year after the date of the loss or casualty.
Amended and Restated Mortgage 40 Vista Breeze
21. TRANSFERS OF THE MORTGAGED PROPERTY OR INTERESTS IN
BORROWER.
(a) The occurrence of any of the following events shall constitute an Event of
Default under this Instrument:
(i) other than the lien of this Instrument and the Permitted
Encumbrances, a Transfer of all or any part of the Mortgaged
Property or any interest in the Mortgaged Property;
(ii) a Transfer of a Controlling Interest in Borrower;
(iii) a Transfer of a Controlling Interest in any entity which owns,
directly or indirectly through one or more intermediate entities, a
Controlling Interest in Borrower;
(iv) a Transfer of all or any part of a Guarantor’s ownership interests in
Borrower, or in any other entity which owns, directly or indirectly
through one or more intermediate entities, an ownership interest in
Borrower (other than a Transfer of an aggregate beneficial
ownership interest in Borrower of 49% or less of such Guarantor’s
original ownership interest in Borrower and which does not
otherwise result in a Transfer of the Guarantor’s Controlling
Interest in such intermediate entities or in Borrower);
(v) if Guarantor is an entity, (A) a Transfer of a Controlling Interest in
Guarantor, or (B) a Transfer of a Controlling Interest in any entity
which owns, directly or indirectly through one or more
intermediate entities, a Controlling Interest in Guarantor;
(vi) if Borrower or Guarantor is a trust, the termination or revocation of
such trust; unless the trust is terminated as a result of the death of
an individual trustor, in which event Lender must be notified and
such Borrower or Guarantor must be replaced with an individual or
entity acceptable to Lender, in accordance with the provisions of
Section 21(c) hereof, within 90 days of such death (provided
however that no property inspection shall be required and a 1%
transfer fee will not be charged);
(vii) if Guarantor is a natural person, the death of such individual;
unless the Lender is notified and such individual is replaced with
an individual or entity acceptable to Lender, in accordance with the
provisions of Section 21(c) hereof, within 90 days of such death
(provided however that no property inspection shall be required
and a 1% transfer fee will not be charged);
(viii) the merger, dissolution, liquidation, or consolidation of
(i) Borrower, (ii) any Guarantor that is a legal entity, or (iii) any
Amended and Restated Mortgage 41 Vista Breeze
legal entity holding, directly or indirectly, a Controlling Interest in
Borrower or in any Guarantor that is an entity;
(ix) a conversion of Borrower from one type of legal entity into another
type of legal entity (including the conversion of a general
partnership into a limited partnership and the conversion of a
limited partnership into a limited liability company), whether or
not there is a Transfer; if such conversion results in a change in
any assets, liabilities, legal rights or obligations of Borrower (or of
any Guarantor, or any general partner of Borrower, as applicable),
by operation of law or otherwise;
(x) a Transfer of the economic benefits or right to cash flows
attributable to the ownership interests in Borrower and/or, if
Guarantor is an entity, Guarantor, separate from the Transfer of the
underlying ownership interests, unless the Transfer of the
underlying ownership interests would otherwise not be prohibited
by this Instrument; and
(xi) the filing, recording, or consent to filing or recording of any plat or
map subdividing, replatting or otherwise affecting the Mortgaged
Property or any other replat or subdivision of the Mortgaged
Property, whether or not any such action affects the priority of the
lien of this Instrument.
Lender shall not be required to demonstrate any actual impairment of its security or any
increased risk of default in order to exercise any of its remedies with respect to an Event
of Default under this Section 21.
(b) The occurrence of any of the following events shall not constitute an
Event of Default under this Instrument, notwithstanding any provision of Section 21(a) to
the contrary (each a “Permitted Transfer”):
(i) a Transfer to which Lender has consented;
(ii) except as provided in Section 21(a)(vi) and (vii), a Transfer that
occurs by devise, descent, pursuant to the provisions of a trust, or
by operation of law upon the death of a natural person;
(iii) the grant of a leasehold interest in an individual dwelling unit for a
term of two years or less not containing an option to purchase;
(iv) a Transfer of obsolete or worn out Personalty or Fixtures that are
contemporaneously replaced by items of equal or better function
and quality, which are free of liens, encumbrances and security
interests other than those created by or permitted pursuant to the
Loan Documents or consented to by Lender;
Amended and Restated Mortgage 42 Vista Breeze
(v) the grant of an easement, servitude, or restrictive covenant if,
before the grant, Lender determines that the easement, servitude, or
restrictive covenant will not materially affect the operation or
value of the Mortgaged Property or Lender’s interest in the
Mortgaged Property, and Borrower pays to Lender, upon demand,
all actual costs and expenses incurred by Lender in connection
with reviewing Borrower’s request; provided, however, utility
easements of a type usually permitted or required to operate a
multifamily project in the Property Jurisdiction (such as, by way of
example, gas, sewer and electricity supplier easements and
easements to provide cable service) shall be deemed to be
Permitted Transfers without the need for Lender’s prior review or
determination so long as (A) such easement does not obligate
Borrower to incur any additional costs, (B) such easement does not
grant the grantee of the easement the option to acquire any other
estate in the Mortgaged Property, and (C) Lender is not obligated
to subordinate the lien of this Instrument to the proposed easement;
(vi) the creation of a mechanic’s, materialman’s, or judgment lien
against the Mortgaged Property which is released of record,
bonded to the full satisfaction of Lender, or otherwise remedied to
Lender’s satisfaction within 45 days after Borrower has actual or
constructive notice of the existence of such lien;
(vii) the conveyance of the Mortgaged Property at a judicial or non-
judicial foreclosure sale under this Instrument; and
(viii) the assignment of Managing General Partner’s Class B limited
partner interest in the Borrower to Administrative General Partner
pursuant to Section 7.1 of Borrower’s Agreement of Limited
Partnership.
(c) Lender shall consent to a Transfer that would otherwise violate this
Section 21 if, prior to the Transfer, Borrower has satisfied each of the following
requirements:
(i) the submission to Lender of all information required by Lender to
make the determination required by this Section 21(c);
(ii) the absence of any Event of Default;
(iii) the transferee meets all of the eligibility, credit, management and
other standards (including any standards with respect to previous
relationships between Lender and the transferee and the
organization of the transferee) customarily applied by Lender at
the time of the proposed Transfer to the approval of borrowers in
connection with the origination or purchase of similar mortgage
Amended and Restated Mortgage 43 Vista Breeze
finance structures on similar multifamily properties, unless
partially waived by Lender in exchange for such additional
conditions as Lender may require;
(iv) the Mortgaged Property, at the time of the proposed Transfer,
meets all standards as to its physical condition that are customarily
applied by Lender at the time of the proposed Transfer to the
approval of properties in connection with the origination or
purchase of similar mortgage finance structures on similar
multifamily properties, unless partially waived by Lender in
exchange for such additional conditions as Lender may require;
(v) if the transferor or any other person has obligations under any
Loan Document, the execution by the transferee or one or more
individuals or entities acceptable to Lender of an assumption
agreement that is acceptable to Lender and that, among other
things, requires the transferee to perform all obligations of
transferor or such person set forth in the Loan Documents, and
may require that the transferee comply with any provisions of this
Instrument or any other Loan Document which previously may
have been waived by Lender;
(vi) if a guaranty has been executed and delivered by the transferor in
connection with the Note, this Instrument or any of the other Loan
Documents, Borrower causes one or more individuals or entities
acceptable to Lender to execute and deliver to Lender a substitute
guaranty in a form acceptable to Lender;
(vii) Lender’s receipt of all of the following:
(A) a non-refundable review fee in the amount of $3,000, and a
transfer fee equal to one percent (1%) of the outstanding
Indebtedness immediately prior to the Transfer; and
(B) Borrower’s reimbursement of all of Lender’s out-of-pocket
costs (including, reasonable attorneys’ fees) incurred in
reviewing the Transfer request, to the extent such expenses
exceed $3,000;
(viii) Borrower has agreed to Lender’s conditions to approve such
Transfer, which may include, but are not limited to (A) providing
additional collateral, guaranties, or other credit support to mitigate
any risks concerning the proposed transferee or the performance or
condition of the Mortgaged Property, and (B) amending the Loan
Documents to (1) delete any specially negotiated terms or
provisions previously granted for the exclusive benefit of
transferor and (2) restore to original provisions of the standard
Amended and Restated Mortgage 44 Vista Breeze
Lender forms of multifamily loan documents, to the extent such
provisions were previously modified; and
(ix) Lender’s receipt of evidence of consent to the Transfer, to the
extent required pursuant to the terms of the Regulatory Agreement.
(d) For purposes of this Section, the following terms shall have the meanings
set forth below:
(i) A Transfer of a “Controlling Interest” shall mean:
(A) with respect to any entity, the following:
(1) if such entity is a general partnership or a joint
venture, a Transfer of any general partnership interest or joint
venture interest which would cause the Initial Owners to own less
than a Controlling Percentage of all general partnership or joint
venture interests in such entity;
(2) if such entity is a limited partnership, (A) a Transfer
of any general partnership interest, or (B) a Transfer of any
partnership interests which would cause the Initial Owners to own
less than a Controlling Percentage of all limited partnership
interests in such entity;
(3) if such entity is a limited liability company or a
limited liability partnership, (A) a Transfer of any membership or
other ownership interest which would cause the Initial Owners to
own less than a Controlling Percentage of all membership or other
ownership interests in such entity, (B) a Transfer of any
membership, or other interest of a manager, in such entity that
results in a change of manager, or (C) a change of the non-member
manager;
(4) if such entity is a corporation (other than a Publicly-
Held Corporation) with only one class of voting stock, a Transfer
of any voting stock which would cause the Initial Owners to own
less than a Controlling Percentage of voting stock in such
corporation;
(5) if such entity is a corporation (other than a Publicly-
Held Corporation) with more than one class of voting stock, a
Transfer of any voting stock which would cause the Initial Owners
to own less than a sufficient number of shares of voting stock
having the power to elect the majority of directors of such
corporation; and
Amended and Restated Mortgage 45 Vista Breeze
(6) if such entity is a trust (other than a Publicly-Held
Trust), the removal, appointment or substitution of a trustee of
such trust other than (A) in the case of a land trust, or (B) if the
trustee of such trust after such removal, appointment, or
substitution is a trustee identified in the trust agreement approved
by Lender; and/or
(B) any agreement (including provisions contained in the
organizational and/or governing documents of Borrower or
Guarantor) or Transfer not specified in clause (A), the effect of
which, either immediately or after the passage of time or
occurrence of a specified event or condition, including the failure
of a specified event or condition to occur or be satisfied, would
(i) cause a change in or replacement of the Person that controls the
management and operations of the Borrower or Guarantor or
(ii) limit or otherwise modify the extent of such Person’s control
over the management and operations of Borrower or Guarantor.
(ii) “Controlling Percentage” shall mean (i) greater than 50% of the
ownership interests in an entity, or (ii) a percentage ownership
interest in an entity of 50% or less if the owner(s) of that interest
actually direct(s) the business and affairs of the entity without
requirement of consent of any other party.
(iii) “Publicly-Held Corporation” shall mean a corporation the
outstanding voting stock of which is registered under
Section 12(b) or 12(g) of the Securities and Exchange Act of 1934,
as amended.
(iv) “Publicly-Held Trust” shall mean a real estate investment trust
the outstanding voting shares or beneficial interests of which are
registered under Section 12(b) or 12(g) of the Securities Exchange
Act of 1934, as amended.
(e) Lender shall be provided with written notice of all Transfers under this
Section 21, whether or not such Transfers are permitted under Section 21(b) or approved
by Lender under Section 21(c), no later than 10 days prior to the date of the Transfer.
22. EVENTS OF DEFAULT. The occurrence of any one or more of the following
shall constitute an Event of Default under this Instrument:
(a) (i) any failure by Borrower to pay or deposit any payment of principal,
interest, principal reserve fund deposit, any payment with a specified due date, or any
other scheduled payment or deposit required by the Note, this Instrument or any other
Loan Document when such payment or deposit is due or (ii) any failure by Borrower to
pay or deposit any unscheduled payment or deposit, or other payment or deposit without
Amended and Restated Mortgage 46 Vista Breeze
a specified due date, required by the Note, this Instrument or any other Loan Document,
within five (5) days after written notice from Lender;
(b) any failure by Borrower to maintain the insurance coverage required by
Section 19;
(c) any failure by Borrower to comply with the provisions of Section 32;
(d) fraud or material misrepresentation or material omission by Borrower or
Guarantor, any of their respective officers, directors, trustees, general partners, managing
members, managers, agents or representatives in connection with (i) the application for
the Loan, (ii) any financial statement, rent roll, or other report or information provided to
Lender during the term of the Indebtedness, or (iii) any request for Lender’s consent to
any proposed action, including a request for disbursement of funds under any Collateral
Agreement;
(e) any of Borrower’s representations and warranties in this Instrument is
false or misleading in any material respect;
(f) any Event of Default under Section 21;
(g) the commencement of a forfeiture action or proceeding, whether civil or
criminal, which, in Lender’s judgment, could result in a forfeiture of the Mortgaged
Property or otherwise materially impair the lien created by this Instrument or Lender’s
interest in the Mortgaged Property;
(h) any failure by Borrower to perform or comply with any of its obligations
under this Instrument (other than those specified in this Section 22), as and when
required, which continues for a period of thirty (30) days after written notice of such
failure by Lender to Borrower; provided, however, if such failure is susceptible of cure
but cannot reasonably be cured within such thirty (30) day period, and the Borrower shall
have commenced to cure such failure within such thirty (30) day period and thereafter
diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall
be extended for an additional period of time as is reasonably necessary for the Borrower
in the exercise of due diligence to cure such failure, such additional period, not to exceed
sixty (60) days. However, no such notice or grace period shall apply to the extent such
failure could, in Lender’s judgment, absent immediate exercise by Lender of a right or
remedy under this Instrument, result in harm to Lender, impairment of the Note or this
Instrument or any other security given under any other Loan Document;
(i) any failure by Borrower or any Guarantor to perform any of its obligations
as and when required under any Loan Document other than this Instrument which
continues beyond any applicable notice and cure periods, if any, specified in that Loan
Document;
(j) any exercise by the holder of any debt instrument secured by a mortgage,
deed of trust or deed to secure debt on the Mortgaged Property of a right to declare all
amounts due under that debt instrument immediately due and payable;
Amended and Restated Mortgage 47 Vista Breeze
(k) the occurrence of a Bankruptcy Event;
(l) any Event of Default (as defined in any of the Loan Documents), which
continues beyond the expiration of all applicable cure periods;
(m) any breach of, or event of default by Borrower under, any other document
or agreement relating to the Loan or the provision of low income housing tax credits to
the Mortgaged Property to which Borrower is a party, which continues beyond the
expiration of any applicable notice and cure period thereunder;
(n) any failure by Borrower or the Project to qualify for low income housing
tax credits pursuant to the provisions of Section 42 of the Internal Revenue Code;
(o) Intentionally Omitted;
(p) any amendment, modification, waiver or termination of any of the
provisions of Borrower’s Organizational Documents without the prior written consent of
Lender, other than (i) modifications necessary to reflect the occurrence of a Permitted
Transfer or (ii) modifications that do not: (A) impose any additional or greater
obligations on Borrower or any of the partners, managers or members of Borrower,
(B) reduce or relieve Borrower or any of the partners, managers or members of Borrower
of any of their obligations, (C) modify the timing, amounts, number, conditions or other
terms of the installments or other payment obligations of the partners or members of
Borrower or (D) impair the collateral for the Loan; provided, however, that Borrower
shall promptly provide to Lender a copy of any modifications to Borrower’s
Organizational Documents that do not require Lender’s consent;
(q) (i) breach of any Material Property Agreement by Borrower or its officers,
directors, employees, agents or tenants that continues beyond all applicable notice, grace,
and cure periods; (ii) any failure by Borrower or its officers, directors, employees or
agents to deliver concurrently (in case of notices given) or promptly (in case of notices
received) copies of any and all notices received or given thereby to Lender with respect
to any Material Property Agreement; or (iii) any breach of the representations, warranties,
or covenants set forth in Section 6.1.15 of the Loan Covenant Agreement;
(r) if Borrower or any Guarantor is a trust, the termination or revocation of
any such trust; unless the trust is terminated as a result of the death of an individual
trustor, in which event Lender must be notified and such Borrower or Guarantor must be
replaced with an individual or entity acceptable to Lender, in accordance with the
provisions of Section 21(c) hereof, within 90 days of such death (provided however that
no property inspection shall be required and a 1% transfer fee will not be charged); or
(s) if any Guarantor is a natural person, the death of such individual; unless
the Lender is notified and such individual is replaced with an individual or entity
acceptable to Lender, in accordance with the provisions of Section 21(c) hereof, within
90 days of such death (provided however that no property inspection shall be required
and a 1% transfer fee will not be charged).
Amended and Restated Mortgage 48 Vista Breeze
23. REMEDIES CUMULATIVE. Each right and remedy provided in this
Instrument is distinct from all other rights or remedies under this Instrument or any other Loan
Document or afforded by applicable law, and each shall be cumulative and may be exercised
concurrently, independently, or successively, in any order.
24. FORBEARANCE.
(a) Lender may (but shall not be obligated to) agree with Borrower, from time
to time, and without giving notice to, or obtaining the consent of, or having any effect
upon the obligations of, any guarantor or other third party obligor, to take any of the
following actions: extend the time for payment of all or any part of the Indebtedness;
reduce the payments due under this Instrument, the Note, or any other Loan Document;
release anyone liable for the payment of any amounts under this Instrument, the Note, or
any other Loan Document; accept a renewal of the Note; modify the terms and time of
payment of the Indebtedness; join in any extension or subordination agreement; release
any Mortgaged Property; take or release other or additional security; modify the rate of
interest or period of amortization of the Note or change the amount of the monthly
installments payable under the Note; and otherwise modify this Instrument, the Note, or
any other Loan Document.
(b) Any forbearance by Lender in exercising any right or remedy under the
Note, this Instrument, or any other Loan Document or otherwise afforded by applicable
law, shall not be a waiver of or preclude the exercise of any other right or remedy, or the
subsequent exercise of any right or remedy. The acceptance by Lender of payment of all
or any part of the Indebtedness after the due date of such payment, or in an amount which
is less than the required payment, shall not be a waiver of Lender’s right to require
prompt payment when due of all other payments on account of the Indebtedness or to
exercise any remedies for any failure to make prompt payment. Enforcement by Lender
of any security for the Indebtedness shall not constitute an election by Lender of remedies
so as to preclude the exercise of any other right available to Lender. Lender’s receipt of
any awards or proceeds under Sections 19 and 20 shall not operate to cure or waive any
Event of Default.
25. WAIVER OF STATUTE OF LIMITATIONS. BORROWER HEREBY
WAIVES THE RIGHT TO ASSERT ANY STATUTE OF LIMITATIONS AS A BAR TO THE
ENFORCEMENT OF THE LIEN OF THIS INSTRUMENT OR TO ANY ACTION
BROUGHT TO ENFORCE ANY LOAN DOCUMENT.
26. WAIVER OF MARSHALLING. Notwithstanding the existence of any other
security interests in the Mortgaged Property held by Lender or by any other party, Lender shall
have the right to determine the order in which any or all of the Mortgaged Property shall be
subjected to the remedies provided in this Instrument, the Note, any other Loan Document or
applicable law. Lender shall have the right to determine the order in which any or all portions of
the Indebtedness are satisfied from the proceeds realized upon the exercise of such remedies.
Borrower and any party who now or in the future acquires a security interest in the Mortgaged
Property and who has actual or constructive notice of this Instrument waives any and all right to
require the marshalling of assets or to require that any of the Mortgaged Property be sold in the
Amended and Restated Mortgage 49 Vista Breeze
inverse order of alienation or that any of the Mortgaged Property be sold in parcels or as an
entirety in connection with the exercise of any of the remedies permitted by applicable law or
provided in this Instrument.
27. FURTHER ASSURANCES. Borrower shall execute, acknowledge, and deliver,
at its sole cost and expense, all further acts, deeds, conveyances, assignments, estoppel
certificates, financing statements or amendments, transfers and assurances as Lender may
require from time to time in order to better assure, grant, and convey to Lender the rights
intended to be granted, now or in the future, to Lender under this Instrument and the Loan
Documents. In furtherance thereof, on the request of Lender, Borrower shall re-execute or ratify
any of the Loan Documents or execute any other documents or take such other actions as may be
necessary to effect the assignment, pledge or other transfer of the Loan to any party that may
purchase, insure, credit enhance or otherwise finance all or any part of the Loan, including,
without limitation, any Credit Enhancer (including Freddie Mac or Fannie Mae), the U.S.
Department of Housing and Urban Development, or any insurance company, conduit lender or
any other lender or investor. Notwithstanding the foregoing sentence, in no event shall Borrower
be required to execute and deliver any document or perform any act otherwise required pursuant
to the foregoing sentence to the extent such document or act imposes a material additional
obligation or liability on Borrower or materially adversely affects the rights of Borrower under
any Loan Document.
28. ESTOPPEL CERTIFICATE. Within 10 days after a request from Lender,
Borrower shall deliver to Lender a written statement, signed and acknowledged by Borrower,
certifying to Lender or any person designated by Lender, as of the date of such statement, (i) that
the Loan Documents are unmodified and in full force and effect (or, if there have been
modifications, that the Loan Documents are in full force and effect as modified and setting forth
such modifications); (ii) the unpaid principal balance of the Note; (iii) the date to which interest
under the Note has been paid; (iv) that Borrower is not in default in paying the Indebtedness or in
performing or observing any of the covenants or agreements contained in this Instrument or any
of the other Loan Documents (or, if Borrower is in default, describing such default in reasonable
detail); (v) whether or not there are then existing any setoffs or defenses known to Borrower
against the enforcement of any right or remedy of Lender under the Loan Documents; and
(vi) any additional facts requested by Lender.
29. GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE.
(a) This Instrument, and any Loan Document which does not itself expressly
identify the law that is to apply to it, shall be governed by the laws of the Property
Jurisdiction.
(b) Borrower agrees that any controversy arising under or in relation to the
Note, this Instrument, or any other Loan Document may be litigated in the Property
Jurisdiction. The state and federal courts and authorities with jurisdiction in the Property
Jurisdiction shall have jurisdiction over all controversies that shall arise under or in
relation to the Note, any security for the Indebtedness, or any other Loan Document.
Borrower irrevocably consents to service, jurisdiction, and venue of such courts for any
such litigation and waives any other venue to which it might be entitled by virtue of
Amended and Restated Mortgage 50 Vista Breeze
domicile, habitual residence or otherwise. However, nothing in this Section 29 is
intended to limit Lender’s right to bring any suit, action or proceeding relating to matters
arising under this Instrument in any court of any other jurisdiction.
30. NOTICE.
(a) All notices, demands and other communications (“notice”) under or
concerning this Instrument shall be in writing and addressed as set forth below. Each
notice shall be deemed given on the earliest to occur of (i) the date when the notice is
received by the addressee; (ii) the first Business Day after the notice is delivered to a
recognized overnight courier service, with arrangements made for payment of charges for
next Business Day delivery; or (iii) the third Business Day after the notice is deposited in
the United States mail with postage prepaid, certified mail, return receipt requested.
If to Borrower: Vista Breeze, LTD.
c/o Atlantic Pacific Communities
161 NW 6th Street, Suite 1020
Miami, Florida 33136
Attention: Kenneth Naylor
With a copy to:
Klein Hornig LLP
1325 G Street NW, Suite 770
Washington, D.C. 20005
Attention: Chris Hornig, Esq.
With a copy to:
With a copy to:
Vista Breeze HACMB, Inc.
c/o 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
Fox Rothschild LLP
BNY Mellon Center
500 Grant Street, Suite 2500
Pittsburgh, PA 15219
Attention: Michael H. Syme, Esq.
Email: msyme@foxrothschild.com
Phone: (412) 391-2450
Amended and Restated Mortgage 51 Vista Breeze
If to Lender: Citibank, N.A.
388 Greenwich Street, Trading 4th Floor
New York, New York 10013
Attention: Transaction Management Group
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (212) 723-8209
With a copy to: Citibank, N.A.
325 East Hillcrest Drive, Suite 160
Thousand Oaks, California 91360
Attention: Operations Manager/Asset Manager
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (805) 557-0924
With a copy to: Citibank, N.A.
388 Greenwich Street, Trading 4th Floor
New York, New York 10013
Attention: Account Specialist
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (212) 723-8209
And a copy of any notices
of default sent to:
Citibank, N.A.
388 Greenwich Street, 17th Floor
New York, New York 10013
Attention: General Counsel’s Office
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (646) 291-5754
(b) Any party to this Instrument may change the address to which notices
intended for it are to be directed by means of notice given to the other party in
accordance with this Section 30. Each party agrees that it will not refuse or reject
delivery of any notice given in accordance with this Section 30, that it will acknowledge,
in writing, the receipt of any notice upon request by the other party and that any notice
rejected or refused by it shall be deemed for purposes of this Section 30 to have been
received by the rejecting party on the date so refused or rejected, as conclusively
established by the records of the U.S. Postal Service or the courier service.
(c) Any notice under the Note and any other Loan Document that does not
specify how notices are to be given shall be given in accordance with this Section 30.
31. CHANGE IN SERVICER. If there is a change of the Servicer, Borrower will be
given notice of the change.
32. SINGLE ASSET BORROWER. Until the Indebtedness is paid in full,
Borrower (a) shall not acquire any real or personal property other than the Mortgaged Property
and personal property related to the operation and maintenance of the Mortgaged Property;
Amended and Restated Mortgage 52 Vista Breeze
(b) shall not operate any business other than the management and operation of the Mortgaged
Property; and (c) shall not maintain its assets in a way difficult to segregate and identify.
33. SUCCESSORS AND ASSIGNS BOUND. This Instrument shall bind, and the
rights granted by this Instrument shall inure to, the successors and assigns of Lender and the
permitted successors and assigns of Borrower.
34. JOINT AND SEVERAL LIABILITY. If more than one person or entity signs
this Instrument as Borrower, the obligations of such persons and entities shall be joint and
several.
35. RELATIONSHIP OF PARTIES; NO THIRD PARTY BENEFICIARY.
(a) The relationship between Lender and Borrower shall be solely that of
creditor and debtor, respectively, and nothing contained in this Instrument shall create
any other relationship between Lender and Borrower.
(b) No creditor of any party to this Instrument and no other person (other than
a holder of the Note and Servicer) shall be a third party beneficiary of this Instrument or
any other Loan Document. Without limiting the generality of the preceding sentence,
(i) any arrangement (a “Servicing Arrangement”) between Lender and any Servicer for
loss sharing or interim advancement of funds shall constitute a contractual obligation of
such Servicer that is independent of the obligation of Borrower for the payment of the
Indebtedness, (ii) Borrower shall not be a third party beneficiary of any Servicing
Arrangement, and (iii) no payment by Servicer under any Servicing Arrangement will
reduce the amount of the Indebtedness.
36. SEVERABILITY; AMENDMENTS. The invalidity or unenforceability of any
provision of this Instrument shall not affect the validity or enforceability of any other provision,
and all other provisions shall remain in full force and effect. This Instrument contains the entire
agreement among the parties as to the rights granted and the obligations assumed in this
Instrument. This Instrument may not be amended or modified except by a writing signed by the
party against whom enforcement is sought; provided, however, that in the event of a Transfer
(other than a Permitted Transfer), any or some or all of the Modifications to Instrument set forth
in Exhibit B (if any) may be modified or rendered void by Lender at Lender’s option by notice to
Borrower or such transferee.
37. CONSTRUCTION. The captions and headings of the sections of this Instrument
are for convenience only and shall be disregarded in construing this Instrument. Any reference
in this Instrument to an “Exhibit” or a “Section” shall, unless otherwise explicitly provided, be
construed as referring, respectively, to an Exhibit attached to this Instrument or to a Section of
this Instrument. All Exhibits attached to or referred to in this Instrument are incorporated by
reference into this Instrument. Any reference in this Instrument to a statute or regulation shall be
construed as referring to that statute or regulation as amended from time to time. Use of the
singular in this Instrument includes the plural and use of the plural includes the singular. As
used in this Instrument, the term “including” means “including, but not limited to.”
Amended and Restated Mortgage 53 Vista Breeze
38. SERVICER.
(a) Borrower further acknowledges that Lender may from time to time and in
accordance with the terms of the Loan Agreement, appoint a Servicer or a replacement
servicer to collect payments, escrows and deposits, to give and receive notices under the
Note, this Instrument, or the other Loan Documents, and to otherwise service the Loan.
Borrower hereby acknowledges and agrees that, unless Borrower receives written notice
from Lender to the contrary, any action or right which shall or may be taken or exercised
by Lender may be taken or exercised by Servicer with the same force and effect,
including, without limitation, the collection of payments, the giving of notice, the holding
of escrows, inspection of the Mortgaged Property, inspections of books and records, the
request for documents or information, and the granting of consents and approvals.
Borrower further agrees that, unless Lender instructs Borrower to the contrary in writing,
(i) any notices, books or records, or other documents or information to be delivered under
this Instrument, the Note, or any other Loan Document shall also be simultaneously
delivered to the Servicer at the address provided for notices to Servicer pursuant to
Section 30 hereof, and (ii) any payments to be made under the Note or for escrows under
Section 7 of this Instrument or under any of the other Loan Documents shall be made to
Servicer. In the event Borrower receives conflicting notices regarding the identity of the
Servicer or any other subject, any such notice from Lender shall govern.
(b) Borrower further acknowledges and agrees that, for the purpose of
determining whether a security interest is created or perfected under the Uniform
Commercial Code of the Property Jurisdiction, any escrows or other funds held by
Servicer pursuant to the Loan Documents shall be deemed to be held by Lender.
39. DISCLOSURE OF INFORMATION. Lender may furnish information
regarding Borrower or the Mortgaged Property to third parties with an existing or prospective
interest in the servicing, enforcement, evaluation, performance, purchase or securitization of the
Indebtedness, including but not limited to trustees, master servicers, special servicers, rating
agencies, and organizations maintaining databases on the underwriting and performance of
multifamily mortgage loans. Without limiting the generality of the foregoing, without notice to
or the consent of Borrower, Lender may disclose to any title insurance company which insures
any interest of Lender under this Instrument (whether as primary insurer, coinsurer or reinsurer)
any information, data or material in its possession relating to Borrower, the Loan, the
Improvements or the Mortgaged Property. Borrower irrevocably waives any and all rights it
may have under applicable law to prohibit such disclosure, including but not limited to any right
of privacy.
Amended and Restated Mortgage 54 Vista Breeze
40. NO CHANGE IN FACTS OR CIRCUMSTANCES. Borrower warrants that
all information in Borrower’s application for the Loan and in all financial statements, rent rolls,
reports, certificates and other documents submitted in connection with Borrower’s application
for the Loan are complete and accurate in all material respects. There has been no material
adverse change in any fact or circumstance that would make any such information incomplete or
inaccurate.
41. SUBROGATION. If, and to the extent that, the proceeds of the Loan are used to
pay, satisfy or discharge any obligation of Borrower for the payment of money that is secured by
a pre-existing mortgage, deed of trust or other lien encumbering the Mortgaged Property (a
“Prior Lien”), such loan proceeds shall be deemed to have been advanced by Lender at
Borrower’s request, and Lender shall automatically, and without further action on its part, be
subrogated to the rights, including lien priority, of the owner or holder of the obligation secured
by the Prior Lien, whether or not the Prior Lien is released.
42. FINANCING STATEMENT. As provided in Section 2, this Instrument
constitutes a financing statement with respect to any part of the Mortgaged Property which is or
may become a Fixture and for the purposes of such financing statement: (a) the Debtor shall be
Borrower and the Secured Party shall be Lender; (b) the addresses of Borrower as Debtor and of
Lender as Secured Party are as specified above in the first paragraph of this Instrument; (c) the
name of the record owner is Borrower; (d) the types or items of collateral consist of any part of
the Mortgaged Property which is or may become a Fixture; and (e) the organizational
identification number of Borrower (if any) as Debtor is set forth on Exhibit C.
43. STATE SPECIFIC PROVISIONS (FLORIDA).
(a) Principles of Construction. In the event of any inconsistencies between
the terms and conditions of this Section 43 and the terms and conditions of this Security
Document, the terms and conditions of this Section 43 shall control and be binding.
(b) Copy of Instrument. Borrower acknowledges that Borrower has received
a copy of this Instrument without charge.
(c) Future Advances. This Instrument is intended to be and is a mortgage to
secure the payment of such future or additional advances as may be made by Lender at its
option to Borrower, or its successors in title, for any purpose, provided that all those
advances are to be made within twenty (20) years from the date of this Instrument or
within such lesser period of time as may be provided hereafter by law as a prerequisite
for the sufficiency of actual notice or record notice of the optional future or additional
advances as against the rights of creditors or subsequent purchasers for valuable
consideration. The total amount of indebtedness secured by this Instrument may decrease
or increase from time to time, but the total unpaid balance so secured at any one time
shall not exceed twice the principal amount of the Note, plus interest that may have
accrued thereon, together with any disbursements made for the payment of taxes, levies
or insurance on the Mortgaged Property covered by the lien of this Instrument, including
interest on all such disbursements. Nothing herein contained shall be deemed an
obligation on the part of the Lender to make any future advances.
Amended and Restated Mortgage 55 Vista Breeze
(d) Assignment of Leases and Rents. The assignments of leases and rents
contained in this Instrument are intended to provide Lender with all of the rights and
remedies of mortgagees pursuant to Section 697.07 of the Florida Statutes (hereinafter
“Section 697.07”), as may be amended from time to time. However, in no event shall
this reference diminish, alter, impair, or affect any other rights and remedies of Lender,
including but not limited to, the appointment of a receiver, nor shall any provision in this
section diminish, alter, impair or affect any rights or powers of the receiver in law or
equity or as set forth herein. In addition, this assignment shall be fully operative without
regard to value of the Property or without regard to the adequacy of the Property to serve
as security for the obligations owed by Borrower to Lender, and shall be in addition to
any rights arising under Section 697.07. Further, except for the notices required
hereunder, if any, Borrower hereby waives any notice of default or demand for turnover
of rents by Lender, together with any rights under Section 697.07 to apply to a court to
deposit the rents into the registry of the court or such other depository as the court may
designate.
44. WAIVER OF TRIAL BY JURY. TO THE FULLEST EXTENT
PERMITTED BY LAW, BORROWER AND LENDER EACH (A) COVENANTS AND
AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE
ARISING OUT OF THIS INSTRUMENT OR THE RELATIONSHIP BETWEEN THE
PARTIES AS BORROWER AND LENDER THAT IS TRIABLE OF RIGHT BY A JURY
AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH
ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE
FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN
BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF
COMPETENT LEGAL COUNSEL.
45. ATTACHED EXHIBITS. The following Exhibits are attached to this
Instrument and are incorporated by reference herein as if more fully set forth in the text hereof:
Exhibit A Description of the Land.
Exhibit B Modifications to Instrument.
Exhibit C Financing Statement Information.
Exhibit D Modifications to Instrument (Ground Lease).
Exhibit E Description of Ground Lease.
The terms of this Instrument are modified and supplemented as set forth in said Exhibits. To the
extent of any conflict or inconsistency between the terms of said Exhibits and the text of this
Instrument, the terms of said Exhibits shall be controlling in all respects.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Amended and Restated Mortgage Vista Breeze
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Instrument or caused this Instrument to be duly executed and delivered by its authorized
representative as of the date first set forth above.
GRANTOR:
VISTA BREEZE, LTD.,
a Florida limited partnership
Witness: By: APC Vista Breeze, LLC,
a Florida limited liability company,
Duly Authorized
By:______________________________
Signature
________________________________
Printed Name
By:
By:______________________________ Name:
Signature Title:
_________________________________
Printed Name
ACKNOWLEDGEMENT
STATE OF ____________
COUNTY OF ____________
The foregoing instrument was acknowledged before me by means of ☐ physical
presence or ☐ online notarization, this _____ day of _______________, 20___, by
______________, as _____________ of APC Vista Breeze, LLC, a Florida limited liability
company, duly authorized signatory of Vista Breeze, Ltd., a Florida limited partnership. Said
person is personally known to me or has produced a valid driver's license as identification.
[Notary Seal] Signature of person taking acknowledgment
Name (typed, printed or stamped): __________________
Title or Rank:
Serial number (if any):
Amended and Restated Mortgage A-1 Vista Breeze
EXHIBIT A
DESCRIPTION OF THE LAND
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.
Amended and Restated Mortgage B-1 Vista Breeze
EXHIBIT B
MODIFICATIONS TO INSTRUMENT
The following modifications are made to the text of the Instrument that precedes this Exhibit:
1. Section 21(a) of the Instrument is amended by adding the following at the end of
such Section:
“(xii) notwithstanding anything to the contrary herein or in Borrower’s Organizational
Documents, a Transfer or pledge of a general partnership interest in Borrower or an interest in
any general partner of Borrower to a 501(c)(3) nonprofit corporation, or a limited liability
company whose sole member is a 501(c)(3) nonprofit corporation, without the prior written
consent of Lender following full review and underwriting by Lender of the proposed transferee.”
2. Section 21(b) of the Instrument is amended by adding the following at the end of
such Section:
“(viii) Provided that (i) Borrower owns the Mortgaged Property and remains the
borrower under the Note, (ii) APC Vista Breeze, LLC, a Florida limited
liability company (“Managing General Partner”) is the managing
general partner of Borrower or the Class B limited partner with
irrevocable rights of control, (iii) Vista Breeze HACMB, Inc., a Florida
not for profit corporation and tax-exempt entity pursuant to Section
501(c)(3) of the Internal Revenue Code (the “Administrative General
Partner”) is the administrative general partner of Borrower and (iv) Bank
of America, N.A., a national banking association, or its permitted
transferee (the “Equity Investor”), has not less than a 99.99% limited
partnership interest in Borrower:
(A) the removal by Equity Investor of Managing General Partner as
managing general partner of Borrower or removal by Equity
Investor of Administrative General Partner as administrative
general partner and replacement as managing general partner or
administrative general partner, as applicable, by Banc of America
CDC Special Holding Company, Inc., a North Carolina
corporation (“Special Limited Partner”), or by a wholly-owned
affiliate of Special Limited Partner, which removal shall be in
accordance with the terms of the limited partnership agreement of
Borrower, provided that (i) the entity replacing the removed
Managing General Partner or Administrative General Partner must
be the Special Limited Partner or a single purpose entity, (ii) after
such replacement, Special Limited Partner or the Initial Owners of
Special Limited Partner must own directly or indirectly not less
than a Controlling Percentage of the general partnership interests,
as applicable, in the entity which replaced the removed Managing
General Partner or Administrative General Partner and (iii) each
Amended and Restated Mortgage B-2 Vista Breeze
Guarantor (if affiliated with the removed general partner) shall be
replaced as Guarantor by an individual or entity that is approved
by Lender and satisfies Lender’s mortgage credit standards for
guarantors; or
(B) For the sole purpose of effecting the initial sale of limited
partnership interests to a purchaser of low income housing tax
credits allocated to the Mortgaged Property in either a one or two-
step transaction: (i) a Transfer of limited partnership interests of
Equity Investor in Borrower to (A) a wholly-owned affiliate of
Equity Investor or a wholly-owned affiliate of Special Limited
Partner, or (B) an entity whose management is controlled by
Equity Investor, by a wholly-owned affiliate of Equity Investor or
by Special Limited Partner, or (ii) so long as Special Limited
Partner remains the sole managing member, sole manager or sole
general partner, as applicable, of Equity Investor, the transfer of
non-managing membership interests or limited partnership
interests, as applicable, in Equity Investor;
(C) provided that Equity Investor has previously made all requisite
capital contributions applicable to LIHTCs pursuant to the terms of
the operating agreement of Borrower, a Transfer of membership
interests of Equity Investor in Borrower to (1) any financial
institution, corporation, financial service firm or insurance
company that is investment grade (defined as BBB- or better rating
by S&P or similar rating agency) or has net assets of $250,000,000
or more or is a wholly-owned subsidiary of such an entity, or (2) a
syndicated tax credit fund whose manager has at least five (5)
years of prior experience in tax credit funds which have totaled in
the aggregate at least $50,000,000 in equity; provided, however,
the transferee is not (and does not have a principal who is) (w) a
person identified on the U.S Treasury Department Office of
Foreign Assets Control (OFAC) List, (x) any other person or
foreign country or agency thereof with whom a U.S. person may
not conduct business or transactions by prohibition of Federal law
or Executive Order of the President of the United States of
America, and (y) is not a person that the Lender and/or Servicer is
prohibited from doing business with in accordance with its
customary business practices; provided, further, Lender shall be
provided with advance written notice of any proposed Transfer
permitted under this Section 21(b)(viii)(C) no later than 30 days
before the date of the proposed Transfer.
(ix) a Transfer of the interests of Equity Investor in Borrower to the Housing
Authority of the City of Miami Beach (“HACMB”), Managing General
Partner or the Administrative General Partner or to an Affiliate of
HACMB, the Managing General Partner or the Administrative General
Amended and Restated Mortgage B-3 Vista Breeze
Partner at any time following the expiration of, for each building in the
Project, the applicable credit period of ten (10) taxable years described in
Code Section 42(f)(1), provided that at the time of such Transfer (A)
Lender shall be provided with advance written notice of any proposed
Transfer permitted under this Section 21(b)(ix) no later than 30 days
before the date of the proposed Transfer, (B) the transferee, if other than
the Managing General Partner or any Guarantor, shall be subject to the
satisfactory completion by Lender of due diligence with respect to such
transferee, including without limitation, financial, credit, U.S Treasury
Department Office of Foreign Assets Control (OFAC), know-your-
customer (KYC) and similar reviews, (C) no Event of Default shall have
occurred and be continuing, and (D) Borrower shall pay to Lender a
$10,000 transfer fee and the reasonable costs and expenses of Lender in
connection with such Transfer, including reasonable legal fees.
Borrower must provide Lender with: (i) advance written notice of the identity of
any entity replacing the Managing General Partner or a Guarantor pursuant to this
Section 21(b), and (ii) upon request by Lender from time to time, the names of all
owners of interests in Borrower, whether such interests are owned directly or
indirectly.”
3. Section 30(a) of the Instrument is amended to add the following at the end of such
Paragraph:
“Lender agrees that, so long as Equity Investor has a continuing ownership interest in Borrower,
effective notice to Borrower under the Loan Documents shall require delivery of a copy of such
notice to Equity Investor. Such notice shall be given in the manner provided in this Section
30(a), at Equity Investor’s address set forth below:
Bank of America, N.A.
MA5-100-04-11
100 Federal Street
Boston, MA 02110
Attention: Tax Credit Asset Management – Vista Breeze
With a copy to:
Holland & Knight LLP
10 St. James Avenue, 11th Floor
Boston, MA 02116
Attention: Sara C. Heskett, Esq.
Lender agrees that, notwithstanding its rights to invoke the remedies permitted by Section 43 of
this Instrument, upon the breach of any covenant or agreement by Borrower in this Instrument
(including, but not limited to, the covenants to pay when due sums secured by this Instrument) or
any other Loan Document, Lender shall not, so long as Equity Investor has a continuing
ownership interest in Borrower, conduct a foreclosure sale of the Mortgaged Property or receive
Amended and Restated Mortgage B-4 Vista Breeze
a deed-in-lieu of foreclosure, until such time as Equity Investor has first been given 30 days
written notice of such default and has failed, within such 30-day period to cure such default;
provided, however, that Lender shall be entitled, during such 30-day period, to continue to
accelerate the Note and to pursue its remedies. Any cure tendered by Equity Investor will be
accepted or rejected on the same basis as cures tendered by Borrower.”
4. The following new Sections are added to the Instrument after the last numbered
Section:
“46. RECOURSE LIABILITY. So long as Equity Investor has a continuing
ownership interest in Borrower, the provisions of Section 9 of the Note, as they relate to Events
of Default described in Section 9(e) of the Note, shall be operative only after Equity Investor has
been given thirty (30) days’ notice of the applicable Event(s) of Default described in Section 9(e)
of the Note, together with an opportunity within such thirty (30) day period to remedy the
applicable Event(s) of Default. In all events, Lender shall be entitled during such thirty (30) day
period to exercise all of its rights and remedies under this Instrument upon the occurrence of
such Event of Default other than foreclosure of the Mortgaged Property.
47. EXTENDED LOW-INCOME HOUSING COMMITMENT. Lender agrees
that the lien of this Instrument shall be subordinate to any extended low-income housing
commitment (as such term is defined in Section 42(h)(6)(B) of the Internal Revenue Code) (the
“Extended Use Agreement”) recorded against the Mortgaged Property; provided that such
Extended Use Agreement, by its terms, must terminate upon foreclosure under this Instrument or
upon a transfer of the Mortgaged Property by instrument in lieu of foreclosure, in accordance
with Section 42(h)(6)(E) of the Internal Revenue Code.
48. ANNUAL LIHTC REPORTING REQUIREMENTS. Borrower must submit
to Lender each year at the time of annual submission of Borrower’s financial analysis of
operations, a copy of the following sections of Borrower’s federal tax return: Internal Revenue
Forms 1065, 8586, 8609 and Form 8609, Schedule A, which must reflect the total low-income
housing tax credits (“LIHTCs”) allocated to the Mortgaged Property and the LIHTCs claimed
for the Mortgaged Property in the preceding year.
49. CROSS-DEFAULT. Borrower acknowledges and agrees that (a) any failure by
Borrower or the Project to qualify for low income housing tax credits pursuant to the provisions
of Section 42 of the Internal Revenue Code and (b) any default, event of default, or breach
(however such terms may be defined) after the expiration of any applicable notice and/or cure
periods under the Extended Use Agreement shall be an Event of Default under this Instrument
and that any costs, damages or other amounts, including reasonable attorney’s fees incurred by
Lender as a result of such an Event of Default by Borrower, including amounts paid to cure any
default or event of default, under the Extended Use Agreement shall be an obligation of
Borrower and become a part of the Indebtedness secured by this Instrument.
50. ANNUAL COMPLIANCE. Borrower shall submit to Lender on an annual
basis, evidence that the Mortgaged Property is in ongoing compliance with all income,
occupancy and rent restrictions under the Extended Use Agreement relating to the Mortgaged
Amended and Restated Mortgage B-5 Vista Breeze
Property. Such submissions shall be made contemporaneously with Borrower’s reports required
to be made to the regulator under the Extended Use Agreement.
51. TAX EXEMPTION OR ABATEMENT.
(a) Borrower represents, warrants and covenants to Lender that the Mortgaged
Property is eligible for and will receive a tax exemption or abatement (the “Tax
Abatement”) for the exemption for property used by nonprofit homes for the aged under
Section 196.1975 Florida Statutes (the “Program”).
(b) Borrower must file or cause to be filed on a timely basis all documentation
necessary to maintain the Tax Abatement.
(c) Borrower must comply or cause compliance fully with all of the Program
requirements in order to obtain and maintain the Tax Abatement.
(d) Borrower shall promptly provide Lender with a copy of any notice
Borrower may receive alleging that Borrower is in breach of the requirements of the
Program or that the Mortgaged Property is not being maintained as required by the
Program.
(e) In any application for a Transfer of the Mortgaged Property, any interest
in the Mortgaged Property or any interest in Borrower, Borrower shall notify Lender if
the completion of such Transfer without the consent of the agency administering the Tax
Abatement would result in the termination of the Tax Abatement.
(f) Borrower shall avail itself of all rights and opportunities to renew or
extend the Tax Abatement.
(g) Borrower shall not voluntarily take or cause to be taken any action that
would threaten the Tax Abatement or cause the Tax Abatement to terminate without the
prior written consent of Lender.
(h) Borrower represents and warrants that:
(1) Borrower has not received any notice indicating that the Tax
Abatement will be terminated or will not be obtained.
(2) Borrower has adhered to any income, rent or other restrictions
imposed by the Tax Abatement.
(i) Each of the following shall constitute an Event of Default:
(1) Any breach of any of the representations and warranties in
Subsection (h).
Amended and Restated Mortgage B-6 Vista Breeze
(2) Any transfer of the Mortgaged Property, any interest in the
Mortgaged Property, or any interest in Borrower that would cause the Tax
Abatement to terminate.
(j) In addition to the foregoing:
(1) The Borrower shall notify Lender if it receives any notice
indicating that the Tax Abatement will be terminated before its scheduled
expiration date.
(2) The Borrower shall notify Lender if a Transfer of the Mortgaged
Property or any interest in Borrower would result in the termination of the Tax
Abatement.
52. REGULATORY AGREEMENT. Notwithstanding anything in this Instrument
to the contrary, the Lender hereby acknowledges and consents to the lien of the Regulatory
Agreement and agrees that, irrespective of the order of recordation or date of effectiveness, the
lien of this Instrument shall be subordinate to the Regulatory Agreement. Borrower
acknowledges and agrees that any default, event of default, or breach (however such terms may
be defined) after the expiration of any applicable notice and/or cure periods under the Regulatory
Agreement shall be an Event of Default under this Instrument and that any costs, damages or
other amounts, including reasonable attorney’s fees incurred by the Lender as a result of such an
Event of Default by Borrower, including amounts paid to cure any default or event of default,
under the Regulatory Agreement shall be an obligation of Borrower and become a part of the
Indebtedness secured by this Instrument.
53. SECTION 8 HAP CONTRACT.
(a) Borrower is a party to that certain Housing Assistance Payments Contract
between Borrower and HACMB, dated as of [_] (as may be assigned, amended, and
renewed to date, the “HAP Contract”), for the Mortgaged Property, which HAP
Contract has been collaterally assigned by Borrower to Funding Lender pursuant to that
certain Assignment of Housing Assistance Payments Agreement (the “Assignment of
HAP Contract”), dated as of [_].
(b) Borrower represents that Borrower has at all times been and presently is in
full compliance with the HAP Contract and that Borrower has not in the past defaulted
and is presently not in default under the HAP Contract.
(c) Borrower acknowledges and agrees that any default, event of default, or
breach (however such terms may be defined) under the HAP Contract or the Assignment
of HAP Contract shall be an Event of Default under this Instrument and that any costs,
damages or other amounts, including reasonable attorneys’ fees incurred by Lender as a
result of such an Event of Default by Borrower, including amounts paid to cure any
default, event of default or breach under the HAP Contract or under the Assignment of
HAP Contract, shall be an obligation of Borrower and become a part of the Indebtedness
secured by this Instrument.
Amended and Restated Mortgage B-7 Vista Breeze
54. AFFORDABILITY RESTRICTIONS.
(a) Borrower shall not use the Mortgaged Property for any purpose other than
Affordable Housing until the later of (i) the expiration of the term of the Affordability
Restriction (as defined below) or (ii) 15 years from the date of this Instrument.
(b) Borrower’s tenant selection procedure shall be conducted in accordance
with all applicable state and federal laws including but not limited to fair housing laws,
rules and regulations. If any Affordable Unit in the Mortgaged Property is occupied by a
Qualifying Tenant(s) at the time of initial occupancy, and such Qualifying Tenant’s
income should subsequently exceed 140 percent of the applicable income limit, Borrower
shall, after such determination of income, rent the next available residential unit of
comparable or smaller size in the Mortgaged Property to another Qualified Tenant.
(c) A family, who, at the commencement of occupancy of a unit in the
Mortgaged Property, was of low or moderate income, shall be treated as continuing to
meet the low and moderate income requirement.
(d) For purposes of this Section:
“Affordable Housing” means a multifamily housing project in which 20 percent
or more of the residential units are both rent-restricted and occupied by families whose
incomes are 50 percent or less of the area median income as determined by the U.S.
Department of Housing and Urban Development (“HUD”), with adjustments for
household size, or in which 40 percent or more of the residential units are both rent-
restricted and occupied by families whose incomes are 60 percent or less of the area
median income as determined by the HUD Commissioner with adjustments for
household size. A residential unit is rent-restricted if the Gross Rent with respect to such
unit does not exceed 30 percent of the Imputed Income Limitation (as defined herein)
applicable to such unit.
“Affordability Restriction” means a contractual agreement or covenant
prohibiting the use of the Mortgaged Property for any purpose other than Affordable
Housing.
“Affordable Units” means those units which are designated by Borrower for
occupancy by Qualifying Tenants.
“Gross Rent” means the rental charge for an Affordable Unit in the Mortgaged
Property including any utility allowance determined by HUD in accordance with Section
8 of the United States Housing Act of 1937 (42 U.S.C. 1437f) (“Section 8”). Gross Rent
does not include any subsidy payment under Section 8 or any comparable rental
assistance program (with respect to such unit or the tenant(s) thereof), nor does it include
any fee for a basis of the low income status of the tenant(s) of the unit by any
governmental program of assistance (or by an organization described in Section 501(c)(3)
and exempt from tax under Section 501(a) of the Code (26 U.S.C. 501(a)) if such
Amended and Restated Mortgage B-8 Vista Breeze
program (or organization) provides assistance for rent and the amount of assistance
provided for rent is not separable from the amount of assistance provided for supportive
services. Gross Rent does not include any rental payment to the owner of a unit if the
owner pays an equivalent amount to the Farmers Home Administration under Section 515
of the Housing Act of 1949 (42 U.S.C. 1485).
“Imputed Income Limitation” has the meaning as defined in Section 42(g)(2)(C)
of the Code (26 U.S.C. 42(g)(2)(C).
“Qualifying Tenant” means persons or family whose income at time of initial
occupancy does not exceed 50 percent or 60 percent as applicable, of the area median
income, as determined by HUD with adjustments for family size.
55. FAIR HOUSING; EQUAL OPPORTUNITY. Borrower shall: (a) comply with
the provisions of Title VIII of the Civil Rights Act of 1968, as amended, and any regulations or
administrative procedures issued pursuant thereto. These laws and regulations prohibit
discrimination in the rental or financing of housing on the basis of race, color, national origin,
religion (creed), or sex. Borrower agrees to administer the Property and related activities in a
manner to affirmatively further fair housing. Borrower also agrees to comply with similar state
and local fair housing laws and ordinances; and (b) comply with the provisions of Executive
Order 11063 on Equal Opportunity in Housing and all regulations issued pursuant thereto. This
order and related regulations prohibit discrimination on the basis of race, color, religion (creed),
national origin, or sex in housing and related facilities provided through Federal financial
assistance.
56. AFFORDABILITY RESTRICTION. The Affordability Restriction is
incorporated into and made a part of this Instrument and a default under such Agreement shall
constitute an Event of Default under this Instrument and Lender may exercise all of its rights
under this Instrument.
All capitalized terms used in this Exhibit not specifically defined herein shall have the
meanings set forth in the text of the Instrument that precedes this Exhibit.
Amended and Restated Mortgage Vista Breeze
EXHIBIT C
FINANCING STATEMENT INFORMATION
1. Name and Address of Debtor: Vista Breeze, Ltd.
c/o Atlantic Pacific Communities
161 NW 6th Street
Suite 1020
Miami, Florida 33136
2. Debtor’s State of Organization and Organizational I.D.#:
State of Formation: Florida
Type of Entity: limited partnership
Organizational I.D.#: A20000000470
3. Name and Address of Secured Party: The Bank of New York Mellon Trust
Company, N.A.
4655 Salisbury Road, Suite 300
Jacksonville, Florida 33256
4. The Collateral is: Fixtures (as that term is described in the
Uniform Commercial Code of Florida)
attached to the Land described in
Exhibit A attached to this Instrument.
1 Vista Breeze
EXHIBIT D
MODIFICATIONS TO INSTRUMENT
(Ground Lease)
The following modifications are made to the text of the Instrument that precedes this Exhibit:
1. The granting clause on page 2 is deleted in its entirety and the following new
granting clause is inserted in its place:
“Granting Clause. Borrower, in consideration of the Indebtedness and the trust created
by this Instrument, irrevocably grants, conveys and assigns to Lender, with power of sale, the
Mortgaged Property, including the Leasehold Estate in the Land located in Miami-Dade County,
Florida and described in Exhibit A attached to this Instrument, to have and to hold the
Mortgaged Property unto Lender, Lender’s successor in trust and Lender’s assigns forever.”
2. The definition of Mortgaged Property in Section 1 is amended by deleting
paragraph (i) and inserting the following new paragraph in its place: “(i) the Ground Lease and
the Leasehold Estate;”
3. The definition of Mortgaged Property in Section 1 is amended by deleting the
word “Land” from paragraph (viii) and inserting the words “Leasehold Estate” in its place.
4. Section 1 is amended by adding the following new definitions:
“Event of Ground Lessor Bankruptcy” means either of the following actions
taken by or with respect to Ground Lessor: (i) Ground Lessor pursuant to or within the
meaning of the United States Bankruptcy Code (x) commences a voluntary case, or (y)
consents to the entry of an order for relief against it in an involuntary case; or (ii) a court
of competent jurisdiction enters an order or decree under the United States Bankruptcy
Code that is for relief against Ground Lessor in an involuntary case.
“Ground Lease” means the lease described in Exhibit E pursuant to which
Borrower leases the Land, as such lease may from time to time be amended, modified,
supplemented, renewed and extended.
“Ground Lessee Default” means (i) a default by Borrower in making any
payment of rent, additional rent or other sum of money payable by Borrower to Ground
Lessor under the Ground Lease on the date such payment is due and payable, or (ii) a
default by Borrower in performing or observing any of the terms, covenants or conditions
of the Ground Lease (other than the payments referred to in clause (i)) required to be
performed or observed by Ground Lessee.
“Ground Lessor” means the lessor from time to time under the Ground Lease.
“Ground Lessor Default” means a default by Ground Lessor in performing or
observing any of the terms, covenants or conditions of the Ground Lease required to be
performed or observed by Ground Lessor.
2 Vista Breeze
“Ground Rent” means the base or minimum rent payable in fixed monthly or
other periodic installments under the Ground Lease.
“Leased Premises” means the Land and any other real property leased by
Borrower pursuant to the Ground Lease.
“Leasehold Estate” means Borrower’s interest in the Land and any other real
property leased by Borrower pursuant to the Ground Lease, including (i) all rights of
Borrower to renew or extend the term of the Ground Lease, (ii) all amounts deposited by
Borrower with Ground Lessor under the Ground Lease, (iii) Borrower’s right or privilege
to terminate, cancel, surrender, modify or amend the Ground Lease, and (iv) all other
options, privileges and rights granted and demised to Borrower under the Ground Lease
and all appurtenances with respect to the Ground Lease.
5. Section 22(d) is amended in its entirety to read as follows:
“(d) fraud or material misrepresentation or material omission by Borrower or
Guarantor, any of their respective officers, directors, trustees, general partners, managing
members, managers, agents or representatives in connection with (i) the application for
the Loan, (ii) any financial statement, rent roll, or other report or information provided to
Lender during the term of the Indebtedness, (iii) any request for Lender’s consent to any
proposed action, including a request for disbursement of funds under any Collateral
Agreement or (iv) any of the representations and warranties contained in Section 53;”
6. Section 22 is amended by inserting the following new provision as additional
subsection (t):
“any failure by Borrower to comply with the provisions of Sections 57, 58, 59, 61, 62(b),
63(a) or 64;”
7. The following new Sections are added at the end of the Instrument after the last
numbered Section:
“57. REPRESENTATIONS AND WARRANTIES REGARDING GROUND
LEASE. Borrower warrants and represents to Lender that, as of the date of this Instrument: (i)
the Ground Lease is in full force and effect in accordance with its terms; (ii) Borrower has not
waived, canceled or surrendered any of its rights under the Ground Lease; (iii) Borrower is the
sole owner of the Leasehold Estate, without defect; (iv) the Leasehold Estate, the Leased
Premises and the Mortgaged Property are free and clear of all liens, encumbrances and other
matters affecting title, other than the lien of this Instrument and the Permitted Encumbrances; (v)
there is no existing Ground Lessee Default and no event has occurred which, with the passage of
time or the giving of notice, or both, would constitute a Ground Lessee Default; and (vi) to the
best of Borrower’s knowledge, there is no existing Ground Lessor Default and no event has
occurred which, with the passage of time or the giving of notice, or both, would constitute a
Ground Lessor Default.
3 Vista Breeze
58. NOTICES UNDER GROUND LEASE. Borrower shall deliver to Lender,
within ten (10) days after Borrower’s receipt, a true and correct copy of each notice, demand,
complaint or request from Ground Lessor under, or with respect to, the Ground Lease.
59. BORROWER’S OBLIGATIONS TO COMPLY WITH GROUND LEASE.
Borrower shall (i) pay the Ground Rent and all other sums of money due and payable at any time
and from time to time under the Ground Lease as and when such sums become due and payable,
but in any event before the expiration of any grace period provided in the Ground Lease for the
payment of any such sum, and (ii) at all times fully perform, observe and comply with all other
terms, covenants and conditions of the Ground Lease to be performed, observed or complied
with by Borrower as lessee under the Ground Lease. If the Ground Lease does not provide for a
grace period for the payment of a sum of money, Borrower shall make the payment on or before
the date on which the payment becomes due and payable. Borrower shall deliver evidence of the
payment to Lender within ten (10) days after receipt of a written request from Lender for
evidence of the payment.
60. LENDER’S RIGHT TO CURE GROUND LESSEE DEFAULTS. At any
time after Lender receives notice of a Ground Lessee Default, (i) Lender may (but shall not be
obligated to do so), make any payment, perform any obligation and take any other action
Borrower would have the right to pay, perform or take under the Ground Lease which Lender
deems necessary or desirable to cure the Ground Lessee Default, and (ii) Lender and its
authorized agents shall have the right at any time or from time to time to enter the Land and
Improvements, or any part thereof, to such extent and as often as Lender, in its discretion, deems
necessary or desirable in order to cure the Ground Lessee Default, subject to the rights of the
tenants and occupants of the Mortgaged Property. Lender may exercise its rights under this
Section immediately after receipt of notice of a Ground Lessee Default and after the expiration
of any grace period provided to Borrower in the Ground Lease to cure the Ground Lessee
Default. For purposes of exercising its rights under this Section, Lender shall be fully protected
for any action taken or omitted to be taken by Lender, in good faith, in reliance on any written
notice from Ground Lessor stating that a Ground Lessee Default has occurred and is continuing
even though Borrower may question or deny the existence or nature of the Ground Lessee
Default. All actual expenditures made by Lender pursuant to this Section to cure a Ground
Lessee Default shall become an additional part of the Indebtedness as provided in Section 12.
61. COVENANTS TO PROTECT LEASEHOLD ESTATE. Borrower shall not,
without the written consent of Lender (which may be given or withheld by Lender in its
discretion), (i) surrender the Leasehold Estate to Ground Lessor or terminate or cancel the
Ground Lease, (ii) amend, modify or change the Ground Lease, either orally or in writing, or
waive any of Borrower’s rights under the Ground Lease, (iii) subordinate the Ground Lease or
the Leasehold Estate to any mortgage, deed of trust or other lien on Ground Lessor’s fee title to
the Leased Premises, or (iv) except as otherwise provided in Section 58(b), reject or assume the
Ground Lease or assign the Leasehold Estate pursuant to Section 365(h) of the United States
Bankruptcy Code. Borrower absolutely and unconditionally transfers and assigns to Lender all
of Borrower’s rights to surrender, terminate, cancel, modify and change the Ground Lease, and
any such surrender, termination, cancellation, modification or change made without the prior
written consent of Lender shall be void and have no legal effect.
4 Vista Breeze
62. GROUND LESSEE’S BANKRUPTCY.
(a) Borrower assigns to Lender, as additional security for the Indebtedness,
Borrower’s right to reject the Ground Lease under Section 365 of the United States Bankruptcy
Code after the occurrence of a Bankruptcy Event, subject to Section 58(b).
(b) If, after the occurrence of a Bankruptcy Event, Borrower decides to reject the
Ground Lease, Borrower shall give Lender written notice, at least ten (10) days in advance, of
the date on which Borrower intends to apply to the Bankruptcy Court for authority and
permission to reject the Ground Lease. Lender shall have the right, but not the obligation, within
ten (10) days after receipt of Borrower’s notice, to deliver to Borrower a notice (“Lender’s
Assumption Notice”) in which (i) Lender demands that Borrower assume the Ground Lease and
assign the Ground Lease to Lender, or its designee, in accordance with the United States
Bankruptcy Code, and (ii) Lender agrees to cure or provide adequate assurance of prompt cure of
all Ground Lessee Defaults reasonably susceptible of being cured by Lender and of future
performance under the Ground Lease. If Lender timely delivers Lender’s Assumption Notice to
Borrower, Borrower shall not reject the Ground Lease and shall, within fifteen (15) days after
receipt of Lender’s notice, comply with the demand contained in clause (i) of Lender’s notice. If
Lender does not timely deliver Lender’s Assumption Notice to Borrower, Borrower shall have
the right to reject the Ground Lease.
63. GROUND LESSOR’S BANKRUPTCY.
(a) If, after the occurrence of an Event of Ground Lessor Bankruptcy, Ground Lessor
rejects the Ground Lease pursuant to Section 365(h) of the United States Bankruptcy Code (i)
Borrower, immediately after obtaining notice of the rejection, shall deliver a copy of the notice
to Lender, (ii) Borrower shall not, without Lender’s prior written consent (which may be given
or withheld in Lender’s discretion), elect to treat the Ground Lease as terminated pursuant to
Section 365(h) or any other applicable provision of the United States Bankruptcy Code, and (iii)
this Instrument and the lien created by this Instrument shall extend to and encumber Borrower’s
retained rights under the Ground Lease that are appurtenant to the Leased Premises for the
balance of the term of the Ground Lease and for any renewal or extension of those rights under
the Ground Lease. Borrower transfers and assigns to Lender, as additional security for the
Indebtedness, Borrower’s rights, after Ground Lessor’s rejection of the Ground Lease, to treat
the Ground Lease as terminated, and any termination of the Ground Lease made by Borrower
without Lender’s prior written consent shall be void and have no legal effect.
(b) Borrower transfers and assigns to Lender, as additional security for the
Indebtedness, all of Borrower’s rights to damages caused by Ground Lessor’s rejection of the
Ground Lease after the occurrence of an Event of Ground Lessor Bankruptcy and all of
Borrower’s rights to offset such damages against rent payable under the Ground Lease. As long
as no Event of Default has occurred and is continuing (it being acknowledged and agreed that in
no event shall Funding Lender have any obligation to accept a cure of an Event of Default),
Lender agrees that it will not enforce its rights under the preceding sentence, but will permit
Borrower to exercise such rights with Lender’s prior written consent. Any amounts received by
Lender as damages arising out of Ground Lessor’s rejection of the Ground Lease shall be applied
in the manner set forth in Section 9.
5 Vista Breeze
64. OPTION TO RENEW OR EXTEND GROUND LEASE. Borrower shall give
Lender written notice of Borrower’s intention to exercise each option to renew or extend the
term of the Ground Lease at least ninety (90) days, but not more than one hundred fifty (150)
days, before the last day on which the option may be timely exercised. If Borrower intends to
renew or extend the term of the Ground Lease, it shall deliver to Lender, together with the notice
of such decision, a copy of the notice of renewal or extension it delivers to Ground Lessor. If
Borrower does not intend to renew or extend the term of the Ground Lease or, if Borrower fails
to deliver its written notice of exercise of its option to renew or extend the term of the Ground
Lease at least ninety (90) days before the last day on which the option may be timely exercised,
Lender shall have the right, but shall not be obligated, to renew or extend the term of the Ground
Lease for and on behalf of Borrower.
65. NO MERGER OF ESTATES. If Borrower acquires the fee estate of Ground
Lessor under the Ground Lease (the “Fee Estate”) (i) there shall be no merger between the Fee
Estate and the Leasehold Estate unless all persons, including Lender, having an interest in the
Ground Lease consent in writing to the merger, and (ii) simultaneously with Borrower’s
acquisition of the Fee Estate, the lien of this Instrument shall automatically, without the necessity
of any further conveyance, be spread to cover the Fee Estate and as so spread shall be prior to the
lien of any mortgage, deed of trust or other lien placed on the Fee Estate after the date of this
Instrument. Promptly after Borrower’s acquisition of the Fee Estate, Borrower, at its sole cost
and expense, including payment of Lender’s actual attorneys’ fees and out-of-pocket
disbursements, shall execute and deliver all documents and instruments necessary to subject the
Fee Estate to the lien of this Instrument, and shall provide to Lender a title insurance policy
insuring the lien of this Instrument as a first lien on the Fee Estate and the Leasehold Estate. If
Lender acquires the Fee Estate and the Leasehold Estate (whether pursuant to the provisions of
the Ground Lease, by foreclosure of this Instrument, or otherwise), the Fee Estate and the
Leasehold Estate shall not merge as a result of such acquisition and shall remain separate and
distinct for all purposes after such acquisition unless and until Lender shall elect to merge the
Fee Estate and the Leasehold Estate.
66. NEW LEASE. If (i) the Ground Lease is canceled or terminated for any reason
before the natural expiration of its term, and (ii) Lender (or its designee) obtains from Ground
Lessor a new lease in accordance with the term of the Ground Lease, Borrower shall have no
right, title or interest in and to the new lease or the leasehold estate created by the new lease.
67. APPOINTMENT OF LENDER AS BORROWER’S ATTORNEY-IN-FACT.
Borrower makes, constitutes and appoints Lender as Borrower’s attorney-in-fact, in Borrower’s
name, place and stead, with full power of substitution, to take all actions and to sign all
documents and instruments which Lender, in its discretion, considers to be necessary or desirable
to (i) prevent or cure a Ground Lessee Default pursuant to Section 56, (ii) perform or carry out
any of Borrower’s covenants under Section 55, (iii) renew or extend the term of the Ground
Lease pursuant to Section 60, (iv) appoint arbitrators and conduct arbitration proceedings
pursuant to the Ground Lease, and (v) request and obtain estoppel certificates from Ground
Lessor pursuant to the Ground Lease. Borrower gives and grants to Lender, as Borrower’s
attorney-in-fact, full power and authority to do and perform every act and sign every document
and instrument necessary and proper to be done in the exercise of the foregoing power as fully as
Borrower might or could do, and Borrower hereby ratifies and confirms all acts that Lender, as
6 Vista Breeze
Borrower’s attorney-in-fact, shall lawfully do or cause to be done by virtue of this power of
attorney. This power of attorney, being coupled with an interest, shall be irrevocable as long as
any of the Indebtedness remains unpaid.”
All capitalized terms used in this Exhibit not specifically defined herein shall have the
meanings set forth in the text of the Instrument that precedes this Exhibit.
1 Vista Breeze
EXHIBIT E
DESCRIPTION OF GROUND LEASE
Second Amended and Restated Ground Lease, between Housing Authority of the City of Miami
Beach, as Landlord, and Vista Breeze, Ltd., as Tenant, dated as of December 15, 2023.
4860-1147-8922v.4
D
Forward Purchase Agreement Vista Breeze
EXHIBIT D-5 TO FORWARD PURCHASE AGREEMENT
FORM OF ASSIGNMENT OF MORTGAGE AND LOAN DOCUMENTS
[See attached]
EXHIBIT D-5 TO FORWARD PURCHASE AGREEMENT
FORM OF
ASSIGNMENT OF MORTGAGE AND LOAN DOCUMENTS
WHEN RECORDED MAIL TO:
Citibank, N.A.
Transaction and Asset Management Group/Post Closing
Citi Community Capital
3800 Citibank Center
Tampa, Florida 33610
Re: Vista Breeze Deal ID No. 60001596
ASSIGNMENT OF MORTGAGE
AND LOAN DOCUMENTS
KNOW ALL PERSONS BY THESE PRESENTS:
HOUSING FINANCE AUTHORITY OF MIAMI-DADE COUNTY, FLORIDA, a
public body corporate and politic organized and existing under the laws of the State of Florida
(“Assignor”), pursuant to that certain Amended and Restated Funding Loan Agreement, dated as
of [Month] [Day], 20[_] (“Funding Loan Agreement”), by and among Assignor, THE BANK
OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, as
Fiscal Agent (“Assignee”), and CITIBANK, N.A., a national banking association (“Funding
Lender”), for good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, does by these presents assign to Assignee, for the benefit of Funding Lender,
without recourse, all of Assignor’s right, title and interest in and to, subject to the Unassigned
Rights (as defined in the Funding Loan Agreement), the instruments (“Assigned Instruments”)
described on Schedule 1 attached hereto.
TOGETHER with the Note described in the Assigned Instruments, and the money due
and to become due thereon, with the interest thereon, TO HAVE AND TO HOLD the same unto
the said Assignee forever, subject only to all the provisions contained therein, AND the said
Assignor hereby constitutes and appoints the Assignee as the Assignor’s true and lawful
attorney, irrevocable in law or in equity, in the Assignor’s name, place and stead, but at
Assignee’s cost and expense, to have, use and take all lawful ways and means for the recovery of
all of the said money and interest; and in case of payment, to discharge the same as fully as the
Assignor might or could if these presents were not made.
Overriding Limitations. In no event shall Assignor:
(i) prosecute its action to a lien on the Project, as defined in that certain Amended
and Restated Borrower Loan Agreement, by and between Vista Breeze, Ltd., a Florida limited
partnership (“Borrower”), and Assignor (the “Borrower Loan Agreement”); or
Assignment of Mortgage 2 Vista Breeze
(ii) take any action which may have the effect, directly or indirectly, of impairing the
ability of Borrower to timely pay the principal of, interest on, or other amounts due under, the
Borrower Loan or of causing Borrower to file a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of Borrower under any applicable liquidation,
insolvency, bankruptcy, rehabilitation, composition, reorganization, conservation or other similar
law in effect now or in the future; or
(iii) interfere with the exercise by Assignee or Servicer of any of their rights under the
Borrower Loan Documents upon the occurrence of an event of default by Borrower under and as
defined in the Borrower Loan Documents; or
(iv) take any action to accelerate or otherwise enforce payment or seek other remedies
with respect to the Borrower Loan.
Definitions. All capitalized terms that are used and are not defined herein shall have the
respective meanings ascribed to them in the Borrower Loan Agreement. In all references herein
to any parties, persons, entities or corporations the use of any particular gender on the plural or
singular number is intended to include the appropriate gender or number as the text of the within
instrument may require.
Dated as of the 1st day of [Month], 202[_] (the foregoing date is for reference purposes
only and this Assignment shall not be effective until the Closing Date, as defined in the
Borrower Loan Agreement).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Assignment of Mortgage N-1 Vista Breeze
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Assignment of Mortgage and Loan Documents or caused this Assignment of Mortgage and Loan
Documents to be duly executed and delivered by its authorized representative as of the date first
set forth above.
ASSIGNOR:
HOUSING FINANCE AUTHORITY OF
MIAMI-DADE COUNTY, FLORIDA, a
public body corporate and politic organized
and existing under the laws of the State of
Florida
Witness:
By: ______________________________
By: __________________________
Print Name: ________________________ Name:
Title:
By: _______________________________
Print Name: ________________________
ACKNOWLEDGEMENT
STATE OF ____________
COUNTY OF ____________
The foregoing instrument was acknowledged before me by means of ☐ physical presence
or ☐ online notarization, this _____ day of _______________, 20___, by ________________,
as ____________ of Housing Finance Authority of Miami-Dade County, Florida. Said person is
personally known to me or has produced _________________ as identification.
[Notary Seal] Signature of person taking acknowledgment
Name (typed, printed or stamped):
__________________
Title or Rank:
Serial number (if any):
Assignment of Mortgage Sch. 1-1 Vista Breeze
SCHEDULE 1
TO
ASSIGNMENT OF MORTGAGE
AND LOAN DOCUMENTS
ASSIGNEE:
The Bank of New York Mellon Trust Company, N.A.
4655 Salisbury Road, Suite 300
Jacksonville, Florida 33256
ASSIGNED INSTRUMENTS:
1. Amended and Restated Multifamily Note by Vista Breeze, Ltd., a Florida limited
partnership (“Borrower”), to Assignor, dated as of [_] [_], 20[_], in the original principal
amount of up to [$11,875,000][NOTE: AS MAY BE INCREASED PER THE EARN-
OUT].
2. Amended and Restated Multifamily Leasehold Mortgage, Assignment of Rents, Security
Agreement and Fixture Filing (Florida), dated as of the date hereof, executed by
Borrower for the benefit of Assignor securing the principal amount of up to
[$11,875,000][NOTE: AS MAY BE INCREASED PER THE EARN-OUT], which is
being recorded immediately prior hereto in the Recorder’s Office of Miami-Dade County,
Florida, and encumbers the real property (and improvements thereon) that is more
particularly described on Exhibit A.
Assignment of Mortgage A-1 Vista Breeze
EXHIBIT A
LEGAL DESCRIPTION
That leasehold estate created by that Second Amended and Restated Ground Lease, by and
between Vista Breeze, Ltd., a Florida limited partnership, and the Housing Authority of The City
of Miami Beach, a public body corporate and politic, as evidenced by that Amended and
Restated Memorandum of Lease to be recorded over the following described lands:
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.
4891-6500-5706
D
Forward Purchase Agreement Vista Breeze
EXHIBIT D-6 TO FORWARD PURCHASE AGREEMENT
FORM OF EXCEPTIONS TO NON-RECOURSE GUARANTY
[See attached]
EXHIBIT D-6 TO FORWARD PURCHASE AGREEMENT
FORM OF
EXCEPTIONS TO NON-RECOURSE GUARANTY
This EXCEPTIONS TO NON-RECOURSE GUARANTY (this “Guaranty”) is
entered into as of the [___] day of [Month], 202[_], by HOWARD D. COHEN REVOCABLE
TRUST U/A/D/ 4/6/1993 (the “Guarantor”), for the benefit of Beneficiary Parties (as defined
below). The date of this Guaranty as set forth above is for reference purposes only, and this
Guaranty will not be effective and binding until the Closing Date (as defined in the Borrower
Loan Agreement (as hereinafter defined)).
RECITALS:
A. The Housing Authority of the City of Miami Beach, a public body corporate and
politic established pursuant to Chapter 421, Florida Statutes (the “Landlord”), is the legal owner
of fee simple title to the Land (as defined in the Security Instrument (as hereinafter defined)) and
pursuant to that certain Second Amended and Restated Ground Lease, dated as of December 15,
2023, between the Landlord and the Vista Breeze, Ltd., a Florida limited partnership
(“Borrower”), Borrower is the holder of a leasehold interest in the Land.
B. Borrower previously applied to the Housing Finance Authority of Miami-Dade
County, Florida, a public body corporate and politic organized and existing under the laws of the
State of Florida (“Governmental Lender”), for a loan (the “Borrower Loan”) for the
acquisition, construction, development and/or equipping of a 119-unit multifamily residential
project, located in the City of Miami Beach, Florida, known as Vista Breeze (the “Mortgaged
Property”).
C. Borrower previously requested that the Governmental Lender enter into that
certain Funding Loan Agreement, dated as of December 1, 2023 (the “Original Funding Loan
Agreement”), among the Governmental Lender, 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 Governmental Lender in the original
principal amount of $32,500,000 (the “Funding Loan”), the proceeds of which Governmental
Lender used to make the Borrower Loan pursuant to that certain Construction Phase Borrower
Loan Agreement, dated as of December 1, 2023, (the “Original Borrower Loan Agreement”),
by and between the Governmental Lender and the Borrower.
D. The Borrower Loan was evidenced by that certain Construction Phase Project
Loan Note, dated as of December 15, 2023 (the “Original Borrower Note”), made by Borrower
payable to the order of Governmental Lender, as endorsed and assigned to Fiscal Agent for the
benefit of the Original Funding Lender.
E. The Borrower Loan was secured by, among other things, that certain Leasehold
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated as of December
Exceptions to Non-Recourse Guaranty 2 Vista Breeze
15, 2023, executed by Borrower for the benefit of Governmental Lender (the “Original Security
Instrument”), which Original Security Instrument encumbers the Mortgaged Property.
F. The Original Borrower Note, the Original Security Instrument, the Original
Borrower Loan Agreement and all other Borrower Loan Documents except for the Unassigned
Rights (as defined in the Original Funding Loan Agreement), were each assigned by
Governmental Lender to Fiscal Agent for the benefit of Original Funding Lender to secure the
Funding Loan.
G. At the request of Borrower, the Borrower, Original Funding Lender and Citibank,
N.A., a national banking association (“Funding Lender”) entered into that certain Forward
Purchase Agreement, dated as of December 1, 2023, pursuant to which Funding Lender agreed
to acquire Original Funding Lender’s interests in the Funding Loan and Funding Loan
Documents (as defined in the Original Funding Loan Agreement) upon satisfaction of the terms
and conditions set forth therein (the “Loan Purchase Conditions”).
H. Insofar as the Loan Purchase Conditions have been satisfied or waived, Funding
Lender has acquired the Funding Loan from the Original Funding Lender, and in connection
therewith, (i) Funding Lender has agreed to enter into a certain Amended and Restated Funding
Loan Agreement dated as of the date hereof (the “Funding Loan Agreement”) by and among
Governmental Lender, Fiscal Agent, and Funding Lender, which amends and restates the
Original Funding Loan Agreement; (ii) Borrower and Governmental Lender have entered into an
Amended and Restated Borrower Loan Agreement dated as of the date hereof (the “Borrower
Loan Agreement”) which amends and restates the Original Borrower Loan Agreement; (iii)
Borrower has executed and delivered an Amended and Restated Multifamily Note, dated as of
[Month] [Day], 202[_], in the principal amount of $[11,875,000][NOTE: AS MAY BE
INCREASED PER THE EARN-OUT] (the “Borrower Note”), which amends and restates the
Original Borrower Note; (iv) Borrower has executed and delivered an Amended and Restated
Multifamily Leasehold Mortgage, Assignment of Rents, Security Agreement and Fixture Filing
(Florida), dated as of the date hereof (the “Security Instrument”), which amends and restates
the Original Security Instrument; and (v) Funding Lender and Borrower have entered into a
certain Loan Covenant Agreement and dated as of the date hereof (the “Loan Covenant
Agreement”; together with the Borrower Note, the Security Instrument, the Borrower Loan
Agreement and all other documents executed in connection with the Borrower Loan, including
this Agreement, the “Borrower Loan Documents”).
I. The term “Beneficiary Parties” as used herein shall mean Governmental Lender,
Funding Lender, any Servicer and their respective successors and assigns. The term
“Beneficiary Parties” shall also include any lawful owner, holder or pledgee of the Borrower
Note.
J. As a condition to the purchase of the Funding Loan by Funding Lender,
Beneficiary Parties require that Guarantor execute this Guaranty.
K. Guarantor will directly or indirectly derive a material financial benefit from the
Funding Loan, the Borrower Loan and the purchase of the Funding Loan by Funding Lender.
Exceptions to Non-Recourse Guaranty 3 Vista Breeze
NOW, THEREFORE, in consideration of the Funding Loan, the Borrower Loan and the
purchase of the Funding Loan by Funding Lender, and in order to induce Beneficiary Parties to
consummate said transactions, Guarantor agrees as follows:
1. Defined Terms. Capitalized terms used but not defined in this Guaranty shall
have the meanings assigned to them in the Security Instrument.
2. Scope of Guaranty. Guarantor represents to Beneficiary Parties that Guarantor
has a direct or indirect ownership interest in Borrower and/or will otherwise derive a material
financial benefit from the continuation of the Borrower Loan and the acquisition by the Funding
Lender of the Funding Loan. Guarantor hereby does jointly, severally and unconditionally
guaranty to Beneficiary Parties the full and prompt payment when due, whether at maturity or
earlier, by reason of acceleration or otherwise, and at all times thereafter, and the full and prompt
performance when due, of all of the following (collectively, the “Guaranteed Obligations”):
(a) All amounts for which Borrower is personally liable under the Borrower
Note, including, without limitation, all amounts under Section 9 of the Borrower Note.
(b) All costs and expenses, including out of pocket expenses and reasonable
fees of attorneys and expert witnesses, incurred by Beneficiary Parties in enforcing their
rights under this Guaranty.
(c) All school and/or road impact fees incurred by Borrower and assessed
pursuant to Chapter 33 of the Code of Miami-Dade County, Florida, as a result of any act
or omission by or on behalf of Borrower.
For purposes of determining Guarantor’s liability under this Guaranty, all payments made
by Borrower with respect to the Indebtedness and all amounts received by Beneficiary Parties
from the enforcement of their rights under the Security Instrument or the other Borrower Loan
Documents (other than this Guaranty) shall be applied first to the portion of the Indebtedness for
which neither Borrower nor Guarantor has personal liability.
3. Guarantor’s Obligations Survive Foreclosure. The obligations of Guarantor
under this Guaranty shall survive any foreclosure proceeding, any foreclosure sale, any delivery
of any deed in lieu of foreclosure, and any release of record of the Security Instrument or the
other Borrower Loan Documents.
4. Guaranty of Payment and Performance. Guarantor’s obligations under this
Guaranty constitute an unconditional and continuing guaranty of payment and performance and
not merely a guaranty of collection. Guarantor hereby irrevocably and unconditionally
covenants and agrees that Guarantor is liable for the Guaranteed Obligations as a primary
obligor. The Guaranteed Obligations and this Guaranty are separate, distinct and in addition to
any liability and/or obligations that Borrower or Guarantor may have under any other guaranty or
indemnity executed by Borrower or Guarantor in connection with the Borrower Loan, and no
other agreement, guaranty or indemnity executed in connection with the Borrower Loan shall act
to reduce or set off any of Guarantor’s liability hereunder.
Exceptions to Non-Recourse Guaranty 4 Vista Breeze
5. Unconditional Guaranty. The obligations of Guarantor under this Guaranty
shall be performed without demand by Beneficiary Parties and shall be unconditional
irrespective of the genuineness, validity, regularity or enforceability, in whole or in part, of the
Guaranteed Obligations, the Borrower Note, the Security Instrument or any other Borrower Loan
Document, and without regard to any other circumstance which might otherwise constitute a
legal or equitable discharge of a surety, a guarantor, a borrower or a mortgagor. Guarantor
hereby waives the benefit of all principles or provisions of law, statutory or otherwise, which are
or might be in conflict with the terms of this Guaranty and agrees that Guarantor’s obligations
shall not be affected by any circumstances, whether or not referred to in this Guaranty, which
might otherwise constitute a legal or equitable discharge of a surety, a guarantor, a borrower or a
mortgagor. Guarantor hereby waives the benefits of any right of discharge under any and all
statutes or other laws relating to a guarantor, a surety, a borrower or a mortgagor, and any other
rights of a guarantor, a surety, a borrower or a mortgagor, thereunder. Without limiting the
generality of the foregoing, Guarantor hereby waives, to the fullest extent permitted by law,
diligence in collecting the Indebtedness, presentment, demand for payment, protest, all notices
with respect to the Borrower Note and this Guaranty which may be required by statute, rule of
law or otherwise to preserve Beneficiary Parties’ rights against Guarantor under this Guaranty,
including, but not limited to, notice of acceptance, notice of any amendment of the Borrower
Loan Documents, notice of the occurrence of any default or Event of Default, notice of intent to
accelerate, notice of acceleration, notice of dishonor, notice of foreclosure, notice of protest, and
notice of the incurring by Borrower of any obligation or indebtedness. Guarantor also waives, to
the fullest extent permitted by law, all rights to require Beneficiary Parties to (a) proceed against
Borrower or any other guarantor of Borrower’s payment or performance with respect to the
Indebtedness (an “Other Guarantor”), (b) if Borrower or any Other Guarantor is a partnership,
proceed against any general partner of Borrower or the Other Guarantor, (c) proceed against or
exhaust any collateral held by Beneficiary Parties to secure the repayment of the Indebtedness,
(d) pursue any other remedy it may now or hereafter have against Borrower, or, if Borrower is a
partnership, any general partner of Borrower or (e) record the Security Instrument or to file any
financing statement or to otherwise enforce, perfect, protect, secure or insure any lien or security
interest given as security in connection with the Security Documents. Guarantor further waives,
to the fullest extent permitted by applicable law, (a) any right to revoke this Guaranty as to any
future advances under the Security Instrument or the other Borrower Loan Documents, (b) any
defenses that could arise with respect to an amendment or modification of the Guaranteed
Obligations by operation of law, action of any court or the amendment of any of the Borrower
Loan Documents, (c) any defense that Beneficiary Parties have waived any Guaranteed
Obligation by failing to enforce any right or remedy hereunder, or to promptly enforce any such
right or remedy and (d) any other event or circumstance that may constitute a defense of
Borrower or Guarantor to payment of the Guaranteed Obligations.
6. Modification of Borrower Loan Documents. At any time or from time to time
and any number of times, without notice to Guarantor and without affecting the liability of
Guarantor, (a) the time for payment of the principal of or interest on the Indebtedness may be
extended or the Indebtedness may be renewed in whole or in part; (b) the time for Borrower’s
performance of or compliance with any covenant or agreement contained in the Borrower Note,
the Security Instrument or any other Borrower Loan Document, whether presently existing or
hereinafter entered into, may be extended or such performance or compliance may be waived;
(c) the maturity of the Indebtedness may be accelerated as provided in the Borrower Note, the
Exceptions to Non-Recourse Guaranty 5 Vista Breeze
Security Instrument, or any other Borrower Loan Document; (d) the Borrower Note, the Security
Instrument, or any other Borrower Loan Document may be modified or amended by Beneficiary
Parties and Borrower in any respect, including, but not limited to, an increase in the principal
amount; and (e) any security for the Indebtedness may be modified, exchanged, surrendered or
otherwise dealt with or additional security may be pledged or mortgaged for the Indebtedness
and the Guaranteed Obligations.
7. Joint and Several Liability. If more than one person executes this Guaranty, the
obligations of those persons under this Guaranty and any Other Guarantor shall be joint and
several. Beneficiary Parties, in their sole and absolute discretion, may (a) bring suit against
Guarantor, or any one or more of the persons constituting Guarantor, and any Other Guarantor,
jointly and severally, or against any one or more of them; (b) compromise or settle with any one
or more of the persons constituting Guarantor or any Other Guarantor for such consideration as
Beneficiary Parties may deem proper; (c) release one or more of the persons constituting
Guarantor, or any Other Guarantor, from liability; and/or (d) otherwise deal with Guarantor and
any Other Guarantor, or any one or more of them, in any manner, and no such action shall impair
the rights of Beneficiary Parties to collect from Guarantor any amount guaranteed by Guarantor
under this Guaranty. Nothing contained in this paragraph shall in any way affect or impair the
rights or obligations of Guarantor with respect to any Other Guarantor.
8. Subordination of Borrower’s Indebtedness to Guarantor. Any indebtedness
of Borrower held by Guarantor now or in the future is and shall be subordinated to the
Indebtedness of Borrower to Beneficiary Parties under the Borrower Loan Documents. After the
occurrence and during the continuance of an Event of Default or the occurrence and during the
continuance of an event which would, with the giving of notice or the passage of time, or both,
constitute an Event of Default (it being acknowledged and agreed that in no event shall Funding
Lender have any obligation to accept a cure of an Event of Default), Guarantor shall not receive
or collect, directly or indirectly, from Borrower or any other party any amount of such
indebtedness until the Guaranteed Obligations are paid in full. To the extent that Guarantor
receives payment of any of the indebtedness of Borrower in violation of the preceding sentence,
the same shall be collected, enforced and received by Guarantor, as trustee for Beneficiary
Parties, but without reducing or affecting in any manner the liability of Guarantor under the other
provisions of this Guaranty.
9. Waiver of Subrogation. Guarantor agrees to withhold the exercise of any and all
subrogation and reimbursement rights against Borrower, against any other person, and against
any collateral or security for the Indebtedness and Guarantor shall have no right of, and hereby
waives any claim for, subrogation or reimbursement against Borrower or any managing member
or general partner of Borrower by reason of any payment by Guarantor under this Guaranty,
whether such right or claim arises at law or in equity or under any contract or statute, until (i) the
Indebtedness has been indefeasibly paid and satisfied in full, (ii) all obligations owed to
Beneficiary Parties under the Borrower Loan Documents have been fully performed, (iii) there
has expired the maximum possible period thereafter during which any payment made by
Borrower to Beneficiary Parties with respect to the Indebtedness, could be deemed a preference
under the United States Bankruptcy Code and (iv) each of Beneficiary Parties has released,
transferred or disposed of all its right, title and interest in such collateral or security.
Exceptions to Non-Recourse Guaranty 6 Vista Breeze
10. Preference. If any payment by Borrower is held to constitute a preference under
any applicable bankruptcy, insolvency, or similar laws, or if for any other reason any of
Beneficiary Parties is required to refund any sums to Borrower, such refund shall not constitute a
release of any liability of Guarantor under this Guaranty. It is the intention of Beneficiary
Parties and Guarantor that Guarantor’s obligations under this Guaranty shall not be discharged
except by Guarantor’s performance of such obligations and then only to the extent of such
performance.
11. Reinstatement. If at any time any payment of any amounts due under the
Borrower Loan Documents by Borrower, Guarantor or any other Person is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization of Borrower or
Guarantor or otherwise, Guarantor’s obligations hereunder with respect to such payment shall be
reinstated as though such payment has been due but not made at such time.
12. Guarantor’s Financial Condition.
(a) Guarantor hereby represents and warrants to Beneficiary Parties that as of
the date hereof and throughout the term of the Borrower Loan, and after giving effect to
this Guaranty and the contingent obligation evidenced hereby, Guarantor is and will be
solvent and has and will have (i) assets which, fairly valued, exceed its obligations,
liabilities (including contingent liabilities) and debts, and (ii) property and assets
sufficient to satisfy and repay its obligations and liabilities. Guarantor hereby covenants
and agrees that during the term of the Borrower Loan, except for the payment of
employee salaries and benefits and dividends in the ordinary course of business, it shall
not sell, pledge, mortgage or otherwise transfer any of its assets, or any interest therein,
on terms materially less favorable than would be obtained in an arms-length transaction
for fair consideration.
(b) Guarantor hereby represents and warrants to Beneficiary Parties that all
financial statements and other financial data previously delivered to Funding Lender in
connection with the application for the Borrower Loan and/or this Guaranty relating to
the Guarantor are true, correct and complete in all material respects. Such financial
statements fairly present the financial positions of all Persons who are the subjects
thereof as of the respective dates thereof. Guarantor further represents and warrants to
Beneficiary Parties that, except as previously disclosed to Funding Lender in writing, no
material adverse change has occurred as of the date hereof and no material change shall
have occurred as of the date of each advance of the Borrower Loan, in such financial
position, or in the business, operations, assets, management, ownership or condition
(financial or otherwise) of Guarantor, since the respective dates of such financial
statements and financial data. Except as otherwise previously disclosed to Funding
Lender in writing, Guarantor has no knowledge of any material contractual obligations of
Guarantor which might have a material adverse effect upon the ability of Guarantor to
perform Guarantor’s obligations under this Guaranty.
(c) Guarantor shall furnish or cause to be furnished to Funding Lender: (i)
within ten (10) days of Funding Lender’s request, a copy of the most recent year’s federal
tax return for such Guarantor, and (ii) as soon as available and in any event within one
Exceptions to Non-Recourse Guaranty 7 Vista Breeze
hundred twenty (120) days after the end of each fiscal year of Guarantor, copies of the
following financial statements of Guarantor for such fiscal year, prepared and audited by
an independent certified public accountant acceptable to Funding Lender, in accordance
with generally accepted accounting principles: (A) a balance sheet as of the end of such
fiscal year (including supporting schedules), and (B) a statement of income and capital
accounts for such fiscal year. Notwithstanding the foregoing, the financial statements of
any individual Guarantor are not required to be audited by an independent certified public
accountant.
(d) Guarantor shall from time to time, upon request by Funding Lender,
deliver to Funding Lender such other financial statements as Funding Lender may
reasonably require.
13. Intentionally Omitted.
14. Intentionally Omitted.
15. Determinations by Funding Lender. Except to the extent expressly set forth in
this Guaranty to the contrary, in any instance where the consent or approval of Funding Lender
may be given or is required, or where any determination, judgment or decision is to be rendered
by Funding Lender under this Guaranty, the granting, withholding or denial of such consent or
approval and the rendering of such determination, judgment or decision shall be made or
exercised by Funding Lender, as applicable (or its designated representative) at its sole and
exclusive option and in its sole and absolute discretion.
16. Governing Law. This Guaranty shall be governed by and enforced in accordance
with the laws of the Property Jurisdiction, without giving effect to the choice of law principles of
the Property Jurisdiction that would require the application of the laws of a jurisdiction other
than the Property Jurisdiction.
17. Consent to Jurisdiction and Venue. Guarantor agrees that any controversy
arising under or in relation to this Guaranty shall be litigated exclusively in the Property
Jurisdiction. The state and federal courts and authorities with jurisdiction in the Property
Jurisdiction shall have exclusive jurisdiction over all controversies which shall arise under or in
relation to this Guaranty. Guarantor irrevocably consents to service, jurisdiction, and venue of
such courts for any such litigation and waives any other venue to which it might be entitled by
virtue of domicile, habitual residence or otherwise. However, nothing herein is intended to limit
Beneficiary Parties’ right to bring any suit, action or proceeding relating to matters arising under
this Guaranty against Guarantor or any of Guarantor’s assets in any court of any other
jurisdiction.
18. Successors and Assigns. This Guaranty shall be binding upon Guarantor and its
heirs, legal representatives, successors, successors-in-interest and assigns, as appropriate, and
shall inure to the benefit of the Beneficiary Parties and their respective successors, successors-in-
interest and assigns. The terms used to designate any of the parties herein shall be deemed to
include the heirs, legal representatives, successors, successors-in-interest and assigns, as
appropriate, of such parties. References to a “person” or “persons” shall be deemed to include
Exceptions to Non-Recourse Guaranty 8 Vista Breeze
individuals and entities. Guarantor acknowledges and agrees that any Beneficiary Party, at its
option, may assign its respective rights and interests under this Guaranty and the other Borrower
Loan Documents in whole or in part and upon such assignment all the terms and provisions of
this Guaranty or the other Borrower Loan Documents shall inure to the benefit of such assignee
to the extent so assigned. Guarantor may not assign or delegate its rights, interests or obligations
under this Guaranty without first obtaining Funding Lender’s prior written consent.
19. Severability. The invalidity, illegality or unenforceability of any provision of
this Guaranty shall not affect the validity, legality or enforceability of any other provision, and
all other provisions shall remain in full force and effect.
20. Expenses. Guarantor shall pay to the Beneficiary Parties, upon demand, the
amount of any and all expenses, including, without limitation, reasonable attorneys’ fees
(including reasonable time charges of attorneys who may be employees of Beneficiary Parties),
which the Beneficiary Parties may incur in connection with (a) the exercise or enforcement of
any of their rights hereunder, (b) the failure by Guarantor to perform or observe any of the
provisions hereof, or (c) the breach by Guarantor of any representation or warranty of Guarantor
set forth herein. Guarantor shall also pay to the Beneficiary Party who incurs any such expenses,
interest on such expenses computed at the Default Rate set forth in the Borrower Note from the
date on which such expenses are incurred to the date of payment thereof.
21. Remedies Cumulative. In the event of Guarantor’s default under this Guaranty,
the Beneficiary Parties may exercise all or any one or more of their rights and remedies available
under this Guaranty, at law or in equity. Such rights and remedies shall be cumulative and
concurrent, and may be enforced separately, successively or together, and the exercise of any
particular right or remedy shall not in any way prevent the Beneficiary Parties from exercising
any other right or remedy available to the Beneficiary Parties. The Beneficiary Parties may
exercise any such remedies from time to time as often as may be deemed necessary by the
Beneficiary Parties.
22. No Agency or Partnership. Nothing contained in this Guaranty shall constitute
any Beneficiary Party as a joint venturer, partner or agent of Guarantor, or render any
Beneficiary Party liable for any debts, obligations, acts, omissions, representations or contracts
of Guarantor.
23. Entire Agreement; Amendment and Waiver. This Guaranty contains the
complete and entire understanding of the parties with respect to the matters covered herein.
Guarantor acknowledges that Guarantor has received copies of the Borrower Note and all other
Borrower Loan Documents. This Guaranty may not be amended, modified or changed, nor shall
any waiver of any provision hereof be effective, except by a written instrument signed by the
party against whom enforcement of the waiver, amendment, change, or modification is sought,
and then only to the extent set forth in that instrument. No specific waiver of any of the terms of
this Guaranty shall be considered as a general waiver.
24. Further Assurances. Guarantor shall at any time and from time to time,
promptly execute and deliver all further instruments and documents, and take all further action
that may be reasonably necessary or desirable, or that any Beneficiary Party may reasonably
Exceptions to Non-Recourse Guaranty 9 Vista Breeze
request, in order to protect any right or interest granted by this Guaranty or to enable the
Beneficiary Party to exercise and enforce its rights and remedies under this Guaranty.
25. Notices; Change of Guarantor’s Address. All notices given under this
Guaranty shall be in writing and shall be sent to the respective addresses of the parties, in the
manner set forth in the Security Instrument. Notices to Guarantor shall be sent to the address of
Guarantor, at the address set forth below Guarantor’s signature block to this Guaranty.
Guarantor agrees to notify Funding Lender (in the manner for giving notices provided in the
Security Instrument) of any change in Guarantor’s address within ten (10) Business Days after
such change of address occurs.
26. Counterparts. To the extent Guarantor consists of more than one party, this
Guaranty may be executed in multiple counterparts, each of which shall constitute an original
document and all of which together shall constitute one agreement.
27. Captions. The captions of the sections of this Guaranty are for convenience only
and shall be disregarded in construing this Guaranty.
28. Servicer. Guarantor hereby acknowledges and agrees that, pursuant to the terms
of the Security Instrument: (a) from time to time, Funding Lender may appoint a servicer to
collect payments, escrows and deposits, to give and to receive notices under the Borrower Note,
this Guaranty or the other Borrower Loan Documents, and to otherwise service the Borrower
Loan and (b) unless Borrower receives written notice from Funding Lender to the contrary, any
action or right which shall or may be taken or exercised by Funding Lender may be taken or
exercised by such servicer with the same force and effect.
29. Beneficiary Parties as Third Party Beneficiary. Each of the Beneficiary Parties
shall be a third party beneficiary of this Guaranty for all purposes.
30. Waiver of Trial by Jury. TO THE MAXIMUM EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF GUARANTOR AND THE BENEFICIARY
PARTIES (A) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY WITH
RESPECT TO ANY ISSUE ARISING OUT OF THIS GUARANTY OR THE
RELATIONSHIP BETWEEN THE PARTIES THAT IS TRIABLE OF RIGHT BY A JURY
AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE
TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS
WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY,
KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL
COUNSEL.
31. Time of the Essence. Time is of the essence with respect to this Guaranty.
32. Modifications. All modifications (if any) to the terms of this Guaranty
(“Modifications”) are set forth on Exhibit A attached to this Guaranty. In the event of a
Transfer under the terms of the Security Instrument (other than a Permitted Transfer that does
not require the consent of the Funding Lender), some or all of the Modifications to this Guaranty
may be modified or rendered void by Funding Lender at its option by notice to Guarantor.
Exceptions to Non-Recourse Guaranty 10 Vista Breeze
33. Attached Exhibit. The following Exhibit is attached to this Guaranty and is
incorporated by reference herein as if more fully set forth in the text hereof:
Exhibit A – Modifications to Exceptions to Non-Recourse Guaranty
The terms of this Guaranty are modified and supplemented as set forth in said Exhibit. To the
extent of any conflict or inconsistency between the terms of said Exhibit and the text of this
Guaranty, the terms of said Exhibit shall be controlling in all respects.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Exceptions to Non-Recourse Guaranty Vista Breeze
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Exceptions to Non-Recourse Guaranty or caused this Exceptions to Non-Recourse Guaranty to
be duly executed and delivered by its authorized representative as of the date first set forth
above.
GUARANTOR:
HOWARD D. COHEN REVOCABLE
TRUST U/A/D 4/6/1993
By: _________________________________
Name: Howard D. Cohen
Title: Trustee
Witness:
By:______________________________
________________________________
Printed Name
By:______________________________
_________________________________
Printed Name
Guarantor’s Address for Notices:
Howard D. Cohen Revocable Trust
c/o Atlantic Pacific Communities, LLC
161 NW 6th Street
Suite 1020
Miami, Florida 33136
Attention: Howard D. Cohen
Exceptions to Non-Recourse Guaranty Vista Breeze
ACKNOWLEDGEMENT
STATE OF ____________
COUNTY OF ____________
The foregoing instrument was acknowledged before me by means of ☐ physical presence
or ☐ online notarization, this _____ day of _______________, 20___, by
Howard D. Cohen, as Trustee for Howard D. Cohen Revocable Trust U/A/D 4/6/1993. Said
person is personally known to me or has produced _________________ as identification.
[Notary Seal] Signature of person taking acknowledgment
Name (typed, printed or stamped): ___________
Title or Rank:
Serial number (if any):
Exceptions to Non-Recourse Guaranty B-1 Vista Breeze
EXHIBIT A
MODIFICATIONS TO EXCEPTIONS TO NON-RECOURSE GUARANTY
The following modifications are made to the text of the Guaranty that precedes this
Exhibit:
None.
Capitalized terms used and not defined herein shall have the respective meanings
ascribed to them in the Guaranty.
4858-7686-7978v.5
D
Forward Purchase Agreement Vista Breeze
EXHIBIT D-7 TO FORWARD PURCHASE AGREEMENT
FORM OF REPLACEMENT RESERVE AGREEMENT
[See attached]
EXHIBIT D-7 TO FORWARD PURCHASE AGREEMENT
FORM OF
REPLACEMENT RESERVE AGREEMENT
This REPLACEMENT RESERVE AGREEMENT (this “Agreement”) is made and
entered into as of the 1st day of [Month], 202[_], by and between VISTA BREEZE, LTD., a
Florida limited partnership (“Borrower”), and CITIBANK, N.A., a national banking association
(together with its successors and assigns, the “Funding Lender”). The date of this Agreement
as set forth above is for reference purposes only, and this Agreement will not be effective and
binding until the Closing Date (as defined in the Borrower Loan Agreement (as hereinafter
defined)).
RECITALS:
A. The Housing Authority of the City of Miami Beach, a public body corporate and
politic established pursuant to Chapter 421, Florida Statutes (the “Landlord”), is the legal owner
of fee simple title to the Land (as defined in the Security Instrument (as hereinafter defined)) and
pursuant to that certain Second Amended and Restated Ground Lease, dated as of December 15,
2023, between the Landlord and the Borrower, the Borrower is the holder of a leasehold interest
in the Land.
B. Borrower previously applied to the Housing Finance Authority of Miami-Dade
County, Florida, a public body corporate and politic organized and existing under the laws of the
State of Florida (“Governmental Lender”), for a loan (the “Borrower Loan”) for the
acquisition, construction, development and/or equipping of a 119-unit multifamily residential
project, located in the City of Miami Beach, Florida, known as Vista Breeze (the “Mortgaged
Property”).
C. Borrower previously requested that the Governmental Lender enter into that
certain Funding Loan Agreement, dated as of December 1, 2023 (the “Original Funding Loan
Agreement”), among the Governmental Lender, 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 Governmental Lender in the original
principal amount of $32,500,000 (the “Funding Loan”), the proceeds of which Governmental
Lender used to make the Borrower Loan pursuant to that certain Construction Phase Borrower
Loan Agreement, dated as of December 1, 2023, (the “Original Borrower Loan Agreement”),
by and between the Governmental Lender and the Borrower.
D. The Borrower Loan was evidenced by that certain Construction Phase Project
Loan Note, dated as of December 15, 2023 (the “Original Borrower Note”), made by Borrower
payable to the order of Governmental Lender, as endorsed and assigned to Fiscal Agent for the
benefit of the Original Funding Lender.
E. The Borrower Loan was secured by, among other things, that certain Leasehold
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated as of December
Replacement Reserve Agreement 2 Vista Breeze
15, 2023, executed by Borrower for the benefit of Governmental Lender (the “Original Security
Instrument”), which Original Security Instrument encumbers the Mortgaged Property.
F. The Original Borrower Note, the Original Security Instrument, the Original
Borrower Loan Agreement and all other Borrower Loan Documents except for the Unassigned
Rights (as defined in the Original Funding Loan Agreement), were each assigned by
Governmental Lender to Fiscal Agent for the benefit of Original Funding Lender to secure the
Funding Loan.
G. At the request of Borrower, the Borrower, Original Funding Lender and Funding
Lender entered into that certain Forward Purchase Agreement, dated as of December 1, 2023,
pursuant to which Funding Lender agreed to acquire Original Funding Lender’s interests in the
Funding Loan and Funding Loan Documents (as defined in the Original Funding Loan
Agreement) upon satisfaction of the terms and conditions set forth therein (the “Loan Purchase
Conditions”).
H. Insofar as the Loan Purchase Conditions have been satisfied or waived, Funding
Lender has acquired the Funding Loan from the Original Funding Lender, and in connection
therewith, (i) Funding Lender has agreed to enter into a certain Amended and Restated Funding
Loan Agreement dated as of the date hereof (the “Funding Loan Agreement”) by and among
Governmental Lender, Fiscal Agent, and Funding Lender, which amends and restates the
Original Funding Loan Agreement; (ii) Borrower and Governmental Lender have entered into an
Amended and Restated Borrower Loan Agreement dated as of the date hereof (the “Borrower
Loan Agreement”) which amends and restates the Original Borrower Loan Agreement; (iii)
Borrower has executed and delivered an Amended and Restated Multifamily Note, dated as of
[Month] [Day], 202[_], in the principal amount of $[11,875,000][NOTE: AS MAY BE
INCREASED PER THE EARN-OUT] (the “Borrower Note”), which amends and restates the
Original Borrower Note; (iv) Borrower has executed and delivered an Amended and Restated
Multifamily Leasehold Mortgage, Assignment of Rents, Security Agreement and Fixture Filing
(Florida), dated as of the date hereof (the “Security Instrument”), which amends and restates
the Original Security Instrument; and (v) Funding Lender and Borrower have entered into a
certain Loan Covenant Agreement and dated as of the date hereof (the “Loan Covenant
Agreement”; together with the Borrower Note, the Security Instrument, the Borrower Loan
Agreement and all other documents executed in connection with the Borrower Loan, including
this Agreement, the “Borrower Loan Documents”).
I. The term “Beneficiary Parties” as used herein shall mean Funding Lender,
Governmental Lender, Fiscal Agent and any Servicer, and their respective successors and
assigns. The term “Beneficiary Parties” shall also include any lawful owner, holder or pledgee
of the Borrower Note.
J. As a condition to the purchase of the Funding Loan by Funding Lender, Borrower
is required to establish the Replacement Reserve Fund for the funding of Capital Replacements
(as defined herein) throughout the term of the Borrower Loan.
NOW, THEREFORE, for and in consideration of the purchase of the Funding Loan by
Funding Lender, the mutual promises and covenants herein contained, and other good and
Replacement Reserve Agreement 3 Vista Breeze
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Funding
Lender and Borrower agree as follows:
1. Definitions. The following terms used in this Agreement shall have the meanings
set forth below in this Section 1. Any term used in this Agreement and not defined herein shall
have the meaning given to that term in the Security Instrument.
(a) “Capital Replacement” means the replacement of those items which are
capital in nature, as determined by Funding Lender in its sole but good-faith judgment in
accordance with generally accepted accounting principles and such other replacements of
equipment, major components, or capital systems related to the Improvements as may be
approved in writing or required by Funding Lender pursuant to the terms of the Borrower
Loan Documents.
(b) “Disbursement Period” means the interval between disbursements from
the Replacement Reserve Fund, which interval shall be no shorter than once a month.
(c) “First Deposit Date” means the date on which the first scheduled monthly
payment of interest is due under the Borrower Note.
(d) “Minimum Disbursement Request Amount” means Five Thousand and
No/100 Dollars ($5,000.00).
(e) “Replacement Reserve Deposit” means for each month from the First
Deposit Date until the fifth (5th) anniversary of the First Deposit Date, the sum of one-
twelfth of Three Hundred and No/100 Dollars ($300.00) per apartment unit located in the
Mortgaged Property (or such higher amount per apartment unit located in the Mortgaged
Property as may be required by Funding Lender based on the updated physical needs
assessment delivered by Borrower as one of the Loan Purchase Conditions), and
thereafter during the remainder of the term of the Borrower Loan, such higher amounts as
may be required by Funding Lender based on any updated physical needs assessment
delivered pursuant to Section 2(a) below or otherwise in its sole discretion.
(f) “Replacement Reserve Fund” means the account established pursuant to
this Agreement to defray the costs of Capital Replacements.
2. Replacement Reserve Fund.
(a) Establishment; Funding. On the Closing Date, the Borrower shall
establish the Replacement Reserve Fund with Funding Lender. Commencing on the First
Deposit Date and continuing on the first day of each successive month during the
Borrower Loan term, Borrower shall pay to Funding Lender for deposit into the
Replacement Reserve Fund the monthly Replacement Reserve Deposit, together with its
regular monthly payments of principal and interest as required by the Borrower Note and
Security Instrument. The Replacement Reserve Fund shall be maintained and governed
in accordance with this Agreement. No earlier than the sixth (6th) month and no later
than the ninth (9th) month of the year which precedes the fifth (5th) anniversary of the
First Deposit Date (and each fifth (5th) anniversary thereafter), a physical needs
Replacement Reserve Agreement 4 Vista Breeze
assessment shall be performed on the Mortgaged Property by Funding Lender at the
expense of Borrower, which expense may be paid out of the Replacement Reserve Fund.
If determined necessary or appropriate by Funding Lender, after review of the most
recently obtained physical needs assessment, Borrower’s required Replacement Reserve
Deposits to the Replacement Reserve Fund set forth herein shall be adjusted for the
remaining Borrower Loan term (or until adjusted in accordance with the terms of this
Section 2(a)), so that the Replacement Reserve Deposits will create a Replacement
Reserve herein that will in Funding Lender’s determination, be sufficient to meet
required Capital Replacements.
(b) Investment of Deposits. Borrower agrees that all moneys deposited into
the Replacement Reserve Fund shall be held in an interest-bearing account, and, except
as otherwise provided in this Section 2(b), the interest earned on such moneys shall be
added to the principal balance of the Replacement Reserve Fund and disbursed in
accordance with the provisions of this Agreement. Borrower acknowledges and agrees
that it shall not have the right to direct Funding Lender as to any specific investment of
moneys in the Replacement Reserve Fund. Funding Lender shall not be responsible for
any losses resulting from investment of moneys in the Replacement Reserve Fund or for
obtaining any specific level or percentage of earnings on such investment.
(c) Use. Subject to the pledge to and security interest of the Funding Lender
and other rights of Funding Lender set forth in this Agreement, the Replacement Reserve
Fund shall be maintained for the payment of the costs of the Capital Replacements;
provided, however that if rebatable arbitrage occurs on account of the interest earned on
the Replacement Reserve Fund, the amounts held in the Replacement Reserve Fund shall
be used to pay any such amounts. Funding Lender shall not be obligated to make
disbursements from the Replacement Reserve Fund to reimburse Borrower for the costs
of routine maintenance to the Mortgaged Property or for costs which are to be reimbursed
from funds deposited with Funding Lender pursuant to any Completion/Repair and
Security Agreement between the Borrower and the Funding Lender or any similar
agreement.
(d) Early Deposits. Funding Lender reserves the right to require at any time
upon written notice to Borrower that Borrower begin making the monthly Replacement
Reserve Deposit if Funding Lender determines that, prior to the First Deposit Date, any
of the following events have occurred:
(i) the occurrence of an Event of Default under the Borrower Note,
Security Instrument, or any other document delivered in connection with the
Borrower Loan,
(ii) the occurrence of a Transfer which is prohibited under the terms of
the Security Instrument or requires consent, or
(iii) Borrower’s failure to maintain the Mortgaged Property in a
satisfactory manner and/or in accordance with the requirements of the Security
Instrument.
Replacement Reserve Agreement 5 Vista Breeze
3. Disbursements.
(a) Requests for Disbursement. Funding Lender shall disburse funds from
the Replacement Reserve Fund, as follows:
(i) Borrower’s Request. If Borrower determines, at any time or from
time to time, that a Capital Replacement is necessary or desirable, Borrower shall
perform such Capital Replacement and request from Funding Lender, in writing,
payment or reimbursement for such Capital Replacement. Borrower’s request for
payment or reimbursement shall include (A) a detailed description of the Capital
Replacement performed, together with either (1) evidence, satisfactory to Funding
Lender, that the cost of such Capital Replacement has been paid or (2) an invoice
for such payment from the party entitled thereto, and (B) conditional (subject only
to payment of the amounts shown on the invoice provided to Funding Lender as
required in clause (A) hereof, if applicable) lien waivers from each contractor and
material supplier supplying labor or materials for such Capital Replacement, if
required by Funding Lender.
(ii) Funding Lender’s Request. If Funding Lender shall determine, at
any time or from time to time, that Capital Replacements are necessary or
desirable, it shall so notify Borrower, in writing, requesting that Borrower obtain
and submit to Funding Lender bids for all labor and materials required in
connection with such Capital Replacement. Borrower shall submit such bids and
a time schedule for completing each Capital Replacement to Funding Lender
within thirty (30) days after Borrower’s receipt of Funding Lender’s notice.
Borrower shall perform such Capital Replacement and request from Funding
Lender, in writing, payment or reimbursement for such Capital Replacement.
Borrower’s request for reimbursement shall conform to the requirements of
Section 3(a)(i) above.
(b) Conditions Precedent. Disbursement from the Replacement Reserve
Fund shall be made no more frequently than once every Disbursement Period and, except
for the final disbursement, no disbursement shall be made in an amount less than the
Minimum Disbursement Request Amount. Disbursements shall be approved only if the
following conditions precedent have been satisfied, as determined by Funding Lender:
(i) Payment for Capital Replacement. The Capital Replacement has
been performed and/or installed on the Mortgaged Property in a good and
workmanlike manner with suitable materials (or in the case of a partial
disbursement, performed and/or installed on the Mortgaged Property to an
acceptable stage) and paid for by Borrower as evidenced by copies of all
applicable paid invoices (or subject to payment by Borrower as evidenced by
invoices for such payment from the party entitled thereto) submitted to Funding
Lender by Borrower at the time Borrower requests disbursement from the
Replacement Reserve Fund.
Replacement Reserve Agreement 6 Vista Breeze
(ii) No Default. There shall exist no condition, event or act that would
constitute a default (with or without notice and/or lapse of time) under this
Agreement or any other Borrower Loan Document.
(iii) Representations and Warranties. All representations and
warranties of Borrower set forth in this Agreement and in the Borrower Loan
Documents are true and correct in all material respects.
(iv) Continuing Compliance. Borrower shall be in full compliance
with the provisions of this Agreement, the other Borrower Loan Documents and
any request or demand by Funding Lender permitted hereby.
(v) No Lien Claim. No lien or claim based on furnishing labor or
materials has been filed or asserted against the Mortgaged Property or the
Improvements, unless Borrower has properly provided bond or other security
against loss to the satisfaction of Funding Lender and in accordance with
applicable law. Funding Lender shall have the right to require Borrower to
provide a search of title to the Mortgaged Property effective to the date of the
disbursement, which search shows that no mechanic’s or materialmen’s liens or
other liens of any nature have been placed against the Mortgaged Property since
the date of this Agreement (other than liens which Borrower is diligently
contesting in good faith and which have been bonded off to the satisfaction of
Funding Lender and in accordance with applicable law) and that title to the
Mortgaged Property is free and clear of all liens (other than the lien of the
Security Instrument and any other liens previously approved in writing by
Funding Lender, if any).
(vi) Approvals. All licenses, permits, and approvals of governmental
authorities required for the Capital Replacement as completed to the applicable
stage have been obtained.
(vii) Contracts. Funding Lender shall have the right to approve all
contracts or work orders with materialmen, mechanics, suppliers, subcontractors,
contractors or other parties providing labor or materials in connection with the
Capital Replacements. Upon Funding Lender’s request, Borrower shall
collaterally assign any contract or subcontract to Funding Lender.
(viii) Legal Compliance. The Capital Replacement as completed to the
applicable stage does not violate any laws, ordinance, rules or regulations, or
building lines or restrictions applicable to the Mortgaged Property.
4. Right to Complete Capital Replacements. If Borrower abandons or fails to
proceed diligently to undertake or complete any Capital Replacement in a timely fashion or is
otherwise in default under this Agreement or any other Borrower Loan Document, (a) Funding
Lender shall have the right (but not the obligation) to enter upon the Mortgaged Property upon
no less than two (2) days’ prior written notice and take over and cause the completion of such
Capital Replacement (provided no such notice or grace period shall apply in the case of such
Replacement Reserve Agreement 7 Vista Breeze
failure which could, in Funding Lender’s judgment, absent immediate exercise by Funding
Lender of a right or remedy under this Agreement, result in harm to Funding Lender or
impairment of the security given under the Security Instrument) and (b) any contracts entered
into or indebtedness incurred upon the exercise of such right may be in the name of Borrower,
and Funding Lender is hereby irrevocably appointed the attorney in fact of Borrower, such
appointment being coupled with an interest, to enter into such contracts, incur such obligations,
enforce any contracts or agreements made by or on behalf of Borrower (including the
prosecution and defense of all actions and proceedings in connection with the Capital
Replacement and the payment, settlement or compromise of all bills and claims for materials and
work performed in connection with the Capital Replacement) and do any and all things necessary
or proper to complete any Capital Replacement including signing Borrower’s name to any
contracts and documents as may be deemed necessary by Funding Lender. In no event shall
Funding Lender be required to expend its own funds to complete any Capital Replacement, but
Funding Lender may, in its sole discretion, (i) expend funds then held in the Replacement
Reserve Fund, or (ii) expend funds advanced by or on behalf of Funding Lender in accordance
with the terms of the Security Instrument (and any funds so advanced shall be added to the
outstanding balance of the Borrower Note, secured by the Security Instrument and payable in
accordance with the provisions of the Security Instrument pertaining to protective advances).
Borrower waives any and all claims it may have against Funding Lender for materials used, work
performed or resultant damage to the Mortgaged Property, except to the extent arising out of the
gross negligence or willful misconduct of Funding Lender or its agents, as applicable.
5. Inspection. Funding Lender or any of its agents may periodically inspect any
Capital Replacement in progress and upon completion during normal business hours or at any
other reasonable time upon reasonable prior written notice to Borrower (except in an emergency,
as determined by Funding Lender in its sole discretion, or after an Event of Default, in which
event no such prior notice shall be required) and subject to the rights of residential tenants under
leases; provided, however that not more than one inspection shall be required for each draw
request. If Funding Lender, in its sole discretion, retains a professional inspection engineer or
other qualified third party to inspect any Capital Replacement, Funding Lender also shall be
entitled to deduct from the Replacement Reserve Fund an amount sufficient to pay all reasonable
fees and expenses charged by such third party inspector.
6. Insufficient Account. The insufficiency of any balance in the Replacement
Reserve Fund shall not abrogate the Borrower’s agreement to fulfill all preservation and
maintenance covenants in the Borrower Loan Documents. In the event that the balance of the
Replacement Reserve Fund is less than the current estimated cost to make the Capital
Replacements required under this Agreement, Borrower shall deposit the shortage within ten
(10) days of request by Funding Lender. In the event Funding Lender determines from time to
time, based on Funding Lender’s inspections, that the amount of the monthly Replacement
Reserve Deposit is insufficient to fund the cost of likely Capital Replacements and related
contingencies that may arise during the remaining term of the Borrower Loan, Funding Lender
may require an increase in the amount of the monthly Replacement Reserve Deposits upon thirty
(30) days’ prior written notice to Borrower.
7. Security Agreement. Borrower hereby conveys, pledges, transfers and grants to
Funding Lender a security interest pursuant to the Uniform Commercial Code of the Property
Replacement Reserve Agreement 8 Vista Breeze
Jurisdiction or any other applicable law in and to all money in the Replacement Reserve Fund, as
the same may increase or decrease from time to time, for the purpose of securing Borrower’s
obligations under this Agreement and to further secure Borrower’s obligations under the
Borrower Note, the Security Instrument, and the other Borrower Loan Documents.
8. Post Default. If Borrower defaults in the performance of its obligations under
this Agreement or under the Borrower Note, Security Instrument or any other Borrower Loan
Document (beyond any applicable notice and cure period), Funding Lender and its successors
and assigns shall have all remedies available to them under Article 9 of the Uniform Commercial
Code of the Property Jurisdiction and under any other applicable law and, in addition, may retain
all money in the Replacement Reserve Fund, including interest, and in Funding Lender’s
discretion, may apply such amounts, without restriction and without any specific order of
priority, to the payment of any and all indebtedness or obligations of Borrower set forth in the
Borrower Note, Security Instrument or any other Borrower Loan Document, including, but not
limited to, principal, interest, taxes, insurance, reasonable attorneys’ fees and costs (including
those of in-house counsel) and disbursements actually incurred and/or repairs to the Mortgaged
Property.
9. Compliance with Laws; Insurance Requirements.
(a) Compliance with Laws. All Capital Replacements shall comply with all
applicable laws, ordinances, rules and regulations of all governmental authorities having
jurisdiction over the Mortgaged Property and applicable insurance requirements
including, without limitation, applicable building codes, special use permits,
environmental regulations, and requirements of insurance underwriters.
(b) Insurance Requirements. In addition to any insurance required under the
Borrower Loan Documents, Borrower shall provide or cause to be provided workers’
compensation, builder’s risk (if required by Funding Lender), and public liability
insurance and other insurance required under applicable law in connection with any of
the Capital Replacements, all of which shall be in form and substance, and from carriers,
acceptable to Funding Lender. All such policies that can be endorsed with standard
mortgagee clauses making losses payable to Funding Lender or its assigns shall be so
endorsed. The originals or certified copies of such policies shall be deposited with
Funding Lender.
10. Completion of Capital Replacements. Funding Lender’s disbursement of
moneys from the Replacement Reserve Fund or other acknowledgment of completion of any
Capital Replacement in a manner satisfactory to Funding Lender shall not be deemed a
certification by Funding Lender that the Capital Replacement has been completed in accordance
with applicable building, zoning or other codes, ordinances, statutes, laws, regulations or
requirements of any governmental authority or agency. Borrower shall at all times have the sole
responsibility for ensuring that all Capital Replacements are completed in accordance with all
such governmental requirements.
11. Assignment of Rights and Claims. Borrower assigns to Funding Lender all
rights and claims Borrower may have against all persons or entities supplying labor or materials
Replacement Reserve Agreement 9 Vista Breeze
in connection with the Capital Replacements; provided, however, that Funding Lender may not
pursue any such right or claim unless a default exists under this Agreement or an Event of
Default shall have occurred under the Security Instrument.
12. Termination. If not sooner terminated by the written concurrence of the parties,
this Agreement shall terminate upon the payment in full of the Borrower Loan and all
indebtedness incurred in connection therewith, and upon such termination, Funding Lender shall
pay to Borrower all funds remaining in the Replacement Reserve Fund. Notwithstanding the
foregoing, any and all provisions herein relating to the indemnification of the Beneficiary Parties
shall survive such termination.
13. Determinations by Funding Lender. Except to the extent expressly set forth in
this Agreement to the contrary, in any instance where the consent or approval of Funding Lender
may be given or is required, or where any determination, judgment or decision is to be rendered
by Funding Lender under this Agreement, the granting, withholding or denial of such consent or
approval and the rendering of such determination, judgment or decision shall be made or
exercised by Funding Lender, as applicable (or its designated representative) at its sole and
exclusive option and in its sole and absolute discretion.
14. Release; Indemnity.
(a) Release. Borrower covenants and agrees that, in performing any of their
rights or duties under this Agreement, neither the Beneficiary Parties, nor their agents or
employees, shall be liable for any losses, claims, damages, liabilities and expenses that
may be incurred by any of them as a result of such performance, except to the extent such
liability for any losses, claims, damages, liabilities or expenses arises out of the willful
misconduct or gross negligence of such party.
(b) Indemnity. Borrower hereby agrees to indemnify and hold harmless the
Beneficiary Parties and their respective agents and employees from and against any and
all losses, claims, damages, liabilities and expenses including, without limitation,
reasonable attorneys’ fees and costs and disbursements, which may be imposed or
incurred by any of them in connection with this Agreement, except that no such party will
be indemnified for any losses, claims, damages, liabilities or expenses arising out of the
willful misconduct or gross negligence of such party.
15. Governing Law. This Agreement shall be governed by and enforced in
accordance with the laws of the Property Jurisdiction, without giving effect to the choice of law
principles of the Property Jurisdiction that would require the application of the laws of a
jurisdiction other than the Property Jurisdiction.
16. Consent to Jurisdiction and Venue. Borrower agrees that any controversy
arising under or in relation to this Agreement shall be litigated exclusively in the Property
Jurisdiction. The state and federal courts and authorities with jurisdiction in the Property
Jurisdiction shall have exclusive jurisdiction over all controversies which shall arise under or in
relation to this Agreement. Borrower irrevocably consents to service, jurisdiction, and venue of
such courts for any such litigation and waives any other venue to which it might be entitled by
Replacement Reserve Agreement 10 Vista Breeze
virtue of domicile, habitual residence or otherwise. However, nothing herein is intended to limit
Beneficiary Parties’ right to bring any suit, action or proceeding relating to matters arising under
this Agreement against Borrower or any of Borrower’s assets in any court of any other
jurisdiction.
17. Successors and Assigns. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective heirs, legal representatives, successors,
successors-in-interest and assigns, as appropriate. The terms used to designate any of the parties
herein shall be deemed to include the heirs, legal representatives, successors, successors-in-
interest and assigns, as appropriate, of such parties. References to a “person” or “persons” shall
be deemed to include individuals and entities. Borrower acknowledges and agrees that any
Beneficiary Party, at its option, may assign its respective rights and interests under this
Agreement and the other Borrower Loan Documents in whole or in part and upon such
assignment all the terms and provisions of this Agreement or the other Borrower Loan
Documents shall inure to the benefit of such assignee to the extent so assigned. Borrower may
not assign or delegate its rights, interests or obligations under this Agreement without first
obtaining Funding Lender’s prior written consent.
18. Severability. The invalidity, illegality or unenforceability of any provision of
this Agreement shall not affect the validity, legality or enforceability of any other provision, and
all other provisions shall remain in full force and effect.
19. Expenses. Borrower shall pay to the Beneficiary Parties, upon demand, the
amount of any and all expenses, including, without limitation, reasonable attorneys’ fees
(including reasonable time charges of attorneys who may be employees of Beneficiary Parties),
which the Beneficiary Parties may incur in connection with (a) the custody, preservation or sale
of, collection from, or other realization upon any of the collateral pledged or encumbered by this
Agreement, (b) the exercise or enforcement of any of their rights hereunder, (c) the failure by
Borrower to perform or observe any of the provisions hereof, or (d) the breach by Borrower of
any representation or warranty of Borrower set forth herein. Such expenses, together with
interest thereon computed at the Default Rate set forth in the Borrower Note from the date on
which such expenses are incurred to the date of payment thereof, shall constitute indebtedness
secured by the Security Instrument.
20. Remedies Cumulative. In the event of Borrower’s default under this Agreement,
the Beneficiary Parties may exercise all or any one or more of their rights and remedies available
under this Agreement, at law or in equity. Such rights and remedies shall be cumulative and
concurrent, and may be enforced separately, successively or together, and the exercise of any
particular right or remedy shall not in any way prevent the Beneficiary Parties from exercising
any other right or remedy available to the Beneficiary Parties. The Beneficiary Parties may
exercise any such remedies from time to time as often as may be deemed necessary by the
Beneficiary Parties.
21. No Agency or Partnership. Nothing contained in this Agreement shall
constitute any Beneficiary Party as a joint venturer, partner or agent of Borrower, or render any
Beneficiary Party liable for any debts, obligations, acts, omissions, representations or contracts
of Borrower.
Replacement Reserve Agreement 11 Vista Breeze
22. Transfer of Mortgaged Property or Ownership Interests in Borrower. If a
Transfer (as defined in the Security Instrument) of all or part of the Mortgaged Property or of an
ownership interest in Borrower shall occur, which Transfer requires the prior written consent of
Funding Lender, the transferee(s) shall be required to assume the transferor’s duties and
obligations under this Agreement and the other Borrower Loan Documents and shall be required
to execute and deliver to Funding Lender such documents as Funding Lender requires to
effectuate such assumption of duties and obligations. No transfer and assumption shall relieve
the transferor of any of its duties or obligations under this Agreement or any of the other
Borrower Loan Documents, unless the Borrower has obtained the prior written consent of
Funding Lender to the release of such duties and obligations.
23. Entire Agreement; Amendment and Waiver. This Agreement contains the
complete and entire understanding of the parties with respect to the matters covered herein. This
Agreement may not be amended, modified or changed, nor shall any waiver of any provision
hereof be effective, except by a written instrument signed by the party against whom
enforcement of the waiver, amendment, change, or modification is sought, and then only to the
extent set forth in that instrument. No specific waiver of any of the terms of this Agreement
shall be considered as a general waiver.
24. Further Assurances. Borrower shall at any time and from time to time,
promptly execute and deliver all further instruments and documents, and take all further action
that may be reasonably necessary or desirable, or that any Beneficiary Party may reasonably
request, in order to protect any right or interest granted by this Agreement or to enable the
Beneficiary Party to exercise and enforce its rights and remedies under this Agreement.
25. No Amendment; Conflicts. Nothing contained in this Agreement shall be
construed to amend, modify, alter, change or supersede the terms and provisions of the Borrower
Note, the Security Instrument or the Borrower Loan Agreement; and, if there is a conflict
between the terms and provisions of this Agreement and those of the Borrower Note, the
Security Instrument or the Borrower Loan Agreement, then the terms and provisions of the
Borrower Note, the Security Instrument or the Borrower Loan Agreement shall control.
26. Limitation of Liability. The personal liability of Borrower for the payment and
performance of the obligations hereunder is limited in the manner and to the extent provided in
the Borrower Note.
27. Notices. All notices given under this Agreement shall be in writing and shall be
sent to the respective addresses of the parties, in the manner set forth in the Security Instrument.
28. Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall constitute an original document and all of which together shall constitute one
agreement.
29. Captions. The captions of the sections of this Agreement are for convenience
only and shall be disregarded in construing this Agreement.
30. Servicer. Borrower hereby acknowledges and agrees that, pursuant to the terms
of the Security Instrument: (a) from time to time, Funding Lender may appoint a servicer to
Replacement Reserve Agreement 12 Vista Breeze
collect payments, escrows and deposits, to give and to receive notices under the Borrower Note,
this Agreement or the other Borrower Loan Documents, and to otherwise service the Borrower
Loan and (b) unless Borrower receives written notice from Funding Lender to the contrary, any
action or right which shall or may be taken or exercised by Funding Lender may be taken or
exercised by such servicer with the same force and effect.
31. Beneficiary Parties as Third Party Beneficiary. Each of the Beneficiary Parties
shall be a third party beneficiary of this Agreement for all purposes.
32. Waiver of Trial by Jury. TO THE MAXIMUM EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF BORROWER AND THE BENEFICIARY PARTIES
(A) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT
TO ANY ISSUE ARISING OUT OF THIS AGREEMENT OR THE RELATIONSHIP
BETWEEN THE PARTIES THAT IS TRIABLE OF RIGHT BY A JURY AND (B) WAIVES
ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT
THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT
TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND
VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.
33. Time of the Essence. Time is of the essence with respect to this Agreement.
34. Modifications. All modifications (if any) to the terms of this Agreement
(“Modifications”) are set forth on Exhibit A attached to this Agreement. In the event of a
Transfer under the terms of the Security Instrument (other than a Permitted Transfer that does
not require the consent of the Funding Lender), some or all of the Modifications to this
Agreement may be modified or rendered void by Funding Lender at its option by notice to
Borrower or such transferee.
35. Attached Exhibit. The following Exhibit is attached to this Agreement and is
incorporated by reference herein as if more fully set forth in the text hereof:
Exhibit A – Modifications to Replacement Reserve Agreement
The terms of this Agreement are modified and supplemented as set forth in said Exhibit.
To the extent of any conflict or inconsistency between the terms of said Exhibit and the text of
this Agreement, the terms of said Exhibit shall be controlling in all respects.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Vista Breeze
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Replacement Reserve Agreement or caused this Replacement Reserve Agreement to be duly
executed and delivered by their respective authorized representatives as of the date first set forth
above.
BORROWER:
VISTA BREEZE, LTD.,
a Florida limited partnership
By: APC Vista Breeze, LLC,
a Florida limited liability company,
Duly Authorized
By: ________________________
Name:
Title:
Replacement Reserve Agreement S-2 Vista Breeze
FUNDING LENDER:
CITIBANK, N.A.
By:
Name:
Title:
Deal ID No. 60001596
Vista Breeze
EXHIBIT A
MODIFICATIONS TO REPLACEMENT RESERVE AGREEMENT
The following modifications are made to the text of the Agreement that precedes this
Exhibit:
None.
Capitalized terms used and not defined herein shall have the respective meanings
ascribed to them in the Agreement.
4859-6108-1738v.3
D
Forward Purchase Agreement Vista Breeze
EXHIBIT D-8 TO FORWARD PURCHASE AGREEMENT
FORM OF ASSIGNMENT OF MANAGEMENT AGREEMENT
[See attached]
EXHIBIT D-8 TO FORWARD PURCHASE AGREEMENT
FORM OF
ASSIGNMENT OF MANAGEMENT AGREEMENT
This ASSIGNMENT OF MANAGEMENT AGREEMENT (this “Assignment”) is
made as of the 1st day of [Month], 202[_], by and between VISTA BREEZE, LTD., a Florida
limited partnership (“Assignor”), and ATLANTIC PACIFIC COMMUNITY
MANAGEMENT, LLC, a Delaware limited liability company (“Manager”), for the benefit of
CITIBANK, N.A., a national banking association (together with its successors and assigns, the
“Assignee”). The date of this Assignment as set forth above is for reference purposes only, and
this Assignment will not be effective and binding until the Closing Date (as defined in the
Borrower Loan Agreement (as hereinafter defined)). This Assignment is a collateral assignment
and not a present assignment of rights and interests, and is effective only upon the occurrence of
an Event of Default (as defined in the Borrower Loan Agreement).
RECITALS:
A. The Housing Authority of the City of Miami Beach, a public body corporate and
politic established pursuant to Chapter 421, Florida Statutes (the “Landlord”), is the legal owner
of fee simple title to the Land (as defined in the Security Instrument (as hereinafter defined)) and
pursuant to that certain Second Amended and Restated Ground Lease, dated as of December 15,
2023, between the Landlord and Assignor, Assignor is the holder of a leasehold interest in the
Land.
B. Assignor previously applied to the Housing Finance Authority of Miami-Dade
County, Florida, a public body corporate and politic organized and existing under the laws of the
State of Florida (“Governmental Lender”), for a loan (the “Borrower Loan”) for the
acquisition, construction, development and/or equipping of a 119-unit multifamily residential
project, located in the City of Miami Beach, Florida, known as Vista Breeze (the “Mortgaged
Property”).
C. Assignor previously requested that the Governmental Lender enter into that
certain Funding Loan Agreement, dated as of December 1, 2023 (the “Original Funding Loan
Agreement”), among the Governmental Lender, 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 Governmental Lender in the original
principal amount of $32,500,000 (the “Funding Loan”), the proceeds of which Governmental
Lender used to make the Borrower Loan pursuant to that certain Construction Phase Borrower
Loan Agreement, dated as of December 1, 2023 (the “Original Borrower Loan Agreement”),
by and between the Governmental Lender and Assignor.
D. The Borrower Loan was evidenced by that certain Construction Phase Project
Loan Note, dated as of December 15, 2023 (the “Original Borrower Note”), made by Assignor
payable to the order of Governmental Lender, as endorsed and assigned to Fiscal Agent for the
benefit of the Original Funding Lender.
Assignment of Management Agreement 2 Vista Breeze
E. The Borrower Loan was secured by, among other things, that certain Leasehold
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated as of December
15, 2023, executed by Assignor for the benefit of Governmental Lender (the “Original Security
Instrument”), which Original Security Instrument encumbers the Mortgaged Property.
F. The Original Borrower Note, the Original Security Instrument, the Original
Borrower Loan Agreement and all other Borrower Loan Documents except for the Unassigned
Rights (as defined in the Original Funding Loan Agreement), were each assigned by
Governmental Lender to Fiscal Agent for the benefit of Original Funding Lender to secure the
Funding Loan.
G. At the request of Assignor, Assignor, Original Funding Lender and Assignee
entered into that certain Forward Purchase Agreement, dated as of December 1, 2023, pursuant
to which Assignee agreed to acquire Original Funding Lender’s interests in the Funding Loan
and Funding Loan Documents (as defined in the Original Funding Loan Agreement) upon
satisfaction of the terms and conditions set forth therein (the “Loan Purchase Conditions”).
H. Insofar as the Loan Purchase Conditions have been satisfied or waived, Assignee
has acquired the Funding Loan from the Original Funding Lender, and in connection therewith,
(i) Assignee has agreed to enter into a certain Amended and Restated Funding Loan Agreement
dated as of the date hereof (the “Funding Loan Agreement”) by and among Governmental
Lender, Fiscal Agent, and Assignee, which amends and restates the Original Funding Loan
Agreement; (ii) Assignor and Governmental Lender have entered into an Amended and Restated
Borrower Loan Agreement dated as of the date hereof (the “Borrower Loan Agreement”)
which amends and restates the Original Borrower Loan Agreement; (iii) Assignor has executed
and delivered an Amended and Restated Multifamily Note, dated as of [Month] [Day], 202[_], in
the principal amount of $[11,875,000][NOTE: AS MAY BE INCREASED PER THE EARN-
OUT] (the “Borrower Note”), which amends and restates the Original Borrower Note; (iv)
Assignor has executed and delivered an Amended and Restated Multifamily Leasehold
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing (Florida), dated as of the
date hereof (the “Security Instrument”), which amends and restates the Original Security
Instrument; and (v) Assignee and Assignor have entered into a certain Loan Covenant
Agreement and dated as of the date hereof (the “Loan Covenant Agreement”; together with the
Borrower Note, the Security Instrument, the Borrower Loan Agreement and all other documents
executed in connection with the Borrower Loan, including this Agreement, the “Borrower Loan
Documents”).
I. The term “Beneficiary Parties” as used herein shall mean Assignee,
Governmental Lender, Fiscal Agent and any Servicer, and their respective successors and
assigns. The term “Beneficiary Parties” shall also include any lawful owner, holder or pledgee
of the Borrower Note.
I. Assignor has engaged Manager to rent, lease, operate and manage the Mortgaged
Property pursuant to the terms of that certain Property Management Agreement (Vista Breeze),
dated as of December 15, 2023, by and between Assignor and Manager (the “Management
Agreement”). Manager is entitled to earn management fees, commissions, compensation and/or
Assignment of Management Agreement 3 Vista Breeze
all other amounts payable to Manager under the Management Agreement (collectively,
“Management Fees”).
J. As a condition to the purchase of the Funding Loan by Assignee, Assignor is
required to enter into this Assignment and assign to Assignee all of Assignor’s rights, title and
interests in, to and under the Management Agreement for the purpose of providing additional
security for the full payment and performance by Assignor of all of its obligations under the
Borrower Loan Documents.
K. Manager is willing to consent to the assignment and to attorn to Assignee upon an
Event of Default by Assignor under and as defined in the Borrower Loan Documents, and
perform its obligations under the Management Agreement for Assignee or to permit Assignee to
terminate the Management Agreement, without liability on the terms and conditions set forth
herein.
NOW, THEREFORE, for and in consideration of the purchase of the Funding Loan, the
mutual promises and covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Assignor and Manager agree as
follows:
1. Definitions. Capitalized terms which appear and are not otherwise defined herein
shall have the meanings ascribed to such terms in the Security Instrument or the Loan Covenant
Agreement.
2. Assignment. Assignor hereby transfers, assigns and sets over to Assignee all
right, title and interest of Assignor in and to the Management Agreement. Manager hereby
consents to the foregoing assignment. The foregoing assignment is being made by Assignor to
Assignee as collateral security for the full payment and performance by Assignor of all of its
obligations under the Borrower Loan Documents. However, until the occurrence of an Event of
Default (as such term is defined in the Borrower Loan Documents), Assignor may exercise all
rights as owner of the Mortgaged Property under the Management Agreement, except as
otherwise provided in this Assignment. The foregoing assignment shall remain in effect as long
as the Borrower Loan, or any part thereof, remains unpaid, but shall automatically terminate
upon the release of the Security Instrument as a lien on the Mortgaged Property.
3. Representations and Warranties. Assignor and Manager represent and warrant
to Assignee that (a) the Management Agreement is unmodified and is in full force and effect,
(b) the Management Agreement is a valid and binding agreement enforceable against the parties
in accordance with its terms, and (c) neither party is in default in performing any of its
obligations under the Management Agreement.
4. Certain Covenants. Assignor hereby covenants with Assignee that during the
term of this Assignment: (a) Assignor shall not transfer the responsibility for management of the
Mortgaged Property from Manager to any other person or entity without the prior written consent
of Assignee; (b) Assignor shall not terminate or amend any of the material terms or provisions of
the Management Agreement without the prior written consent of Assignee; and (c) Assignor
shall give Assignee written notice of any notice or information that Assignor receives which
Assignment of Management Agreement 4 Vista Breeze
indicates that Manager is terminating the Management Agreement or that Manager is otherwise
discontinuing its management of the Mortgaged Property.
5. Assignee Rights. Upon receipt by Manager of written notice from Assignee that
an Event of Default has occurred and is continuing (it being acknowledged and agreed that in no
event shall Assignee have any obligation to accept a cure of an Event of Default), Assignee shall
have the right to exercise all rights as owner of the Mortgaged Property under the Management
Agreement.
6. Termination or Amendment of Management Agreement. Manager agrees that
notwithstanding anything to the contrary in the Management Agreement, at any time that the
Security Instrument encumbers the Mortgaged Property (or at any time after a foreclosure or
deed in lieu of foreclosure of the Mortgaged Property): (i) the Management Agreement may not
be amended or modified in any material respect without the prior written consent of Assignee,
and (ii) the Management Agreement may be terminated by Assignor or its successors and
assigns, with or without cause and for any reason whatsoever, upon 30 days written notice to
Manager. Manager further agrees that after the occurrence of an Event of Default, Assignee (or
its nominee) shall have the right at any time thereafter to terminate the Management Agreement,
without cause and without liability, by giving written notice to Manager of its election to do so.
Assignee’s notice shall specify the date of termination, which shall not be less than 30 days after
the date of such notice.
7. Post-Termination. On the effective date of termination of the Management
Agreement, Manager shall turn over to Assignee all books and records relating to the Mortgaged
Property (copies of which may be retained by Manager, at Manager’s expense), together with
such authorizations and letters of direction addressed to tenants, suppliers, employees, banks and
other parties as Assignee may reasonably require. Manager shall cooperate with Assignee in the
transfer of management responsibilities to Assignee or its designee. A final accounting of
unpaid fees (if any) due to Manager under the Management Agreement shall be made within 60
days after the effective date of termination, but Assignee shall not have any liability or obligation
to Manager for unpaid fees or other amounts payable under the Management Agreement which
accrue before Assignee (or its nominee) acquires title to the Mortgaged Property, or Assignee
becomes a mortgagee in possession.
8. Termination. If not sooner terminated by the written concurrence of the parties,
this Assignment shall terminate upon the payment in full of the Borrower Loan and all
indebtedness incurred in connection therewith. Notwithstanding the foregoing, any and all
provisions herein relating to the indemnification of the Beneficiary Parties shall survive such
termination.
9. Determinations by Assignee. Except to the extent expressly set forth in this
Assignment to the contrary, in any instance where the consent or approval of Assignee may be
given or is required, or where any determination, judgment or decision is to be rendered by
Assignee under this Assignment, the granting, withholding or denial of such consent or approval
and the rendering of such determination, judgment or decision shall be made or exercised by
Assignee, as applicable (or its designated representative) at its sole and exclusive option and in
its sole and absolute discretion.
Assignment of Management Agreement 5 Vista Breeze
10. Release; Indemnity; Assignment of Rights and Claims.
(a) Release. Each of Assignor and Manager covenants and agrees that, in
performing any of their rights or duties under this Assignment, neither the Beneficiary
Parties, nor their agents or employees, shall be liable for any losses, claims, damages,
liabilities and expenses that may be incurred by any of them as a result of such
performance, except to the extent such liability for any losses, claims, damages, liabilities
or expenses arises out of the willful misconduct or gross negligence of such party.
(b) Indemnity. Assignor hereby agrees to indemnify and hold harmless the
Beneficiary Parties and their respective agents and employees from and against any and
all losses, claims, damages, liabilities and expenses including, without limitation,
reasonable attorneys’ fees and costs and disbursements, which may be imposed or
incurred by any of them in connection with this Assignment, except that no such party
will be indemnified for any losses, claims, damages, liabilities or expenses arising out of
the willful misconduct or gross negligence of such party.
(c) Assignment of Rights and Claims against Manager. Assignor assigns to
Assignee all rights and claims Assignor may have against Manager in connection with
the Management Agreement; provided, however, that Assignee may not pursue any such
right or claim unless a default exists under this Assignment or an Event of Default shall
have occurred under the Security Instrument.
11. Governing Law. This Assignment shall be governed by and enforced in
accordance with the laws of the Property Jurisdiction, without giving effect to the choice of law
principles of the Property Jurisdiction that would require the application of the laws of a
jurisdiction other than the Property Jurisdiction.
12. Consent to Jurisdiction and Venue. Each of Assignor and Manager agrees that
any controversy arising under or in relation to this Assignment shall be litigated exclusively in
the Property Jurisdiction. The state and federal courts and authorities with jurisdiction in the
Property Jurisdiction shall have exclusive jurisdiction over all controversies which shall arise
under or in relation to this Assignment. Each of Assignor and Manager irrevocably consents to
service, jurisdiction, and venue of such courts for any such litigation and waives any other venue
to which it might be entitled by virtue of domicile, habitual residence or otherwise. However,
nothing herein is intended to limit Beneficiary Parties’ right to bring any suit, action or
proceeding relating to matters arising under this Assignment against Assignor, Manager or any
of Assignor’s or Manager’s assets in any court of any other jurisdiction.
13. Successors and Assigns. This Assignment shall be binding upon Assignor,
Manager and their respective heirs, legal representatives, successors, successors-in-interest and
assigns, as appropriate, and shall inure to the benefit of the Beneficiary Parties and their
respective successors, successors-in-interest and assigns. The terms used to designate any of the
parties herein shall be deemed to include the heirs, legal representatives, successors, successors-
in-interest and assigns, as appropriate, of such parties. References to a “person” or “persons”
shall be deemed to include individuals and entities. Each of Assignor and Manager
acknowledges and agrees that any Beneficiary Party, at its option, may assign its respective
Assignment of Management Agreement 6 Vista Breeze
rights and interests under this Assignment and the other Borrower Loan Documents in whole or
in part and upon such assignment all the terms and provisions of this Assignment or the other
Borrower Loan Documents shall inure to the benefit of such assignee to the extent so assigned.
Neither of Assignor nor Manager may assign or delegate its rights, interests or obligations under
this Assignment without first obtaining Assignee’s prior written consent.
14. Severability. The invalidity, illegality or unenforceability of any provision of
this Assignment shall not affect the validity, legality or enforceability of any other provision, and
all other provisions shall remain in full force and effect.
15. Expenses. Assignor shall pay to the Beneficiary Parties, upon demand, the
amount of any and all expenses, including, without limitation, reasonable attorneys’ fees
(including reasonable time charges of attorneys who may be employees of Beneficiary Parties),
which the Beneficiary Parties may incur in connection with (a) the custody, preservation or sale
of, collection from, or other realization upon any of the interests assigned or encumbered by this
Assignment, (b) the exercise or enforcement of any of their rights hereunder, (c) the failure by
Assignor to perform or observe any of the provisions hereof, or (d) the breach by Assignor of
any representation or warranty of such party set forth herein. Such expenses, together with
interest thereon computed at the Default Rate set forth in the Borrower Note from the date on
which such expenses are incurred to the date of payment thereof, shall constitute indebtedness
secured by the Security Instrument.
16. Remedies Cumulative. In the event of Assignor’s default under this
Assignment, the Beneficiary Parties may exercise all or any one or more of their rights and
remedies available under this Assignment, at law or in equity. Such rights and remedies shall be
cumulative and concurrent, and may be enforced separately, successively or together, and the
exercise of any particular right or remedy shall not in any way prevent the Beneficiary Parties
from exercising any other right or remedy available to the Beneficiary Parties. The Beneficiary
Parties may exercise any such remedies from time to time as often as may be deemed necessary
by the Beneficiary Parties.
17. No Agency or Partnership. Nothing contained in this Assignment shall
constitute any Beneficiary Party as a joint venturer, partner or agent of Assignor or Manager, or
render any Beneficiary Party liable for any debts, obligations, acts, omissions, representations or
contracts of Assignor or Manager.
18. Transfer of Mortgaged Property or Ownership Interests in Assignor. If a
Transfer (as defined in the Security Instrument) of all or part of the Mortgaged Property or of an
ownership interest in Assignor shall occur, which Transfer requires the prior written consent of
Assignee, the transferee(s) shall be required to assume the transferor’s duties and obligations
under this Assignment and the other Borrower Loan Documents and shall be required to execute
and deliver to Assignee such documents as Assignee requires to effectuate such assumption of
duties and obligations. No transfer and assumption shall relieve the transferor of any of its duties
or obligations under this Assignment or any of the other Borrower Loan Documents, unless the
Assignor has obtained the prior written consent of Assignee to the release of such duties and
obligations.
Assignment of Management Agreement 7 Vista Breeze
19. Entire Agreement; Amendment and Waiver. This Assignment contains the
complete and entire understanding of the parties with respect to the matters covered herein. This
Assignment may not be amended, modified or changed, nor shall any waiver of any provision
hereof be effective, except by a written instrument signed by the party against whom
enforcement of the waiver, amendment, change, or modification is sought, and then only to the
extent set forth in that instrument. No specific waiver of any of the terms of this Assignment
shall be considered as a general waiver.
20. Further Assurances. Each of Assignor and Manager shall at any time and from
time to time, promptly execute and deliver all further instruments and documents, and take all
further action that may be reasonably necessary or desirable, or that any Beneficiary Party may
reasonably request, in order to protect any right or interest granted by this Assignment or to
enable the Beneficiary Party to exercise and enforce its rights and remedies under this
Assignment.
21. No Amendment; Conflicts. Nothing contained in this Assignment shall be
construed to amend, modify, alter, change or supersede the terms and provisions of the Borrower
Note, the Security Instrument or the Borrower Loan Agreement; and, if there is a conflict
between the terms and provisions of this Assignment and those of the Borrower Note, the
Security Instrument or the Borrower Loan Agreement, then the terms and provisions of the
Borrower Note, the Security Instrument or the Borrower Loan Agreement shall control.
22. Limitation of Liability. The personal liability of Assignor for the payment and
performance of the obligations hereunder is limited in the manner and to the extent provided in
the Borrower Note.
23. Notices. All notices to be given by Assignee to Manager shall be given to
Manager, at the address set forth below Manager’s signature block to this Assignment, in the
same manner as notices to Assignor pursuant to the notice provisions contained in the Security
Instrument. All other notices given under this Assignment shall be in writing and shall be sent to
the respective addresses of the parties, in the manner set forth in the Security Instrument.
24. Counterparts. This Assignment may be executed in multiple counterparts, each
of which shall constitute an original document and all of which together shall constitute one
agreement.
25. Captions. The captions of the sections of this Assignment are for convenience
only and shall be disregarded in construing this Assignment.
26. Servicer. Each of Assignor and Manager hereby acknowledges and agrees that,
pursuant to the terms of the Security Instrument: (a) from time to time, Assignee may appoint a
servicer to collect payments, escrows and deposits, to give and to receive notices under the
Borrower Note, this Assignment or the other Borrower Loan Documents, and to otherwise
service the Borrower Loan and (b) unless Assignor receives written notice from Assignee to the
contrary, any action or right which shall or may be taken or exercised by Assignee may be taken
or exercised by such servicer with the same force and effect.
Assignment of Management Agreement 8 Vista Breeze
27. Beneficiary Parties as Third Party Beneficiary. Each of the Beneficiary Parties
shall be a third party beneficiary of this Assignment for all purposes.
28. Waiver of Trial by Jury. TO THE MAXIMUM EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF ASSIGNOR, MANAGER AND THE
BENEFICIARY PARTIES (A) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY
JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS ASSIGNMENT OR THE
RELATIONSHIP BETWEEN THE PARTIES THAT IS TRIABLE OF RIGHT BY A JURY
AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE
TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS
WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY,
KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL
COUNSEL.
29. Time of the Essence. Time is of the essence with respect to this Assignment.
30. Modifications. All modifications (if any) to the terms of this Assignment
(“Modifications”) are set forth on Exhibit A attached to this Assignment. In the event of a
Transfer under the terms of the Security Instrument (other than a Permitted Transfer that does
not require the consent of the Funding Lender), some or all of the Modifications to this
Assignment may be modified or rendered void by Assignee at its option by notice to Assignor,
Manager or such transferee.
31. Attached Exhibit. The following Exhibit is attached to this Assignment and is
incorporated by reference herein as if more fully set forth in the text hereof:
Exhibit A – Modifications to Assignment of Management Agreement
The terms of this Assignment are modified and supplemented as set forth in said Exhibit. To the
extent of any conflict or inconsistency between the terms of said Exhibit and the text of this
Assignment, the terms of said Exhibit shall be controlling in all respects.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Assignment of Management Agreement S-1 Vista Breeze
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Assignment of Management Agreement or caused this Assignment of Management Agreement
to be duly executed and delivered by their respective duly authorized representatives as of the
date first set forth above.
ASSIGNOR:
VISTA BREEZE, LTD.,
a Florida limited partnership
By: APC Vista Breeze, LLC,
a Florida limited liability company,
Duly Authorized
By: ________________________
Name:
Title:
Assignment of Management Agreement S-2 Vista Breeze
MANAGER:
ATLANTIC PACIFIC COMMUNITY
MANAGEMENT, LLC,
a Delaware limited liability company
By: __________________________
Name:
Title:
Manager’s Address for Notices:
Atlantic Pacific Community Management, LLC
161 NW 6th Street, Suite 1020
Miami, FL 33136
Attn: Kenneth Naylor
Assignment of Management Agreement A-1 Vista Breeze
EXHIBIT A
MODIFICATIONS TO ASSIGNMENT OF MANAGEMENT AGREEMENT
The following modifications are made to the text of the Assignment that precedes this Exhibit:
1. The Assignment is modified by adding a new Section 32 and a new Section 33 as
follows:
32. Further Agreements. Manager agrees that:
(a) (i) any fees payable to Manager pursuant to the Management Agreement
in excess of the Underwritten Management Fee (as such term is defined in the Loan
Covenant Agreement) (any such fees in excess of the Underwritten Management Fee
being sometimes collectively referred to in this Assignment as the “Subordinated Fees”)
are and shall be subordinated in right of payment, to the extent and in the manner
provided in this Assignment, to the prior payment in full of the Indebtedness (as defined
in the Security Instrument), and (ii) the Management Agreement is and shall be subject
and subordinate in all respects to the liens, terms, covenants and conditions of the
Security Instrument and the other loan documents evidencing and securing the Borrower
Loan and to all advances heretofore made or which may hereafter be made pursuant to
the Security Instrument (including all sums advanced for the purposes of (x) protecting or
further securing the lien of the Security Instrument, curing defaults by Assignor under the
Security Instrument or for any other purposes expressly permitted by the Security
Instrument, or (y) constructing, renovating, repairing, furnishing, fixturing or equipping
the Mortgaged Property);
(b) if, by reason of its exercise of any other right or remedy under the
Management Agreement, Manager acquires by right of subrogation or otherwise a lien on
the Mortgaged Property which (but for this subsection) would be senior to the lien of the
Security Instrument, then, in that event, such lien shall be subject and subordinate to the
lien of the Security Instrument;
(c) until Manager receives notice (or otherwise acquires actual knowledge) of
an Event of Default, Manager shall be entitled to retain for its own account all payments
made under or pursuant to the Management Agreement;
(d) after Manager receives notice (or otherwise acquires actual knowledge) of
an Event of Default, it will not accept any payment of any Subordinated Fees under or
pursuant to the Management Agreement without Assignee’s prior written consent;
(e) if, after Manager receives notice (or otherwise acquires actual knowledge)
of an Event of Default, Manager receives any payment of any Subordinated Fees under
the Management Agreement, or if Manager receives any other payment or distribution of
any kind from Assignor or from any other person or entity in connection with the
Management Agreement which Manager is not permitted by this Assignment to retain for
its own account, such payment or other distribution will be received and held in trust for
Assignee and unless Assignee otherwise notifies Manager, will be promptly remitted, in
Assignment of Management Agreement A-2 Vista Breeze
cash or readily available funds, to Assignee, properly endorsed to Assignee, to be applied
to the principal of, interest on and other amounts due under the Borrower Loan
Documents in such order and in such manner as Assignee shall determine in its sole and
absolute discretion. Manager hereby irrevocably designates, makes, constitutes and
appoints Assignee (and all persons or entities designated by Assignee) as Manager’s true
and lawful attorney in fact with power to endorse the name of Manager upon any checks
representing payments referred to in this subsection;
(f) Manager shall notify (telephonically, followed by written notice) Assignee
of Manager’s receipt from any person or entity other than Assignor of a payment with
respect to Assignor’s obligations under the Borrower Loan Documents, promptly after
Manager obtains knowledge of such payment; and
(g) during the term of this Assignment, Manager will not commence, or join
with any other creditor in commencing any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings with respect to Assignor, without Assignee’s prior
written consent.
33. Payment of Management Fees Upon Event of Default. Assignor agrees that
after Assignor receives notice (or otherwise has actual knowledge) of an Event of Default, it will
not make any payment of any Subordinated Fees under or pursuant to the Management
Agreement without Assignee’s prior written consent.
Capitalized terms used and not defined herein shall have the respective meanings
ascribed to them in the Assignment.
4870-3429-9274v.4
D
Forward Purchase Agreement Vista Breeze
EXHIBIT D-9 TO FORWARD PURCHASE AGREEMENT
FORM OF AGREEMENT OF ENVIRONMENTAL INDEMNIFICATION
[See attached]
EXHIBIT D-9 TO FORWARD PURCHASE AGREEMENT
FORM OF
AGREEMENT OF ENVIRONMENTAL INDEMNIFICATION
This AGREEMENT OF ENVIRONMENTAL INDEMNIFICATION (this
“Agreement”) is entered into as of the [____] day of [Month], 202[_] by HOWARD D.
COHEN REVOCABLE TRUST U/A/D/ 4/6/1993 (the “Guarantor”) and VISTA BREEZE,
LTD., a Florida limited partnership (“Borrower”; and together with the Guarantor, collectively,
jointly and severally, the “Indemnitor”), for the benefit of Beneficiary Parties (as defined
herein). The date of this Agreement as set forth above is for reference purposes only, and this
Agreement will not be effective and binding until the Closing Date (as defined in the Borrower
Loan Agreement (as hereinafter defined)).
RECITALS:
A. The Housing Authority of the City of Miami Beach, a public body corporate and
politic established pursuant to Chapter 421, Florida Statutes (the “Landlord”), is the legal owner
of fee simple title in the Land (as defined in the Security Instrument (as hereinafter defined)) and
pursuant to that certain Second Amended and Restated Ground Lease, dated as of December 15,
2023, between the Landlord and the Borrower, the Borrower is the holder of a leasehold interest
in the Land.
B. Borrower previously applied to the Housing Finance Authority of Miami-Dade
County, Florida, a public body corporate and politic organized and existing under the laws of the
State of Florida (“Governmental Lender”), for a loan (the “Borrower Loan”) for the
acquisition, construction, development and/or equipping of a 119-unit multifamily residential
project, located in the City of Miami Beach, Florida, known as Vista Breeze (the “Mortgaged
Property”).
C. Borrower previously requested that the Governmental Lender enter into that
certain Funding Loan Agreement, dated as of December 1, 2023 (the “Original Funding Loan
Agreement”), among the Governmental Lender, 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 Governmental Lender in the original
principal amount of $32,500,000 (the “Funding Loan”), the proceeds of which Governmental
Lender used to make the Borrower Loan pursuant to that certain Construction Phase Borrower
Loan Agreement, dated as of December 1, 2023, (the “Original Borrower Loan Agreement”),
by and between the Governmental Lender and the Borrower.
A. The Borrower Loan was evidenced by that certain Construction Phase Project
Loan Note, dated as of December 15, 2023 (the “Original Borrower Note”), made by Borrower
payable to the order of Governmental Lender, as endorsed and assigned to Fiscal Agent for the
benefit of the Original Funding Lender.
2 Vista Breeze
B. The Borrower Loan was secured by, among other things, that certain Leasehold
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated as of December
15, 2023, executed by Borrower for the benefit of Governmental Lender (the “Original Security
Instrument”), which Original Security Instrument encumbers the Mortgaged Property.
C. The Original Borrower Note, the Original Security Instrument, the Original
Borrower Loan Agreement and all other Borrower Loan Documents except for the Unassigned
Rights (as defined in the Original Funding Loan Agreement), were each assigned by
Governmental Lender to Fiscal Agent for the benefit of Original Funding Lender to secure the
Funding Loan.
D. At the request of Borrower, the Borrower, Original Funding Lender and Funding
Lender entered into that certain Forward Purchase Agreement, dated as of December 1, 2023,
pursuant to which Funding Lender agreed to acquire Original Funding Lender’s interests in the
Funding Loan and Funding Loan Documents (as defined in the Original Funding Loan
Agreement) upon satisfaction of the terms and conditions set forth therein (the “Loan Purchase
Conditions”).
E. Insofar as the Loan Purchase Conditions have been satisfied or waived, Funding
Lender has acquired the Funding Loan from the Original Funding Lender, and in connection
therewith, (i) Funding Lender has agreed to enter into a certain Amended and Restated Funding
Loan Agreement dated as of the date hereof (the “Funding Loan Agreement”) by and among
Governmental Lender, Fiscal Agent, and Funding Lender, which amends and restates the
Original Funding Loan Agreement; (ii) Borrower and Governmental Lender have entered into an
Amended and Restated Borrower Loan Agreement dated as of the date hereof (the “Borrower
Loan Agreement”) which amends and restates the Original Borrower Loan Agreement; (iii)
Borrower has executed and delivered an Amended and Restated Multifamily Note, dated as of
[Month] [Day], 202[_], in the principal amount of $[11,875,000][NOTE: AS MAY BE
INCREASED PER THE EARN-OUT] (the “Borrower Note”), which amends and restates the
Original Borrower Note; (iv) Borrower has executed and delivered an Amended and Restated
Multifamily Leasehold Mortgage, Assignment of Rents, Security Agreement and Fixture Filing
(Florida), dated as of the date hereof (the “Security Instrument”), which amends and restates
the Original Security Instrument; and (v) Funding Lender and Borrower have entered into a
certain Loan Covenant Agreement and dated as of the date hereof (the “Loan Covenant
Agreement”; together with the Borrower Note, the Security Instrument, the Borrower Loan
Agreement and all other documents executed in connection with the Borrower Loan, including
this Agreement, the “Borrower Loan Documents”).
F. The term “Beneficiary Parties” as used herein shall mean Governmental Lender,
Funding Lender, Fiscal Agent, any Servicer and their respective successors and assigns. The
term “Beneficiary Parties” shall also include any lawful owner, holder or pledgee of the
Borrower Note.
G. Guarantor acknowledges that it will receive substantial economic and other
benefits from the Funding Loan, Borrower Loan and the purchase of the Funding Loan by
Funding Lender.
3 Vista Breeze
H. As a condition to the purchase of the Funding Loan by Funding Lender, each
Indemnitor is required to enter into this Agreement.
NOW THEREFORE, in consideration of the Funding Loan, the Borrower Loan and the
purchase of the Funding Loan by Funding Lender, and in order to induce Beneficiary Parties to
consummate said transactions, each Indemnitor agrees for the benefit of Beneficiary Parties as
follows:
1. Recitals. The parties agree the recitals are true and correct, and are incorporated
herein by reference.
2. Certain Definitions. Capitalized terms used but not defined in this Agreement
shall have the meanings assigned to them in the Security Instrument. The following terms, when
used herein, shall have the following meanings:
(a) “Hazardous Materials” means petroleum and petroleum products and
compounds containing them, including gasoline, diesel fuel and oil; explosives;
flammable materials; radioactive materials; polychlorinated biphenyls (“PCBs”) and
compounds containing them; lead and lead-based paint; asbestos or asbestos-containing
materials in any form that is or could become friable; underground or above-ground
storage tanks, whether empty or containing any substance; radon; Mold; toxic or
mycotoxin spores; any substance the presence of which on the Mortgaged Property is
prohibited by any federal, state or local authority; any substance that requires special
handling under any Hazardous Materials Law; and any other material or substance
(whether or not naturally occurring) now or in the future that (i) is defined as a
“hazardous substance,” “hazardous material,” “hazardous waste,” “toxic substance,”
“toxic pollutant,” “solid waste,” “pesticide,” “contaminant,” or “pollutant” or otherwise
classified as hazardous or toxic by or within the meaning of any Hazardous Materials
Law, or (ii) is regulated in any way by or within the meaning of any Hazardous Materials
Law.
(b) “Hazardous Materials Law” means all federal, state, and local laws,
ordinances and regulations and standards, rules, policies and other governmental
requirements, rules of common law (including without limitation nuisance and trespass),
consent order, administrative rulings and court judgments and decrees or other
government directive in effect now or in the future and including all amendments, that
relate to Hazardous Materials or to the protection or conservation of the environment or
human health and apply to any Indemnitor or to the Mortgaged Property, including
without limitation those relating to industrial hygiene, or the use, analysis, generation,
manufacture, storage, discharge, release, disposal, transportation, treatment, investigation
or remediation of Hazardous Materials. Hazardous Materials Laws include, but are not
limited to, the Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C. Section 9601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901, et seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601, et seq.,
the Clean Water Act, 33 U.S.C. Section 1251, et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. Section 5101, et seq., the Superfund Amendments and
4 Vista Breeze
Reauthorization Act, the Solid Waste Disposal Act, the Clean Air Act, the Occupational
Safety and Health Act, and their state analogs.
(c) “Indemnitees” for purposes of this Agreement, means collectively
Beneficiary Parties and their successors, assigns, and transferees and the officers,
directors, shareholders, partners, members, trustees, heirs, legal representatives,
employees and agents of Beneficiary Parties and their successors, assigns and transferees.
(d) “Mold” means mold, fungus, microbial contamination or pathogenic
organisms.
(e) “O&M Program” shall have the meaning set forth in Section 3(d) hereof.
3. Prohibited Activities or Conditions.
(a) Except for matters described in Section 3(b), no Indemnitor shall cause or
permit any of the following:
(i) the presence, use, generation, release, treatment, processing,
storage (including storage in above ground and underground storage tanks),
handling, or disposal of any Hazardous Materials on or under the Mortgaged
Property (whether as a result of activities on the Mortgaged Property or on
surrounding properties) or any other property of any Indemnitor that is adjacent to
the Mortgaged Property;
(ii) the transportation of any Hazardous Materials to, from, or across
the Mortgaged Property (whether as a result of activities on the Mortgaged
Property or on surrounding properties);
(iii) any occurrence or condition on the Mortgaged Property (whether
as a result of activities on the Mortgaged Property or on surrounding properties)
or any other property of any Indemnitor that is adjacent to the Mortgaged
Property, which occurrence or condition is or may be in violation of Hazardous
Materials Laws;
(iv) any violation of or noncompliance with the terms of any
Environmental Permit with respect to the Mortgaged Property or any property of
any Indemnitor that is adjacent to the Mortgaged Property;
(v) the imposition of any environmental lien against the Mortgaged
Property; or
(vi) any violation or noncompliance with the terms of any O&M
Program.
The matters described in clauses (i) through (vi) above, except as otherwise provided in
Section 3(b), are referred to collectively in this Agreement as “Prohibited Activities or
Conditions”.
5 Vista Breeze
(b) Prohibited Activities or Conditions shall not include lawful conditions
permitted by an O&M Program or the safe and lawful use, transportation and storage of
quantities of (1) pre-packaged supplies, cleaning materials, petroleum products,
household products, paints, solvents, lubricants and other materials customarily used in
the construction, operation, maintenance or use of comparable multifamily properties, (2)
cleaning materials, household products, personal grooming items and other items sold in
pre-packaged containers for consumer use and used by tenants and occupants of
residential dwelling units in the Mortgaged Property, and (3) petroleum products used in
the operation and maintenance of motor vehicles from time to time located on the
Mortgaged Property’s parking areas, so long as all of the foregoing are used, stored,
handled, transported and disposed of in compliance with Hazardous Materials Laws.
(c) Each Indemnitor shall take all commercially reasonable actions (including
the inclusion of appropriate provisions in any Leases executed after the date hereof) to
prevent its employees, agents, and contractors, and all tenants and other occupants from
causing or permitting any Prohibited Activities or Conditions. Indemnitor shall not lease
or allow the sublease or use of all or any portion of the Mortgaged Property to any tenant
or subtenant for nonresidential use by any user that, in the ordinary course of its business,
would cause or permit any Prohibited Activity or Condition.
(d) If and as required by Funding Lender, Borrower shall also establish a
written operations and maintenance program with respect to certain Hazardous Materials.
Each such operations and maintenance program and any additional or revised operations
and maintenance programs established for the Mortgaged Property pursuant to this
Agreement must be approved by Funding Lender and shall be referred to herein as an
“O&M Program.” Borrower shall comply in a timely manner with, and cause all of its
employees, agents, and contractors and any other persons present on the Mortgaged
Property to comply with each O&M Program. Borrower shall pay all costs of
performance of its obligations under any O&M Program, and any Beneficiary Party’s
out-of-pocket costs incurred by such Beneficiary Party in connection with the monitoring
and review of each O&M Program and Borrower’s performance shall be paid by
Borrower upon demand by such Beneficiary Party.
(e) Without limitation of the foregoing, (1) Borrower hereby agrees to
implement and maintain during the entire term of the Borrower Loan the moisture
management program/microbial operations and maintenance program as described in the
Loan Covenant Agreement, and (2) if asbestos-containing materials are found to exist at
the Mortgaged Property, the O&M Program with respect thereto shall be undertaken
consistent with the Guidelines for Controlling Asbestos-Containing Materials in
Buildings (USEPA, 1985) and other relevant guidelines and applicable Hazardous
Materials Laws.
(f) With respect to any O&M Program, Funding Lender may require (1)
periodic notices or reports to Funding Lender in form, substance and at such intervals as
Funding Lender may specify; (2) amendments to such O&M Program to address
changing circumstances, laws or other matters, including without limitation variations in
response to reports provided by environmental consultants; and (3) execution of an
6 Vista Breeze
Operations and Maintenance Agreement relating to such O&M Program reasonably
satisfactory to Funding Lender.
4. Representations and Warranties. Each Indemnitor represents and warrants to
Beneficiary Parties that, except as otherwise disclosed in the environmental reports described on
Exhibit A (the “Environmental Reports”):
(a) Indemnitor has not at any time engaged in, caused or permitted any
Prohibited Activities or Conditions;
(b) to the best of Indemnitor’s knowledge after reasonable and diligent
inquiry, no Prohibited Activities or Conditions exist or have existed; and Indemnitor has
provided Funding Lender with copies of all reports and information acquired in such
inquiries;
(c) the Mortgaged Property (1) does not now contain any underground storage
tanks, and (2) to the best of Indemnitor’s knowledge, has not contained any underground
storage tanks in the past. If there is an underground storage tank located on the
Mortgaged Property which has been disclosed in the Environmental Reports, that tank
complies with all requirements of Hazardous Materials Laws;
(d) Indemnitor has complied with and will continue to comply with all
Hazardous Materials Laws, including all requirements for notification regarding releases
of Hazardous Materials. Without limiting the generality of the foregoing, Indemnitor has
obtained all Environmental Permits required for the operation of the Mortgaged Property
in accordance with Hazardous Materials Laws now in effect and all such Environmental
Permits are in full force and effect;
(e) to the best of Indemnitor’s knowledge, after reasonable and diligent
inquiry, no event has occurred with respect to the Mortgaged Property that constitutes, or
with the passing of time or the giving of notice would constitute, noncompliance with the
terms of any Environmental Permit or Hazardous Materials Law;
(f) there are no actions, suits, claims or proceedings pending or, to the best of
Indemnitor’s knowledge after reasonable and diligent inquiry, threatened that involve the
Mortgaged Property and allege, arise out of, or relate to any Prohibited Activity or
Condition;
(g) Indemnitor has not received any complaint, order, notice of violation or
other communication from any Governmental Authority with regard to air emissions,
water discharges, noise emissions or Hazardous Materials, or any other environmental,
health or safety matters affecting the Mortgaged Property or any other property of
Indemnitor that is adjacent to the Mortgaged Property;
(h) no prior Remedial Work (as defined below) has been undertaken, and no
Remedial Work is ongoing, with respect to the Mortgaged Property during Borrower’s
ownership thereof or, to the best of Indemnitor’s knowledge after reasonable and diligent
7 Vista Breeze
inquiry, at any time prior to Borrower’s ownership thereof, except as set forth in the
Environmental Reports; and
(i) Indemnitor has disclosed herein all material facts known to Indemnitor or
contained in Indemnitor’s records, the nondisclosure of which could cause any
representation and warranty made herein or any statement made in the Environmental
Report to be false or materially misleading.
The representations and warranties in this Agreement shall be continuing representations
and warranties that shall be deemed to be made by each Indemnitor throughout the term of the
Borrower Loan until the Indebtedness has been paid in full or otherwise discharged.
5. Covenants of Indemnitor. Each Indemnitor does hereby covenant and agree
with Indemnitees that:
(a) Indemnitor shall promptly notify Funding Lender in writing upon the
occurrence of any of the following events:
(i) Indemnitor’s discovery of any Prohibited Activity or Condition;
(ii) Indemnitor’s receipt of or knowledge of any complaint, order,
notice of violation or other communication from any tenant, management agent,
Governmental Authority or other person with regard to present or future alleged
Prohibited Activities or Conditions or any other environmental, health or safety
matters affecting the Mortgaged Property or any other property of any Indemnitor
that is adjacent to the Mortgaged Property;
(iii) Indemnitor’s receipt of or knowledge of any personal injury claim,
proceeding or cause of action directly or indirectly arising as a result of the
presence of asbestos or other Hazardous Materials on or from the Mortgaged
Property;
(iv) Indemnitor’s discovery that any representation or warranty in this
Agreement has become untrue after the date of this Agreement; and
(v) any Indemnitor’s breach of any of its obligations under this
Agreement.
Any such notice given by Indemnitor shall not relieve Indemnitor of, or result in a waiver
of, any obligation under this Agreement, or any Borrower Loan Document.
(b) Indemnitor shall pay promptly the costs of any environmental inspections,
tests or audits (“Environmental Inspections”) required by Funding Lender or any
Beneficiary Party in connection with any foreclosure or deed in lieu of foreclosure, or as
a condition of Funding Lender’s consent to any Transfer, or required by Funding Lender
following a reasonable determination by Funding Lender that Prohibited Activities or
Conditions may exist. The results of all Environmental Inspections shall at all times
remain the property of Funding Lender and Funding Lender shall have no obligation to
8 Vista Breeze
disclose or otherwise make available to Indemnitor or any other party such results or any
other information obtained by Funding Lender in connection with its Environmental
Inspections. Funding Lender hereby reserves the right, and Indemnitor hereby expressly
authorizes Funding Lender, to make available to any party, including any prospective
bidder at a foreclosure sale of the Mortgaged Property, the results of any Environmental
Inspections with respect to the Mortgaged Property. Indemnitor consents to Funding
Lender notifying any party (either as part of a notice of sale or otherwise) of the results of
any Environmental Inspections. Indemnitor acknowledges that Beneficiary Parties
cannot control or otherwise assure the truthfulness or accuracy of the results of any of the
Environmental Inspections and that the release of such results to prospective bidders at a
foreclosure sale of the Mortgaged Property may have a material and adverse effect upon
the amount which a party may bid at such sale. Indemnitor agrees that no Beneficiary
Party shall have any liability whatsoever as a result of delivering the results of any of the
Environmental Inspections to any third party, and Indemnitor hereby releases and forever
discharges Beneficiary Parties from any and all claims, damages, or causes of action,
arising out of, connected with or incidental to the results of, the delivery of any
Environmental Inspections.
(c) If any investigation, site monitoring, containment, clean-up, restoration or
other remedial work (“Remedial Work”) is necessary to comply with or cure a violation
of any Hazardous Materials Law or order of any Governmental Authority that has or
acquires jurisdiction over the Mortgaged Property or the use, operation or improvement
of the Mortgaged Property under any Hazardous Materials Law, or is otherwise required
by Funding Lender as a consequence of any Prohibited Activity or Condition or to
prevent the occurrence of a Prohibited Activity or Condition, Indemnitor shall, by the
earlier of (1) the applicable deadline required by such Hazardous Materials Law or
(2) thirty (30) days after notice from Funding Lender, demanding such action, begin
performing the Remedial Work, and thereafter diligently prosecute it to completion, and
shall in any event complete the work by the time required by such Hazardous Materials
Law. Indemnitor shall promptly provide Funding Lender with a cost estimate from an
environmental consultant reasonably acceptable to Funding Lender to complete any
required Remedial Work. If required by Funding Lender, Indemnitor shall promptly
establish with Funding Lender a reserve fund in the amount of such estimate. If, in
Funding Lender’s reasonable opinion, the amount reserved at any time during the
Remedial Work is insufficient to cover the work remaining to complete the Remedial
Work or achieve compliance, Indemnitor shall increase the amount reserved in
compliance with Funding Lender’s written request. All amounts so held in reserve, until
disbursed, are pledged to Beneficiary Parties as security for payment of Indemnitor’s
obligations under this Agreement. If Indemnitor fails to begin on a timely basis or
diligently prosecute any required Remedial Work, Funding Lender may, at its option,
cause the Remedial Work to be completed, in which case Indemnitor shall reimburse
Beneficiary Parties on demand for the cost of doing so.
(d) Indemnitor shall comply with all Hazardous Materials Laws applicable to
the Mortgaged Property. Without limiting the generality of the previous sentence,
Indemnitor shall (1) obtain and maintain all Environmental Permits required by
Hazardous Materials Laws and comply with all conditions of such Environmental
9 Vista Breeze
Permits; (2) cooperate with any inquiry by any Governmental Authority; and (3) comply
with any governmental or judicial order that arises from any alleged Prohibited Activity
or Condition.
6. Indemnification.
(a) INDEMNITOR SHALL INDEMNIFY, HOLD HARMLESS AND
DEFEND INDEMNITEES FROM AND AGAINST ALL LOSSES, PROCEEDINGS,
CLAIMS, DAMAGES, PENALTIES AND COSTS (WHETHER INITIATED OR
SOUGHT BY GOVERNMENTAL AUTHORITIES OR PRIVATE PARTIES),
INCLUDING, WITHOUT LIMITATION, FEES AND OUT-OF-POCKET EXPENSES
OF ATTORNEYS AND EXPERT WITNESSES, ENGINEERING FEES,
ENVIRONMENTAL CONSULTANT FEES, INVESTIGATORY FEES AND
REMEDIATION COSTS (INCLUDING, WITHOUT LIMITATION, ANY
FINANCIAL ASSURANCES REQUIRED TO BE POSTED FOR COMPLETION OF
REMEDIAL WORK AND COSTS ASSOCIATED WITH ADMINISTRATIVE
OVERSIGHT), AND OF ANY LIABILITIES OF WHATEVER KIND AND NATURE,
WHETHER INCURRED IN CONNECTION WITH ANY JUDICIAL OR
ADMINISTRATIVE PROCESS OR OTHERWISE, ARISING DIRECTLY OR
INDIRECTLY FROM ANY OF THE FOLLOWING:
(i) ANY BREACH OF ANY REPRESENTATION OR
WARRANTY OF ANY INDEMNITOR IN THIS AGREEMENT;
(ii) ANY FAILURE BY ANY INDEMNITOR TO PERFORM ANY
OF ITS OBLIGATIONS UNDER THIS AGREEMENT;
(iii) THE EXISTENCE OR ALLEGED EXISTENCE OF ANY
PROHIBITED ACTIVITY OR CONDITION;
(iv) THE PRESENCE OR ALLEGED PRESENCE OF HAZARDOUS
MATERIALS ON OR UNDER THE MORTGAGED PROPERTY OR IN ANY
OF THE IMPROVEMENTS OR ON OR UNDER ANY PROPERTY OF ANY
INDEMNITOR THAT IS ADJACENT TO THE MORTGAGED PROPERTY;
(v) THE ACTUAL OR ALLEGED VIOLATION OF ANY
HAZARDOUS MATERIALS LAW;
(vi) ANY LOSS OR DAMAGE RESULTING FROM A LOSS OF
PRIORITY OF THE SECURITY INSTRUMENT OR ANY OTHER
BORROWER LOAN DOCUMENT DUE TO AN IMPOSITION OF A LIEN
AGAINST THE MORTGAGED PROPERTY; AND
(vii) ANY PERSONAL INJURY CLAIM, PROCEEDING OR CAUSE
OF ACTION DIRECTLY OR INDIRECTLY ARISING AS A RESULT OF THE
PRESENCE OF ASBESTOS OR OTHER HAZARDOUS MATERIALS ON OR
FROM THE MORTGAGED PROPERTY.
10 Vista Breeze
(b) COUNSEL SELECTED BY ANY INDEMNITOR TO DEFEND
INDEMNITEES SHALL BE SUBJECT TO THE APPROVAL OF THOSE
INDEMNITEES. IN ANY CIRCUMSTANCES IN WHICH THE INDEMNITY
UNDER THIS AGREEMENT APPLIES, ANY BENEFICIARY PARTY MAY
EMPLOY ITS OWN LEGAL COUNSEL AND CONSULTANTS TO PROSECUTE,
DEFEND OR NEGOTIATE ANY CLAIM OR LEGAL OR ADMINISTRATIVE
PROCEEDING AT INDEMNITOR’S EXPENSE, AND SUCH BENEFICIARY
PARTY, WITH THE PRIOR WRITTEN CONSENT OF INDEMNITOR (WHICH
SHALL NOT BE UNREASONABLY WITHHELD, DELAYED OR CONDITIONED)
MAY SETTLE OR COMPROMISE ANY ACTION OR LEGAL OR
ADMINISTRATIVE PROCEEDING. INDEMNITOR SHALL REIMBURSE SUCH
BENEFICIARY PARTY UPON DEMAND FOR ALL COSTS AND EXPENSES
INCURRED BY SUCH BENEFICIARY PARTY, INCLUDING, WITHOUT
LIMITATION, ALL COSTS OF SETTLEMENTS ENTERED INTO IN GOOD FAITH
AND THE FEES AND OUT-OF-POCKET EXPENSES OF SUCH ATTORNEYS AND
CONSULTANTS.
(c) INDEMNITOR SHALL NOT, WITHOUT THE PRIOR WRITTEN
CONSENT OF THOSE INDEMNITEES WHO ARE NAMED AS PARTIES TO A
CLAIM OR LEGAL OR ADMINISTRATIVE PROCEEDING (A “CLAIM”), SETTLE
OR COMPROMISE THE CLAIM IF THE SETTLEMENT (1) RESULTS IN THE
ENTRY OF ANY JUDGMENT THAT DOES NOT INCLUDE AS AN
UNCONDITIONAL TERM THE DELIVERY BY THE CLAIMANT OR PLAINTIFF
TO BENEFICIARY PARTIES OF A WRITTEN RELEASE OF THOSE
INDEMNITEES, SATISFACTORY IN FORM AND SUBSTANCE TO FUNDING
LENDER; OR (2) MAY MATERIALLY AND ADVERSELY AFFECT
BENEFICIARY PARTIES, AS DETERMINED BY FUNDING LENDER IN ITS
DISCRETION.
(d) INDEMNITOR’S OBLIGATION TO INDEMNIFY THE
INDEMNITEES SHALL NOT BE LIMITED OR IMPAIRED BY ANY OF THE
FOLLOWING, OR BY ANY FAILURE OF ANY INDEMNITOR OR ANY
GUARANTOR TO RECEIVE NOTICE OF OR CONSIDERATION FOR ANY OF
THE FOLLOWING:
(i) ANY AMENDMENT OR MODIFICATION OF ANY
BORROWER LOAN DOCUMENT;
(ii) ANY EXTENSIONS OF TIME FOR PERFORMANCE
REQUIRED BY ANY BORROWER LOAN DOCUMENT;
(iii) ANY PROVISION IN ANY BORROWER LOAN DOCUMENT
LIMITING BENEFICIARY PARTIES’ RECOURSE TO ANY PROPERTY
SECURING THE INDEBTEDNESS, OR LIMITING THE PERSONAL
LIABILITY OF ANY INDEMNITOR OR ANY OTHER PARTY FOR
PAYMENT OF ALL OR ANY PART OF THE INDEBTEDNESS;
11 Vista Breeze
(iv) THE ACCURACY OR INACCURACY OF ANY
REPRESENTATIONS AND WARRANTIES MADE BY ANY INDEMNITOR
UNDER THIS AGREEMENT OR ANY BORROWER LOAN DOCUMENT;
(v) THE RELEASE OF ANY INDEMNITOR OR ANY OTHER
PERSON, BY BENEFICIARY PARTIES OR BY OPERATION OF LAW,
FROM PERFORMANCE OF ANY OBLIGATION UNDER ANY BORROWER
LOAN DOCUMENT;
(vi) THE RELEASE OR SUBSTITUTION IN WHOLE OR IN PART
OF ANY SECURITY FOR THE INDEBTEDNESS; AND
(vii) FAILURE BY BENEFICIARY PARTIES TO PROPERLY
PERFECT ANY LIEN OR SECURITY INTEREST GIVEN AS SECURITY
FOR THE INDEBTEDNESS.
(e) INDEMNITOR SHALL, AT ITS OWN COST AND EXPENSE, DO
ALL OF THE FOLLOWING:
(i) PAY OR SATISFY ANY JUDGMENT OR DECREE THAT
MAY BE ENTERED AGAINST ANY INDEMNITEE OR INDEMNITEES IN
ANY LEGAL OR ADMINISTRATIVE PROCEEDING INCIDENT TO ANY
MATTERS AGAINST WHICH INDEMNITEES ARE ENTITLED TO BE
INDEMNIFIED UNDER THIS AGREEMENT;
(ii) REIMBURSE INDEMNITEES FOR ANY AND ALL
EXPENSES PAID OR INCURRED IN CONNECTION WITH ANY MATTERS
AGAINST WHICH INDEMNITEES ARE ENTITLED TO BE INDEMNIFIED
UNDER THIS AGREEMENT; AND
(iii) REIMBURSE INDEMNITEES FOR ANY AND ALL
EXPENSES, INCLUDING, WITHOUT LIMITATION, FEES AND OUT-OF-
POCKET EXPENSES OF ATTORNEYS AND EXPERT WITNESSES, PAID
OR INCURRED IN CONNECTION WITH THE ENFORCEMENT BY
INDEMNITEES OF THEIR RIGHTS UNDER THIS AGREEMENT, OR IN
MONITORING AND PARTICIPATING IN ANY LEGAL OR
ADMINISTRATIVE PROCEEDING.
7. Obligation Not Secured by Security Instrument. Notwithstanding any
provision of the Security Instrument or any of the other Borrower Loan Documents to the
contrary: (i) the rights of the Beneficiary Parties under this Agreement shall not be secured by
the Security Instrument, and (ii) the rights of the Beneficiary Parties under this Agreement shall
not be affected by any provision of the Borrower Loan Documents limiting Funding Lender’s or
any other party’s recourse or Indemnitor’s or any other party’s liability for the Borrower Loan or
any other Indebtedness.
8. Survival. This Agreement shall survive the satisfaction or release of the Security
Instrument and the other Borrower Loan Documents by full and final payment of all obligations
12 Vista Breeze
of Indemnitor to Beneficiary Parties, by foreclosure of Borrower’s equity of redemption in the
Mortgaged Property (whether by power of sale or judicial proceedings), by deed in lieu of
foreclosure or by any other comparable means and the conveyance or disposition of any
Indemnitor’s interest in the Mortgaged Property, and shall continue in full force and effect
forever, irrespective of any such foreclosure and/or satisfaction of the obligations of any
Indemnitor in connection with the Borrower Loan.
9. Conflicting Provisions. Borrower acknowledges and agrees that its covenants
and obligations hereunder are in addition to, and separate and distinct from, the obligations under
the Security Instrument.
10. Joint and Several Liability. If more than one person executes this Agreement,
the obligations of those persons under this Agreement and any other Indemnitor (an “Other
Indemnitor”) shall be joint and several. Beneficiary Parties, in their sole and absolute discretion,
may (a) bring suit against Indemnitor, or any one or more of the persons constituting Indemnitor,
and any Other Indemnitor, jointly and severally, or against any one or more of them; (b)
compromise or settle with any one or more of the persons constituting Indemnitor or any Other
Indemnitor for such consideration as Beneficiary Parties may deem proper; (c) release one or
more of the persons constituting Indemnitor, or any Other Indemnitor, from liability; and/or (d)
otherwise deal with Indemnitor and any Other Indemnitor, or any one or more of them, in any
manner, and no such action shall impair the rights of Beneficiary Parties to collect from
Indemnitor any amount owed by Indemnitor under this Agreement. Nothing contained in this
paragraph shall in any way affect or impair the rights or obligations of Indemnitor with respect to
any Other Indemnitor.
11. Intentionally Omitted.
12. Determinations by Funding Lender. Except to the extent expressly set forth in
this Agreement to the contrary, in any instance where the consent or approval of Funding Lender
may be given or is required, or where any determination, judgment or decision is to be rendered
by Funding Lender under this Agreement, the granting, withholding or denial of such consent or
approval and the rendering of such determination, judgment or decision shall be made or
exercised by Funding Lender, as applicable (or its designated representative) at its sole and
exclusive option and in its sole and absolute discretion.
13. Release; Indemnity.
(a) Release. Without limiting the provisions of Section 6, Indemnitor
covenants and agrees that, in performing any of their rights or duties under this
Agreement, neither the Beneficiary Parties, nor their agents or employees, shall be liable
for any losses, claims, damages, liabilities and expenses that may be incurred by any of
them as a result of such performance, except to the extent such liability for any losses,
claims, damages, liabilities or expenses arises out of the willful misconduct or gross
negligence of such party.
(b) Indemnity. Without limiting the provisions of Section 6, Indemnitor
hereby agrees to indemnify and hold harmless the Beneficiary Parties and their respective
13 Vista Breeze
agents and employees from and against any and all losses, claims, damages, liabilities
and expenses including, without limitation, reasonable attorneys’ fees and costs and
disbursements, which may be imposed or incurred by any of them in connection with this
Agreement, except that no such party will be indemnified for any losses, claims,
damages, liabilities or expenses arising out of the willful misconduct or gross negligence
of such party.
14. Governing Law. This Agreement shall be governed by and enforced in
accordance with the laws of the Property Jurisdiction, without giving effect to the choice of law
principles of the Property Jurisdiction that would require the application of the laws of a
jurisdiction other than the Property Jurisdiction.
15. Consent to Jurisdiction and Venue. Indemnitor agrees that any controversy
arising under or in relation to this Agreement shall be litigated exclusively in the Property
Jurisdiction. The state and federal courts and authorities with jurisdiction in the Property
Jurisdiction shall have exclusive jurisdiction over all controversies which shall arise under or in
relation to this Agreement. Indemnitor irrevocably consents to service, jurisdiction, and venue of
such courts for any such litigation and waives any other venue to which it might be entitled by
virtue of domicile, habitual residence or otherwise. However, nothing herein is intended to limit
Beneficiary Parties’ right to bring any suit, action or proceeding relating to matters arising under
this Agreement against Indemnitor or any of Indemnitor’s assets in any court of any other
jurisdiction.
16. Successors and Assigns. This Agreement shall be binding upon Indemnitor and
its heirs, legal representatives, successors, successors-in-interest and assigns, as appropriate, and
shall inure to the benefit of the Beneficiary Parties and their respective successors, successors-in-
interest and assigns. The terms used to designate any of the parties herein shall be deemed to
include the heirs, legal representatives, successors, successors-in-interest and assigns, as
appropriate, of such parties. References to a “person” or “persons” shall be deemed to include
individuals and entities. Indemnitor acknowledges and agrees that any Beneficiary Party, at its
option, may assign its respective rights and interests under this Agreement and the other
Borrower Loan Documents in whole or in part and upon such assignment all the terms and
provisions of this Agreement or the other Borrower Loan Documents shall inure to the benefit of
such assignee to the extent so assigned. Indemnitor may not assign or delegate its rights,
interests or obligations under this Agreement without first obtaining Funding Lender’s prior
written consent.
17. Severability. The invalidity, illegality or unenforceability of any provision of
this Agreement shall not affect the validity, legality or enforceability of any other provision, and
all other provisions shall remain in full force and effect.
18. Expenses. Indemnitor shall pay to the Beneficiary Parties, upon demand, the
amount of any and all expenses, including, without limitation, reasonable attorneys’ fees
(including reasonable time charges of attorneys who may be employees of Beneficiary Parties),
which the Beneficiary Parties may incur in connection with (a) the exercise or enforcement of
any of their rights hereunder, (b) the failure by Indemnitor to perform or observe any of the
provisions hereof, or (c) the breach by Indemnitor of any representation or warranty of
14 Vista Breeze
Indemnitor set forth herein. Such expenses, together with interest thereon computed at the
Default Rate set forth in the Borrower Note from the date on which such expenses are incurred to
the date of payment thereof, shall constitute indebtedness secured by the Security Instrument.
19. Remedies Cumulative. In the event of Indemnitor’s default under this
Agreement, the Beneficiary Parties may exercise all or any one or more of their rights and
remedies available under this Agreement, at law or in equity. Such rights and remedies shall be
cumulative and concurrent, and may be enforced separately, successively or together, and the
exercise of any particular right or remedy shall not in any way prevent the Beneficiary Parties
from exercising any other right or remedy available to the Beneficiary Parties. The Beneficiary
Parties may exercise any such remedies from time to time as often as may be deemed necessary
by the Beneficiary Parties.
20. No Agency or Partnership. Nothing contained in this Agreement shall
constitute any Beneficiary Party as a joint venturer, partner or agent of Indemnitor, or render any
Beneficiary Party liable for any debts, obligations, acts, omissions, representations or contracts
of Indemnitor.
21. Transfer of Mortgaged Property or Ownership Interests in Borrower. If a
Transfer (as defined in the Security Instrument) of all or part of the Mortgaged Property or of an
ownership interest in Borrower shall occur, which Transfer requires the prior written consent of
Funding Lender, the transferee(s) shall be required to assume the transferor’s duties and
obligations under this Agreement and the other Borrower Loan Documents and shall be required
to execute and deliver to Funding Lender such documents as Funding Lender requires to
effectuate such assumption of duties and obligations. No transfer and assumption shall relieve
the transferor of any of its duties or obligations under this Agreement or any of the other
Borrower Loan Documents, unless the Borrower has obtained the prior written consent of
Funding Lender to the release of such duties and obligations.
22. Entire Agreement; Amendment and Waiver. This Agreement contains the
complete and entire understanding of the parties with respect to the matters covered herein. This
Agreement may not be amended, modified or changed, nor shall any waiver of any provision
hereof be effective, except by a written instrument signed by the party against whom
enforcement of the waiver, amendment, change, or modification is sought, and then only to the
extent set forth in that instrument. No specific waiver of any of the terms of this Agreement
shall be considered as a general waiver.
23. Further Assurances. Indemnitor shall at any time and from time to time,
promptly execute and deliver all further instruments and documents, and take all further action
that may be reasonably necessary or desirable, or that any Beneficiary Party may reasonably
request, in order to protect any right or interest granted by this Agreement or to enable the
Beneficiary Party to exercise and enforce its rights and remedies under this Agreement.
24. No Amendment; Conflicts. Nothing contained in this Agreement shall be
construed to amend, modify, alter, change or supersede the terms and provisions of the Borrower
Note, the Security Instrument or the Borrower Loan Agreement; and, if there is a conflict
between the terms and provisions of this Agreement and those of the Borrower Note, the
15 Vista Breeze
Security Instrument or the Borrower Loan Agreement, then the terms and provisions of the
Borrower Note, the Security Instrument or the Borrower Loan Agreement shall control.
25. Notices. All notices to be given by any Beneficiary Party to Guarantor shall be
given to Borrower, at the address and in the same manner as notices to Borrower pursuant to the
notice provisions contained in the Security Instrument. All other notices given under this
Agreement shall be in writing and shall be sent to the respective addresses of the parties, in the
manner set forth in the Security Instrument.
26. Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall constitute an original document and all of which together shall constitute one
agreement.
27. Captions. The captions of the sections of this Agreement are for convenience
only and shall be disregarded in construing this Agreement.
28. Servicer. Indemnitor hereby acknowledges and agrees that, pursuant to the terms
of the Security Instrument: (a) from time to time, Funding Lender may appoint a servicer to
collect payments, escrows and deposits, to give and to receive notices under the Borrower Note,
this Agreement or the other Borrower Loan Documents, and to otherwise service the Borrower
Loan and (b) unless Indemnitor receives written notice from Funding Lender to the contrary, any
action or right which shall or may be taken or exercised by Funding Lender may be taken or
exercised by such servicer with the same force and effect.
29. Beneficiary Parties as Third Party Beneficiary. Each of the Beneficiary Parties
shall be a third party beneficiary of this Agreement for all purposes.
30. Waiver of Trial by Jury. TO THE MAXIMUM EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF INDEMNITOR AND THE BENEFICIARY
PARTIES (A) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY WITH
RESPECT TO ANY ISSUE ARISING OUT OF THIS AGREEMENT OR THE
RELATIONSHIP BETWEEN THE PARTIES THAT IS TRIABLE OF RIGHT BY A JURY
AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE
TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS
WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY,
KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL
COUNSEL.
31. Time of the Essence. Time is of the essence with respect to this Agreement.
32. Modifications. All modifications (if any) to the terms of this Agreement
(“Modifications”) are set forth on Exhibit B attached to this Agreement. In the event of a
Transfer under the terms of the Security Instrument (other than a Permitted Transfer that does
not require the consent of the Funding Lender), some or all of the Modifications to this
Agreement may be modified or rendered void by Funding Lender at its option by notice to
Indemnitor or such transferee.
16 Vista Breeze
33. Attached Exhibits. The following Exhibits are attached to this Agreement and
are incorporated by reference herein as if more fully set forth in the text hereof:
Exhibit A – Environmental Reports
Exhibit B – Modifications to Agreement of Environmental Indemnification
The terms of this Agreement are modified and supplemented as set forth in said Exhibits.
To the extent of any conflict or inconsistency between the terms of said Exhibits and the text of
this Agreement, the terms of said Exhibits shall be controlling in all respects.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
S-1 Vista Breeze
IN WITNESS WHEREOF, each of the undersigned has duly executed and delivered this
Agreement of Environmental Indemnification or caused this Agreement of Environmental
Indemnification to be duly executed and delivered by its authorized representative as of the date
first set forth above.
BORROWER:
VISTA BREEZE, LTD.,
a Florida limited partnership
By: APC Vista Breeze, LLC,
a Florida limited liability company,
Duly Authorized
By: ________________________
Name:
Title:
S-3 Vista Breeze
GUARANTOR:
HOWARD D. COHEN REVOCABLE TRUST
U/A/D 4/6/1993
By: _________________________________
Name: Howard D. Cohen
Title: Trustee
A-1 Vista Breeze
EXHIBIT A
ENVIRONMENTAL REPORTS
1. Phase I Environmental Site Assessment (ESA) report (280-300 South Shore Drive)
prepared for Vista Breeze Ltd. by Hydrologic Associates U.S.A., Inc. and dated October 6,
2023
2. Phase I ESA report (165-185 South Shore Drive) prepared for Vista Breeze Ltd. by
Hydrologic Associates U.S.A., Inc. and dated October 6, 2023
B-1 Vista Breeze
EXHIBIT B
MODIFICATIONS TO
AGREEMENT OF ENVIRONMENTAL INDEMNIFICATION
The following modifications are made to the text of the Agreement that precedes this
Exhibit:
None.
Capitalized terms used and not defined herein shall have the respective meanings
ascribed to them in the Agreement.
4872-6931-1370v.3
D
Forward Purchase Agreement Vista Breeze
EXHIBIT D-10 TO FORWARD PURCHASE AGREEMENT
FORM OF LOAN COVENANT AGREEMENT
[See attached]
EXHIBIT D-10 TO FORWARD PURCHASE AGREEMENT
FORM OF
LOAN COVENANT AGREEMENT
by and between
VISTA BREEZE, LTD.
as Borrower
and
CITIBANK, N.A.
as Funding Lender
Dated as of
[Month] 1, 202[_]
Relating to:
$[11,875,000][NOTE: AS MAY BE INCREASED PER THE EARN-OUT]
Borrower Loan by the Housing Finance Authority of Miami-Dade County, Florida
as Governmental Lender
TABLE OF CONTENTS
Page
Loan Covenant Agreement -i- Vista Breeze
ARTICLE 1 DEFINITIONS. ........................................................................................................2
1.1 Definitions. ..............................................................................................................2
1.2 Accounting Terms.. ................................................................................................5
1.3 Other Interpretive Provisions. ..............................................................................5
ARTICLE 2 CONDITIONS PRECEDENT. ................................................................................5
2.1 Documents. .............................................................................................................5
2.2 Other Requirements ..............................................................................................7
2.3 Representations Correct; No Default ...................................................................8
ARTICLE 3 INTENTIONALLY OMITTED. .............................................................................8
ARTICLE 4 TITLE INSURANCE...............................................................................................8
ARTICLE 5 INTENTIONALLY OMITTED. .............................................................................9
ARTICLE 6 REPRESENTATIONS AND COVENANTS..........................................................9
6.1 Borrower Representations ....................................................................................9
ARTICLE 7 INTENTIONALLY OMITTED. ...........................................................................13
ARTICLE 8 EVENTS OF DEFAULT AND REMEDIES. .......................................................13
8.1 Events of Default. .................................................................................................13
8.2 Remedies. ..............................................................................................................13
ARTICLE 9 MISCELLANEOUS. .............................................................................................16
9.1 Notices. ..................................................................................................................16
9.2 Brokers and Financial Advisors. ......................................................................16
9.3 Survival. . .............................................................................................................16
9.4 Preferences............................................................................................................16
9.5 Waiver of Notice ...................................................................................................16
9.6 Offsets, Counterclaims and Defenses.. ...............................................................17
9.7 Publicity. ...............................................................................................................17
9.8 Construction of Documents .................................................................................17
9.9 No Third Party Beneficiaries.. ............................................................................17
9.10 Funding Lender and Servicer Not in Control; No Partnership. .....................17
9.11 Release ...................................................................................................................18
9.12 Reimbursement of Expenses. ..............................................................................18
TABLE OF CONTENTS
(Continued)
Page
Loan Covenant Agreement -ii- Vista Breeze
9.13 Relationships with Other Customers.. ...............................................................18
9.14 Permitted Contests.. .............................................................................................18
9.15 Funding Lender Approval of Instruments and Parties ....................................19
9.16 Funding Lender Determination of Facts.. .........................................................19
9.17 Calendar Months. ................................................................................................19
9.18 Determinations by Funding Lender. ..................................................................19
9.19 Governing Law.. ...................................................................................................20
9.20 Consent to Jurisdiction and Venue. ...................................................................20
9.21 Successors and Assigns.. ......................................................................................20
9.22 Severability.. .........................................................................................................20
9.23 Transfer of Mortgaged Property or Ownership Interest in Borrower............20
9.24 Entire Agreement; Amendment and Waiver.. ...................................................20
9.25 Counterparts.. ......................................................................................................21
9.26 Captions. ...............................................................................................................21
9.27 Servicer. . ..............................................................................................................21
9.28 Beneficiary Parties as Third Party Beneficiary ................................................21
9.29 Waiver of Trial by Jury. ......................................................................................21
9.30 Time of the Essence.. ............................................................................................21
9.31 Limitation on Liability. .......................................................................................21
9.32 Modifications.. ......................................................................................................22
ARTICLE 10 INCORPORATION OF EXHIBITS. ....................................................................22
Exhibit A — Legal Description of the Land
Exhibit B — Modifications to Loan Covenant Agreement
Exhibit C — Form of Estoppel Certificate
Loan Covenant Agreement Vista Breeze
LOAN COVENANT AGREEMENT
This LOAN COVENANT AGREEMENT (this “Agreement”), is entered into as of
[Date] 1, 202[_], by and between VISTA BREEZE, LTD., a Florida limited partnership
(“Borrower”), and CITIBANK, N.A., a national banking association (together with its successors
and assigns, “Funding Lender”).
RECITALS:
A. The Housing Authority of the City of Miami Beach, a public body corporate and
politic established pursuant to Chapter 421, Florida Statutes (“Ground Lessor”), is the legal owner
of fee simple title to that certain property located in the City of Miami Beach, Miami-Dade County,
Florida, as more particularly described on Exhibit A attached hereto (the “Land”), and pursuant
to that certain Second Amended and Restated Ground Lease (the “Ground Lease”), dated as of
December 15, 2023, between the Ground Lessor, as ground lessor, and the Borrower, as ground
lessee, the Borrower is the holder of a leasehold interest in the Land.
B. The Borrower previously applied to the Housing Finance Authority of Miami-Dade
County, Florida, a public body corporate and politic organized and existing under the laws of the
State of Florida (“Governmental Lender”) for a loan (the “Borrower Loan”) for the acquisition,
construction, development and/or equipping of a 119-unit multifamily residential project, located
in the City of Miami Beach, Miami-Dade County, Florida, known as Vista Breeze (the “Project”).
C. The Borrower previously requested that the Governmental Lender enter into that
certain Funding Loan Agreement, dated as of December 1, 2023 (the “Original Funding Loan
Agreement”), among the Governmental Lender, 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 Governmental Lender in the original principal amount
of $32,500,000 (the “Funding Loan”), the proceeds of which Governmental Lender used to make
the Borrower Loan pursuant to that certain Construction Phase Borrower Loan Agreement, dated
as of December 1, 2023, (the “Original Borrower Loan Agreement”), by and between the
Governmental Lender and the Borrower.
D. The Borrower Loan was evidenced by that certain Construction Phase Project Loan
Note dated as of December 15, 2023 (the “Original Borrower Note”), made by Borrower payable
to the order of Governmental Lender, as endorsed and assigned to Fiscal Agent for the benefit of
the Original Funding Lender.
E. The Borrower Loan was secured by, among other things, that certain Leasehold
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated as of December 15,
2023, executed by Borrower for the benefit of Governmental Lender (the “Original Security
Instrument”), which Original Security Instrument encumbers the Mortgaged Property (as
hereinafter defined).
F. The Original Borrower Note, the Original Security Instrument, the Original
Borrower Loan Agreement, the Funding Loan Documents (as defined in the Original Funding
Loan Agreement) and all other Borrower Loan Documents except for the Unassigned Rights (as
Loan Covenant Agreement -2- Vista Breeze
defined in the Original Funding Loan Agreement), were each assigned by Governmental Lender
to Fiscal Agent for the benefit of Original Funding Lender to secure the Funding Loan.
G. At the request of Borrower, the Borrower, 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 the Funding Lender agreed to acquire
Original Funding Lender’s interests in the Funding Loan and Funding Loan Documents upon
satisfaction of the terms and conditions set forth therein (the “Loan Purchase Conditions”).
H. Insofar as the Loan Purchase Conditions have been satisfied or waived, Funding
Lender has acquired the Funding Loan from the Original Funding Lender and, in connection
therewith, (i) Funding Lender has agreed to, and, concurrently herewith, has entered into that
certain Amended and Restated Funding Loan Agreement, dated as of the date hereof (the
“Funding Loan Agreement”), by and among Governmental Lender, Fiscal Agent, and Funding
Lender; (ii) Borrower and Governmental Lender have entered into that certain Amended and
Restated Borrower Loan Agreement, dated as of the date hereof (the “Borrower Loan
Agreement”), which amends and restates the Original Borrower Loan Agreement; (iii) Borrower
has executed and delivered that certain Amended and Restated Multifamily Note, dated as of [_]
[_], 20[_], in the principal amount of $[11,875,000] [NOTE: AS MAY BE INCREASED PER
THE EARN-OUT] (the “Borrower Note”), which amends and restates the Original Borrower
Note; and (iv) Borrower has executed and delivered that certain Amended and Restated
Multifamily Leasehold Mortgage, Assignment of Rents, Security Agreement and Fixture Filing
(Florida), dated as of the date hereof (the “Security Instrument”), which Security Instrument
encumbers the leasehold interest in the real property and improvements of the Project and amends
and restates the Original Security Instrument.
I. In connection with the foregoing, Funding Lender and Borrower have agreed to
enter into this Agreement (together with the Borrower Note, the Security Instrument, the Borrower
Loan Agreement and all other documents executed in connection with the Borrower Loan,
including this Agreement, the “Borrower Loan Documents”), for the purpose of stipulating
certain additional covenants and agreements with respect to the Borrower Loan.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants herein
contained, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Funding Lender and Borrower agree as follows:
ARTICLE 1 DEFINITIONS.
1.1 Definitions. As used herein, the following terms have the meanings set forth
below; provided, however, that any capitalized terms not otherwise defined herein shall have the
meanings ascribed to such terms in the Borrower Loan Agreement:
“Agreement” shall mean this Loan Covenant Agreement, as amended, modified,
supplemented or restated from time to time including all the exhibits, appendices and schedules
attached hereto, all of which are incorporated herein by this reference and made a part hereof.
Loan Covenant Agreement -3- Vista Breeze
“Beneficiary Parties” as used herein shall mean Funding Lender, Governmental Lender,
Fiscal Agent, any Servicer and their respective successors and assigns. The term “Beneficiary
Parties” shall also include any lawful owner, holder or pledgee of the Original Borrower Note.
“Borrower” has the meaning given to that term in the introductory paragraph of this
Agreement, together with its successors or assigns by merger, acquisition or otherwise, subject to
Section 9.21.
“Borrower Loan” has the meaning set forth in the Recitals.
“Borrower Loan Agreement” has the meaning set forth in the Recitals.
“City” shall mean the City of Miami Beach, Florida.
“City HOME Loan” means the subordinate loan in the aggregate principal amount of
$1,003,969 made by the City to Borrower.
“County” shall mean the County of Miami-Dade, Florida.
“ELI Loan” shall mean the subordinate loan in the aggregate principal amount of $600,000
made by FHFC to Borrower.
“Event of Default” has the meaning given to that term in Section 8.1.
“FHFC” shall mean the Florida Housing Finance Corporation.
“Financing Statements” shall mean those certain UCC-1 financing statements designating
Borrower as debtor, Governmental Lender as secured party and Funding Lender as assignee
secured party, intended to perfect Governmental Lender’s security interest in the Collateral now
owned or hereafter acquired by Borrower, in form and substance satisfactory to Funding Lender,
to be filed in the Office of the Secretary of State of the State, and in such other offices for recording
or filing such statements in such jurisdictions as Funding Lender shall desire to perfect
Governmental Lender’s security interest or to reflect such interest in appropriate public records.
“Forward Purchase Agreement” has the meaning set forth in the Recitals.
“Guarantor” shall mean Howard D. Cohen Revocable Trust U/A/D/ 4/6/1993.
“Governmental Lender Note” shall mean that certain Multifamily Housing Revenue
Note, Series 2023 (Vista Breeze), dated December 15, 2023 in the original maximum principal
amount of $32,500,000, made by the Governmental Lender and payable to Funding Lender, as
may be amended, supplemented or replaced from time to time.
“Ground Lease” has the meaning set forth in the Recitals.
“Ground Lessor” has the meaning set forth in the Recitals.
“HACMB” shall mean the Housing Authority of the City of Miami Beach.
Loan Covenant Agreement -4- Vista Breeze
“HACMB Loan” means the subordinate loan in the aggregate principal amount of
$8,800,000 made by HACMB to Borrower.
“HAP Contract” shall mean that certain Housing Assistance Payments Contract, dated as
of [_], 20[_], between HACMB and Borrower, which shall cover 119 units.
“Improvements” shall mean the 119 -unit multifamily residential project located on the
Land, and known or to be known as Vista Breeze, and all other buildings, structures, fixtures,
equipment and other improvements and personal property constructed, rehabilitated and/or
installed at or on the Land.
“Material Property Agreement” has the meaning given to that term in the Security
Instrument.
“Mortgaged Property” has the meaning set forth in the Security Instrument.
“Multifamily Underwriting Guidelines” shall mean multifamily underwriting guidelines
generated by the Credit Enhancer (or if there is no Credit Enhancer, the Funding Lender’s internal
multifamily underwriting guidelines), as in effect from time to time.
“NHTF Loan” shall mean the subordinate loan in the aggregate principal amount of
$1,301,500 made by FHFC to Borrower.
“Origination Fee” shall mean an origination fee in an amount of $[NOTE: 1% OF
PERMANENT LOAN AMOUNT AND 1% OF EARN-OUT AMOUNT], which sum was fully
paid to Funding Lender concurrently with the closing of the Funding Loan, which Origination Fee
is non-refundable and was deemed fully earned by Funding Lender upon the execution of the
Forward Purchase Agreement by Funding Lender, Original Funding Lender and Borrower.
“Potential Default” shall mean any condition or event which, but for the lapse of time or
the giving of notice, or both, would constitute an Event of Default.
“SAIL Loan” shall mean the subordinate loan in the aggregate principal amount of
$3,000,000 made by FHFC to Borrower.
“Subordinate Debt” shall mean, individually and collectively, (i) the City HOME Loan
pursuant to the Subordinate Loan Documents, (ii) the Surtax Loan pursuant to the Subordinate
Loan Documents, (iii) the SAIL Loan pursuant to the Subordinate Loan Documents, (iv) the ELI
Loan pursuant to the Subordinate Loan Documents, (v) the NHTF Loan pursuant to the
Subordinate Loan Documents, (vi) the Viability Loan pursuant to the Subordinate Loan
Documents, and (vii) the HACMB Loan pursuant to the Subordinate Loan Documents.
“Subordinate Lender” shall mean, individually and collectively, (i) the City, (ii) the
County, (iii) FHFC, and (iv) HACMB.
“Subordinate Loan Documents” shall mean, collectively, all instruments, agreements and
other documents evidencing, securing or otherwise relating to the Subordinate Debt or executed
and delivered by Borrower and/or Subordinate Lender in connection with the Subordinate Debt.
Loan Covenant Agreement -5- Vista Breeze
“Surtax Loan” shall mean the subordinate loan in the aggregate principal amount of
$5,950,000 made by the County to Borrower.
“Underwritten Management Fee” shall mean a fee per annum not to exceed six percent
(6%) of effective gross income from the Project.
“Viability Loan” shall mean the subordinate loan in the aggregate principal amount of
$4,300,000 made by FHFC to Borrower.
1.2 Accounting Terms. For purposes of this Agreement, all accounting terms not
otherwise defined herein or in the Recitals have the meanings assigned to them in conformity with
GAAP consistently applied.
1.3 Other Interpretive Provisions. References to “Articles”, “Sections”,
“subsections”, “paragraphs”, “subparagraphs”, “Appendices”, “Recitals” and “Exhibits” shall be
to Articles, Sections, subsections, paragraphs, subparagraphs, Appendices, Recitals, and Exhibits
of this Agreement unless otherwise specifically provided. Any of the terms defined in this
Article 1 may be used in singular or plural form. As used herein, the singular includes the plural,
and the masculine gender includes the feminine and neuter genders, and vice versa, unless the
context otherwise requires. In interpreting the meaning of this Agreement or of any other Borrower
Loan Document: (i) “includes” and “including” shall not be limiting; (ii) “or” shall not be
exclusive; and (iii) “all” shall include “any”, and “any” shall include “all”. Except as otherwise
provided herein, references to any document or instrument defined in this Article 1 are to such
document or instrument as amended or supplemented from time to time with Funding Lender’s
consent or as otherwise permitted by this Agreement. The titles and headings of articles, sections
or subsections of this Agreement are intended for convenience only and shall not in any way affect
the meaning or construction of any provision of this Agreement. No listing of specific instances,
items or matters as examples shall in any way limit the scope or generality of any language of this
Agreement. The language of this Agreement shall be construed as a whole according to its fair
meaning, and not strictly for or against any party.
For purposes of this Agreement, the term “Managing General Partner” shall refer to APC Vista
Breeze, LLC, the Class B limited partner of the Borrower.
ARTICLE 2 CONDITIONS PRECEDENT.
2.1 Documents. The purchase of the Borrower Loan by Funding Lender is expressly
conditioned upon (i) the satisfaction of all of the conditions set forth in Sections 2.1, 2.2 and 2.3;
(ii) the Title Company’s unconditional commitment to issue the Title Insurance Policy; and
(iii) Borrower’s delivery to Funding Lender of the following documents, together with such other
documents that Governmental Lender or Funding Lender may reasonably require, in form and
content satisfactory to Funding Lender, duly executed (and acknowledged where necessary) by the
appropriate parties thereto:
2.1.1 This Agreement, duly executed by Funding Lender and Borrower;
Loan Covenant Agreement -6- Vista Breeze
2.1.2 The Security Instrument, duly executed and acknowledged by
Borrower, which shall be duly delivered to the Title Company to be recorded in the official
records of the County;
2.1.3 The Financing Statement, which shall be duly filed with the
Secretary of State of the State and in such other offices for recording or filing such
statements in such jurisdictions as Funding Lender shall desire to perfect Governmental
Lender’s security interest or to reflect such interest in appropriate public records;
2.1.4 The other Security Documents;
2.1.5 An executed copy of the Partnership Agreement;
2.1.6 A true copy of all of the organizational documents of the Managing
General Partner, including, without limitation, the operating agreement and certificate of
limited partnership of the Managing General Partner;
2.1.7 A borrowing authorization of the Managing General Partner duly
executed by the Managing General Partner on behalf of Borrower;
2.1.8 An authorization of any Guarantor which is not an individual to
guaranty completion of the Project and payment of the Borrower Payment Obligations of
Borrower hereunder;
2.1.9 A signature authorization form and disbursement instructions, duly
executed by Borrower and by the authorized signatories specified therein;
2.1.10 Executed copies of the Management Agreement and Manager’s
consent to assignment of the Management Agreement, each in a form acceptable to
Funding Lender;
2.1.11 An environmental site assessment report with respect to the Project,
in form and substance acceptable to Funding Lender and prepared by an environmental
engineering firm acceptable to Funding Lender;
2.1.12 Originals or, if permitted by Funding Lender, certified copies, of
insurance policies evidencing the maintenance of insurance by Borrower required by the
Security Instrument;
2.1.13 The Title Insurance Policy;
2.1.14 An ALTA/NSPS survey and surveyor’s certificate, certified to
Borrower, Governmental Lender, Funding Lender, the Title Company and any other party
designated by Funding Lender, in form and substance acceptable to Funding Lender and
meeting the requirements of Funding Lender, including a legal description of the Project,
the square footage of the Project and currently existing Improvements (as well as whether
or not any portion of the Project is in a flood risk zone) showing the locations of the
currently existing Improvements, easements, building or setback lines, rights-of-way and
Loan Covenant Agreement -7- Vista Breeze
dedications affecting the Project, and showing no state of facts objectionable to Funding
Lender or the Title Company in their reasonable discretion;
2.1.15 Uniform Commercial Code lien searches and judgment, litigation
and bankruptcy searches, with respect to Borrower, Guarantor and each of Borrower’s
partners or members, from appropriate state and/or county offices;
2.1.16 Certificates issued by the Secretary of State of the State and the
relevant state of formation showing Borrower, the Managing General Partner and any
Guarantor which is not an individual, to be in existence and, if applicable, in good standing
under the laws of such state, together with certified organizational documents and
resolutions of the managing partners or members of Borrower authorizing and approving
the closing and consummation of the Borrower Loan and all instruments, documents and
agreements executed in connection therewith and of any Guarantor which is not an
individual authorizing and approving the Guaranties;
2.1.17 A written opinion from counsel for Borrower and Guarantor in all
respects satisfactory to Governmental Lender and Funding Lender;
2.1.18 Any other documents that Governmental Lender or Funding Lender
may reasonably request.
2.2 Other Requirements. The Funding Lender’s acquisition of the Borrower Loan
and of the Governmental Lender Note are subject to the further conditions that on or before the
date hereof:
2.2.1 All of the Conditions to Conversion (as such term is defined in the
Forward Purchase Agreement) shall have been satisfied unless expressly waived in writing
by the Funding Lender in its sole and absolute discretion;
2.2.2 The Borrower shall deliver an Estoppel Certificate, in the form
attached hereto as Exhibit C, from HACMB confirming that the Ground Lease is in effect
and that there are no defaults thereunder by the Borrower.;
2.2.3 Intentionally Omitted;
2.2.4 Funding Lender shall have received payment of all amounts
required by this Agreement to be paid to Funding Lender pursuant to the Forward Purchase
Agreement;
2.2.5 Funding Lender shall have received satisfactory evidence of the
availability to the Project of all public utility services and facilities needed for the use,
occupancy and/or operation of the Improvements;
2.2.6 Funding Lender shall have received satisfactory evidence that all
roads, streets, traffic turn lanes and accessways necessary for the full utilization of the
Improvements for their intended purposes have either been completed or the necessary
rights of way or authorizations therefor have either been acquired by the appropriate
Loan Covenant Agreement -8- Vista Breeze
Governmental Authority or have been dedicated to public use and accepted by said
Governmental Authority, and all necessary steps have been taken by Borrower and said
Governmental Authority to assure the complete construction and installation thereof by the
time needed for construction, rehabilitation and/or occupancy and operation of the
Improvements;
2.2.7 Funding Lender shall have received satisfactory evidence that all
taxes, fees and other charges, if any, in connection with the execution, delivery and
recording of the Borrower Loan Documents and the Funding Loan Documents have been
paid, and all delinquent taxes, assessments or other governmental charges or liens affecting
the Project, if any, have been paid;
2.2.8 Funding Lender shall have received satisfactory evidence that
Borrower has complied with all covenants, conditions, restrictions and reservations
affecting the Project, that the Project is duly and validly zoned for the intended use, and
that Borrower has obtained all zoning, subdivision and environmental approvals, permits
and maps required to be obtained in order to construct the Improvements.
2.3 Representations Correct; No Default. The Funding Lender's acquisition of the
Borrower Loan and of the Governmental Lender Note is subject to the further conditions that on
the date hereof:
2.3.1 The representations and warranties contained herein and in each
written document delivered by Borrower, the Managing General Partner or Guarantor to
Governmental Lender or Funding Lender in connection with this Agreement shall be true
and correct in all material respects on and as of the date hereof;
2.3.2 Since the date(s) of the most recent financial statements provided to
Funding Lender with respect to Borrower, the Managing General Partner or Guarantor and
the Project, no material adverse change shall have occurred in the financial condition or
business of Borrower, the Managing General Partner, Guarantor or the Project;
2.3.3 No Event of Default or Potential Default shall have occurred and be
continuing; and
2.3.4 Funding Lender shall have received a certificate, signed by an
Authorized Borrower Representative and dated the date hereof, confirming the satisfaction
of the foregoing conditions set forth in this Article 2 as of the date hereof.
ARTICLE 3 INTENTIONALLY OMITTED.
ARTICLE 4 TITLE INSURANCE.
The Title Insurance Policy issued with respect to the Security Instrument shall provide
coverage satisfactory to Funding Lender, insuring Funding Lender’s interest under the Security
Instrument as a valid first mortgage lien on the Project, together with such reinsurance or
coinsurance agreements and such endorsements to the Title Insurance Policy as Funding Lender
may require, which policy shall contain only such exceptions from its coverage as shall have been
Loan Covenant Agreement -9- Vista Breeze
approved in writing by Funding Lender, and thereafter Borrower shall, at its own cost and expense,
do all things necessary to maintain the Security Instrument as a valid first lien on Borrower’s
leasehold interest in the Project.
ARTICLE 5 INTENTIONALLY OMITTED.
ARTICLE 6 REPRESENTATIONS AND COVENANTS.
6.1 Borrower Representations. To induce the Funding Lender to execute this
Agreement and to induce Funding Lender, Governmental Lender and Fiscal Agent to enter into
the Funding Loan Agreement and the Borrower Loan Agreement, Borrower represents and
warrants for the benefit of the Governmental Lender, Fiscal Agent, Funding Lender and the
Servicer, that the representations and warranties set forth in this Section 6 are complete and
accurate as of the date hereof in accordance with the terms and conditions hereof. The
representations, warranties and agreements set forth in this Section 6.1 shall survive the acquisition
by Funding Lender of the Original Funding Lender’s right, title and interest in the Funding Loan,
Governmental Lender Note and the Borrower Loan, and shall remain in effect and true and correct
in all material respects until the Borrower Loan and all other Borrower Payment Obligations have
been repaid in full:
6.1.1 Address. The Mortgaged Property is located at 175 S. Shore Drive
and 280 S. Shore Drive, Miami Beach, Florida 33141.
6.1.2 Condition of Project. No portion of the Mortgaged Property is
presently damaged by fire, water, wind or other casualty and any previous damage has been
fully restored. There has been no taking or notice of intended taking in condemnation or
eminent domain proceedings with respect to the Mortgaged Property or any portion thereof,
nor, to the best of Borrower’s knowledge, is any proceeding pending or threatened for the
partial or total taking of the Mortgaged Property.
6.1.3 Outstanding Claims and Litigation.
(A) Neither Borrower, any general partner, manager, or managing
member of Borrower, nor any guarantor of any of Borrower’s obligations in connection
with the Borrower Loan, is involved in any bankruptcy, reorganization or insolvency
proceeding (either as creditor or debtor), nor is any such proceeding contemplated or
threatened, and neither Borrower, any general partner, manager and/or managing member
of Borrower, nor any guarantor of any of Borrower’s obligations in connection with the
Borrower Loan, has made a general assignment for the benefit of its creditors, nor is such
contemplated or threatened.
(B) There are no judgments or creditors’ liens affecting the Mortgaged
Property, Borrower or any general partner, manager and/or managing member of
Borrower, and there is no litigation or other claim pending before any court or
administrative or other governmental body or overtly threatened by a written
communication against Borrower, any general partner, manager and/or managing member
of Borrower or the Mortgaged Property or any other properties of Borrower.
Loan Covenant Agreement -10- Vista Breeze
(C) Borrower represents and warrants that no delinquencies, defaults,
foreclosures or deeds in lieu of foreclosure have occurred (i) relating to any property in
which Borrower had an interest at the time of delinquency, default, foreclosure, or deed in
lieu of foreclosure or (ii) during the past ten (10) years on any loan obligating Borrower or
any general partner, manager and/or managing member of Borrower in any manner,
irrespective of the loan purpose or collateral (i.e., not just multifamily loans).
(D) All of the following items regarding the Mortgaged Property which
have become due and payable have been paid or, with the approval of Funding Lender, an
escrow fund sufficient to pay them has been established: (i) taxes, (ii) government
assessments, (iii) insurance premiums, (iv) water, sewer and municipal charges, (v)
leasehold payments, if applicable (other than annual payments due under the Ground
Lease), (vi) ground rents, if applicable (other than annual payments due under the Ground
Lease), and (vii) any other charges affecting the Mortgaged Property.
6.1.4 Compliance with Laws. The Mortgaged Property conforms to all
applicable subdivision and use laws, ordinances or codes and local building and housing
codes, and will be a legally conforming use with respect to all applicable zoning
requirements without reliance on “grandfathering” or a variance. Without limitation of the
foregoing, with respect to existing improvements at the Mortgaged Property, if any, the
Mortgaged Property is zoned to permit existing improvements to be rebuilt to their
presently existing size, shape and density if partially or totally destroyed.
6.1.5 Compliance With Health, Safety And Other Laws. There are no
governmental citations issued against Borrower or the Mortgaged Property which remain
uncured. To the best of Borrower’s knowledge: (a) no fire, health or safety hazards exist
on the Mortgaged Property, and (b) there is no evidence of illegal activities, including
without limitation any illegal activity relating to controlled substances, on the Mortgaged
Property.
6.1.6 Financial Condition. There are no financial demands on Borrower
from any source which would materially adversely affect its financial condition or stability
or its ability to satisfy its obligations under the Borrower Loan Documents. Borrower is
not presently insolvent, and the proposed Borrower Loan will not render Borrower
insolvent. As used in this section, the term “insolvent” means that the sum total of all of
an entity’s liabilities (whether secured or unsecured, contingent or fixed, or liquidated or
unliquidated) is in excess of the value of all such entity’s non-exempt assets, i.e., all of the
assets of the entity that are available to satisfy claims of creditors.
6.1.7 No Labor or Materialmen’s Claims. All parties furnishing labor and
materials with respect to the Mortgaged Property have been paid in full and no claims are
outstanding that have not been bonded over or insured to the satisfaction of Funding
Lender. In the event that any work of any kind has been commenced or performed upon
the Mortgaged Property or in the event that any materials or equipment have been ordered
or delivered to or upon the Mortgaged Property, then (i) prior to the date hereof Borrower
has fully disclosed in writing to Funding Lender and the title insurance company issuing
the Title Insurance Policy insuring the lien of the Security Instrument that work has been
Loan Covenant Agreement -11- Vista Breeze
commenced or performed on the Mortgaged Property or materials or equipment have been
ordered or delivered to or upon the Mortgaged Property, (ii) prior to the date hereof
Borrower has obtained and delivered to Funding Lender and the title company issuing the
Title Insurance Policy insuring the lien of the Security Instrument lien waivers from all
contractors, subcontractors, suppliers, or any other applicable party, pertaining to all work
commenced or performed on the Mortgaged Property or materials or equipment ordered or
delivered to or upon the Mortgaged Property, and (iii) the Title Insurance Policy insuring
the lien of the Security Instrument shall take no exception from coverage for any mechanics
or materialmens liens.
6.1.8 No Outstanding Trade Payables. Borrower has no trade payables,
utility bills, contract payments, deferred payment plans, or similar type arrangement in
connection with the Mortgaged Property that are past due.
6.1.9 Rent Roll. The certified rent roll of the Project, dated
[___________________], and delivered to Funding Lender is true and correct (the “Rent
Roll”). The apartment units the Rent Roll reflects as leased are occupied by tenants under
leases that continue in effect on the date hereof. No tenant is more than 30 days past due
in making a rental payment except as disclosed on the Rent Roll. There were no rental
concessions made in connection with the apartments and/or apartment leases except as
described in the Rent Roll. There are no policies or practices presently in effect or pending
with regard to any leased or unleased apartment in the Project that would allow any tenant
a rental concession. Except as disclosed in the Rent Roll, no party has any possessory
interest in the Mortgaged Property or right to occupy the same. No party has any option to
purchase the Mortgaged Property or an interest therein except as previously disclosed to,
and approved by, Funding Lender.
6.1.10 Leases. Except (i) as set forth on the Rent Roll referenced in Section
6.1.9 above and (ii) the Ground Lease, there are no commercial or residential leases
affecting the Mortgaged Property as of this date.
6.1.11 Collateral. All of the physical collateral for the Borrower Loan is
located at the Mortgaged Property.
6.1.12 MMP/O&M Program. Borrower hereby adopts the Mold and
Moisture O&M Plan prepared by [_______________] dated [________________], and
shall maintain the same during the term of the Borrower Loan. Borrower further agrees to
implement any additional operations and maintenance plan that may be necessary or
appropriate based on any environmental condition at the Mortgaged Property and maintain
the same for the remaining term of the Borrower Loan.
6.1.13 The Mortgaged Property; Single Asset Status. The Mortgaged
Property contains not less than [53,172] square feet of land (approximately [1.22] acres).
There are not less than [55] parking spaces located on the Mortgaged Property, including
[3] handicap parking spaces. No part of the Mortgaged Property is included or assessed
under or as part of another tax lot or parcel, and no part of any other property is included
or assessed under or as part of the tax lot or parcels for the Mortgaged Property. Except as
Loan Covenant Agreement -12- Vista Breeze
otherwise expressly approved by Funding Lender in writing, Borrower does not own any
real property or assets other than the Mortgaged Property and does not operate any business
other than the management and operation of the Mortgaged Property.
6.1.14 Assessments. To the best of Borrower’s knowledge, there are not
presently pending any special assessments against the Mortgaged Property or any part
thereof.
6.1.15 Material Property Agreements. As of the date hereof, Borrower has
provided to Funding Lender all Material Property Agreements, including all renewals,
amendments, modifications, and extensions thereof, together with all exhibits and addenda
thereto. Neither Borrower nor any of its officers, directors, employees or agents shall,
without the prior written consent of Funding Lender (a) enter into any Material Property
Agreement, or (b) amend, waive, supplement, or terminate any provision of any Material
Property Agreement previously approved by Funding Lender.
6.1.16 Subordinate Loan Documents. The Subordinate Loan Documents
are in full force and effect and Borrower has paid all commitment fees and other amounts
due and payable to the Subordinate Lender(s) thereunder. There exists no material violation
of or material default by Borrower under, and no event has occurred which, upon the giving
of notice or the passage of time, or both, would constitute a material default under the
Subordinate Loan Documents. Borrower shall comply in all respects with all of the
covenants contained in the Subordinate Loan Documents. Borrower represents that, as of
the date hereof, the entire proceeds of the Subordinate Debt have been fully disbursed to
Borrower. Without Lender’s prior written consent, Borrower will not surrender, terminate,
cancel, modify, change, supplement, alter, amend, waive, release, assign, transfer, pledge
or hypothecate any of its rights or remedies under the Subordinate Loan Documents.
6.1.17 HAP Contract. The HAP Contract is in full force and effect and
there exists no material violation of or material default by the Borrower under the HAP
Contract, and no event has occurred which, upon the giving of notice or the passage of
time, or both, would constitute a material default by any other party under the HAP
Contract.
6.1.18 No Illegal Activity as Source of Funds. No portion of the Mortgaged
Property has been or will be purchased, improved, equipped or furnished with proceeds of
any illegal activity.
6.1.19 Ground Lease. The Ground Lease is in full force and effect and
Borrower has paid all rent and other amounts due and payable to the ground lessor
thereunder in accordance with the terms of the Ground Lease. There exists no material
violation of or material default by Borrower under the Ground Lease, and no event has
occurred which, upon the giving of notice or the passage of time, or both, would constitute
a material default by any other party under the Ground Lease. Without Funding Lender’s
prior written consent, Borrower will not surrender, terminate, cancel, modify, change,
supplement, alter, amend, waive, release, assign, transfer, pledge or hypothecate any of its
rights or remedies under the Ground Lease.
Loan Covenant Agreement -13- Vista Breeze
ARTICLE 7 INTENTIONALLY OMITTED.
ARTICLE 8 EVENTS OF DEFAULT AND REMEDIES.
8.1 Events of Default. The occurrence of any one or more of the following shall
constitute an “Event of Default” under this Agreement:
8.1.1 An “Event of Default” shall occur under any of the Security
Documents, any of the Borrower Loan Documents, the Borrower Loan Agreement or the
Related Documents.
8.1.2 Any failure by Borrower to perform or comply with any of its
obligations under this Agreement (other than those specified in Sections 8.1.1 through
8.1.2), as and when required, which continues for a period of thirty (30) days after written
notice of such failure by Funding Lender to Borrower; provided, however, if such failure
is susceptible of cure but cannot reasonably be cured within such thirty (30) day period,
and the Borrower shall have commenced to cure such failure within such thirty (30) day
period and thereafter diligently and expeditiously proceeds to cure the same, such thirty
(30) day period shall be extended for an additional period of time as is reasonably necessary
for the Borrower in the exercise of due diligence to cure such failure, such additional period
not to exceed sixty (60) days. However, no such notice or grace period shall apply to the
extent such failure could, in Funding Lender’s judgment, absent immediate exercise by
Funding Lender of a right or remedy under this Agreement or the other Borrower Loan
Documents, result in harm to Funding Lender, impairment of the Original Borrower Note
or Borrower Loan Agreement or any security given under any other Borrower Loan
Document.
8.1.3 An “Event of Default” or “Default” shall occur by Borrower under
the Ground Lease, after the expiration of all applicable notice, grace, and cure periods.
8.1.4 An “Event of Default” or “Default” (as defined in the applicable
agreement) shall occur by Borrower under any of the Subordinate Loan Documents, after
the expiration of all applicable notice, grace, and cure periods.
(A) An “Event of Default” or “Default” (as defined in the HAP Contract)
shall occur by Borrower under the HAP Contract, after the expiration of all applicable
notice, grace, and cure periods.
8.1.5 Notwithstanding any provision herein to the contrary, the Funding
Lender agrees that any cure of any default made or tendered by the Equity Investor or its
designee(s) shall be deemed to be a cure by the Borrower and shall be accepted or rejected
on the same basis as if made or tendered by the Borrower.
8.2 Remedies.
8.2.1 Notice to Governmental Lender. Upon the occurrence and
continuation of an Event of Default (it being acknowledged and agreed that in no event
shall Funding Lender have any obligation to accept a cure of an Event of Default), Funding
Loan Covenant Agreement -14- Vista Breeze
Lender shall, at its option, have the right (but not the obligation) to notify Governmental
Lender, Fiscal Agent, Borrower and Equity Investor of the occurrence of such Event of
Default and Governmental Lender and Funding Lender (i) shall have all the rights and
remedies provided herein and in the other Borrower Loan Documents, including, without
limitation, the right to enforce any Liens granted under this Agreement and the Security
Documents; and (ii) shall have the option to declare or to cause Governmental Lender to
declare all sums then owing hereunder or under any of the other Borrower Loan Documents
immediately due and payable by Borrower, without presentment, demand, protest, or notice
of any kind; provided that upon the occurrence of any Event of Default resulting from
bankruptcy or insolvency of Borrower, the above-described sums, and all amounts
reimbursable on demand under this Agreement, shall automatically become immediately
due and payable without the necessity of any such declaration by Governmental Lender or
Funding Lender, and without presentment, demand, protest or any notice of any kind, all
of which are hereby expressly waived by Borrower.
8.2.2 Power of Attorney. Effective upon the occurrence of an Event of
Default, and continuing until and unless such Event of Default is cured or waived,
Borrower hereby constitutes and appoints Funding Lender, or an independent contractor
selected by Funding Lender, as its true and lawful attorney-in-fact with full power of
substitution, for the purposes of completion of the construction, rehabilitation, equipping,
installation and operation of the Project and performance of Borrower’s obligations under
this Agreement in the name of Borrower, and hereby empowers said attorney-in-fact to do
any or all of the following upon the occurrence and continuation of an Event of Default (it
being understood and agreed that said power of attorney shall be deemed to be a power
coupled with an interest which cannot be revoked until full payment and performance of
all obligations under this Agreement and the other Borrower Loan Documents):
(A) to pay, settle or compromise all existing bills and claims which are
or may be liens against the Mortgaged Property, the Improvements or the Project, or may
be necessary or desirable for the completion of the construction or rehabilitation, as the
case may be, of the Improvements, or clearance of objections to or encumbrances on title;
(B) to prosecute and defend all actions or proceedings in connection
with the Mortgaged Property and/or the Project and to take such action, require such
performance and do any and every other act as is deemed necessary with respect to the
completion of the construction or rehabilitation, as the case may be, of the Improvements
which Borrower might do on its own behalf;
(C) to employ watchmen and erect security fences to protect the Project
from damage or injury; and
(D) to take such action and require such performance as it deems
necessary under any of the bonds or insurance policies to be furnished hereunder, to make
settlements and compromises with the sureties or insurers thereunder, and in connection
therewith to execute instruments of release and satisfaction.
Loan Covenant Agreement -15- Vista Breeze
8.2.3 Set Off; Waiver of Set Off. Upon the occurrence and continuation
of an Event of Default (it being acknowledged and agreed that in no event shall Funding
Lender have any obligation to accept a cure of an Event of Default), Funding Lender may,
at any time and from time to time, without notice to Borrower or any other Person (any
such notice being expressly waived), set off and appropriate and apply (against and on
account of any obligations and liabilities of Borrower to Funding Lender arising under or
connected with this Agreement, the Borrower Loan Agreement and the other Borrower
Loan Documents and the Funding Loan Documents, irrespective of whether or not Funding
Lender shall have made any demand therefor, and although such obligations and liabilities
may be contingent or unmatured), and Borrower hereby grants to Funding Lender, as
security for the Borrower Payment Obligations, a security interest in, any and all deposits
(general or special, including but not limited to Debt evidenced by certificates of deposit,
whether matured or unmatured, but not including trust accounts) and any other Debt at any
time held or owing by Funding Lender to or for the credit or the account of Borrower.
8.2.4 Assumption of Obligations. In the event that the Funding Lender or
its assignee or designee shall become the legal or beneficial owner of the Project by
foreclosure or deed in lieu of foreclosure, such party shall succeed to the rights and the
obligations of the Borrower under this Agreement, the Borrower Loan Agreement, the
Original Borrower Note, the Regulatory Agreement, and any other Borrower Loan
Documents and Funding Loan Documents to which the Borrower is a party. Such
assumption shall be effective from and after the effective date of such acquisition and shall
be made with the benefit of the limitations of liability set forth therein and without any
liability for the prior acts of the Borrower.
8.2.5 Accounts Receivable. Upon the occurrence of an Event of Default,
Funding Lender shall have the right, to the extent permitted by law, to impound and take
possession of books, records, notes and other documents evidencing Borrower’s accounts,
accounts receivable and other claims for payment of money, arising in connection with the
Project, and to make direct collections on such accounts, accounts receivable and claims
for the benefit of Funding Lender.
8.2.6 Defaults under Other Documents. Funding Lender shall have the
right to cure any default under any of the Related Documents and the Subordinate Loan
Documents, but shall have no obligation to do so.
8.2.7 Remedies Cumulative; No Waiver. All remedies of Governmental
Lender, Fiscal Agent and Funding Lender provided for in this Agreement are cumulative
and shall be in addition to any and all other rights and remedies available under the other
Borrower Loan Documents or any other document or by law or equity. No exercise by
Governmental Lender or Funding Lender of any right or remedy shall in any way constitute
a cure or waiver of any Event of Default hereunder, or invalidate any act done pursuant to
any notice of default, or prejudice Governmental Lender, Fiscal Agent or Funding Lender
in the exercise of any other right or remedy available to Governmental Lender, Fiscal Agent
or Funding Lender. No failure on the part of Governmental Lender, Fiscal Agent and
Funding Lender to exercise, and no delay in exercising, any right or remedy shall operate
as a waiver or otherwise preclude enforcement of any of their respective rights and
Loan Covenant Agreement -16- Vista Breeze
remedies, nor shall any single or partial exercise of any right or remedy preclude any further
exercise thereof or of any other right or remedy. Governmental Lender, Fiscal Agent and
Funding Lender need not resort to any particular right or remedy before exercising or
enforcing any other.
ARTICLE 9 MISCELLANEOUS.
9.1 Notices. All notices and other communications to Governmental Lender, Funding
Lender and Borrower hereunder shall be in writing and shall be delivered in the manner and to the
addresses required by the Borrower Loan Agreement.
9.2 Brokers and Financial Advisors. The Borrower hereby represents that it has dealt
with no financial advisors, brokers, underwriters, placement agents, agents or finders in connection
with the Borrower Loan or the Funding Loan, other than those disclosed to the Funding Lender
and whose fees shall be paid by the Borrower pursuant to separate agreements. The Borrower and
the Funding Lender shall indemnify and hold the other harmless from and against any and all
claims, liabilities, costs and expenses of any kind in any way relating to or arising from a claim by
any Person that such Person acted on behalf of the indemnifying party in connection with the
transactions contemplated herein. The provisions of this Section 9.2 shall survive the expiration
and termination of this Agreement and the repayment of the Borrower Payment Obligations.
9.3 Survival. This Agreement and all covenants, agreements, representations and
warranties made herein and in the certificates delivered pursuant hereto shall survive the making
by the Funding Lender of the Borrower Loan and the execution and delivery to the Funding Lender
of the Original Borrower Note, and shall continue in full force and effect so long as all or any of
the Borrower Payment Obligations is unpaid. All the Borrower’s covenants and agreements in
this Agreement shall inure to the benefit of the respective legal representatives, successors and
assigns of the Funding Lender and the Servicer.
9.4 Preferences. The Funding Lender shall have the continuing and exclusive right to
apply or reverse and reapply any and all payment by the Borrower to any portion of the Borrower
Payment Obligations. To the extent the Borrower makes a payment under the Borrower Loan, or
the Funding Lender or the Servicer receives proceeds of any collateral, which is in whole or part
subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid
to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common
law or equitable cause, then, to the extent of such payment or proceeds received, the Borrower
Payment Obligations or part thereof intended to be satisfied shall be revived and continue in full
force and effect, as if such payment or proceeds had not been received by the Funding Lender or
Servicer.
9.5 Waiver of Notice. The Borrower shall not be entitled to any notices of any nature
whatsoever from the Funding Lender or the Servicer except with respect to matters for which this
Agreement or any other Borrower Loan Document specifically and expressly provides for the
giving of notice by the Funding Lender or the Servicer, as the case may be, to the Borrower and
except with respect to matters for which the Borrower is not, pursuant to applicable Legal
Requirements, permitted to waive the giving of notice. The Borrower hereby expressly waives the
right to receive any notice from the Funding Lender or the Servicer, as the case may be, with
Loan Covenant Agreement -17- Vista Breeze
respect to any matter for which no Borrower Loan Document specifically and expressly provides
for the giving of notice by the Funding Lender or the Servicer to the Borrower.
9.6 Offsets, Counterclaims and Defenses. The Borrower hereby waives the right to
assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought
against it by the Funding Lender or the Servicer with respect to a Borrower Loan Payment. Any
assignee of Governmental Lender’s or Funding Lender’s interest in and to the Borrower Loan
Documents shall take the same free and clear of all offsets, counterclaims or defenses that are
unrelated to the Borrower Loan Documents which the Borrower may otherwise have against any
assignor of such documents, and no such unrelated offset, counterclaim or defense shall be
interposed or asserted by the Borrower in any action or proceeding brought by any such assignee
upon such documents, and any such right to interpose or assert any such unrelated offset,
counterclaim or defense in any such action or proceeding is hereby expressly waived by the
Borrower.
9.7 Publicity. The Funding Lender and the Servicer (and any Affiliates of either party)
shall have the right to issue press releases, advertisements and other promotional materials
describing the Funding Lender’s or the Servicer’s participation in the making of the Borrower
Loan or the Borrower Loan’s inclusion in any Secondary Market Transaction effectuated by the
Funding Lender or the Servicer or one of its or their Affiliates. All news releases, publicity or
advertising by the Borrower or its Affiliates through any media intended to reach the general
public, which refers to the Borrower Loan Documents, the Borrower Loan, the Funding Lender or
the Servicer in a Secondary Market Transaction, shall be subject to the prior Written Consent of
the Funding Lender or the Servicer, as applicable.
9.8 Construction of Documents. The parties hereto acknowledge that they were
represented by counsel in connection with the negotiation and drafting of the Borrower Loan
Documents and that the Borrower Loan Documents shall not be subject to the principle of
construing their meaning against the party that drafted them.
9.9 No Third Party Beneficiaries. The Borrower Loan Documents are solely for the
benefit of the Governmental Lender, Fiscal Agent, the Funding Lender, the Servicer and the
Borrower and, with respect to Sections 9.1.3 and 9.1.4 of the Borrower Loan Agreement, the
Underwriter Group, and nothing contained in any Borrower Loan Document shall be deemed to
confer upon anyone other than the Funding Lender, the Servicer, and the Borrower any right to
insist upon or to enforce the performance or observance of any of the obligations contained therein.
9.10 Funding Lender and Servicer Not in Control; No Partnership. None of the
covenants or other provisions contained in this Agreement shall, or shall be deemed to, give the
Funding Lender or the Servicer the right or power to exercise control over the affairs or
management of the Borrower, the power of the Funding Lender and the Servicer being limited to
the rights to exercise the remedies referred to in the Borrower Loan Documents. The relationship
between the Borrower and the Funding Lender and the Servicer is, and at all times shall remain,
solely that of debtor and creditor. No covenant or provision of the Borrower Loan Documents is
intended, nor shall it be deemed or construed, to create a partnership, joint venture, agency or
common interest in profits or income between the Borrower and the Funding Lender or the
Servicer or to create an equity interest in the Mortgaged Property in the Funding Lender or the
Loan Covenant Agreement -18- Vista Breeze
Servicer. Neither the Funding Lender nor the Servicer undertakes or assumes any responsibility
or duty to the Borrower or to any other person with respect to the Mortgaged Property, the Project
or the Borrower Loan, except as expressly provided in the Borrower Loan Documents; and
notwithstanding any other provision of the Borrower Loan Documents: (1) the Funding Lender
and the Servicer are not, and shall not be construed as, a partner, joint venturer, alter ego, manager,
controlling person or other business associate or participant of any kind of the Borrower or its
stockholders, members, or partners and the Funding Lender and the Servicer do not intend to ever
assume such status; (2) the Funding Lender and the Servicer shall in no event be liable for any of
the Borrower Payment Obligations, expenses or losses incurred or sustained by the Borrower; and
(3) the Funding Lender and the Servicer shall not be deemed responsible for or a participant in any
acts, omissions or decisions of the Borrower, the Borrower Controlling Entities or its stockholders,
members, or partners. The Funding Lender and the Servicer and the Borrower disclaim any
intention to create any partnership, joint venture, agency or common interest in profits or income
between the Funding Lender, the Servicer and the Borrower, or to create an equity interest in the
Mortgaged Property in the Funding Lender or the Servicer, or any sharing of liabilities, losses,
costs or expenses.
9.11 Release. The Borrower hereby acknowledges that it is executing this Agreement
and each of the Borrower Loan Documents to which it is a party as its own voluntary act free from
duress and undue influence.
9.12 Reimbursement of Expenses. If, upon or after the occurrence of any Event of
Default or Potential Default, the Funding Lender, Fiscal Agent or the Servicer shall employ
attorneys or incur other expenses for the enforcement of performance or observance of any
obligation or agreement on the part of the Borrower contained herein, the Borrower will on demand
therefor reimburse the Funding Lender, Fiscal Agent and the Servicer for fees of such attorneys
and such other expenses so incurred.
9.13 Relationships with Other Customers. From time to time, Funding Lender and
Fiscal Agent may have business relationships with Borrower’s customers, suppliers, contractors,
tenants, members, partners, shareholders, officers or directors, or with businesses offering products
or services similar to those of Borrower, or with Persons seeking to invest in, borrow from or lend
to Borrower. Borrower agrees that Funding Lender and Fiscal Agent may extend credit to such
parties and may take any action it may deem necessary to collect the credit, regardless of the effect
that such extension or collection of credit may have on Borrower’s financial condition or
operations. Borrower further agrees that in no event shall Funding Lender or Fiscal Agent be
obligated to disclose to Borrower any information concerning any other customer.
9.14 Permitted Contests. Notwithstanding anything to the contrary contained in this
Agreement, Borrower shall have the right to contest or object in good faith to any claim, demand,
levy or assessment (other than in respect of Debt or Contractual Obligations of Borrower under
any Borrower Loan Document or Related Document) by appropriate legal proceedings that are not
prejudicial to Funding Lender’s rights, but this shall not be deemed or construed as in any way
relieving, modifying or providing any extension of time with respect to Borrower’s covenant to
pay and comply with any such claim, demand, levy or assessment, unless Borrower shall have
given prior written notice to Funding Lender of Borrower’s intent to so contest or object thereto,
and unless (i) Borrower has, in Funding Lender’s judgment, a reasonable basis for such contest,
Loan Covenant Agreement -19- Vista Breeze
(ii) Borrower pays when due any portion of the claim, demand, levy or assessment to which
Borrower does not object, (iii) Borrower demonstrates to Funding Lender’s satisfaction that such
legal proceedings shall conclusively operate to prevent enforcement prior to final determination of
such proceedings, (iv) Borrower furnishes such bond, surety, undertaking or other security in
connection therewith as required by law, or as requested by and satisfactory to Funding Lender, to
stay such proceeding, which bond, surety, undertaking or other security shall be issued by a
bonding company, insurer or surety company reasonably satisfactory to Funding Lender and shall
be sufficient to cause the claim, demand, levy or assessment to be insured against by the Title
Company or removed as a lien against the Mortgaged Property, (v) Borrower at all times
prosecutes the contest with due diligence, and (vi) Borrower pays, promptly following a
determination of the amount of such claim, demand, levy or assessment due and owing by
Borrower, the amount so determined to be due and owing by Borrower. In the event that Borrower
does not make, promptly following a determination of the amount of such claim, demand, levy or
assessment due and owing by Borrower, any payment required to be made pursuant to clause
(vi) of the preceding sentence, an Event of Default shall have occurred, and Funding Lender may
draw or realize upon any bond or other security delivered to Funding Lender in connection with
the contest by Borrower, in order to make such payment.
9.15 Funding Lender Approval of Instruments and Parties. All proceedings taken
in accordance with transactions provided for herein, and all surveys, appraisals and documents
required or contemplated by this Agreement and the persons responsible for the execution and
preparation thereof, shall be satisfactory to and subject to approval by Funding Lender. Funding
Lender’s approval of any matter in connection with the Project or the Mortgaged Property shall be
for the sole purpose of protecting the security and rights of Governmental Lender and Funding
Lender. No such approval shall result in a waiver of any default of Borrower. In no event shall
Funding Lender’s, Fiscal Agent’s and/or Governmental Lender’s approval be a representation of
any kind with regard to the matter being approved.
9.16 Funding Lender Determination of Facts. Funding Lender shall at all times be
free to establish independently, to its reasonable satisfaction, the existence or nonexistence of any
fact or facts, the existence or nonexistence of which is a condition of this Agreement.
9.17 Calendar Months. With respect to any payment or obligation that is due or
required to be performed within a specified number of Calendar Months after a specified date,
such payment or obligation shall become due on the day in the last of such specified number of
Calendar Months that corresponds numerically to the date so specified; provided, however, that
with respect to any obligation as to which such specified date is the 29th, 30th or 31st day of any
Calendar Month: if the Calendar Month in which such payment or obligation would otherwise
become due does not have a numerically corresponding date, such obligation shall become due on
the first day of the next succeeding Calendar Month.
9.18 Determinations by Funding Lender. Except to the extent expressly set forth in
this Agreement to the contrary, in any instance where the consent or approval of Funding Lender
may be given or is required, or where any determination, judgment or decision is to be rendered
by Funding Lender under this Agreement, the granting, withholding or denial of such consent or
approval and the rendering of such determination, judgment or decision shall be made or exercised
Loan Covenant Agreement -20- Vista Breeze
by Funding Lender, as applicable (or its designated representative) at its sole and exclusive option
and in its sole and absolute discretion.
9.19 Governing Law. This Agreement shall be governed by and enforced in accordance
with the laws of the Property Jurisdiction, without giving effect to the choice of law principles of
the Property Jurisdiction that would require the application of the laws of a jurisdiction other than
the Property Jurisdiction.
9.20 Consent to Jurisdiction and Venue. Borrower agrees that any controversy arising
under or in relation to this Agreement shall be litigated exclusively in the Property Jurisdiction.
The state and federal courts and authorities with jurisdiction in the Property Jurisdiction shall have
exclusive jurisdiction over all controversies which shall arise under or in relation to this
Agreement. Borrower irrevocably consents to service, jurisdiction, and venue of such courts for
any such litigation and waives any other venue to which it might be entitled by virtue of domicile,
habitual residence or otherwise. However, nothing herein is intended to limit Beneficiary Parties’
right to bring any suit, action or proceeding relating to matters arising under this Agreement or to
enforce any judgment against Borrower or any of Borrower’s assets in any court of any other
jurisdiction in which such assets are located.
9.21 Successors and Assigns. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, legal representatives, successors,
successors-in-interest and assigns, as appropriate. The terms used to designate any of the parties
herein shall be deemed to include the heirs, legal representatives, successors, successors-in-interest
and assigns, as appropriate, of such parties. References to a “person” or “persons” shall be deemed
to include individuals and entities.
9.22 Severability. The invalidity, illegality or unenforceability of any provision of this
Agreement shall not affect the validity, legality or enforceability of any other provision, and all
other provisions shall remain in full force and effect.
9.23 Transfer of Mortgaged Property or Ownership Interest in Borrower. If a
Transfer (as defined and permitted in the Security Instrument) of all or part of the Mortgaged
Property or of an ownership interest in Borrower shall occur, which Transfer requires the prior
written consent of Funding Lender, the transferee(s) shall be required to assume the transferor’s
duties and obligations under this Agreement and the other Borrower Loan Documents and shall be
required to execute and deliver to Funding Lender such documents as Funding Lender requires to
effectuate such assumption of duties and obligations. No transfer and assumption shall relieve the
transferor of any of its duties or obligations under this Agreement or any of the other Borrower
Loan Documents, unless the Borrower has obtained the prior written consent of Funding Lender
to the release of such duties and obligations.
9.24 Entire Agreement; Amendment and Waiver. This Agreement contains the
complete and entire understanding of the parties with respect to the matters covered. This
Agreement may not be amended, modified or changed, nor shall any waiver of any provision
hereof be effective, except by a written instrument signed by the party against whom enforcement
of the waiver, amendment, change, or modification is sought, and then only to the extent set forth
Loan Covenant Agreement -21- Vista Breeze
in that instrument. No specific waiver of any of the terms of this Agreement shall be considered
as a general waiver.
9.25 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall constitute an original document and all of which together shall constitute one
agreement.
9.26 Captions. The captions of the sections of this Agreement are for convenience only
and shall be disregarded in construing this Agreement.
9.27 Servicer. Borrower hereby acknowledges and agrees that, pursuant to the terms of
the Security Instrument: (a) from time to time, Funding Lender may appoint a servicer to collect
payments, escrows and deposits, to give and to receive notices under the Original Borrower Note,
this Agreement or the other Borrower Loan Documents, and to otherwise service the Borrower
Loan and (b) unless Borrower receives written notice from Funding Lender to the contrary, any
action or right which shall or may be taken or exercised by Funding Lender may be taken or
exercised by such servicer with the same force and effect.
9.28 Beneficiary Parties as Third Party Beneficiary. Each of the Beneficiary Parties
shall be a third party beneficiary of this Agreement for all purposes.
9.29 Waiver of Trial by Jury. TO THE MAXIMUM EXTENT PERMITTED UNDER
APPLICABLE LAW, EACH OF BORROWER AND THE BENEFICIARY PARTIES (A)
COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY
ISSUE ARISING OUT OF THIS AGREEMENT OR THE RELATIONSHIP BETWEEN THE
PARTIES THAT IS TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO
TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH
RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY
IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH
THE BENEFIT OF COMPETENT LEGAL COUNSEL.
9.30 Time of the Essence. Time is of the essence with respect to this Agreement.
9.31 Limitation on Liability. Borrower assumes all risks of the acts or omissions of
Funding Lender, Fiscal Agent and Governmental Lender, provided, however, this assumption is
not intended to, and shall not, preclude Borrower from pursuing such rights and remedies as it may
have against Governmental Lender, Fiscal Agent and Funding Lender at law or under any other
agreement. None of the Beneficiary Parties or any of their respective officers, directors,
employees or agents shall be liable or responsible for (i) any acts or omissions of Governmental
Lender or Funding Lender; or (ii) the validity, sufficiency or genuineness of any documents, or
endorsements, even if such documents should in fact prove to be in any or all respects invalid,
insufficient, fraudulent or forged. In furtherance and not in limitation of the foregoing, Funding
Lender and Fiscal Agent may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or information to the contrary,
unless acceptance in light of such notice or information constitutes gross negligence or willful
misconduct on the part of Funding Lender or Fiscal Agent.
Loan Covenant Agreement -22- Vista Breeze
9.32 Modifications. All modifications (if any) to the terms of this Agreement
(“Modifications”) are set forth on Exhibit B attached to this Agreement. In the event of a Transfer
under the terms of the Security Instrument (other than a Permitted Transfer not requiring Funding
Lender’s consent or a Transfer made with Funding Lender’s consent), some or all of the
Modifications to this Agreement may be modified or rendered void by Funding Lender at its option
by notice to Borrower or such transferee.
ARTICLE 10 INCORPORATION OF EXHIBITS.
The following exhibits to this Agreement are fully incorporated herein:
Exhibit A — Legal Description of the Land
Exhibit B — Modifications to Loan Covenant Agreement
Exhibit C — Form of Estoppel Certificate
The terms of this Agreement are modified and supplemented as set forth in said Exhibits. To the
extent of any conflict or inconsistency between the terms of said Exhibits and the text of this
Agreement, the terms of said Exhibits shall be controlling in all respects.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
S-3
Forward Purchase Agreement Vista Breeze
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this Loan
Covenant Agreement or caused this Loan Covenant Agreement to be duly executed and delivered
by their respective authorized representatives as of the date first set forth above.
BORROWER:
VISTA BREEZE, LTD.,
a Florida limited partnership
By: APC Vista Breeze, LLC,
a Florida limited liability company,
Duly Authorized
By: ________________________
Name:
Title:
Loan Covenant Agreement S-1 Vista Breeze
FUNDING LENDER:
CITIBANK, N.A.
By: __________________________
Name:
Title:
Deal ID No. 60001596
Loan Covenant Agreement A-1 Vista Breeze
EXHIBIT A
LEGAL DESCRIPTION
That leasehold estate created by that Second Amended and Restated Ground Lease, by and
between Vista Breeze, Ltd., a Florida limited partnership, and the Housing Authority of The City
of Miami Beach, a public body corporate and politic, as evidenced by that Amended and
Restated Memorandum of Lease to be recorded over the following described lands:
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.
Loan Covenant Agreement B-1 Vista Breeze
EXHIBIT B
MODIFICATIONS TO
LOAN COVENANT AGREEMENT
The following modifications are made to the text of the Agreement that precedes this
Exhibit:
None.
Capitalized terms used and not defined herein shall have the respective meanings ascribed
to them in the Agreement.
C-1
EXHIBIT C
FORM OF ESTOPPEL CERTIFICATE
[Month] [Date], 202[_]
Citibank, N.A.
388 Greenwich Street, Trading 4th Floor
New York, New York 10013
Re: Vista Breeze; Deal ID No. 60001596
Re: Ground leased property located at 175 S. Shore Drive and 280 S. Shore Drive,
Miami Beach, Florida 33141, and commonly known as Vista Breeze
(“Property”)
Ladies and Gentlemen:
The undersigned, the Housing Authority of the City of Miami Beach, a public body corporate and
politic established pursuant to Chapter 421, Florida Statutes (“Lessor”), as lessor under that certain
Second Amended and Restated Ground Lease (“Lease”), dated as of December 15, 2023, between
Lessor and Vista Breeze, Ltd., a Florida limited partnership (“Lessee”), as lessee, covering the
Property, warrants, represents and certifies to CITIBANK, N.A. and each subsequent owner of
the mortgage loan secured by Lessee’s leasehold interest in the Property (collectively or
individually, “Lender”) as follows, as of the date of this Ground Lessor’s Estoppel Certificate
(“Certificate”):
1. The term of the Lease commenced on December 15, 2023, and expires at 12:01 A.M. 75
years thereafter.
2. The fixed rent under the Lease is comprised of an $129,260 annual base rent, the receipt of
which is hereby acknowledged by Lessor. No additional rent or charge (including taxes,
maintenance, operating expenses or otherwise) that has been billed to Lessee by Lessor is
overdue. There are no provisions for, and Lessor has no rights with respect to, increasing
the rent, except as expressly set forth in the Lease.
3. All conditions precedent to the effectiveness of the Lease have been fully satisfied and the
Lease is in full force and effect. A list of all the documents constituting the Lease is
attached as Schedule A. The Lease has not been assigned, modified, supplemented or
amended in any way, except as described on Schedule A. There are no other agreements
concerning the Property, whether oral or written, between Lessee and Lessor.
4. Lessor has not delivered or received any notices of default under the Lease; to the best of
the Lessor’s knowledge, there is no default by Lessee or Lessor under the Lease, nor has
any event or omission occurred which, with the giving of notice or the lapse of time, or
both, would constitute a default.
C-2
5. Lessor is the record and beneficial owner of the Property. Lessor has not subordinated its
interest in the Lease to any mortgage, lien or other encumbrance on the fee. Lessor has not
assigned, conveyed, transferred, sold encumbered or mortgaged its interest in the Lease or
the Property.
6. No third party has any option or preferential right to purchase all or any part of the Property,
except pursuant to that certain Purchase Option Agreement, dated December 15, 2023, in
favor of Vista Breeze HACMB, Inc., a Florida not-for-profit corporation, or its affiliate
(the “Purchase Option Agreement”), and pursuant to that certain Right of First Refusal
Agreement, dated December 15, 2023, in favor of Lessor or its affiliate (the “Right of First
Refusal Agreement”), which such Purchase Option Agreement and such Right of First
Refusal Agreement shall be subject and subordinate to any and all liens securing the
repayment of indebtedness owed to Lender by Lessee in each and every respect.
7. Lessor has not received written notice of any pending eminent domain proceedings or other
governmental actions or any judicial actions of any kind against Lessor’s interest in the
Property.
8. Lessor has not received written notice that it is in violation of any governmental law or
regulation applicable to its interest in the Property and has no reason to believe that there
are grounds for any claim of any such violation.
9. No union of the interests of Lessor and Lessee will result in a merger of the Lease into any
superior leasehold interest or the fee interest in the Property.
10. Lessor acknowledges that Lender’s address for notice and other purposes under the Lease
is as follows:
Citibank, N.A.
388 Greenwich Street, Trading 4th Floor
New York, New York 10013
Attention: Transaction Management Group
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (212) 723-8209
AND
Citibank, N.A.
325 East Hillcrest Drive, Suite 160
Thousand Oaks, California 91360
Attention: Operations Manager/Asset Manager
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (805) 557-0924
AND
Citibank, N.A.
C-3
388 Greenwich Street, Trading 4th Floor
New York, New York 10013
Attention: Account Specialist
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (212) 723-8209
And a copy of any notices
of default sent to:
Citibank, N.A.
388 Greenwich Street, 17th Floor
New York, New York 10013
Attention: General Counsel’s Office
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (646) 291 5754
11. Lessor and the person or persons executing this Certificate on behalf of Lessor have the
power and authority to execute this Certificate.
12. Lessor consents to the execution and delivery by Lessee to Lender of an Amended and
Restated Multifamily Leasehold Mortgage, Assignment of Rents, Security Agreement and
Fixture Filing (Florida) covering Lessee’s leasehold interest in and to the Property and the
recording of same in the applicable real property records. Lessor also consents to the
execution and delivery by Lessee, and the filing and/or recording in the appropriate public
records, of such additional documents and instruments as Lender may deem necessary or
desirable to establish, perfect and maintain a lien upon and against Lessee’s leasehold
interests in the Property, including, but not limited to, Uniform Commercial Code financing
statements and such other documents, instruments and agreements as Lender may deem
necessary or desirable in connection with the creation, grant, maintenance, renewal,
extension, modification or enforcement of the lien.
13. Lessor acknowledges that Lender is a Leasehold Mortgagee under the Lease and is entitled
to the benefit of all protections granted to a Leasehold Mortgagee under the Lease without
the need for providing any separate notice under the Lease.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
C-4
Lender and its successors and assigns may rely upon the truth and accuracy of the
certifications contained in this Certificate, and this Certificate will be binding upon Lessor and its
successors and assigns, and inure to the benefit of Lender and its successors and assigns. This
Certificate may not be deemed to alter or modify any of the terms and conditions of the Lease.
GROUND LESSOR:
HOUSING AUTHORITY OF THE CITY
OF MIAMI BEACH,
a public body corporate and politic
established pursuant to Chapter 421, Florida
Statutes
By: _________________________________
Name:
Title:
Witness:
By: ______________________________
Print Name: ________________________
By: _______________________________
Print Name: ________________________
ACKNOWLEDGEMENT
STATE OF ____________
COUNTY OF ____________
The foregoing instrument was acknowledged before me by means of ☐ physical presence
or ☐ online notarization, this _____ day of _______________, 20___, by ________________,
as _____________ of the Housing Authority of the City of Miami Beach. Said person is
personally known to me or has produced _________________ as identification.
[Notary Seal] Signature of person taking acknowledgment
Name (typed, printed or stamped):
__________________
Title or Rank:
Serial number (if any):
C-5
SCHEDULE A
Second Amended and Restated Ground Lease, dated as of December 15, 2023, by and between
Housing Authority of the City of Miami Beach, a public body corporate and politic established
pursuant to Chapter 421, Florida Statutes, as Landlord, and Vista Breeze, Ltd., as Tenant.
4875-5485-1722v.5
D
Forward Purchase Agreement Vista Breeze
EXHIBIT D-11 TO FORWARD PURCHASE AGREEMENT
FORM OF ASSIGNMENT OF HAP CONTRACT
[See attached]
EXHIBIT D-11 TO FORWARD PURCHASE AGREEMENT
FORM OF
ASSIGNMENT OF HOUSING ASSISTANCE PAYMENTS AGREEMENT
THIS ASSIGNMENT OF HAP CONTRACT (this “Assignment”) is made as of the
1st day of [_], 20[_], by VISTA BREEZE, LTD., a Florida limited partnership (“Assignor”),
for the benefit of CITIBANK, N.A., a national banking association (together with its successors
and assigns, collectively, “Assignee”). The date of this Assignment as set forth above is for
reference purposes only, and this Assignment will not be effective and binding until the Closing
Date (as defined in the Borrower Loan Agreement (as hereinafter defined)). This Assignment is
a collateral assignment and not a present assignment of rights and interests, and is effective only
upon the occurrence of an Event of Default (as defined in the Borrower Loan Agreement).
RECITALS:
A. The Housing Authority of the City of Miami Beach, a public body corporate and
politic established pursuant to Chapter 421, Florida Statutes (the “Landlord”), is the legal owner
of fee simple title to the Land (as defined in the Security Instrument (as hereinafter defined)) and
pursuant to that certain Second Amended and Restated Ground Lease, dated as of December 15,
2023, between the Landlord and Assignor, Assignor is the holder of a leasehold interest in the
Land.
B. Assignor previously applied to the Housing Finance Authority of Miami-Dade
County, Florida, a public body corporate and politic organized and existing under the laws of the
State of Florida (“Governmental Lender”), for a loan (the “Borrower Loan”) for the
acquisition, construction, development and/or equipping of a 119-unit multifamily residential
project, located in the City of Miami Beach, Florida, known as Vista Breeze (the “Mortgaged
Property”).
C. Assignor previously requested that the Governmental Lender enter into that
certain Funding Loan Agreement, dated as of December 1, 2023 (the “Original Funding Loan
Agreement”), among the Governmental Lender, 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 Governmental Lender in the original
principal amount of $32,500,000 (the “Funding Loan”), the proceeds of which Governmental
Lender used to make the Borrower Loan pursuant to that certain Construction Phase Borrower
Loan Agreement, dated as of December 1, 2023 (the “Original Borrower Loan Agreement”),
by and between the Governmental Lender and Assignor.
D. The Borrower Loan was evidenced by that certain Construction Phase Project
Loan Note, dated as of December 15, 2023 (the “Original Borrower Note”), made by Assignor
payable to the order of Governmental Lender, as endorsed and assigned to Fiscal Agent for the
benefit of the Original Funding Lender.
Assignment of HAP Contract 2 Vista Breeze
E. The Borrower Loan was secured by, among other things, that certain Leasehold
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated as of December
15, 2023, executed by Assignor for the benefit of Governmental Lender (the “Original Security
Instrument”), which Original Security Instrument encumbers the Mortgaged Property.
F. The Original Borrower Note, the Original Security Instrument, the Original
Borrower Loan Agreement and all other Borrower Loan Documents except for the Unassigned
Rights (as defined in the Original Funding Loan Agreement), were each assigned by
Governmental Lender to Fiscal Agent for the benefit of Original Funding Lender to secure the
Funding Loan.
G. At the request of Assignor, Assignor, Original Funding Lender and Assignee
entered into that certain Forward Purchase Agreement, dated as of December 1, 2023, pursuant
to which Assignee agreed to acquire Original Funding Lender’s interests in the Funding Loan
and Funding Loan Documents (as defined in the Original Funding Loan Agreement) upon
satisfaction of the terms and conditions set forth therein (the “Loan Purchase Conditions”).
H. Insofar as the Loan Purchase Conditions have been satisfied or waived, Assignee
has acquired the Funding Loan from the Original Funding Lender, and in connection therewith,
(i) Assignee has agreed to enter into a certain Amended and Restated Funding Loan Agreement
dated as of the date hereof (the “Funding Loan Agreement”) by and among Governmental
Lender, Fiscal Agent, and Assignee, which amends and restates the Original Funding Loan
Agreement; (ii) Assignor and Governmental Lender have entered into an Amended and Restated
Borrower Loan Agreement dated as of the date hereof (the “Borrower Loan Agreement”)
which amends and restates the Original Borrower Loan Agreement; (iii) Assignor has executed
and delivered an Amended and Restated Multifamily Note, dated as of [Month] [Day], 202[_], in
the principal amount of $[11,875,000][NOTE: AS MAY BE INCREASED PER THE EARN-
OUT] (the “Borrower Note”), which amends and restates the Original Borrower Note; (iv)
Assignor has executed and delivered an Amended and Restated Multifamily Leasehold
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing (Florida), dated as of the
date hereof (the “Security Instrument”), which amends and restates the Original Security
Instrument; and (v) Assignee and Assignor have entered into a certain Loan Covenant
Agreement and dated as of the date hereof (the “Loan Covenant Agreement”; together with the
Borrower Note, the Security Instrument, the Borrower Loan Agreement and all other documents
executed in connection with the Borrower Loan, including this Agreement, the “Borrower Loan
Documents”).
I. The term “Beneficiary Parties” as used herein shall mean Assignee,
Governmental Lender and any Servicer, and their respective successors and assigns. The term
“Beneficiary Parties” shall also include any lawful owner, holder or pledgee of the Note.
J. Assignor has entered into that certain Housing Assistance Payments Contract
pursuant to Section 8 with the Housing Authority of the City of Miami Beach, a public body
corporate and politic (“Contract Administrator”) identified as Section 8 HAP Contract Number
_______________ with an effective date of _____________, covering units within the
Mortgaged Property (as the same may be extended, renewed, amended, modified, supplemented
Assignment of HAP Contract 3 Vista Breeze
or restated from time to time, the “HAP Contract”), a copy of which is attached hereto as
Exhibit A.
K. As a condition to the purchase of the Funding Loan by Assignee, Assignor is
required to enter into this Assignment and assign and pledge to Assignee all of Assignor’s rights,
title and interests in, to and under the HAP Contract, for the purpose of providing additional
security for the full payment and performance by Assignor of all of its obligations under the
Borrower Loan Documents.
NOW, THEREFORE, for and in consideration of the making of the Funding Loan and
the Borrower Loan, the mutual promises and covenants herein contained, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor
agrees as follows:
1. Definitions. Capitalized terms which appear and are not otherwise defined herein
shall have the meanings ascribed to such terms in the Security Instrument. The definitions and
recitals set forth hereinabove are incorporated herein by reference to the same extent and with
the same force and effect as if fully hereinafter set forth.
2. Assignment. Assignor hereby absolutely, unconditionally and irrevocably
transfers, conveys, sets over and assigns to Assignee, all of its right, title, and interest (including,
but not limited to, the right to receive payments due thereunder) in and to the HAP Contract,
together with full power and authority, in the name of the Assignor, to enforce, collect, receive,
and provide receipt for any and all of the foregoing. The foregoing assignment is being made by
Assignor to Assignee as collateral security for the full payment and performance by Assignor of
all of its obligations under the Borrower Loan Documents. It is the intention of the Assignor to
establish a present, absolute and irrevocable transfer and assignment to Assignee of all rights
under the HAP Contract and to authorize and empower Assignee to exercise all rights and
remedies available under the HAP Contract without the necessity of further action on the part of
Assignor. This Assignment shall be effective immediately upon the execution of this
Assignment and is not conditioned upon the occurrence of any default under any of the Borrower
Loan Documents.
3. License. Until the occurrence of an Event of Default, Assignee hereby grants to
Assignor a revocable license to collect the payments due under the HAP Contract, to hold the
payments in trust for the benefit of Assignee, and to apply the payments under the HAP Contract
to pay the installments of interest and principal then due and payable under the Note, and the
other amounts then due and payable under the Borrower Loan Documents, and to pay the current
costs and expenses of managing, operating and maintaining the Mortgaged Property, including
utilities, taxes and insurance premiums, tenant improvements and other capital expenditures
required to maintain the housing as decent, safe and sanitary. So long as no Event of Default has
occurred and is continuing (it being acknowledged and agreed that in no event shall Assignee
have any obligation to accept a cure of an Event of Default), the funds from the payments under
the HAP Contract remaining after application pursuant to the preceding sentence may be retained
by the Assignor free and clear of, and released from, Assignee’s rights with respect to the
payments under the HAP Contract.
Assignment of HAP Contract 4 Vista Breeze
4. Termination of License. Upon the occurrence of an Event of Default, and
without the necessity of Assignee entering upon and taking and maintaining control of the
Mortgaged Property directly, or by a receiver, Assignor’s license to collect payments under the
HAP Contract shall automatically terminate, without notice to Assignor, and Assignee shall be
entitled to all payments under the HAP Contract, as applicable, as they become due and payable,
including payments then due and unpaid.
5. Payments to Assignee.
(a) Assignor shall direct and pay to Assignee upon demand all payments
under the HAP Contract to which Assignee is entitled. Assignor also agrees that in the
event it does not transfer any payments received by Assignor under the HAP Contract to
Assignee within three business days of its receipt of such payments from HUD or
Contract Administrator it shall constitute an Event of Default under the Borrower Loan
Documents for which Assignor shall be personally liable to the extent of the HAP
payments received.
(b) Assignor also agrees that upon receipt by HUD or Contract Administrator
of written notice by Assignee of termination of the license with respect to the HAP
Contract, HUD and Contract Administrator shall be entitled to make payments to
Assignee or its assign. Assignor agrees that it shall not take any action or engage in any
communication with HUD or Contract Administrator which is intended to delay or
prohibit HUD’s or Contract Administrator’s payments to Assignee. Assignor agrees and
instructs that HUD and Contract Administrator shall not be required to consider or to
make any inquiry as to the existence of a default under the Borrower Loan Documents,
but may rely solely on the notice by Assignee.
(c) Assignee agrees that it shall apply any HAP payments it receives to the
installments of interest and principal then due and payable under the Note and the other
amounts then due and payable under the Borrower Loan Documents, and shall apply or
cause such payments to be applied to the current costs and expenses of managing,
operating and maintaining the Mortgaged Property, including utilities, taxes and
insurance premiums, tenant improvements and other capital expenditures immediately
required to maintain the housing as decent, safe and sanitary.
(d) Assignor hereby warrants, represents, covenants and agrees to strictly
comply with the terms of the HAP Contract and all other requirements of HUD and
Contract Administrator with respect thereto, and Assignor covenants and agrees to
continue to perform all of its obligations under the HAP Contract. Assignor agrees to
provide Assignee with copies of all notices from HUD and/or Contract Administrator of
any default of Assignor’s obligations under the HAP Contract and all certificates, reports,
records, reviews, notices, correspondence, records, and other written communications
received from, or sent to HUD and/or Contract Administrator which copies shall be
received by Assignee no later than five (5) days following the receipt or sending thereof
by Assignor, as the case may be.
Assignment of HAP Contract 5 Vista Breeze
6. Financing Statements. Assignor authorizes Assignee to file financing statements
in the appropriate jurisdictions in order to publish notice of and fully perfect this Assignment.
7. Representations of Assignor. Assignor warrants, represents, covenants and
agrees that there have been no other assignments of the HAP Contract; that Assignor will not
further assign, transfer, exchange, pledge, or otherwise dispose of its interest in and to the HAP
Contract; and that any such existing or further assignment, transfer, exchange, pledge or other
disposition is and would be void.
8. Unconditional Assignment.
(a) The obligations of the Assignor hereunder shall be performed without
demand by Assignee and shall be unconditional irrespective of the genuineness, validity,
or enforceability of the Note, or any other Borrower Loan Document, and without regard
to any other circumstance which might otherwise constitute a legal or equitable discharge
of the Assignor. Assignor hereby waives the benefits of any right of discharge and all
other rights under any and all statutes to the fullest extent permitted by law, diligence in
collecting the payments due under the HAP Contract, presentment, demand for payment,
protest, all notices with respect to the Note and Borrower Loan Documents, which may
be required by statute, rule of law or otherwise to preserve Assignee’s rights against the
Assignor under this Assignment, including notice of acceptance, notice of any
amendment of the Borrower Loan Documents, notice of the occurrence of any default or
Event of Default, notice of intent to accelerate, notice of acceleration, notice of dishonor,
notice of foreclosure, notice of protest, notice of the incurring by Assignor of any
obligation or indebtedness and all rights to require Assignee to (a) proceed against
Assignor, (b) proceed against any general partner of Assignor, (c) proceed against or
exhaust any collateral held by Assignee to secure the repayment of the Indebtedness or
the HAP payments, or (d) if Assignor is a partnership, pursue any other remedy it may
have against Assignor, or any general partner of Assignor.
(b) Assignor agrees that its intent in executing this Assignment is to create an
absolute, unconditional and irrevocable assignment of all of its right, title and interest in
and to the HAP Contract to Assignee and its intent is not to create a security interest in
said HAP Contract. To the extent that this Assignment may conflict or otherwise be
inconsistent with any other agreement signed by the Assignor in connection with the
assignment of the HAP Contract, the provisions of this Assignment shall govern.
9. Termination. If not sooner terminated by the written concurrence of the parties,
this Assignment shall terminate upon the payment in full of the Borrower Loan and all
indebtedness incurred in connection therewith. Notwithstanding the foregoing, any and all
provisions herein relating to the indemnification of the Beneficiary Parties shall survive such
termination.
10. Determinations by Assignee. Except to the extent expressly set forth in this
Assignment to the contrary, in any instance where the consent or approval of Assignee may be
given or is required, or where any determination, judgment or decision is to be rendered by
Assignee under this Assignment, the granting, withholding or denial of such consent or approval
Assignment of HAP Contract 6 Vista Breeze
and the rendering of such determination, judgment or decision shall be made or exercised by
Assignee, as applicable (or its designated representative) at its sole and exclusive option and in
its sole and absolute discretion.
11. Release; Indemnity.
(a) Release. Assignor covenants and agrees that, in performing any of their
rights or duties under this Assignment, neither the Beneficiary Parties, nor their agents or
employees, shall be liable for any losses, claims, damages, liabilities and expenses that
may be incurred by any of them as a result of such performance, except to the extent such
liability for any losses, claims, damages, liabilities or expenses arises out of the willful
misconduct or gross negligence of such party.
(b) Indemnity. Assignor hereby agrees to indemnify and hold harmless the
Beneficiary Parties and their respective agents and employees from and against any and
all losses, claims, damages, liabilities and expenses including, without limitation,
reasonable attorneys’ fees and costs and disbursements, which may be imposed or
incurred by any of them in connection with this Assignment, except that no such party
will be indemnified for any losses, claims, damages, liabilities or expenses arising out of
the willful misconduct or gross negligence of such party. Assignor assigns to Assignee
all rights and claims Assignor may have against any other party in connection with the
HAP Contract; provided, however, that Assignee may not pursue any such right or claim
unless a default exists under this Assignment or an Event of Default shall have occurred
under the Security Instrument.
12. Governing Law. This Assignment shall be governed by and enforced in
accordance with the laws of the Property Jurisdiction (or to the extent inconsistent with the laws
of the Property Jurisdiction, the laws of the United States of America), without giving effect to
the choice of law principles of the Property Jurisdiction that would require the application of the
laws of a jurisdiction other than the Property Jurisdiction.
13. Consent to Jurisdiction and Venue. Assignor agrees that any controversy
arising under or in relation to this Assignment shall be litigated exclusively in the Property
Jurisdiction. The state and federal courts and authorities with jurisdiction in the Property
Jurisdiction shall have exclusive jurisdiction over all controversies which shall arise under or in
relation to this Assignment. Assignor irrevocably consents to service, jurisdiction, and venue of
such courts for any such litigation and waives any other venue to which it might be entitled by
virtue of domicile, habitual residence or otherwise. However, nothing herein is intended to limit
Beneficiary Parties’ right to bring any suit, action or proceeding relating to matters arising under
this Assignment against Assignor or any of Assignor’s assets in any court of any other
jurisdiction.
14. Successors and Assigns. This Assignment shall be binding upon Assignor and
its heirs, legal representatives, successors, successors-in-interest and assigns, as appropriate, and
shall inure to the benefit of the Beneficiary Parties and their respective successors, successors-in-
interest and assigns. The terms used to designate any of the parties herein shall be deemed to
include the heirs, legal representatives, successors, successors-in-interest and assigns, as
Assignment of HAP Contract 7 Vista Breeze
appropriate, of such parties. References to a “person” or “persons” shall be deemed to include
individuals and entities. Assignor acknowledges and agrees that any Beneficiary Party, at its
option, may assign its respective rights and interests under this Assignment and the other
Borrower Loan Documents in whole or in part and upon such assignment all the terms and
provisions of this Assignment or the other Borrower Loan Documents shall inure to the benefit
of such assignee to the extent so assigned. Assignor may not assign or delegate its rights,
interests or obligations under this Assignment without first obtaining Assignee’s prior written
consent.
15. Severability. The invalidity, illegality or unenforceability of any provision of
this Assignment shall not affect the validity, legality or enforceability of any other provision, and
all other provisions shall remain in full force and effect.
16. Expenses. Assignor shall pay to the Beneficiary Parties, upon demand, the
amount of any and all expenses, including, without limitation, reasonable attorneys’ fees
(including reasonable time charges of attorneys who may be employees of Beneficiary Parties),
which the Beneficiary Parties may incur in connection with (a) the custody, preservation or sale
of, collection from, or other realization upon any of the collateral assigned or encumbered by this
Assignment, (b) the exercise or enforcement of any of their rights hereunder, (c) the failure by
Assignor to perform or observe any of the provisions hereof, or (d) the breach by Assignor of
any representation or warranty of Assignor set forth herein. Such expenses, together with
interest thereon computed at the Default Rate set forth in the Note from the date on which such
expenses are incurred to the date of payment thereof, shall constitute indebtedness secured by the
Security Instrument.
17. Remedies Cumulative. In the event of Assignor’s default under this
Assignment, the Beneficiary Parties may exercise all or any one or more of their rights and
remedies available under this Assignment, at law or in equity. Such rights and remedies shall be
cumulative and concurrent, and may be enforced separately, successively or together, and the
exercise of any particular right or remedy shall not in any way prevent the Beneficiary Parties
from exercising any other right or remedy available to the Beneficiary Parties. The Beneficiary
Parties may exercise any such remedies from time to time as often as may be deemed necessary
by the Beneficiary Parties.
18. No Agency or Partnership. Nothing contained in this Assignment shall
constitute any Beneficiary Party as a joint venturer, partner or agent of Assignor, or render any
Beneficiary Party liable for any debts, obligations, acts, omissions, representations or contracts
of Assignor.
19. Transfer of Mortgaged Property or Ownership Interests in Assignor. If a
Transfer (as defined in the Security Instrument) of all or part of the Mortgaged Property or of an
ownership interest in Assignor, shall occur, which Transfer requires the prior written consent of
Assignee, the transferee(s) shall be required to assume the transferor’s duties and obligations
under this Assignment and the other Borrower Loan Documents and shall be required to execute
and deliver to Assignee such documents as Assignee requires to effectuate such assumption of
duties and obligations. No transfer and assumption shall relieve the transferor of any of its duties
or obligations under this Assignment or any of the other Borrower Loan Documents, unless the
Assignment of HAP Contract 8 Vista Breeze
Assignor has obtained the prior written consent of Assignee to the release of such duties and
obligations.
20. Entire Agreement; Amendment and Waiver. This Assignment contains the
complete and entire understanding of the parties with respect to the matters covered herein. This
Assignment may not be amended, modified or changed, nor shall any waiver of any provision
hereof be effective, except by a written instrument signed by the party against whom
enforcement of the waiver, amendment, change, or modification is sought, and then only to the
extent set forth in that instrument. No specific waiver of any of the terms of this Assignment
shall be considered as a general waiver.
21. Further Assurances. Assignor shall at any time and from time to time, promptly
execute and deliver all further instruments and documents, and take all further action that may be
reasonably necessary or desirable, or that any Beneficiary Party may reasonably request, in order
to protect any right or interest granted by this Assignment or to enable the Beneficiary Party to
exercise and enforce its rights and remedies under this Assignment.
22. No Amendment; Conflicts. Nothing contained in this Assignment shall be
construed to amend, modify, alter, change or supersede the terms and provisions of the Note, the
Security Instrument or the Borrower Loan Agreement; and, if there is a conflict between the
terms and provisions of this Assignment and those of the Note, the Security Instrument or the
Borrower Loan Agreement, then the terms and provisions of the Note, the Security Instrument or
the Borrower Loan Agreement shall control.
23. Limitation of Liability. The personal liability of Assignor for the payment and
performance of the obligations hereunder is limited in the manner and to the extent provided in
the Note.
24. Notices. All notices given under this Assignment shall be in writing and shall be
sent to the respective addresses of the parties, in the manner set forth in the Security Instrument.
25. Counterparts. This Assignment may be executed in multiple counterparts, each
of which shall constitute an original document and all of which together shall constitute one
agreement.
26. Captions. The captions of the sections of this Assignment are for convenience
only and shall be disregarded in construing this Assignment.
27. Servicer. Assignor hereby acknowledges and agrees that, pursuant to the terms
of the Security Instrument: (a) from time to time, Assignee may appoint a servicer to collect
payments, escrows and deposits, to give and to receive notices under the Note, this Assignment
or the other Borrower Loan Documents, and to otherwise service the Borrower Loan and (b)
unless Assignor receives written notice from Assignee to the contrary, any action or right which
shall or may be taken or exercised by Assignee may be taken or exercised by such servicer with
the same force and effect.
28. Beneficiary Parties as Third Party Beneficiary. Each of the Beneficiary Parties
shall be a third party beneficiary of this Assignment for all purposes.
Assignment of HAP Contract 9 Vista Breeze
29. Waiver of Trial by Jury. TO THE MAXIMUM EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF ASSIGNOR AND THE BENEFICIARY PARTIES
(A) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT
TO ANY ISSUE ARISING OUT OF THIS ASSIGNMENT OR THE RELATIONSHIP
BETWEEN THE PARTIES THAT IS TRIABLE OF RIGHT BY A JURY AND (B) WAIVES
ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT
THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT
TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND
VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.
30. Time of the Essence. Time is of the essence with respect to this Assignment.
31. Modifications. All modifications (if any) to the terms of this Assignment
(“Modifications”) are set forth on Exhibit B attached to this Assignment. In the event of a
Transfer under the terms of the Security Instrument (other than a Permitted Transfer that does
not require the consent of the Funding Lender), some or all of the Modifications to this
Assignment may be modified or rendered void by Assignee at its option by notice to Assignor or
such transferee.
32. Attached Exhibits. The following Exhibits are attached to this Assignment and
are incorporated by reference herein as if more fully set forth in the text hereof:
Exhibit A – Housing Assistance Payments Contract with Amendments, if any
Exhibit B - Modifications to Assignment of Housing Assistance Payments
Agreement
The terms of this Assignment are modified and supplemented as set forth in said Exhibits. To
the extent of any conflict or inconsistency between the terms of said Exhibits and the text of this
Assignment, the terms of said Exhibits shall be controlling in all respects.
Assignment of HAP Contract A-1 Vista Breeze
IN WITNESS WHEREOF, the undersigned has caused this Assignment of Housing
Assistance Payments Agreement to be signed and delivered by its duly authorized representative
as of the date first set forth above.
ASSIGNOR:
VISTA BREEZE, LTD.,
a Florida limited partnership
By: APC Vista Breeze, LLC,
a Florida limited liability company,
Duly Authorized
By: ________________________
Name:
Title:
Assignment of HAP Contract A-2 Vista Breeze
EXHIBIT A
HOUSING ASSISTANCE PAYMENTS
CONTRACT WITH AMENDMENTS, IF ANY
[See Attached.]
Assignment of HAP Contract C-1 Vista Breeze
EXHIBIT B
MODIFICATIONS TO
ASSIGNMENT OF HOUSING ASSISTANCE PAYMENTS AGREEMENT
The following modifications are made to the text of the Assignment that precedes this
Exhibit:
None.
Capitalized terms used and not defined herein shall have the respective meanings
ascribed to them in the Assignment.
4888-6295-0282
D
Forward Purchase Agreement Vista Breeze
EXHIBIT D-12 TO FORWARD PURCHASE AGREEMENT
FORM OF SUBORDINATION AND INTERCREDITOR AGREEMENT (CITY)
[See attached]
THIS INSTRUMENT PREPARED BY:
Aviva Yakren, Esq.
Sidley Austin LLP
787 Seventh Avenue
New York, New York 10019
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Citibank, N.A.
Transaction and Asset Management Group/Post Closing
Citi Community Capital
3800 Citibank Center
Tampa, Florida 33610
Re: Vista Breeze Deal ID No. 60001596
ABOVE SPACE RESERVED FOR
RECORDING PURPOSES ONLY
EXHIBIT D-12 TO FORWARD PURCHASE AGREEMENT
FORM OF
SUBORDINATION AND INTERCREDITOR AGREEMENT
Subordination and Intercreditor Agreement (City) Vista Breeze
EXHIBIT D-12 TO FORWARD PURCHASE AGREEMENT
FORM OF
SUBORDINATION AND INTERCREDITOR AGREEMENT
THIS SUBORDINATION AND INTERCREDITOR AGREEMENT (this
“Agreement”) dated as of the [_] day of [Month], 202[_], is made by and between CITY OF
MIAMI BEACH, FLORIDA, a political subdivision of the State of Florida (“Junior Lender”) and
CITIBANK, N.A., a national banking association (“Senior Lender”) and acknowledged by
VISTA BREEZE, LTD., a Florida limited partnership (“Borrower”). The date of this Agreement as
set forth above is for reference purposes only, and this Agreement will not be effective and binding
until the Conversion Date (as defined in the Original Borrower Loan Agreement (as hereinafter
defined)).
RECITALS:
A. The Housing Authority of the City of Miami Beach, a public body corporate and
politic established pursuant to Chapter 421, Florida Statutes (the “Landlord”), is the legal owner
of fee simple title to the Land (as defined in the Security Instrument (as hereinafter defined)) and
pursuant to that certain Second Amended and Restated Ground Lease, dated as of December 15,
2023, between the Landlord and the Borrower, the Borrower is the holder of a leasehold interest
in the Land.
B. Borrower previously applied to the Housing Finance Authority of Miami-Dade
County, Florida, a public body corporate and politic organized and existing under the laws of the
State of Florida (“Governmental Lender”), for a loan (the “Borrower Loan”) for the acquisition,
construction, development and/or equipping of a 119-unit multifamily residential project, located
in the City of Miami Beach, Florida, known as Vista Breeze (the “Mortgaged Property”).
C. Borrower previously requested that the Governmental Lender enter into that certain
Funding Loan Agreement, dated as of December 1, 2023 (the “Original Funding Loan
Agreement”), among the Governmental Lender, 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 Governmental Lender in the original principal amount
of $32,500,000 (the “Funding Loan”), the proceeds of which Governmental Lender used to make
the Borrower Loan pursuant to that certain Construction Phase Borrower Loan Agreement, dated
as of December 1, 2023, (the “Original Borrower Loan Agreement”), by and between the
Governmental Lender and the Borrower.
D. The Borrower Loan was evidenced by that certain Construction Phase Project Loan
Note, dated as of December 15, 2023 (the “Original Borrower Note”), made by Borrower payable
to the order of Governmental Lender, as endorsed and assigned to Fiscal Agent for the benefit of
the Original Funding Lender.
E. The Borrower Loan was secured by, among other things, that certain Leasehold
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated as of December 15,
Subordination and Intercreditor Agreement (City) 2 Vista Breeze
2023, executed by Borrower for the benefit of Governmental Lender (the “Original Security
Instrument”), which Original Security Instrument encumbers the Mortgaged Property.
F. The Original Borrower Note, the Original Security Instrument, the Original
Borrower Loan Agreement and all other Borrower Loan Documents except for the Unassigned
Rights (as defined in the Original Funding Loan Agreement), were each assigned by Governmental
Lender to Fiscal Agent for the benefit of Original Funding Lender to secure the Funding Loan.
G. At the request of Borrower, the Borrower, Original Funding Lender and Senior
Lender entered into that certain Forward Purchase Agreement, dated as of December 1, 2023,
pursuant to which Senior Lender agreed to acquire Original Funding Lender’s interests in the
Funding Loan and Funding Loan Documents (as defined in the Original Funding Loan Agreement)
upon satisfaction of the terms and conditions set forth therein (the “Loan Purchase Conditions”).
H. Insofar as the Loan Purchase Conditions have been satisfied or waived, the
Borrower Loan has converted into a permanent loan (the “Senior Loan”), and in connection
therewith, (i) Senior Lender has agreed to enter into a certain Amended and Restated Funding
Loan Agreement, dated as of the date hereof (the “Funding Loan Agreement”), by and among
Governmental Lender, Fiscal Agent, and Senior Lender, which amends and restates the Original
Funding Loan Agreement; (ii) Borrower and Governmental Lender have entered into an Amended
and Restated Borrower Loan Agreement, dated as of the date hereof (the “Borrower Loan
Agreement”), which amends and restates the Original Borrower Loan Agreement; (iii) Borrower
has executed and delivered an Amended and Restated Multifamily Note, dated as of [_], 202[_],
in the principal amount of $[11,875,000][NOTE: AS MAY BE INCREASED PER THE EARN-
OUT] (the “Borrower Note”), which amends and restates the Original Borrower Note; (iv)
Borrower has executed and delivered an Amended and Restated Multifamily Leasehold Mortgage,
Assignment of Rents, Security Agreement and Fixture Filing (Florida) executed and delivered by
Borrower and dated as of the date hereof (the “Security Instrument”), which amends and restates
the Original Security Instrument; and (v) Senior Lender and Borrower have entered into a certain
the Loan Covenant Agreement executed and delivered by Borrower and dated as of the date hereof
(the “Loan Covenant Agreement”).
I. Junior Lender has made a loan in the principal amount of $500,000 to Borrower, as
evidenced by that certain Promissory Note dated as of September 21, 2023, made by Borrower, as
maker, to Junior Lender, as payee, and has agreed to make an additional future advance loan in the
amount of $503,969 for a total indebtedness from Borrower to Junior Lender in the amount of
$1,003,969 (the “Junior Loan”), which Junior Loan is evidenced by a certain Amended, Restated,
Renewal and Consolidated Promissory Note dated as of December 15, 2023 made by Borrower to
Junior Lender (the “Junior Note”) and secured by, the Junior Security Instrument (as hereinafter
defined) encumbering the Property, and will be advanced to Borrower pursuant to that certain
Amended and Restated HOME Program Development Agreement (the “Junior Loan
Agreement”), dated as of December 15, 2023, between Borrower and Junior Lender.
J. As a condition to the making of the Senior Loan, Senior Lender requires that Junior
Lender execute and deliver this Agreement prior to conversion of the Borrower Loan to the Senior
Loan.
Subordination and Intercreditor Agreement (City) 3 Vista Breeze
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and to induce the making of the
Senior Loan and to induce Senior Lender to consent to the Junior Loan and the Junior Security
Instrument, Junior Lender hereby agrees as follows:
1. Definitions. Capitalized terms used but not defined in this Agreement shall have
the meanings ascribed thereto in the Senior Security Instrument. As used in this Agreement, the
terms set forth below shall have the respective meanings indicated:
“Bankruptcy Proceeding” means any bankruptcy, reorganization, insolvency, composition,
restructuring, dissolution, liquidation, receivership, assignment for the benefit of creditors, or
custodianship action or proceeding under any federal or state law with respect to Borrower, any
guarantor of any of the Senior Indebtedness, any of their respective properties, or any of their
respective partners, members, officers, directors, or shareholders.
“Casualty” means the occurrence of damage to or loss of any of the Property by fire or
other casualty.
“Condemnation” means any proposed or actual condemnation or other taking, or
conveyance in lieu thereof, of all or any part of the Property, whether direct or indirect.
“Enforcement Action” means any exercise of any of Junior Lender’s remedies under the
Junior Security Instrument or any of the other Junior Loan Documents, including, without
limitation, any of the following: (i) the acceleration of all or any part of the Junior Indebtedness,
(ii) the commencement of any judicial or non-judicial action or proceeding to enforce any
obligation of Borrower under any of the Junior Loan Documents, collect any monies payable to
Borrower or have a receiver appointed to collect any monies payable to Borrower, or foreclose the
lien(s) created by the Junior Security Instrument, (iii) the filing or joining in the filing of any
involuntary Bankruptcy Proceeding against Borrower or any person or entity which owns a direct
or indirect interest in Borrower, (iv) the advertising of or commencement of any foreclosure or
trustee’s sale proceedings, (v) the exercise of any power of sale, (vi) the acceptance of a deed or
assignment in lieu of foreclosure or sale, (vii) the collecting of Rents, (viii) the obtaining of or
seeking of the appointment of a receiver, (ix) the seeking of default interest, (x) the taking of
possession or control of any of the Property, (xi) the commencement of any suit or other legal,
administrative, or arbitration proceeding based upon the Junior Note or any other of the Junior
Loan Documents, (xii) the exercising of any banker’s lien or rights of set-off or recoupment, or
(xiii) the taking of any other enforcement action against Borrower, any other party liable for any
of the Junior Indebtedness or obligated under any of the Junior Loan Documents, or the Property.
“Enforcement Action Notice” means a written notice from Junior Lender to Senior Lender,
given following a Junior Loan Default and the expiration of any notice or cure periods provided
for such Junior Loan Default in the Junior Loan Documents, setting forth in reasonable detail the
Enforcement Action proposed to be taken by Junior Lender.
“Junior Indebtedness” means all indebtedness of any kind at any time evidenced or secured
by, or arising under, the Junior Loan Documents, whether incurred, arising or accruing before or
after the filing of any Bankruptcy Proceeding.
Subordination and Intercreditor Agreement (City) 4 Vista Breeze
“Junior Loan Default” means any act, failure to act, event, condition, or occurrence which
constitutes, or which with the giving of notice or the passage of time, or both, would constitute, an
“Event of Default” as defined in the Junior Security Instrument.
“Junior Loan Documents” means, collectively, the Junior Note, the Junior Security
Instrument, the Junior Loan Agreement, that certain Amended and Restated Declaration of
Restrictive Covenants, dated as of December 15, 2023, made by Borrower and Landlord in favor
of Junior Lender (the “Junior Declaration”), and all other documents evidencing, securing or
delivered in connection with the Junior Loan, all of which are listed on Exhibit B attached hereto,
together with such modifications, amendments and supplements thereto as are approved in writing
by Senior Lender prior to their execution, to the extent required by this Agreement.
“Junior Security Instrument” means that certain Amended and Restated Leasehold
Mortgage, Security Agreement and Fixture Filing dated as of December 15, 2023, by Borrower in
favor of Junior Lender, made by Borrower for the benefit of Junior Lender, as the same may from
time to time be extended, consolidated, substituted for, modified, amended or supplemented upon
receipt of the consent of Senior Lender to the extent required by this Agreement.
“Loan Agreement” means the Loan Covenant Agreement.
“Loss Proceeds” means all monies received or to be received under any insurance policy,
from any condemning authority, or from any other source, as a result of any Condemnation or
Casualty.
“Property” means (i) the land and improvements known or to be known as Vista Breeze,
located in the City of Miami Beach, Miami-Dade County, State of Florida, which Property is more
particularly described on Exhibit A attached hereto, and (ii) all furniture, fixtures and equipment
located at such apartments and other property, accounts, deposits and rights and interests of
Borrower encumbered by the Senior Security Instrument and/or the other Senior Loan Documents.
“Senior Indebtedness” means all indebtedness of any kind at any time evidenced or secured
by, or arising under, the Senior Loan Documents, whether incurred, arising or accruing before or
after the filing of any Bankruptcy Proceeding.
“Senior Loan Default” means any act, failure to act, event, condition, or occurrence which
constitutes, or which with the giving of notice or the passage of time, or both, would constitute, an
“Event of Default” as defined in the Senior Security Instrument.
“Senior Loan Documents” means, collectively, the Senior Security Instrument, the Senior
Note, the Borrower Loan Agreement and all of the other documents, instruments and agreements
now or hereafter evidencing, securing or otherwise executed in connection with the Senior Loan,
as the same may from time to time be extended, consolidated, substituted for, modified, increased,
amended and supplemented in accordance with the provisions of this Agreement.
Subordination and Intercreditor Agreement (City) 5 Vista Breeze
2. Junior Loan and Junior Loan Documents are Subordinate; Acts by Senior
Lender do not Affect Subordination.
(a) Junior Lender hereby covenants and agrees on behalf of itself and its
successors and permitted assigns that the Junior Indebtedness is and shall at all times
continue to be, subordinate, subject and inferior in priority and in payment, to the extent
and in the manner provided in this Agreement to the prior payment in full of the Senior
Indebtedness, and that the liens, rights, payment interests, priority interests and security
interests granted to Junior Lender in connection with the Junior Loan and under the Junior
Loan Documents are, and are hereby expressly acknowledged to be in all respects and at
all times, subject, subordinate and inferior in all respects to the liens, rights, payment,
priority and security interests granted to Senior Lender under the Senior Loan and the
Senior Loan Documents.
(b) Except as expressly set forth herein, repayment of the Junior Indebtedness,
is and shall be postponed and subordinated to repayment in full of the Senior Loan. Prior
to a Senior Loan Default (regardless of whether such Senior Loan Default occurs prior to
or during the pendency of a Bankruptcy Proceeding), Junior Lender shall be entitled to
receive and retain payments made pursuant to and in accordance with the terms of the
Junior Loan Documents; provided, however, that no such payment is made more than thirty
(30) days in advance of the due date thereof. Junior Lender agrees that from and after such
time as it has received from either Senior Lender or Borrower written notice that a Senior
Loan Default then exists (which has not been expressly waived in writing by Senior
Lender) or otherwise has actual knowledge of such a Senior Loan Default, Junior Lender
shall not receive or accept any payments under the Junior Loan. If (i) Junior Lender
receives any payment, property, or asset of any kind or in any form on account of the Junior
Indebtedness (including, without limitation, any proceeds from any Enforcement Action)
after a Senior Loan Default of which Junior Lender has (i) received written notice from
Senior Lender or Borrower in accordance with this Agreement, or (ii) such payment,
property, or asset will be received and held in trust for Senior Lender. Prior to the filing
of a Bankruptcy Proceeding, Junior Lender will promptly remit, in kind and properly
endorsed as necessary, all such payments, properties, and assets to Senior Lender. Senior
Lender shall apply any payment, asset, or property so received from Junior Lender to the
Senior Indebtedness in such order, amount (with respect to any asset or property other than
immediately available funds), and manner as Senior Lender shall determine in its sole and
absolute discretion. Upon Borrower curing the Senior Loan Default or waiver of the Senior
Loan Default by Senior Lender, Junior Lender may resume collecting and retaining
payments made pursuant to and in accordance with the terms of the Junior Loan
Documents.
(c) Without limiting the complete subordination of the Junior Indebtedness to
the payment in full of the Senior Indebtedness, in any Bankruptcy Proceeding, upon any
payment or distribution (whether in cash, property, securities, or otherwise) to creditors (i)
the Senior Indebtedness shall first be paid in full in cash before Junior Lender shall be
entitled to receive any payment or other distribution on account of or in respect of the
Junior Indebtedness, and (ii) until all of the Senior Indebtedness is paid in full in cash, any
Subordination and Intercreditor Agreement (City) 6 Vista Breeze
payment or distribution to which Junior Lender would be entitled but for this Agreement
(whether in cash, property, or other assets) shall be made to Senior Lender.
(d) The subordination of the Junior Indebtedness shall continue in the event that
any payment under the Senior Loan Documents (whether by or on behalf of Borrower, as
proceeds of security or enforcement of any right of set-off or otherwise) is for any reason
repaid or returned to Borrower or its insolvent estate, or avoided, set aside or required to
be paid to Borrower, a trustee, receiver or other similar party under any bankruptcy,
insolvency, receivership or similar law. In such event, the Senior Indebtedness or part
thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding
to the extent of any repayment, return, or other action, as if such payment on account of
the Senior Indebtedness had not been made.
(e) The subordination of the Junior Loan Documents and of the Junior
Indebtedness shall apply and continue notwithstanding (i) the actual date and time of
execution, delivery, recording, filing or perfection of the Senior Security Instrument and
other Senior Loan Documents and of the Junior Security Instrument and other Junior Loan
Documents, and (ii) the availability of any collateral to Senior Lender, including the
availability of any collateral other than the Property.
(f) By reason of, and without in any way limiting, the full subordination of the
Junior Indebtedness and the Junior Loan Documents provided for in this Agreement, all
rights and claims of Junior Lender under the Junior Security Instrument or under the Junior
Loan Documents in or to the Property or any portion thereof, the proceeds thereof, the
Leases thereof, the Rents, issues and profits therefrom, and the Loss Proceeds payable with
respect thereto, are, to the extent and in the manner provided in this Agreement, expressly
subject and subordinate in all respects to the rights and claims of Senior Lender under the
Senior Loan Documents in and to the Property or any portion thereof, the proceeds thereof,
the Leases thereof, the Rents, issues and profits therefrom, and the Loss Proceeds payable
with respect thereto.
(g) If Junior Lender, by indemnification, subrogation or otherwise, shall
acquire any lien, estate, right or other interest in any of the Property, that lien, estate, right
or other interest shall be fully subject and subordinate to the receipt by Senior Lender of
payment in full of the Senior Indebtedness, to the extent and in the manner provided in this
Agreement, and to the Senior Loan Documents, to the same extent as the Junior
Indebtedness and the Junior Loan Documents are subordinate pursuant to this Agreement.
(h) In confirmation, and not as a condition, of the subordination of the Junior
Indebtedness and the Junior Loan Documents provided for in this Agreement, and for so
long as the Senior Loan is outstanding, the Junior Note shall be deemed to include the
following provision:
“The indebtedness evidenced by this Note is and shall be subordinate in
right of payment, to the extent and in the manner provided in the
Subordination Agreement (as defined herein), to the prior payment in full
of all amounts then due and payable (including, but not limited to, all
Subordination and Intercreditor Agreement (City) 7 Vista Breeze
amounts due and payable by virtue of any default or acceleration or upon
maturity) with respect to the indebtedness evidenced by the Note (as defined
by that certain Amended and Restated Multifamily Leasehold Mortgage,
Assignment of Rents, Security Agreement and Fixture Filing (Florida) by
the Borrower in favor of Governmental Lender and assigned to The Bank
of New York Mellon Trust Company, N.A., a national banking association,
in the original maximum principal amount of $[11,875,000] [NOTE: AS
MAY BE INCREASED PER THE EARN-OUT]) to the extent and in the
manner provided in that certain Subordination and Intercreditor Agreement,
dated as of [_______], 20 [___], between Citibank, N.A. (“Senior Lender”)
and the holder of this Note (the “Subordination Agreement”). The rights
and remedies of the payee and each subsequent holder of this Note shall be
deemed, by virtue of such holder’s acquisition of this Note, to have agreed
to perform and observe all of the terms, covenants and conditions to be
performed or observed by the “Junior Lender” under the Subordination
Agreement.”
(i) Junior Lender hereby acknowledges and agrees that Senior Lender may,
without the consent or approval of Junior Lender, agree with Borrower to extend,
consolidate, modify, or amend any or all the Senior Loan Documents and otherwise act or
fail to act with respect to any matter set forth in any Senior Loan Document (including,
without limitation, the exercise of any rights or remedies, waiver, forbearance or delay in
enforcing any rights or remedies, the declaration of acceleration, the declaration of defaults
or events of default, the release, in whole or in part, of any collateral or other property, and
any consent, approval or waiver), and all such extensions, consolidations, modifications,
amendments acts and omissions shall not release, impair or otherwise affect Junior
Lender’s obligations and agreements hereunder; provided, however, notwithstanding the
foregoing or anything else to the contrary in this Agreement, Senior Lender shall not
modify any provision of the Senior Loan Documents that increases the interest rate, extends
the term (other than extensions expressly provided for in accordance with the Senior Loan
Documents) or increases the Senior Indebtedness, except for increases in the Senior
Indebtedness that result from advances made by Senior Lender to protect the security or
lien priority of Senior Lender under the Senior Loan Documents or to cure defaults under
the Junior Loan Documents.
3. Junior Lender Agreements.
(a) Without the prior written consent of Senior Lender in each instance, which
consent shall not be unreasonably withheld, conditioned or delayed, Junior Lender shall
not (i) amend, modify, waive, extend, renew or replace any provision of any of the Junior
Loan Documents, or (ii) pledge, assign, transfer, convey, or sell any interest in the Junior
Indebtedness or any of the Junior Loan Documents unless the transferee is a governmental
entity, quasi-governmental entity, or a nonprofit entity created and controlled by the City
of Miami Beach, and Senior Lender is given thirty (30) days’ prior written notice of any
such transfer and acknowledgment by transferee that the loan remains subject to this
Agreement, and provided that in no event may any such pledge, assignment, transfer,
conveyance or sale be to Borrower or its affiliates; or (iii) accept any payment on account
Subordination and Intercreditor Agreement (City) 8 Vista Breeze
of the Junior Indebtedness other than a regularly scheduled payment of interest or principal
and interest made not earlier than thirty (30) days prior to the due date thereof; or (iv) take
any action which has the effect of increasing the Junior Indebtedness; or (v) appear in,
defend or bring any action in connection with the Property until such time as the Junior
Lender Standstill Period has expired; or (vi) take any action concerning environmental
matters affecting the Property. Regardless of any contrary provision in the Junior Loan
Documents, Junior Lender shall not collect payments for the purpose of escrowing for any
cost or expense related to the Property or for any portion of the Junior Indebtedness.
Notwithstanding anything to the contrary herein, Junior Lender agrees that, until the
principal of, interest on and all other amounts payable under the Senior Loan Documents
have been paid in full, it will not, without the prior written consent of Senior Lender,
increase the amount of the Junior Loan, increase the required payments due under the
Junior Loan, decrease the term of the Junior Loan, increase the interest rate on the Junior
Loan, or otherwise amend the Junior Loan terms in a manner that creates an adverse effect
upon Senior Lender under the Junior Loan Documents. If Junior Lender either (i) amends
the Junior Loan Documents in the manner set forth above or (ii) assigns the Junior Loan
without Senior Lender’s consent except as provided in this Section 3(a), then such
amendment or assignment will be void ab initio and of no effect whatsoever.
(b) Junior Lender shall give Senior Lender a concurrent copy of each notice of
a Junior Loan Default , Enforcement Action Notice or other material notice given by Junior
Lender under the Junior Loan Documents. Notwithstanding any contrary provision in the
Junior Loan Documents, Senior Lender shall have the right, but shall not have any
obligation, to cure any Junior Loan Default until ninety (90) days following Senior
Lender’s receipt of an Enforcement Action Notice given by Junior Lender as a consequence
of the Junior Loan Default. Senior Lender shall not be subrogated to the rights of Junior
Lender under the Junior Loan Documents by reason of Senior Lender having cured any
Junior Loan Default. However, Junior Lender acknowledges that all amounts advanced or
expended by Senior Lender to cure a Junior Loan Default shall be added to and become a
part of the Senior Indebtedness pursuant to the terms of the Senior Security Instrument.
(c) Senior Lender shall have all approval, consent and oversight rights in
connection with any insurance claims relating to the Property, any decisions regarding the
use of insurance proceeds after a casualty loss or condemnation awards, and Junior Lender
shall have no right to object to any such action or approval taken by Senior Lender and
shall consent thereto and be bound thereby. Notwithstanding the foregoing, in the event
of an insurance claim, Junior Lender shall be entitled to make its own claim to any
insurance proceeds which exceed the total amount owed to, and received by, Senior Lender
under the Senior Loan Documents.
(d) Junior Lender agrees that in any action commenced to enforce the obligation
of Borrower to pay any portion of the Junior Indebtedness, the judgment shall not be
enforceable personally against Borrower or Borrower’s assets except in the case of fraud
or misrepresentation as set forth in the Junior Note, and the recourse of Junior Lender for
the collection of the Junior Indebtedness shall be limited to actions against the Property
and the rents, profits, issues, products, and income from the Property.
Subordination and Intercreditor Agreement (City) 9 Vista Breeze
(e) Without the prior written consent of Senior Lender, Junior Lender will not
commence, or join with any other creditor in commencing, any Bankruptcy Proceeding. In
the event of a Bankruptcy Proceeding, Junior Lender will not vote affirmatively in favor
of any plan of reorganization or liquidation unless Senior Lender has also voted
affirmatively in favor of such plan.
(f) Junior Lender covenants and agrees that the effectiveness of this Agreement
and the rights of Senior Lender hereunder shall be in no way impaired, affected, diminished
or released by any renewal or extension of the time of payment of the Senior Loan, by any
delay, forbearance, failure, neglect or refusal of Senior Lender in enforcing payment
thereof or in enforcing the lien of or attempting to realize upon the Senior Loan Documents
or any other security which may have been given or may hereafter be given for the Senior
Loan, by any waiver or failure to exercise any right or remedy under the Senior Loan
Documents, or by any other act or failure to act by Senior Lender. Junior Lender
acknowledges that Senior Lender, at its sole option, may release all or any portion of the
Property from the lien of the Senior Security Instrument, and may release or waive any
guaranty, surety or indemnity providing additional collateral to Senior Lender, and Junior
Lender hereby waives any legal or equitable right in respect of marshaling it might have,
in connection with any release of all or any portion of the Property by Senior Lender, to
require the separate sales of any portion of the Property or to require Senior Lender to
exhaust its remedies against any portion of the Property or any other collateral before
proceeding against any other portion of the Property or other collateral (including
guarantees) for the Senior Loan. Senior Lender may pursue all rights and remedies
available to it under the Senior Loan Documents, at law, or in equity, regardless of any
Enforcement Action Notice or Enforcement Action by Junior Lender. At any time or from
time to time and any number of times, without notice to Junior Lender and without affecting
the liability of Junior Lender, (a) the time for payment of the Senior Indebtedness may be
extended or the Senior Indebtedness may be renewed in whole or in part; (b) the time for
Borrower’s performance of or compliance with any covenant or agreement contained in
the Senior Loan Documents, whether presently existing or hereinafter entered into, may be
extended or such performance or compliance may be waived; (c) the maturity of the Senior
Indebtedness may be accelerated as provided in the Senior Loan Documents; and (d) any
security for the Senior Indebtedness may be modified, exchanged, surrendered or otherwise
dealt with or additional security may be pledged or mortgaged for the Senior Indebtedness.
If, after the occurrence of a Senior Loan Default, Senior Lender acquires title to any of the
Property pursuant to a completed mortgage foreclosure proceeding conducted in
accordance with applicable law, the lien, operation, and effect of the Junior Security
Instrument and other Junior Loan Documents automatically shall terminate with respect to
such Property upon Senior Lender’s acquisition of title.
(g) Junior Lender acknowledges that it entered into the transactions
contemplated by the Junior Loan Documents and made the Junior Loan to Borrower
without reliance upon any information or advice from Senior Lender. Junior Lender made
its own underwriting analysis in connection with the Junior Loan and the Borrower, and
investigated all matters pertinent, in Junior Lender’s judgment, to its determination to make
the Junior Loan to Borrower. Junior Lender acknowledges that it is a sophisticated and
Subordination and Intercreditor Agreement (City) 10 Vista Breeze
experienced governmental lender and was represented by competent counsel in connection
with this Agreement.
(h) Junior Lender hereby represents and warrants that, as of the date hereof, the
entire proceeds of the Junior Loan have been disbursed to Borrower, except as otherwise
notified in writing by Junior Lender to Senior Lender. Junior Lender hereby further
represents and warrants that: (i) Junior Lender is now the owner and holder of the Junior
Loan Documents; (ii) the Junior Loan Documents are now in full force and effect; (iii) the
Junior Loan Documents have not been modified or amended; (iv) to its actual knowledge,
no default or event which, with the passing of time or giving of notice would constitute a
default, under the Junior Loan Documents has occurred; (v) the current outstanding
principal balance of the Junior Indebtedness is $1,003,969; (vi) no scheduled monthly
payments under the Junior Loan Documents have been or will be prepaid more than thirty
(30) days in advance except with the prior written consent of Senior Lender; (vii) none of
the rights of Junior Lender under any of the Junior Loan Documents are subject to the rights
of any third parties, by way of subrogation, indemnification or otherwise; and (viii) there
are no other Junior Loan Documents other than those listed on Exhibit B hereto. Borrower
further represents and warrants that it has provided to Senior Lender a true, complete, and
correct copy of all the Junior Loan Documents.
4. Standstill Agreement; Right to Cure Senior Loan Default.
(a) Until such time as the Senior Indebtedness has been repaid in full and the
Senior Security Instrument has been released and discharged and provided that Senior
Lender (x) is diligently, continuously and in good faith pursuing its remedies under the
Senior Loan Documents and/or a workout of the Senior Loan with Borrower and (y) keeps
Junior Lender reasonably apprised of the status of such pursuit and in any event provides
status updates to Junior Lender within ten (10) business days after Junior Lender’s written
request for same to Senior Lender (the “Standstill Conditions”), Junior Lender shall not
without the prior written consent of Senior Lender, which may be withheld in Senior
Lender’s sole and absolute discretion, take any Enforcement Action, including, without
limitation, (i) accelerate the Junior Loan, (ii) exercise any of Junior Lender’s remedies
under the Junior Security Instrument or any of the other Junior Loan Documents (including,
without limitation, the commencement of any judicial or non-judicial action or proceeding
(a) to enforce any obligation of Borrower under any of the Junior Loan Documents, (b) to
collect any monies payable to Borrower, (c) to have a receiver appointed to collect any
monies payable to Borrower; or (d) to foreclose the lien(s) created by the Junior Security
Instrument) or (iii) file or join in the filing of any involuntary Bankruptcy Proceeding
against Borrower or any person or entity which owns a direct or indirect interest in
Borrower; provided, however, that such limitation on the remedies of Junior Lender shall
not derogate or otherwise limit Junior Lender’s rights, following an event of default under
the Junior Loan Documents to (a) compute interest on all amounts due and payable under
the Junior Loan at the Default Interest Rate described in the Junior Loan Documents, (b)
compute prepayment premiums and late charges, (c) enforce against any person, other than
Borrower and any guarantors or indemnitors under the Senior Loan Documents, any
guaranty of the obligations of Borrower under the Junior Loan, and/or (d) exercise and
enforce applicable laws, restrictive covenants and agreements relating to income, rent or
Subordination and Intercreditor Agreement (City) 11 Vista Breeze
affordability restrictions contained in the Junior Loan Documents. Junior Lender agrees
not to commence an Enforcement Action for so long as the Senior Lender is complying
with the Standstill Conditions; provided, however, if the Senior Lender is not satisfying
the Standstill Conditions, the Junior Lender agrees not to commence an Enforcement
Action until after ninety (90) days have elapsed since the date of Junior Lender’s written
notice to Senior Lender of such failure (such 90-day day period, the “Junior Lender
Standstill Period”). The commencement of an Enforcement Action following the
expiration of the Junior Lender Standstill Period does not and shall not require Senior
Lender’s consent. Notwithstanding anything to the contrary set forth in this Section 4(a)
or otherwise in this Agreement, solely in the event an Enforcement Action is brought by
Junior Lender as a result of Borrower’s failure to pay the Junior Loan in full on the Maturity
Date (as defined in the Junior Note) and not earlier (a “Maturity Date Enforcement Action”)
and the terms of this Agreement are then in effect, then Junior Lender shall not commence
a Maturity Date Enforcement Action until after ninety (90) days have elapsed since the
date of delivery of an Enforcement Action Notice to Senior Lender with respect to such
Maturity Date Enforcement Action (such 90-day period, the “Junior Lender Maturity
Date Standstill Period”) and Senior Lender elects not to cure such Maturity Date payment
default by Borrower within such Junior Lender Maturity Date Standstill Period. The
commencement of a Maturity Date Enforcement Action following the expiration of the
Junior Lender Maturity Date Standstill Period does not and shall not require Senior
Lender’s consent.
(b) Senior Lender shall, simultaneously with the sending of any notice of a
Senior Loan Default to Borrower, send to Junior Lender a copy of said notice under the
Senior Loan Documents; provided, however, failure to do so shall not affect the validity of
such notice or any obligation of Borrower to Senior Lender and shall not affect the relative
priorities between the Senior Loan and the Junior Loan as set forth herein. Borrower
covenants and agrees to forward to Junior Lender, within three (3) business days of
Borrower’s receipt thereof, a copy of any notice of a Senior Loan Default Borrower
receives from Senior Lender.
(c) Junior Lender shall have the right, but shall have no obligation, to cure any
Senior Loan Default; provided, if Junior Lender shall elect to cure any such Default, it shall
so notify Senior Lender and shall commence and complete such curing within any
applicable notice or grace period, if any, as Borrower is permitted by the terms of the Senior
Loan Documents to cure such Senior Loan Default. Junior Lender shall not be subrogated
to the rights of Senior Lender under the Senior Loan Documents by reason of Junior Lender
having cured any Senior Loan Default. However, Senior Lender acknowledges that, to the
extent so provided in the Junior Loan Documents, amounts advanced or expended by
Junior Lender to cure a Senior Loan Default may be added to and become a part of the
Junior Indebtedness.
(d) Junior Lender agrees that, notwithstanding any contrary provision
contained in the Junior Loan Documents, a Senior Loan Default shall not constitute a
default under the Junior Loan Documents if no other default occurred under the Junior
Loan Documents.
Subordination and Intercreditor Agreement (City) 12 Vista Breeze
(e) Junior Lender acknowledges that it will not enter into any deed or
assignment in lieu of foreclosure or similar arrangement without the prior written consent
of Senior Lender.
5. Insurance. Junior Lender agrees that all original policies of insurance required
pursuant to the Senior Security Instrument shall be held by Senior Lender. The preceding sentence
shall not preclude Junior Lender from requiring that it be named as a loss payee, as its interest may
appear, under all policies of property damage insurance maintained by Borrower with respect to
the Property, provided such action does not affect the priority of payment of the proceeds of
property damage insurance under the Senior Security Instrument, or that it be named as an
additional insured under all policies of liability insurance maintained by Borrower with respect to
the Property.
6. Default. Junior Lender and Borrower acknowledge and agree that a default by
either such party under this Agreement shall, at the sole option of Senior Lender, constitute a
default under the Senior Loan Documents. Each party hereto acknowledges that in the event any
party fails to comply with its obligations hereunder, the other parties shall have all rights available
at law and in equity, including the right to obtain specific performance of the obligations of such
defaulting party and injunctive relief. No failure or delay on the part of any party hereto in
exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy preclude any other or further exercise
thereof or the exercise of any other right, power or remedy hereunder.
7. Enforcement Costs. Borrower agrees to reimburse Senior Lender for any and all
costs and expenses (including reasonable attorneys’ fees) incurred by Senior Lender in connection
with enforcing its rights against Junior Lender under this Agreement.
8. Notices. Any notice which any party hereto may be required or may desire to give
hereunder shall be deemed to have been given and shall be effective only if it is in writing and (i)
delivered personally, (ii) mailed, postage prepaid, by United State registered or certified mail,
return receipts requested, (iii) delivered by overnight express courier or (iv) sent by telecopier, in
each instance addressed as follows:
To Junior Lender:
With a copy to:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Manager
City of Miami Beach
Office of Housing & Community Services
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Director
Subordination and Intercreditor Agreement (City) 13 Vista Breeze
With a copy to:
If to Senior Lender:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Rafael A. Paz, City Attorney
Citibank, N.A.
388 Greenwich Street, Trading 4th Floor
New York, New York 10013
Attention: Transaction Management Group
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (212) 723-8209
With a copy to: Citibank, N.A.
325 East Hillcrest Drive, Suite 160
Thousand Oaks, California 91360
Attention: Operations Manager/Asset Manager
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (805) 557-0924
With a copy to: Citibank, N.A.
388 Greenwich Street, Trading 4th Floor
New York, New York 10013
Attention: Account Specialist
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (212) 723-8209
And a copy of any notices
of default sent to:
Citibank, N.A.
388 Greenwich Street, 17th Floor
New York, New York 10013
Attention: General Counsel’s Office
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (646) 291-5754
or at such other addresses or to the attention of such other persons as may from time to time be
designated by the party to be addressed by written notice to the other in the manner herein
provided. Notices, demands and requests given in the manner aforesaid shall be deemed
sufficiently served or given for all purposes hereunder when received or when delivery is refused
or when the same are returned to sender for failure to be called for.
9. WAIVER OF TRIAL BY JURY. TO THE MAXIMUM EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF THE PARTIES HERETO (A) COVENANTS AND
AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING
OUT OF THIS AGREEMENT OR THE RELATIONSHIP BETWEEN THE PARTIES THAT IS
TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY
WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS
NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS
Subordination and Intercreditor Agreement (City) 14 Vista Breeze
SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE
BENEFIT OF COMPETENT LEGAL COUNSEL.
10. Term. The term of this Agreement shall commence on the date hereof and shall
continue until the earliest to occur of the following events: (i) the payment of all of the principal
of, interest on and other amounts payable under the Senior Loan Documents; (ii) the payment of
all of the principal of, interest on and other amounts payable under the Junior Loan Documents,
other than by reason of payments which Junior Lender is obligated to remit to Senior Lender
pursuant to the terms hereof; (iii) the acquisition by Senior Lender of title to the Property pursuant
to a foreclosure, or a deed in lieu of foreclosure, of (or the exercise of a power of sale contained
in) the Senior Security Instrument; or (iv) the acquisition by Junior Lender of title to the Property
pursuant to a foreclosure, or a deed in lieu of foreclosure, of (or the exercise of a power of sale
contained in) the Junior Security Instrument, but only if such acquisition of title does not violate
any of the terms of this Agreement.
11. Miscellaneous.
(a) Junior Lender shall, within thirty (30) business days following a written
request from Senior Lender, provide Senior Lender with a written statement setting forth
the then current outstanding principal balance of the Junior Loan, the aggregate accrued
and unpaid interest under the Junior Loan, and stating whether, to the actual knowledge of
Junior Lender, any default or event of default exists under the Junior Loan, and containing
such other factual information with respect to the Junior Indebtedness as Senior Lender
may reasonably require. Upon notice from Senior Lender from time to time, Junior Lender
shall execute and deliver such additional instruments and documents, and shall take such
actions, as are required by Senior Lender in order to further evidence or effectuate the
provisions and intent of this Agreement, provided that any such instruments, documents
and actions shall be subject to approval by the Senior Lender and Junior Lender, which
approval shall not be unreasonably withheld.
(b) This Agreement shall bind and inure to the benefit of all successors and
assigns of Junior Lender and Senior Lender. Senior Lender may assign its interest in the
Senior Loan Documents without notice to or consent of Junior Lender. Except as set forth
in Section 3(a) above, Junior Lender may only assign its rights and interests hereunder
following the prior written consent of Senior Lender, which consent shall not be
unreasonably withheld, conditioned or delayed.
(c) Senior Lender hereby consents to the Junior Loan and the Junior Loan
Documents; provided, however, that this Agreement does not constitute an approval by
Senior Lender of the terms of the Junior Loan Documents. Junior Lender hereby consents
to the Senior Loan and the Senior Loan Documents; provided, however, that this
Agreement does not constitute an approval by Junior Lender of the terms of the Senior
Loan Documents.
(d) This Agreement may be executed in multiple counterparts, each of which
shall constitute an original document and all of which together shall constitute one
agreement.
Subordination and Intercreditor Agreement (City) 15 Vista Breeze
(e) IN ALL RESPECTS, INCLUDING, WITHOUT LIMITATION,
MATTERS OF CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT
AND THE OBLIGATIONS ARISING HEREUNDER, THIS AGREEMENT HAS BEEN
ENTERED INTO AND DELIVERED IN, AND SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY, THE LAWS OF THE STATE WHERE
THE PROPERTY IS LOCATED, WITHOUT GIVING EFFECT TO ANY PRINCIPLES
OF CONFLICTS OF LAW.
(f) Time is of the essence in the performance of every covenant and agreement
contained in this Agreement.
(g) If any provision or remedy set forth in this Agreement for any reason shall
be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or remedy of this Agreement and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision or
remedy had never been set forth herein, but only to the extent of such invalidity, illegality
or unenforceability.
(h) Each party hereto hereby represents and warrants that this Agreement has
been duly authorized, executed and delivered by it and constitutes a legal, valid and binding
agreement enforceable in all material respects in accordance with its terms.
(i) Borrower hereby acknowledges and consents to the execution of this
Agreement and agrees to be bound by the provisions hereof that are applicable to Borrower.
Solely as between Senior Lender and Junior Lender, all of the signatories below hereby
agree that to the extent of any conflict between the terms and provisions of this Agreement
and the terms and provisions of the Senior Loan Documents and/or the Junior Loan
Documents respectively, the terms and provisions of this Agreement shall govern and
control. By executing this Agreement in the place provided below, Borrower hereby (i)
acknowledges the provisions hereof, (ii) agrees not to take any action inconsistent with
Senior Lender’s rights or Junior Lender’s rights under this Agreement, (iii) waives and
relinquishes to the maximum extent permitted by law any and all rights, defenses and
claims now existing or hereinafter accruing relating to Junior Lender’s forbearance from
exercising any rights and remedies pursuant to Section 4 of this Agreement, including,
without limitation, any defenses based on the statute of limitations or any equitable
defenses, such as laches, and (iv) acknowledges and agrees that (A) this Agreement is
entered into for the sole protection and benefit of Senior Lender and Junior Lender (and
their respective successors, assigns and participants), and no other person (including
Borrower) shall have any benefits, rights or remedies under or by reason of this Agreement,
(B) nothing in this Agreement is intended, or shall be construed to, relieve or discharge the
obligations or liabilities of any third party (including Borrower under the Senior Loan
Documents and the Junior Loan Documents), (C) neither of them nor any of their affiliates
shall be, or be deemed to be, beneficiaries of any of the provisions hereof or have any rights
hereunder whatsoever, and (D) no provision of this Agreement is intended to, or shall be
construed to, give any such third party (including Borrower) any right subrogating to the
rights of, or action against, Senior Lender or Junior Lender.
Subordination and Intercreditor Agreement (City) 16 Vista Breeze
(j) No amendment, supplement, modification, waiver or termination of this
Agreement shall be effective against any party unless such amendment, supplement,
modification, waiver or termination is contained in a writing signed by such party.
(k) No party other than Senior Lender and Junior Lender shall have any rights
under, or be deemed a beneficiary of any of the provisions of, this Agreement.
(l) Nothing herein or in any of the Senior Loan Documents or Junior Loan
Documents shall be deemed to constitute Senior Lender as a joint venturer or partner of
Junior Lender.
12. Intentionally Omitted.
13. Attached Exhibits.
The following Exhibits are attached to this Agreement and are incorporated by reference
herein as if more fully set forth in the text hereof:
Exhibit A – Legal Description
Exhibit B – Junior Loan Documents
Exhibit C – Modifications to Subordination and Intercreditor Agreement
The terms of this Agreement are modified and supplemented as set forth in said Exhibits.
To the extent of any conflict or inconsistency between the terms of said Exhibits and the text of
this Agreement, the terms of said Exhibits shall be controlling in all respects.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Subordination and Intercreditor Agreement (City) A-1 Vista Breeze
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Subordination and Intercreditor Agreement or caused this Subordination and Intercreditor
Agreement to be duly executed and delivered by their respective authorized representatives as of
the date first set forth above.
JUNIOR LENDER:
WITNESS OR ATTEST: CITY OF MIAMI BEACH, FLORIDA,
a political subdivision of the State of Florida
________________________________
Name: __________________________
By:_______________________________
Name:
Title:
________________________________
Name: __________________________
STATE OF ________
COUNTY OF _______
The foregoing instrument was acknowledged before me by means of [ ] physical presence
or [ ] online notarization this __ day of _______, 20__, by _____________________, as
____________________________ of the City of Miami Beach, Florida, a political subdivision of
the State of Florida.
[Notary Seal] Signature of person taking acknowledgment
Name (typed, printed or stamped):_____________
Title or Rank:
Serial number (if any):
Subordination and Intercreditor Agreement (City) 2 Vista Breeze
SENIOR LENDER:
WITNESS OR ATTEST:
______________________________
Name:_________________________
______________________________
Name:_________________________
CITIBANK, N.A.,
By: ___________
Name:
Title:
Deal ID No. 60001596
ACKNOWLEDGEMENT
STATE OF ____________
COUNTY OF ____________
The foregoing instrument was acknowledged before me by means of ☐ physical presence
or ☐ online notarization, this _____ day of _______________, 20___, by ________________, as
________________ of Citibank., N.A. Said person is personally known to me or has produced
_________________ as identification.
[Notary Seal] Signature of person taking acknowledgment
Name (typed, printed or stamped):_____________
Title or Rank:
Serial number (if any):
Subordination and Intercreditor Agreement (City) 3 Vista Breeze
ACKNOWLEDGED AND AGREED AS OF THE DATE FIRST SET FORTH ABOVE:
BORROWER:
WITNESS OR ATTEST:
______________________________
Name:_________________________
______________________________
Name:_________________________
VISTA BREEZE, LTD.,
a Florida limited partnership
By: APC Vista Breeze, LLC,
a Florida limited liability company,
Duly Authorized
By:
Name:
Title:
ACKNOWLEDGEMENT
STATE OF ____________
COUNTY OF ____________
The foregoing instrument was acknowledged before me by means of ☐ physical presence
or ☐ online notarization, this _____ day of _______________, 20___, by ___________________,
as ___________ of APC Vista Breeze, LLC, a Florida limited liability company, a duly authorized
signatory of Vista Breeze, Ltd., a Florida limited partnership. Said person is personally known to
me or has produced a valid driver's license as identification.
[Notary Seal] Signature of person taking acknowledgment
Name (typed, printed or stamped): __________________
Title or Rank:
Serial number (if any):
Subordination and Intercreditor Agreement (City) A-1 Vista Breeze
EXHIBIT A
LEGAL DESCRIPTION
That leasehold estate created by that Second Amended and Restated Ground Lease, by and
between Vista Breeze, Ltd., a Florida limited partnership, and the Housing Authority of The City
of Miami Beach, a public body corporate and politic, as evidenced by that Amended and
Restated Memorandum of Lease to be recorded over the following described lands:
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.
Subordination and Intercreditor Agreement (City) C-1 Vista Breeze
EXHIBIT B
JUNIOR LOAN DOCUMENTS
1. Junior Note;
2. Junior Security Instrument;
3. Junior Loan Agreement;
4. Junior Declaration; and
5. UCC-1 Financing Statement made by Borrower, as debtor, and Junior Lender, as secured
party and filed with the Secretary of State of the State of Florida.
Subordination and Intercreditor Agreement (City) 2 Vista Breeze
EXHIBIT C
MODIFICATIONS TO
SUBORDINATION AND INTERCREDITOR AGREEMENT
The following modifications are made to the text of the Agreement that precedes this
Exhibit:
None.
Capitalized terms used and not defined herein shall have the respective meanings ascribed to them
in the Agreement.
4892-6776-9486, v. 9
D
Forward Purchase Agreement Vista Breeze
EXHIBIT D-13 TO FORWARD PURCHASE AGREEMENT
FORM OF SUBORDINATION AND INTERCREDITOR AGREEMENT (COUNTY)
[See attached]
4891-9288-4364v.4
THIS INSTRUMENT PREPARED BY:
Aviva Yakren, Esq.
Sidley Austin LLP
787 Seventh Avenue
New York, New York 10019
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Citibank, N.A.
Transaction and Asset Management Group/Post Closing
Citi Community Capital
3800 Citibank Center
Tampa, Florida 33610
Re: Vista Breeze Deal ID No. 60001596
ABOVE SPACE RESERVED FOR
RECORDING PURPOSES ONLY
EXHIBIT D-13 TO FORWARD PURCHASE AGREEMENT
FORM OF
SUBORDINATION AND INTERCREDITOR AGREEMENT
Subordination and Intercreditor Agreement (County) Vista Breeze
4891-9288-4364v.4
EXHIBIT D-13 TO FORWARD PURCHASE AGREEMENT
FORM OF
SUBORDINATION AND INTERCREDITOR AGREEMENT
THIS SUBORDINATION AND INTERCREDITOR AGREEMENT (this
“Agreement”) dated as of the [_] day of [Month], 202[_], is made by and between MIAMI-DADE
COUNTY, FLORIDA, a political subdivision of the State of Florida (“Junior Lender”) and
CITIBANK, N.A., a national banking association (“Senior Lender”) and acknowledged by
VISTA BREEZE, LTD., a Florida limited partnership (“Borrower”). The date of this Agreement as
set forth above is for reference purposes only, and this Agreement will not be effective and binding
until the Conversion Date (as defined in the Original Borrower Loan Agreement (as hereinafter
defined)).
RECITALS:
A. The Housing Authority of the City of Miami Beach, a public body corporate and
politic established pursuant to Chapter 421, Florida Statutes (the “Landlord”), is the legal owner
of fee simple title to the Land (as defined in the Security Instrument (as hereinafter defined)) and
pursuant to that certain Second Amended and Restated Ground Lease, dated as of December 15,
2023, between the Landlord and the Borrower, the Borrower is the holder of a leasehold interest
in the Land.
B. Borrower previously applied to the Housing Finance Authority of Miami-Dade
County, Florida, a public body corporate and politic organized and existing under the laws of the
State of Florida (“Governmental Lender”), for a loan (the “Borrower Loan”) for the acquisition,
construction, development and/or equipping of a 119-unit multifamily residential project, located
in the City of Miami Beach, Florida, known as Vista Breeze (the “Mortgaged Property”).
C. Borrower previously requested that the Governmental Lender enter into that certain
Funding Loan Agreement, dated as of December 1, 2023 (the “Original Funding Loan
Agreement”), among the Governmental Lender, 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 Governmental Lender in the original principal amount
of $32,500,000 (the “Funding Loan”), the proceeds of which Governmental Lender used to make
the Borrower Loan pursuant to that certain Construction Phase Borrower Loan Agreement, dated
as of December 1, 2023, (the “Original Borrower Loan Agreement”), by and between the
Governmental Lender and the Borrower.
D. The Borrower Loan was evidenced by that certain Construction Phase Project Loan
Note, dated as of December 15, 2023 (the “Original Borrower Note”), made by Borrower payable
to the order of Governmental Lender, as endorsed and assigned to Fiscal Agent for the benefit of
the Original Funding Lender.
E. The Borrower Loan was secured by, among other things, that certain Leasehold
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated as of December 15,
Subordination and Intercreditor Agreement (County) 2 Vista Breeze
4891-9288-4364v.4
2023, executed by Borrower for the benefit of Governmental Lender (the “Original Security
Instrument”), which Original Security Instrument encumbers the Mortgaged Property.
F. The Original Borrower Note, the Original Security Instrument, the Original
Borrower Loan Agreement and all other Borrower Loan Documents except for the Unassigned
Rights (as defined in the Original Funding Loan Agreement), were each assigned by Governmental
Lender to Fiscal Agent for the benefit of Original Funding Lender to secure the Funding Loan.
G. At the request of Borrower, the Borrower, Original Funding Lender and Senior
Lender entered into that certain Forward Purchase Agreement, dated as of December 1, 2023,
pursuant to which Senior Lender agreed to acquire Original Funding Lender’s interests in the
Funding Loan and Funding Loan Documents (as defined in the Original Funding Loan Agreement)
upon satisfaction of the terms and conditions set forth therein (the “Loan Purchase Conditions”).
H. Insofar as the Loan Purchase Conditions have been satisfied or waived, the
Borrower Loan has converted into a permanent loan (the “Senior Loan”), and in connection
therewith, (i) Senior Lender has agreed to enter into a certain Amended and Restated Funding
Loan Agreement, dated as of the date hereof (the “Funding Loan Agreement”), by and among
Governmental Lender, Fiscal Agent, and Senior Lender, which amends and restates the Original
Funding Loan Agreement; (ii) Borrower and Governmental Lender have entered into an Amended
and Restated Borrower Loan Agreement, dated as of the date hereof (the “Borrower Loan
Agreement”), which amends and restates the Original Borrower Loan Agreement; (iii) Borrower
has executed and delivered an Amended and Restated Multifamily Note, dated as of [_], 202[_],
in the principal amount of $[11,875,000][NOTE: AS MAY BE INCREASED PER THE EARN-
OUT] (the “Borrower Note”), which amends and restates the Original Borrower Note; (iv)
Borrower has executed and delivered an Amended and Restated Multifamily Leasehold Mortgage,
Assignment of Rents, Security Agreement and Fixture Filing (Florida) executed and delivered by
Borrower and dated as of the date hereof (the “Security Instrument”), which amends and restates
the Original Security Instrument; and (v) Senior Lender and Borrower have entered into a certain
the Loan Covenant Agreement executed and delivered by Borrower and dated as of the date hereof
(the “Loan Covenant Agreement”).
I. Junior Lender is making a loan (the “Junior Loan”) to Borrower in the original
principal amount of $5,950,000, which Junior Loan is evidenced by a certain note dated as of the
date hereof made by Borrower to Junior Lender (the “Junior Note”) and secured by, the Junior
Security Instrument (as hereinafter defined) encumbering the Property, and will be advanced to
Borrower pursuant to that certain Loan Agreement (Surtax Loan) (the “Junior Loan
Agreement”), dated as of December 15, 2023, between Borrower and Junior Lender.
J. As a condition to the making of the Senior Loan, Senior Lender requires that Junior
Lender execute and deliver this Agreement prior to the making of the Junior Loan and the granting
of the Junior Security Instrument by Borrower.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and to induce the making of the
Senior Loan and to induce Senior Lender to consent to the Junior Loan and the Junior Security
Instrument, Junior Lender hereby agrees as follows:
Subordination and Intercreditor Agreement (County) 3 Vista Breeze
4891-9288-4364v.4
1. Definitions. Capitalized terms used but not defined in this Agreement shall have
the meanings ascribed thereto in the Senior Security Instrument. As used in this Agreement, the
terms set forth below shall have the respective meanings indicated:
“Bankruptcy Proceeding” means any bankruptcy, reorganization, insolvency, composition,
restructuring, dissolution, liquidation, receivership, assignment for the benefit of creditors, or
custodianship action or proceeding under any federal or state law with respect to Borrower, any
guarantor of any of the Senior Indebtedness, any of their respective properties, or any of their
respective partners, members, officers, directors, or shareholders.
“Casualty” means the occurrence of damage to or loss of any of the Property by fire or
other casualty.
“Condemnation” means any proposed or actual condemnation or other taking, or
conveyance in lieu thereof, of all or any part of the Property, whether direct or indirect.
“Enforcement Action” means any exercise of any of Junior Lender’s remedies under the
Junior Security Instrument or any of the other Junior Loan Documents, including, without
limitation, any of the following: (i) the acceleration of all or any part of the Junior Indebtedness,
(ii) the commencement of any judicial or non-judicial action or proceeding to enforce any
obligation of Borrower under any of the Junior Loan Documents, collect any monies payable to
Borrower or have a receiver appointed to collect any monies payable to Borrower, or foreclose the
lien(s) created by the Junior Security Instrument, (iii) the filing or joining in the filing of any
involuntary Bankruptcy Proceeding against Borrower or any person or entity which owns a direct
or indirect interest in Borrower, (iv) the advertising of or commencement of any foreclosure or
trustee’s sale proceedings, (v) the exercise of any power of sale, (vi) the acceptance of a deed or
assignment in lieu of foreclosure or sale, (vii) the collecting of Rents, (viii) the obtaining of or
seeking of the appointment of a receiver, (ix) the seeking of default interest, (x) the taking of
possession or control of any of the Property, (xi) the commencement of any suit or other legal,
administrative, or arbitration proceeding based upon the Junior Note or any other of the Junior
Loan Documents, (xii) the exercising of any banker’s lien or rights of set-off or recoupment, or
(xiii) the taking of any other enforcement action against Borrower, any other party liable for any
of the Junior Indebtedness or obligated under any of the Junior Loan Documents, or the Property.
“Enforcement Action Notice” means a written notice from Junior Lender to Senior Lender,
given following a Junior Loan Default and the expiration of any notice or cure periods provided
for such Junior Loan Default in the Junior Loan Documents, setting forth in reasonable detail the
Enforcement Action proposed to be taken by Junior Lender.
“Junior Indebtedness” means all indebtedness of any kind at any time evidenced or secured
by, or arising under, the Junior Loan Documents, whether incurred, arising or accruing before or
after the filing of any Bankruptcy Proceeding.
“Junior Loan Default” means any act, failure to act, event, condition, or occurrence which
constitutes, or which with the giving of notice or the passage of time, or both, would constitute, an
“Event of Default” as defined in the Junior Security Instrument.
Subordination and Intercreditor Agreement (County) 4 Vista Breeze
4891-9288-4364v.4
“Junior Loan Documents” means, collectively, the Junior Note, the Junior Security
Instrument, the Junior Loan Agreement, that certain Miami-Dade County Rental Regulatory
Agreement, dated as of December 15, 2023, by Borrower in favor of Junior Lender, and all other
documents evidencing, securing or delivered in connection with the Junior Loan, all of which are
listed on Exhibit B attached hereto, together with such modifications, amendments and
supplements thereto as are approved in writing by Senior Lender prior to their execution.
“Junior Security Instrument” means, collectively, that certain (i) Leasehold Mortgage and
Security Agreement and Assignment of Leases, Rents and Profits, dated as of December 15, 2023,
made by Borrower for the benefit of Junior Lender, and (ii) that certain Collateral Assignment of
Leases, Rents and Contract Rights, dated as of December 15, 2023, made by Borrower for the
benefit of Junior Lender, as the same may from time to time be extended, consolidated, substituted
for, modified, amended or supplemented upon receipt of the consent of Senior Lender.
“Loan Agreement” means the Loan Covenant Agreement.
“Loss Proceeds” means all monies received or to be received under any insurance policy,
from any condemning authority, or from any other source, as a result of any Condemnation or
Casualty.
“Property” means (i) the land and improvements known or to be known as Vista Breeze,
located in the City of Miami Beach, Miami-Dade County, State of Florida, which Property is more
particularly described on Exhibit A attached hereto, and (ii) all furniture, fixtures and equipment
located at such apartments and other property, accounts, deposits and rights and interests of
Borrower encumbered by the Senior Security Instrument and/or the other Senior Loan Documents.
“Senior Indebtedness” means all indebtedness of any kind at any time evidenced or secured
by, or arising under, the Senior Loan Documents, whether incurred, arising or accruing before or
after the filing of any Bankruptcy Proceeding.
“Senior Loan Default” means any act, failure to act, event, condition, or occurrence which
constitutes, or which with the giving of notice or the passage of time, or both, would constitute, an
“Event of Default” as defined in the Senior Security Instrument.
“Senior Loan Documents” means, collectively, the Senior Security Instrument, the Senior
Note, the Borrower Loan Agreement and all of the other documents, instruments and agreements
now or hereafter evidencing, securing or otherwise executed in connection with the Senior Loan,
as the same may from time to time be extended, consolidated, substituted for, modified, increased,
amended and supplemented in accordance with the provisions of this Agreement.
2. Junior Loan and Junior Loan Documents are Subordinate; Acts by Senior
Lender do not Affect Subordination.
(a) Junior Lender hereby covenants and agrees on behalf of itself and its
successors and permitted assigns that the Junior Indebtedness is and shall at all times
continue to be, subordinate, subject and inferior (in payment and priority) to the prior
payment in full of the Senior Indebtedness, and that the liens, rights, payment interests,
priority interests and security interests granted to Junior Lender in connection with the
Subordination and Intercreditor Agreement (County) 5 Vista Breeze
4891-9288-4364v.4
Junior Loan and under the Junior Loan Documents are, and are hereby expressly
acknowledged to be in all respects and at all times, subject, subordinate and inferior in all
respects to the liens, rights, payment, priority and security interests granted to Senior
Lender under the Senior Loan and the Senior Loan Documents and the terms, covenants,
conditions, operations and effects thereof.
(b) Except as expressly set forth herein, repayment of the Junior Indebtedness,
is and shall be postponed and subordinated to repayment in full of the Senior Loan. Prior
to a Senior Loan Default (regardless of whether such Senior Loan Default occurs prior to
or during the pendency of a Bankruptcy Proceeding), Junior Lender shall be entitled to
receive and retain payments made pursuant to and in accordance with the terms of the
Junior Loan Documents; provided, however, that no such payment is made more than ten
(10) days in advance of the due date thereof. Junior Lender agrees that from and after such
time as it has received from either Senior Lender or Borrower written notice that a Senior
Loan Default then exists (which has not been expressly waived in writing by Senior
Lender) of such a Senior Loan Default, Junior Lender shall not receive or accept any
payments under the Junior Loan. If (i) Junior Lender receives any payment, property, or
asset of any kind or in any form on account of the Junior Indebtedness (including, without
limitation, any proceeds from any Enforcement Action) after a Senior Loan Default of
which Junior Lender has been given notice of, or (ii) Junior Lender receives, voluntarily or
involuntarily, by operation of law or otherwise, any payment, property, or asset in or in
connection with any Bankruptcy Proceeding, such payment, property, or asset will be
received and held in trust for Senior Lender. Junior Lender will promptly remit, in kind
and properly endorsed as necessary, all such payments, properties, and assets to Senior
Lender. Senior Lender shall apply any payment, asset, or property so received from Junior
Lender to the Senior Indebtedness in such order, amount (with respect to any asset or
property other than immediately available funds), and manner as Senior Lender shall
determine in its sole and absolute discretion.
(c) Without limiting the complete subordination of the Junior Indebtedness to
the payment in full of the Senior Indebtedness, in any Bankruptcy Proceeding, upon any
payment or distribution (whether in cash, property, securities, or otherwise) to creditors (i)
the Senior Indebtedness shall first be paid in full in cash before Junior Lender shall be
entitled to receive any payment or other distribution on account of or in respect of the
Junior Indebtedness, and (ii) until all of the Senior Indebtedness is paid in full in cash, any
payment or distribution to which Junior Lender would be entitled but for this Agreement
(whether in cash, property, or other assets) shall be made to Senior Lender.
(d) The subordination of the Junior Indebtedness shall continue in the event that
any payment under the Senior Loan Documents (whether by or on behalf of Borrower, as
proceeds of security or enforcement of any right of set-off or otherwise) is for any reason
repaid or returned to Borrower or its insolvent estate, or avoided, set aside or required to
be paid to Borrower, a trustee, receiver or other similar party under any bankruptcy,
insolvency, receivership or similar law. In such event, the Senior Indebtedness or part
thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding
to the extent of any repayment, return, or other action, as if such payment on account of
the Senior Indebtedness had not been made.
Subordination and Intercreditor Agreement (County) 6 Vista Breeze
4891-9288-4364v.4
(e) The subordination of the Junior Loan Documents and of the Junior
Indebtedness shall apply and continue notwithstanding (i) the actual date and time of
execution, delivery, recording, filing or perfection of the Senior Security Instrument and
other Senior Loan Documents and of the Junior Security Instrument and other Junior Loan
Documents, and (ii) the availability of any collateral to Senior Lender, including the
availability of any collateral other than the Property.
(f) By reason of, and without in any way limiting, the full subordination of the
Junior Indebtedness and the Junior Loan Documents provided for in this Agreement, all
rights and claims of Junior Lender under the Junior Security Instrument or under the Junior
Loan Documents in or to the Property or any portion thereof, the proceeds thereof, the
Leases thereof, the Rents, issues and profits therefrom, and the Loss Proceeds payable with
respect thereto, are expressly subject and subordinate in all respects to the rights and claims
of Senior Lender under the Senior Loan Documents in and to the Property or any portion
thereof, the proceeds thereof, the Leases thereof, the Rents, issues and profits therefrom,
and the Loss Proceeds payable with respect thereto.
(g) If Junior Lender, in its capacity as lender, by indemnification, subrogation
or otherwise, shall acquire any lien, estate, right or other interest in any of the Property,
that lien, estate, right or other interest shall be fully subject and subordinate to the receipt
by Senior Lender of payment in full of the Senior Indebtedness, and to the Senior Loan
Documents, to the same extent as the Junior Indebtedness and the Junior Loan Documents
are subordinate pursuant to this Agreement.
(h) In confirmation, and not as a condition, of the subordination of the Junior
Indebtedness and the Junior Loan Documents provided for in this Agreement, Junior
Lender shall place on or attach to the Junior Note a notice to the following effect, and shall
provide Senior Lender with a copy of the Junior Note showing such notice:
“The indebtedness evidenced by this Note is and shall be subordinate in
right of payment to the prior payment in full of all amounts then due and
payable (including, but not limited to, all amounts due and payable by virtue
of any default or acceleration or upon maturity) with respect to the
indebtedness evidenced by the Note (as defined by that certain Amended
and Restated Multifamily Leasehold Mortgage, Assignment of Rents,
Security Agreement and Fixture Filing (Florida) by the Borrower in favor
of Governmental Lender and assigned to The Bank of New York Mellon
Trust Company, N.A., a national banking association, in the original
maximum principal amount of $[11,875,000] [NOTE: AS MAY BE
INCREASED PER THE EARN-OUT]) to the extent and in the manner
provided in that certain Subordination and Intercreditor Agreement, dated
as of [_____], 20[_], between Citibank, N.A. (“Senior Lender”) and the
holder of this Note (the “Subordination Agreement”). The rights and
remedies of the payee and each subsequent holder of this Note shall be
deemed, by virtue of such holder’s acquisition of this Note, to have agreed
to perform and observe all of the terms, covenants and conditions to be
Subordination and Intercreditor Agreement (County) 7 Vista Breeze
4891-9288-4364v.4
performed or observed by the “Junior Lender” under the Subordination
Agreement.”
(i) Junior Lender hereby acknowledges and agrees that Senior Lender may,
without the consent or approval of Junior Lender, agree with Borrower to extend,
consolidate, modify, or amend any or all the Senior Loan Documents and otherwise act or
fail to act with respect to any matter set forth in any Senior Loan Document (including,
without limitation, the exercise of any rights or remedies, waiver, forbearance or delay in
enforcing any rights or remedies, the declaration of acceleration, the declaration of defaults
or events of default, the release, in whole or in part, of any collateral or other property, and
any consent, approval or waiver), and all such extensions, consolidations, modifications,
amendments acts and omissions shall not release, impair or otherwise affect Junior
Lender’s obligations and agreements hereunder. Notwithstanding the prior sentence, the
Senior Lender shall not modify or amend any or all of the Senior Loan Documents to
increase the Senior Indebtedness without the prior written consent of the Junior Lender.
3. Junior Lender Agreements.
(a) Without the prior written consent of Senior Lender in each instance, Junior
Lender shall not (i) amend, modify, waive, extend, renew or replace any provision of any
of the Junior Loan Documents, or (ii) pledge, assign, transfer, convey, or sell any interest
in the Junior Indebtedness or any of the Junior Loan Documents unless the transferee is a
governmental entity, quasi-governmental entity, or a nonprofit entity created and
controlled by Miami-Dade County, and Senior Lender is given 30 days’ prior written notice
of any such transfer and acknowledgment by transferee that the loan remains subject to this
Agreement, and provided that in no event may any such pledge, assignment, transfer,
conveyance or sale be to Borrower or its affiliates; or (iii) accept any payment on account
of the Junior Indebtedness other than a regularly scheduled payment of interest or principal
and interest made not earlier than ten (10) days prior to the due date thereof; or (iv) take
any action which has the effect of increasing the Junior Indebtedness. Without giving prior
notice to Senior Lender in each instance, Junior Lender, in its capacity as lender, shall not
appear in, defend or bring any action in connection with the Property or take any action
concerning environmental matters affecting the Property. Regardless of any contrary
provision in the Junior Loan Documents, Junior Lender shall not collect payments for the
purpose of escrowing for any cost or expense related to the Property or for any portion of
the Junior Indebtedness.
(b) Junior Lender hereby agrees that Senior Lender may, at its option (but
without any obligation to do so), at any time (including during the pendency of a
Bankruptcy Proceeding), purchase the Junior Loan at par (and without liability for any
prepayment premiums or liquidated damages set forth in the Junior Loan Documents).
Such transfer and assignment of the Junior Loan shall be without representation or
recourse, except that Junior Lender shall represent that it is the sole holder of the Junior
Loan, that it has authority to assign and convey the Junior Loan Documents, that, to the
best of its knowledge, there are no defaults or breaches under the Junior Loan Documents,
and as to the total amount then outstanding under the Junior Loan. Junior Lender shall give
Senior Lender a concurrent copy of each notice of a Junior Loan Default, Enforcement
Subordination and Intercreditor Agreement (County) 8 Vista Breeze
4891-9288-4364v.4
Action Notice or other material notice given by Junior Lender under the Junior Loan
Documents. Notwithstanding any contrary provision in the Junior Loan Documents, Senior
Lender shall have the right, but shall not have any obligation, to cure any Junior Loan
Default until ninety (90) days following Senior Lender’s receipt of an Enforcement Action
Notice given by Junior Lender as a consequence of the Junior Loan Default. Senior Lender
shall not be subrogated to the rights of Junior Lender under the Junior Loan Documents by
reason of Senior Lender having cured any Junior Loan Default. However, Junior Lender
acknowledges that all amounts advanced or expended by Senior Lender to cure a Junior
Loan Default shall be added to and become a part of the Senior Indebtedness pursuant to
the terms of the Senior Security Instrument.
(c) In the event and to the extent that each of Senior Lender and Junior Lender
have under their respective loan documents certain approval or consent rights over the same
subject matters (regardless of whether the obligations or rights are identical or substantially
identical), Junior Lender agrees that Senior Lender shall exercise such approval rights on
behalf of both Senior Lender and Junior Lender, and Junior Lender shall have no right to
object to any such action or approval taken by Senior Lender and shall consent thereto and
be bound thereby. Without limiting the generality of the foregoing, Senior Lender shall
have all approval, consent and oversight rights in connection with any insurance claims
relating to the Property, any decisions regarding the use of insurance proceeds after a
casualty loss or condemnation awards, the hiring or firing of property managers, or
otherwise related in any way to the Property, and Junior Lender shall have no right to object
to any such action or approval taken by Senior Lender and shall consent thereto and be
bound thereby.
(d) Junior Lender agrees that in any action commenced to enforce the obligation
of Borrower to pay any portion of the Junior Indebtedness, the judgment shall not be
enforceable personally against Borrower or Borrower’s assets, and the recourse of Junior
Lender for the collection of the Junior Indebtedness shall be limited to actions against the
Property and the rents, profits, issues, products, and income from the Property.
(e) Junior Lender shall not commence or join with any other creditor in
commencing any Bankruptcy Proceeding involving Borrower, and Junior Lender shall not
initiate and shall not be a party to any action, motion or request, in a Bankruptcy Proceeding
involving any other person or entity, which seeks the consolidation of some or all of the
assets of Borrower into such Bankruptcy Proceeding. In the event of any Bankruptcy
Proceeding relating to Borrower or the Property or, in the event of any Bankruptcy
Proceeding relating to any other person or entity into which (notwithstanding the covenant
in the first sentence of this clause) the assets or interests of Borrower are consolidated, then
in either event, the Senior Loan shall first be paid in full before Junior Lender shall be
entitled to receive and retain any payment or distribution in respect to the Junior Loan.
Junior Lender agrees that (i) Senior Lender shall receive all payments and distributions of
every kind or character in respect of the Junior Loan to which Junior Lender would
otherwise be entitled, but for the subordination provisions of this Agreement (including
without limitation, any payments or distributions during the pendency of a Bankruptcy
Proceeding involving Borrower or the Property), and (ii) the subordination of the Junior
Loan and the Junior Loan Documents shall not be affected in any way by Senior Lender
Subordination and Intercreditor Agreement (County) 9 Vista Breeze
4891-9288-4364v.4
electing, under Section 1111(b) of the federal bankruptcy code, to have its claim treated as
being a fully secured claim. In addition, Junior Lender hereby covenants and agrees that,
in connection with a Bankruptcy Proceeding involving Borrower, neither Junior Lender
nor any of its affiliates shall (i) make or participate in a loan facility to or for the benefit of
Borrower on a basis that is senior to or pari passu with the liens and interests held by Senior
Lender pursuant to the Senior Loan Documents, (ii) not vote affirmatively in favor of any
plan of reorganization or liquidation unless Senior Lender has also voted affirmatively in
favor of such plan, and (iii) not contest the continued accrual of interest on the Senior
Indebtedness, in accordance with and at the rates specified in the Senior Loan Documents,
both for periods before and for periods after the commencement of such Bankruptcy
Proceedings. Junior Lender shall execute and deliver to Senior Lender powers of attorney,
assignments or other instruments, as may be requested by Senior Lender in order to enable
it to exercise the above-described authority or powers with respect to any or all of the Junior
Loan Documents, and to collect and receive any and all payments or distributions which
may be payable or deliverable at any time upon or with respect to any of the Junior Loan
Documents to Junior Lender.
(f) Junior Lender covenants and agrees that the effectiveness of this Agreement
and the rights of Senior Lender hereunder shall be in no way impaired, affected, diminished
or released by any renewal or extension of the time of payment of the Senior Loan, by any
delay, forbearance, failure, neglect or refusal of Senior Lender in enforcing payment
thereof or in enforcing the lien of or attempting to realize upon the Senior Loan Documents
or any other security which may have been given or may hereafter be given for the Senior
Loan, by any waiver or failure to exercise any right or remedy under the Senior Loan
Documents, or by any other act or failure to act by Senior Lender. Junior Lender
acknowledges that Senior Lender, at its sole option, may release all or any portion of the
Property from the lien of the Senior Security Instrument, and may release or waive any
guaranty, surety or indemnity providing additional collateral to Senior Lender, and Junior
Lender hereby waives any legal or equitable right in respect of marshaling it might have,
in connection with any release of all or any portion of the Property by Senior Lender, to
require the separate sales of any portion of the Property or to require Senior Lender to
exhaust its remedies against any portion of the Property or any other collateral before
proceeding against any other portion of the Property or other collateral (including
guarantees) for the Senior Loan. Senior Lender may pursue all rights and remedies
available to it under the Senior Loan Documents, at law, or in equity, regardless of any
Enforcement Action Notice or Enforcement Action by Junior Lender. At any time or from
time to time and any number of times, without notice to Junior Lender and without affecting
the liability of Junior Lender, (a) the time for payment of the Senior Indebtedness may be
extended or the Senior Indebtedness may be renewed in whole or in part; (b) the time for
Borrower’s performance of or compliance with any covenant or agreement contained in
the Senior Loan Documents, whether presently existing or hereinafter entered into, may be
extended or such performance or compliance may be waived; (c) the maturity of the Senior
Indebtedness may be accelerated as provided in the Senior Loan Documents; (d) any Senior
Loan Document may be extended, consolidated, modified or amended by Senior Lender
and Borrower in any respect, including, but not limited to, an increase in the principal
amount; and (e) any security for the Senior Indebtedness may be modified, exchanged,
surrendered or otherwise dealt with or additional security may be pledged or mortgaged
Subordination and Intercreditor Agreement (County) 10 Vista Breeze
4891-9288-4364v.4
for the Senior Indebtedness. If, after the occurrence of a Senior Loan Default, Senior
Lender acquires title to any of the Property pursuant to a mortgage foreclosure conducted
in accordance with applicable law, the lien, operation, and effect of the Junior Security
Instrument and other Junior Loan Documents automatically shall terminate with respect to
such Property upon Senior Lender’s acquisition of title.
(g) Junior Lender acknowledges that it entered into the transactions
contemplated by the Junior Loan Documents and made the Junior Loan to Borrower
without reliance upon any information or advice from Senior Lender. Junior Lender made
its own underwriting analysis in connection with the Junior Loan, its own credit review of
Borrower, and investigated all matters pertinent, in Junior Lender’s judgment, to its
determination to make the Junior Loan to Borrower. Junior Lender acknowledges that it
is a sophisticated, experienced commercial lender, and was represented by competent
counsel in connection with this Agreement.
(h) Junior Lender hereby represents and warrants that, as of the date hereof, the
entire proceeds of the Junior Loan have been disbursed to Borrower. Junior Lender hereby
further represents and warrants that: (i) Junior Lender is now the owner and holder of the
Junior Loan Documents; (ii) the Junior Loan Documents are now in full force and effect;
(iii) the Junior Loan Documents have not been modified or amended; (iv) no default or
event which, with the passing of time or giving of notice would constitute a default, under
the Junior Loan Documents has occurred; (v) the current outstanding principal balance of
the Junior Indebtedness is $[_]; (vi) no scheduled monthly payments under the Junior Loan
Documents have been or will be prepaid except with the prior written consent of Senior
Lender; (vii) none of the rights of Junior Lender under any of the Junior Loan Documents
are subject to the rights of any third parties, by way of subrogation, indemnification or
otherwise; and (viii) there are no other Junior Loan Documents other than those listed on
Exhibit B hereto. Borrower further represents and warrants that it has provided to Senior
Lender a true, complete, and correct copy of all the Junior Loan Documents.
4. Standstill Agreement; Right to Cure Senior Loan Default.
(a) Until such time as any of the Senior Indebtedness has been repaid in full
and the Senior Security Instrument has been released and discharged, Junior Lender shall
not without sixty (60) days’ prior written notice to Senior Lender, take any Enforcement
Action, including, without limitation, (i) accelerate the Junior Loan, (ii) exercise any of
Junior Lender’s remedies under the Junior Security Instrument or any of the other Junior
Loan Documents (including, without limitation, the commencement of any judicial or non-
judicial action or proceeding (a) to enforce any obligation of Borrower under any of the
Junior Loan Documents, (b) to collect any monies payable to Borrower, (c) to have a
receiver appointed to collect any monies payable to Borrower; or (d) to foreclose the lien(s)
created by the Junior Security Instrument) or (iii) file or join in the filing of any involuntary
Bankruptcy Proceeding against Borrower or any person or entity which owns a direct or
indirect interest in Borrower; provided, however, that such limitation on the remedies of
Junior Lender shall not derogate or otherwise limit Junior Lender’s rights, following an
event of default under the Junior Loan Documents to (a) compute interest on all amounts
due and payable under the Junior Loan at the default rate described in the Junior Loan
Subordination and Intercreditor Agreement (County) 11 Vista Breeze
4891-9288-4364v.4
Documents, (b) compute prepayment premiums and late charges, and (c) enforce against
any person, other than Borrower and any guarantors or indemnitors under the Senior Loan
Documents, any guaranty of the obligations of Borrower under the Junior Loan.
(b) Senior Lender shall, simultaneously with the sending of any notice of a
Senior Loan Default to Borrower, send to Junior Lender a copy of said notice under the
Senior Loan Documents; provided, however, failure to do so shall not affect the validity of
such notice or any obligation of Borrower to Senior Lender and shall not affect the relative
priorities between the Senior Loan and the Junior Loan as set forth herein. Borrower
covenants and agrees to forward to Junior Lender, within three (3) business days of
Borrower’s receipt thereof, a copy of any notice of a Senior Loan Default Borrower
receives from Senior Lender.
(c) Junior Lender shall have the right, but shall have no obligation, to cure any
Senior Loan Default; provided, if Junior Lender shall elect to cure any such Default, it shall
so notify Senior Lender and shall commence and complete such curing within any
applicable notice or grace period, if any, as Borrower is permitted by the terms of the Senior
Loan Documents to cure such Senior Loan Default. Junior Lender shall not be subrogated
to the rights of Senior Lender under the Senior Loan Documents by reason of Junior Lender
having cured any Senior Loan Default. However, Senior Lender acknowledges that, to the
extent so provided in the Junior Loan Documents, amounts advanced or expended by
Junior Lender to cure a Senior Loan Default may be added to and become a part of the
Junior Indebtedness.
(d) Junior Lender agrees that, notwithstanding any contrary provision
contained in the Junior Loan Documents, a Senior Loan Default shall not constitute a
default under the Junior Loan Documents if no other default occurred under the Junior
Loan Documents.
(e) Junior Lender acknowledges that any conveyance or other transfer of title
to the Property pursuant to a foreclosure of the Junior Security Instrument (including a
conveyance or other transfer of title pursuant to the exercise of a power of sale contained
in the Junior Security Instrument), or any deed or assignment in lieu of foreclosure or
similar arrangement, shall be subject to the transfer provisions of the Senior Loan
Documents; and the person (including Junior Lender) who acquires title to the Property
pursuant to the foreclosure proceeding (or pursuant to the exercise of a power of sale
contained in the Junior Security Instrument) shall not be deemed to be automatically
approved by Senior Lender.
5. Insurance. Junior Lender agrees that all original policies of insurance required
pursuant to the Senior Security Instrument shall be held by Senior Lender. The preceding sentence
shall not preclude Junior Lender from requiring that it be named as a loss payee, as its interest may
appear, under all policies of property damage insurance maintained by Borrower with respect to
the Property, provided such action does not affect the priority of payment of the proceeds of
property damage insurance under the Senior Security Instrument, or that it be named as an
additional insured under all policies of liability insurance maintained by Borrower with respect to
the Property.
Subordination and Intercreditor Agreement (County) 12 Vista Breeze
4891-9288-4364v.4
6. Default. Junior Lender and Borrower acknowledge and agree that a default by
either such party under this Agreement shall, at the sole option of Senior Lender, constitute a
default under the Senior Loan Documents. Each party hereto acknowledges that in the event any
party fails to comply with its obligations hereunder, the other parties shall have all rights available
at law and in equity, including the right to obtain specific performance of the obligations of such
defaulting party and injunctive relief. No failure or delay on the part of any party hereto in
exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy preclude any other or further exercise
thereof or the exercise of any other right, power or remedy hereunder.
7. Enforcement Costs. Borrower and Junior Lender agree to reimburse Senior
Lender for any and all costs and expenses (including reasonable attorneys’ fees) incurred by Senior
Lender in connection with enforcing its rights against Junior Lender under this Agreement.
8. Notices. Any notice which any party hereto may be required or may desire to give
hereunder shall be deemed to have been given and shall be effective only if it is in writing and (i)
delivered personally, (ii) mailed, postage prepaid, by United State registered or certified mail,
return receipts requested, (iii) delivered by overnight express courier or (iv) sent by telecopier, in
each instance addressed as follows:
To Junior Lender:
With copies to:
Miami-Dade County
111 N. W. 1st Street, 29th Floor
Miami, Florida 33128
Attention: County Mayor
Miami-Dade County
Public Housing and Community Development
701 N.W. 1st Court, 16th Floor
Miami, Florida 33136
Attention: Director
Assistant County Attorney
County Attorney's Office
111 N. W. 1st Street, Suite 2810
Miami, Florida 33128
Attn: Shannon D. Summerset-Williams, Esq.
If to Senior Lender: Citibank, N.A.
388 Greenwich Street, Trading 4th Floor
New York, New York 10013
Attention: Transaction Management Group
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (212) 723-8209
Subordination and Intercreditor Agreement (County) 13 Vista Breeze
4891-9288-4364v.4
With a copy to: Citibank, N.A.
325 East Hillcrest Drive, Suite 160
Thousand Oaks, California 91360
Attention: Operations Manager/Asset Manager
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (805) 557-0924
With a copy to: Citibank, N.A.
388 Greenwich Street, Trading 4th Floor
New York, New York 10013
Attention: Account Specialist
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (212) 723-8209
And a copy of any notices
of default sent to:
Citibank, N.A.
388 Greenwich Street, 17th Floor
New York, New York 10013
Attention: General Counsel’s Office
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (646) 291-5754
or at such other addresses or to the attention of such other persons as may from time to time be
designated by the party to be addressed by written notice to the other in the manner herein
provided. Notices, demands and requests given in the manner aforesaid shall be deemed
sufficiently served or given for all purposes hereunder when received or when delivery is refused
or when the same are returned to sender for failure to be called for.
9. WAIVER OF TRIAL BY JURY. TO THE MAXIMUM EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF THE PARTIES HERETO (A) COVENANTS AND
AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING
OUT OF THIS AGREEMENT OR THE RELATIONSHIP BETWEEN THE PARTIES THAT IS
TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY
WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS
NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS
SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE
BENEFIT OF COMPETENT LEGAL COUNSEL.
10. Term. The term of this Agreement shall commence on the date hereof and shall
continue until the earliest to occur of the following events: (i) the payment of all of the principal
of, interest on and other amounts payable under the Senior Loan Documents; (ii) the payment of
all of the principal of, interest on and other amounts payable under the Junior Loan Documents,
other than by reason of payments which Junior Lender is obligated to remit to Senior Lender
pursuant to the terms hereof; (iii) the acquisition by Senior Lender of title to the Property pursuant
to a foreclosure, or a deed in lieu of foreclosure, of (or the exercise of a power of sale contained
in) the Senior Security Instrument; or (iv) the acquisition by Junior Lender of title to the Property
pursuant to a foreclosure, or a deed in lieu of foreclosure, of (or the exercise of a power of sale
Subordination and Intercreditor Agreement (County) 14 Vista Breeze
4891-9288-4364v.4
contained in) the Junior Security Instrument, but only if such acquisition of title does not violate
any of the terms of this Agreement.
11. Miscellaneous.
(a) Junior Lender shall, within ten (10) business days following a request from
Senior Lender, provide Senior Lender with a written statement setting forth the then current
outstanding principal balance of the Junior Loan, the aggregate accrued and unpaid interest
under the Junior Loan, and stating whether, to the knowledge of Junior Lender, any default
or event of default exists under the Junior Loan, and containing such other information
with respect to the Junior Indebtedness as Senior Lender may require. Upon notice from
Senior Lender from time to time, Junior Lender shall execute and deliver such additional
instruments and documents, and shall take such actions, as are required by Senior Lender
in order to further evidence or effectuate the provisions and intent of this Agreement.
(b) This Agreement shall bind and inure to the benefit of all successors and
assigns of Junior Lender and Senior Lender. Senior Lender may assign its interest in the
Senior Loan Documents without notice to or consent of Junior Lender. Junior Lender may
only assign its rights and interests hereunder following the prior written consent of Senior
Lender, which consent, to the extent that any such assignment is in favor of a governmental
or quasi-governmental entity, agency or authority, shall not be unreasonably withheld, but
which may otherwise be withheld or conditioned in the sole and absolute discretion of
Senior Lender.
(c) Senior Lender hereby consents to the Junior Loan and the Junior Loan
Documents; provided, however, that this Agreement does not constitute an approval by
Senior Lender of the terms of the Junior Loan Documents. Junior Lender hereby consents
to the Senior Loan and the Senior Loan Documents; provided, however, that this
Agreement does not constitute an approval by Junior Lender of the terms of the Senior
Loan Documents.
(d) This Agreement may be executed in multiple counterparts, each of which
shall constitute an original document and all of which together shall constitute one
agreement.
(e) IN ALL RESPECTS, INCLUDING, WITHOUT LIMITATION,
MATTERS OF CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT
AND THE OBLIGATIONS ARISING HEREUNDER, THIS AGREEMENT HAS BEEN
ENTERED INTO AND DELIVERED IN, AND SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY, THE LAWS OF THE STATE WHERE
THE PROPERTY IS LOCATED, WITHOUT GIVING EFFECT TO ANY PRINCIPLES
OF CONFLICTS OF LAW.
(f) Time is of the essence in the performance of every covenant and agreement
contained in this Agreement.
(g) If any provision or remedy set forth in this Agreement for any reason shall
be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
Subordination and Intercreditor Agreement (County) 15 Vista Breeze
4891-9288-4364v.4
unenforceability shall not affect any other provision or remedy of this Agreement and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision or
remedy had never been set forth herein, but only to the extent of such invalidity, illegality
or unenforceability.
(h) Each party hereto hereby represents and warrants that this Agreement has
been duly authorized, executed and delivered by it and constitutes a legal, valid and binding
agreement enforceable in all material respects in accordance with its terms.
(i) Borrower hereby acknowledges and consents to the execution of this
Agreement, and agrees to be bound by the provisions hereof that are applicable to
Borrower. Solely as between Senior Lender and Junior Lender, all of the signatories below
hereby agree that to the extent of any conflict between the terms and provisions of this
Agreement and the terms and provisions of the Senior Loan Documents and/or the Junior
Loan Documents respectively, the terms and provisions of this Agreement shall govern and
control. By executing this Agreement in the place provided below, Borrower hereby (i)
acknowledges the provisions hereof, (ii) agrees not to take any action inconsistent with
Senior Lender’s rights or Junior Lender’s rights under this Agreement, (iii) waives and
relinquishes to the maximum extent permitted by law any and all rights, defenses and
claims now existing or hereinafter accruing relating to Junior Lender’s forbearance from
exercising any rights and remedies pursuant to Section 4 of this Agreement, including,
without limitation, any defenses based on the statute of limitations or any equitable
defenses, such as laches, and (iv) acknowledges and agrees that (A) this Agreement is
entered into for the sole protection and benefit of Senior Lender and Junior Lender (and
their respective successors, assigns and participants), and no other person (including
Borrower) shall have any benefits, rights or remedies under or by reason of this Agreement,
(B) nothing in this Agreement is intended, or shall be construed to, relieve or discharge the
obligations or liabilities of any third party (including Borrower under the Senior Loan
Documents and the Junior Loan Documents), (C) neither of them nor any of their affiliates
shall be, or be deemed to be, beneficiaries of any of the provisions hereof or have any rights
hereunder whatsoever, and (D) no provision of this Agreement is intended to, or shall be
construed to, give any such third party (including Borrower) any right subrogating to the
rights of, or action against, Senior Lender or Junior Lender.
(j) No amendment, supplement, modification, waiver or termination of this
Agreement shall be effective against any party unless such amendment, supplement,
modification, waiver or termination is contained in a writing signed by such party.
(k) No party other than Senior Lender and Junior Lender shall have any rights
under, or be deemed a beneficiary of any of the provisions of, this Agreement.
(l) Nothing herein or in any of the Senior Loan Documents or Junior Loan
Documents shall be deemed to constitute Senior Lender as a joint venturer or partner of
Junior Lender.
12. Intentionally Omitted.
Subordination and Intercreditor Agreement (County) 16 Vista Breeze
4891-9288-4364v.4
13. Attached Exhibits.
The following Exhibits are attached to this Agreement and are incorporated by reference
herein as if more fully set forth in the text hereof:
Exhibit A – Legal Description
Exhibit B – Junior Loan Documents
Exhibit C – Modifications to Subordination and Intercreditor Agreement
The terms of this Agreement are modified and supplemented as set forth in said Exhibits.
To the extent of any conflict or inconsistency between the terms of said Exhibits and the text of
this Agreement, the terms of said Exhibits shall be controlling in all respects.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Subordination and Intercreditor Agreement (County) A-1 Vista Breeze
4891-9288-4364v.4
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Subordination and Intercreditor Agreement or caused this Subordination and Intercreditor
Agreement to be duly executed and delivered by their respective authorized representatives as of
the date first set forth above.
JUNIOR LENDER:
WITNESS OR ATTEST: MIAMI-DADE COUNTY, FLORIDA,
a political subdivision of the State of Florida
________________________________
Name: __________________________
By:_______________________________
Name:
Title:
________________________________
Name: __________________________
STATE OF ________
COUNTY OF _______
The foregoing instrument was acknowledged before me by means of [ ] physical presence
or [ ] online notarization this __ day of _______, 20__, by _____________________, as
____________________________ of Miami-Dade County, Florida, a political subdivision of the
State of Florida.
[Notary Seal] Signature of person taking acknowledgment
Name (typed, printed or stamped):_____________
Title or Rank:
Serial number (if any):
Subordination and Intercreditor Agreement (County) 2 Vista Breeze
4891-9288-4364v.4
SENIOR LENDER:
WITNESS OR ATTEST:
______________________________
Name:_________________________
______________________________
Name:_________________________
CITIBANK, N.A.,
By: ___________
Name:
Title:
Deal ID No. 60001596
ACKNOWLEDGEMENT
STATE OF ____________
COUNTY OF ____________
The foregoing instrument was acknowledged before me by means of ☐ physical presence
or ☐ online notarization, this _____ day of _______________, 20___, by ________________, as
________________ of Citibank., N.A.. Said person is personally known to me or has produced
_________________ as identification.
[Notary Seal] Signature of person taking acknowledgment
Name (typed, printed or stamped):_____________
Title or Rank:
Serial number (if any):
Subordination and Intercreditor Agreement (County) 3 Vista Breeze
4891-9288-4364v.4
ACKNOWLEDGED AND AGREED AS OF THE DATE FIRST SET FORTH ABOVE:
BORROWER:
WITNESS OR ATTEST:
______________________________
Name:_________________________
______________________________
Name:_________________________
VISTA BREEZE, LTD.,
a Florida limited partnership
By: APC Vista Breeze, LLC,
a Florida limited liability company,
Duly Authorized
By:
Name:
Title:
ACKNOWLEDGEMENT
STATE OF ____________
COUNTY OF ____________
The foregoing instrument was acknowledged before me by means of ☐ physical presence
or ☐ online notarization, this _____ day of _______________, 20___, by ___________________,
as ___________ of APC Vista Breeze, LLC, a Florida limited liability company, a duly authorized
signatory of Vista Breeze, Ltd., a Florida limited partnership. Said person is personally known to
me or has produced a valid driver's license as identification.
[Notary Seal] Signature of person taking acknowledgment
Name (typed, printed or stamped): __________________
Title or Rank:
Serial number (if any):
Subordination and Intercreditor Agreement (County) A-1 Vista Breeze
4891-9288-4364v.4
EXHIBIT A
LEGAL DESCRIPTION
That leasehold estate created by that Second Amended and Restated Ground Lease, by and
between Vista Breeze, Ltd., a Florida limited partnership, and the Housing Authority of The City
of Miami Beach, a public body corporate and politic, as evidenced by that Amended and
Restated Memorandum of Lease to be recorded over the following described lands:
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.
Subordination and Intercreditor Agreement (County) B-1 Vista Breeze
4891-9288-4364v.4
EXHIBIT B
JUNIOR LOAN DOCUMENTS
1. Junior Note;
2. Junior Security Instrument;
3. Junior Loan Agreement;
4. Junior Security Instrument; and
5. Miami-Dade County Rental Regulatory Agreement, dated as of December 15,
2023, by Borrower in favor of Junior Lender.
Subordination and Intercreditor Agreement (County) C-1 Vista Breeze
4891-9288-4364v.4
EXHIBIT C
MODIFICATIONS TO
SUBORDINATION AND INTERCREDITOR AGREEMENT
The following modifications are made to the text of the Agreement that precedes this
Exhibit:
None.
Capitalized terms used and not defined herein shall have the respective meanings ascribed to them
in the Agreement.
D
Forward Purchase Agreement Vista Breeze
EXHIBIT D-14 TO FORWARD PURCHASE AGREEMENT
FORM OF SUBORDINATION AND INTERCREDITOR AGREEMENT (FHFC)
[See attached]
4889-5265-7294v.3
THIS INSTRUMENT PREPARED BY:
Aviva Yakren, Esq.
Sidley Austin LLP
787 Seventh Avenue
New York, New York 10019
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Citibank, N.A.
Transaction and Asset Management Group/Post Closing
Citi Community Capital
3800 Citibank Center
Tampa, Florida 33610
Re: Vista Breeze Deal ID No. 60001596
ABOVE SPACE RESERVED FOR
RECORDING PURPOSES ONLY
EXHIBIT D-14 TO FORWARD PURCHASE AGREEMENT
FORM OF
SUBORDINATION AND INTERCREDITOR AGREEMENT
Subordination and Intercreditor Agreement (FHFC) Vista Breeze
4889-5265-7294v.3
EXHIBIT D-14 TO FORWARD PURCHASE AGREEMENT
FORM OF
SUBORDINATION AND INTERCREDITOR AGREEMENT
VISTA BREEZE / CONSTRUCTION INFLATION RESPONSE VIABILITY FUNDING /
RFA 2023-211 / 2023-260V
VISTA BREEZE / SAIL / ELI / NHTF / RFA 2021-205 / 2022-159SN
THIS SUBORDINATION AND INTERCREDITOR AGREEMENT (this
“Agreement”) dated as of the [_] day of [Month], 202[_], is made by and between 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 (“Junior Lender”) and CITIBANK,
N.A., a national banking association (“Senior Lender”) and acknowledged by VISTA BREEZE,
LTD., a Florida limited partnership (“Borrower”). The date of this Agreement as set forth above is
for reference purposes only, and this Agreement will not be effective and binding until the
Conversion Date (as defined in the Original Borrower Loan Agreement (as hereinafter defined)).
RECITALS:
A. The Housing Authority of the City of Miami Beach, a public body corporate and
politic established pursuant to Chapter 421, Florida Statutes (the “Landlord”), is the legal owner
of fee simple title to the Land (as defined in the Security Instrument (as hereinafter defined)) and
pursuant to that certain Second Amended and Restated Ground Lease, dated as of December 15,
2023, between the Landlord and the Borrower, the Borrower is the holder of a leasehold interest
in the Land.
B. Borrower previously applied to the Housing Finance Authority of Miami-Dade
County, Florida, a public body corporate and politic organized and existing under the laws of the
State of Florida (“Governmental Lender”), for a loan (the “Borrower Loan”) for the acquisition,
construction, development and/or equipping of a 119-unit multifamily residential project, located
in the City of Miami Beach, Florida, known as Vista Breeze (the “Mortgaged Property”).
C. Borrower previously requested that the Governmental Lender enter into that certain
Funding Loan Agreement, dated as of December 1, 2023 (the “Original Funding Loan
Agreement”), among the Governmental Lender, 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 Governmental Lender in the original principal amount
of $32,500,000 (the “Funding Loan”), the proceeds of which Governmental Lender used to make
the Borrower Loan pursuant to that certain Construction Phase Borrower Loan Agreement, dated
as of December 1, 2023, (the “Original Borrower Loan Agreement”), by and between the
Governmental Lender and the Borrower.
D. The Borrower Loan was evidenced by that certain Construction Phase Project Loan
Note, dated as of December 15, 2023 (the “Original Borrower Note”), made by Borrower payable
Subordination and Intercreditor Agreement (FHFC) 2 Vista Breeze
4889-5265-7294v.3
to the order of Governmental Lender, as endorsed and assigned to Fiscal Agent for the benefit of
the Original Funding Lender.
E. The Borrower Loan was secured by, among other things, that certain Leasehold
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated as of December 15,
2023, executed by Borrower for the benefit of Governmental Lender (the “Original Security
Instrument”), which Original Security Instrument encumbers the Mortgaged Property.
F. The Original Borrower Note, the Original Security Instrument, the Original
Borrower Loan Agreement and all other Borrower Loan Documents except for the Unassigned
Rights (as defined in the Original Funding Loan Agreement), were each assigned by Governmental
Lender to Fiscal Agent for the benefit of Original Funding Lender to secure the Funding Loan.
G. At the request of Borrower, the Borrower, Original Funding Lender and Senior
Lender entered into that certain Forward Purchase Agreement, dated as of December 1, 2023,
pursuant to which Senior Lender agreed to acquire Original Funding Lender’s interests in the
Funding Loan and Funding Loan Documents (as defined in the Original Funding Loan Agreement)
upon satisfaction of the terms and conditions set forth therein (the “Loan Purchase Conditions”).
H. Insofar as the Loan Purchase Conditions have been satisfied or waived, the
Borrower Loan has converted into a permanent loan (the “Senior Loan”), and in connection
therewith, (i) Senior Lender has agreed to enter into a certain Amended and Restated Funding
Loan Agreement, dated as of the date hereof (the “Funding Loan Agreement”), by and among
Governmental Lender, Fiscal Agent, and Senior Lender, which amends and restates the Original
Funding Loan Agreement; (ii) Borrower and Governmental Lender have entered into an Amended
and Restated Borrower Loan Agreement, dated as of the date hereof (the “Borrower Loan
Agreement”), which amends and restates the Original Borrower Loan Agreement; (iii) Borrower
has executed and delivered an Amended and Restated Multifamily Note, dated as of [_], 202[_],
in the principal amount of $[11,875,000][NOTE: AS MAY BE INCREASED PER THE EARN-
OUT] (the “Borrower Note”), which amends and restates the Original Borrower Note; (iv)
Borrower has executed and delivered an Amended and Restated Multifamily Leasehold Mortgage,
Assignment of Rents, Security Agreement and Fixture Filing (Florida) executed and delivered by
Borrower and dated as of the date hereof (the “Security Instrument”), which amends and restates
the Original Security Instrument; and (v) Senior Lender and Borrower have entered into a certain
the Loan Covenant Agreement executed and delivered by Borrower and dated as of the date hereof
(the “Loan Covenant Agreement”).
I. Junior Lender is making (i) a loan to Borrower in the original principal amount of
$4,300,000 (the “Viability Loan”), which Viability Loan is evidenced by that certain Promissory
Note, dated as of December 15, 2023, made by Borrower to Junior Lender (the “Viability Loan
Note”) and secured by, that certain Leasehold Mortgage and Security Agreement, dated as of
December 15, 2023, made by Borrower to Junior Lender and that certain Assignment of Leases,
Rents and Contract Rights, dated as of December 15, 2023, encumbering the Property
(collectively, the “Viability Loan Security Instrument”), and will be advanced to Borrower
pursuant to that certain Construction Loan Agreement (the “Viability Loan Agreement”), dated
as of December 15, 2023, between Borrower and Junior Lender, (ii) a loan to Borrower in the
original principal amount of $3,000,000 (the “SAIL Loan”), which SAIL Loan is evidenced by
Subordination and Intercreditor Agreement (FHFC) 3 Vista Breeze
4889-5265-7294v.3
that certain Promissory Note, dated as of December 15, 2023, made by Borrower to Junior Lender
(the “SAIL Loan Note”) and secured by, that certain Leasehold Mortgage and Security
Agreement, dated as of December 15, 2023, made by Borrower to Junior Lender and that certain
Assignment of Leases, Rents and Contract Rights, dated as of December 15, 2023, encumbering
the Property (collectively, the “SAIL Loan Security Instrument”), and will be advanced to
Borrower pursuant to that certain Construction Loan Agreement (the “SAIL Loan Agreement”),
dated as of December 15, 2023, between Borrower and Junior Lender, (iii) a loan to Borrower in
the original principal amount of $600,000 (the “ELI Loan”), which ELI Loan is evidenced by that
certain Promissory Note, dated as of December 15, 2023, made by Borrower to Junior Lender (the
“ELI Loan Note”) and secured by, that certain Leasehold Mortgage and Security Agreement,
dated as of December 15, 2023, made by Borrower to Junior Lender, and that certain Assignment
of Leases, Rents and Contract Rights, dated as of December 15, 2023, encumbering the Property
(collectively, the “ELI Loan Security Instrument”), and will be advanced to Borrower pursuant
to that certain Construction Loan Agreement (the “ELI Loan Agreement”), dated as of December
15, 2023, between Borrower and Junior Lender, and (iv) a loan to Borrower in the original
principal amount of $1,301,500 (the “NHTF Loan”; and together with the Viability Loan, SAIL
Loan, ELI Loan and NHTF Loan, collectively, the “Junior Loan”), which NHTF Loan is
evidenced by that certain Promissory Note, dated as of December 15, 2023, made by Borrower to
Junior Lender (the “NHTF Loan Note”; and together with the Viability Loan Note, SAIL Loan
Note, ELI Loan Note and NHTF Loan Note, collectively, the “Junior Loan Note”) and secured
by, that certain Leasehold Mortgage and Security Agreement, dated as of December 15, 2023,
made by Borrower to Junior Lender, and that certain Assignment of Leases, Rents and Contract
Rights, dated as of December 15, 2023, encumbering the Property (collectively, the “NHTF Loan
Security Instrument”), and will be advanced to Borrower pursuant to that certain Construction
Loan Agreement (the “NHTF Loan Agreement”; and together with the Viability Loan
Agreement, SAIL Loan Agreement, ELI Loan Agreement and NHTF Loan Agreement,
collectively, the “Junior Loan Agreement”), dated as of December 15, 2023, between Borrower
and Junior Lender.
J. As a condition to the making of the Senior Loan, Senior Lender requires that Junior
Lender execute and deliver this Agreement prior to the making of the Junior Loan and the granting
of the Junior Security Instrument by Borrower.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and to induce the making of the
Senior Loan and to induce Senior Lender to consent to the Junior Loan and the Junior Security
Instrument, Junior Lender hereby agrees as follows:
1. Definitions. Capitalized terms used but not defined in this Agreement shall have
the meanings ascribed thereto in the Senior Security Instrument. As used in this Agreement, the
terms set forth below shall have the respective meanings indicated:
“Bankruptcy Proceeding” means any bankruptcy, reorganization, insolvency, composition,
restructuring, dissolution, liquidation, receivership, assignment for the benefit of creditors, or
custodianship action or proceeding under any federal or state law with respect to Borrower, any
guarantor of any of the Senior Indebtedness, any of their respective properties, or any of their
respective partners, members, officers, directors, or shareholders.
Subordination and Intercreditor Agreement (FHFC) 4 Vista Breeze
4889-5265-7294v.3
“Casualty” means the occurrence of damage to or loss of any of the Property by fire or
other casualty.
“Condemnation” means any proposed or actual condemnation or other taking, or
conveyance in lieu thereof, of all or any part of the Property, whether direct or indirect.
“Enforcement Action” means any exercise of any of Junior Lender’s remedies under the
Junior Security Instrument or any of the other Junior Loan Documents, including, without
limitation, any of the following: (i) the acceleration of all or any part of the Junior Indebtedness,
(ii) the commencement of any judicial or non-judicial action or proceeding to enforce any
obligation of Borrower under any of the Junior Loan Documents, collect any monies payable to
Borrower or have a receiver appointed to collect any monies payable to Borrower, or foreclose the
lien(s) created by the Junior Security Instrument, (iii) the filing or joining in the filing of any
involuntary Bankruptcy Proceeding against Borrower or any person or entity which owns a direct
or indirect interest in Borrower, (iv) the advertising of or commencement of any foreclosure or
trustee’s sale proceedings, (v) the exercise of any power of sale, (vi) the acceptance of a deed or
assignment in lieu of foreclosure or sale, (vii) the collecting of Rents, (viii) the obtaining of or
seeking of the appointment of a receiver, (ix) the seeking of default interest, (x) the taking of
possession or control of any of the Property, (xi) the commencement of any suit or other legal,
administrative, or arbitration proceeding based upon the Junior Note or any other of the Junior
Loan Documents, (xii) the exercising of any banker’s lien or rights of set-off or recoupment, or
(xiii) the taking of any other enforcement action against Borrower, any other party liable for any
of the Junior Indebtedness or obligated under any of the Junior Loan Documents, or the Property.
“Enforcement Action Notice” means a written notice from Junior Lender to Senior Lender,
given following a Junior Loan Default and the expiration of any notice or cure periods provided
for such Junior Loan Default in the Junior Loan Documents, setting forth in reasonable detail the
Enforcement Action proposed to be taken by Junior Lender.
“Junior Indebtedness” means all indebtedness of any kind at any time evidenced or secured
by, or arising under, the Junior Loan Documents, whether incurred, arising or accruing before or
after the filing of any Bankruptcy Proceeding.
“Junior Loan Default” means any act, failure to act, event, condition, or occurrence which
constitutes, or which with the giving of notice or the passage of time, or both, would constitute, an
“Event of Default” as defined in the Junior Security Instrument.
“Junior Loan Documents” means, collectively, the Junior Note, the Junior Security
Instrument, the Junior Loan Agreement, the Junior LURA, and all other documents evidencing,
securing or delivered in connection with the Junior Loan, all of which are listed on Exhibit B
attached hereto, together with such modifications, amendments and supplements thereto as are
approved in writing by Senior Lender prior to their execution.
“Junior LURA” means, collectively, (i) that certain Land Use Restriction Agreement, dated
as of December 15, 2023, by and between Borrower and Junior Lender, in connection with the
Viability Loan, (ii) that certain Land Use Restriction Agreement, dated as of December 15, 2023,
by and between Borrower and Junior Lender, in connection with the SAIL Loan, (iii) that certain
Subordination and Intercreditor Agreement (FHFC) 5 Vista Breeze
4889-5265-7294v.3
Land Use Restriction Agreement, dated as of December 15, 2023, by and between Borrower and
Junior Lender, in connection with the ELI Loan, and (iv) that certain Land Use Restriction
Agreement, dated as of December 15, 2023, by and between Borrower and Junior Lender, in
connection with the NHTF Loan.
“Junior Security Instrument” means, collectively, the Viability Loan Security Instrument,
the SAIL Loan Security Instrument, the ELI Loan Security Instrument, the NHTF Loan Security
Instrument, as the same may from time to time be extended, consolidated, substituted for,
modified, amended or supplemented upon receipt of the consent of Senior Lender.
“Loan Agreement” means the Loan Covenant Agreement.
“Loss Proceeds” means all monies received or to be received under any insurance policy,
from any condemning authority, or from any other source, as a result of any Condemnation or
Casualty.
“Property” means (i) the land and improvements known or to be known as Vista Breeze,
located in the City of Miami Beach, Miami-Dade County, State of Florida, which Property is more
particularly described on Exhibit A attached hereto, and (ii) all furniture, fixtures and equipment
located at such apartments and other property, accounts, deposits and rights and interests of
Borrower encumbered by the Senior Security Instrument and/or the other Senior Loan Documents.
“Senior Indebtedness” means all indebtedness of any kind at any time evidenced or secured
by, or arising under, the Senior Loan Documents, whether incurred, arising or accruing before or
after the filing of any Bankruptcy Proceeding.
“Senior Loan Default” means any act, failure to act, event, condition, or occurrence which
constitutes, or which with the giving of notice or the passage of time, or both, would constitute, an
“Event of Default” as defined in the Senior Security Instrument.
“Senior Loan Documents” means, collectively, the Senior Security Instrument, the Senior
Note, the Borrower Loan Agreement and all of the other documents, instruments and agreements
now or hereafter evidencing, securing or otherwise executed in connection with the Senior Loan,
as the same may from time to time be extended, consolidated, substituted for, modified, increased,
amended and supplemented in accordance with the provisions of this Agreement.
2. Junior Loan and Junior Loan Documents are Subordinate; Acts by Senior
Lender do not Affect Subordination.
(a) Junior Lender hereby covenants and agrees on behalf of itself and its
successors and permitted assigns that the Junior Indebtedness is and shall at all times
continue to be, subordinate, subject and inferior (in payment and priority) to the prior
payment in full of the Senior Indebtedness, and that the liens, rights, payment interests,
priority interests and security interests granted to Junior Lender in connection with the
Junior Loan and under the Junior Loan Documents are, and are hereby expressly
acknowledged to be in all respects and at all times, subject, subordinate and inferior in all
respects to the liens, rights, payment, priority and security interests granted to Senior
Subordination and Intercreditor Agreement (FHFC) 6 Vista Breeze
4889-5265-7294v.3
Lender under the Senior Loan and the Senior Loan Documents and the terms, covenants,
conditions, operations and effects thereof.
(b) Except as expressly set forth herein, repayment of the Junior Indebtedness,
is and shall be postponed and subordinated to repayment in full of the Senior Loan. Prior
to a Senior Loan Default (regardless of whether such Senior Loan Default occurs prior to
or during the pendency of a Bankruptcy Proceeding), Junior Lender shall be entitled to
receive and retain payments made pursuant to and in accordance with the terms of the
Junior Loan Documents; provided, however, that no such payment is made more than ten
(10) days in advance of the due date thereof. Junior Lender agrees that from and after such
time as it has received from either Senior Lender or Borrower written notice that a Senior
Loan Default then exists (which has not been expressly waived in writing by Senior
Lender) or otherwise has actual knowledge of such a Senior Loan Default, Junior Lender
shall not receive or accept any payments under the Junior Loan. If (i) Junior Lender
receives any payment, property, or asset of any kind or in any form on account of the Junior
Indebtedness (including, without limitation, any proceeds from any Enforcement Action)
after a Senior Loan Default of which Junior Lender has actual knowledge or has been given
notice of, or (ii) Junior Lender receives, voluntarily or involuntarily, by operation of law
or otherwise, any payment, property, or asset in or in connection with any Bankruptcy
Proceeding, such payment, property, or asset will be received and held in trust for Senior
Lender. Junior Lender will promptly remit, in kind and properly endorsed as necessary,
all such payments, properties, and assets to Senior Lender. Senior Lender shall apply any
payment, asset, or property so received from Junior Lender to the Senior Indebtedness in
such order, amount (with respect to any asset or property other than immediately available
funds), and manner as Senior Lender shall determine in its sole and absolute discretion.
(c) Without limiting the complete subordination of the Junior Indebtedness to
the payment in full of the Senior Indebtedness, in any Bankruptcy Proceeding, upon any
payment or distribution (whether in cash, property, securities, or otherwise) to creditors (i)
the Senior Indebtedness shall first be paid in full in cash before Junior Lender shall be
entitled to receive any payment or other distribution on account of or in respect of the
Junior Indebtedness, and (ii) until all of the Senior Indebtedness is paid in full in cash, any
payment or distribution to which Junior Lender would be entitled but for this Agreement
(whether in cash, property, or other assets) shall be made to Senior Lender.
(d) The subordination of the Junior Indebtedness shall continue in the event that
any payment under the Senior Loan Documents (whether by or on behalf of Borrower, as
proceeds of security or enforcement of any right of set-off or otherwise) is for any reason
repaid or returned to Borrower or its insolvent estate, or avoided, set aside or required to
be paid to Borrower, a trustee, receiver or other similar party under any bankruptcy,
insolvency, receivership or similar law. In such event, the Senior Indebtedness or part
thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding
to the extent of any repayment, return, or other action, as if such payment on account of
the Senior Indebtedness had not been made.
(e) The subordination of the Junior Loan Documents and of the Junior
Indebtedness shall apply and continue notwithstanding (i) the actual date and time of
Subordination and Intercreditor Agreement (FHFC) 7 Vista Breeze
4889-5265-7294v.3
execution, delivery, recording, filing or perfection of the Senior Security Instrument and
other Senior Loan Documents and of the Junior Security Instrument and other Junior Loan
Documents, and (ii) the availability of any collateral to Senior Lender, including the
availability of any collateral other than the Property.
(f) By reason of, and without in any way limiting, the full subordination of the
Junior Indebtedness and the Junior Loan Documents provided for in this Agreement, all
rights and claims of Junior Lender under the Junior Security Instrument or under the Junior
Loan Documents in or to the Property or any portion thereof, the proceeds thereof, the
Leases thereof, the Rents, issues and profits therefrom, and the Loss Proceeds payable with
respect thereto, are expressly subject and subordinate in all respects to the rights and claims
of Senior Lender under the Senior Loan Documents in and to the Property or any portion
thereof, the proceeds thereof, the Leases thereof, the Rents, issues and profits therefrom,
and the Loss Proceeds payable with respect thereto.
(g) If Junior Lender, by indemnification, subrogation or otherwise, shall
acquire any lien, estate, right or other interest in any of the Property, that lien, estate, right
or other interest shall be fully subject and subordinate to the receipt by Senior Lender of
payment in full of the Senior Indebtedness, and to the Senior Loan Documents, to the same
extent as the Junior Indebtedness and the Junior Loan Documents are subordinate pursuant
to this Agreement.
(h) In confirmation, and not as a condition, of the subordination of the Junior
Indebtedness and the Junior Loan Documents provided for in this Agreement, Junior
Lender shall place on or attach to the Junior Note a notice to the following effect, and shall
provide Senior Lender with a copy of the Junior Note showing such notice:
“The indebtedness evidenced by this Note is and shall be subordinate in
right of payment to the prior payment in full of all amounts then due and
payable (including, but not limited to, all amounts due and payable by virtue
of any default or acceleration or upon maturity) with respect to the
indebtedness evidenced by the Note (as defined by that certain Amended
and Restated Multifamily Leasehold Mortgage, Assignment of Rents,
Security Agreement and Fixture Filing (Florida) by the Borrower in favor
of Governmental Lender and assigned to The Bank of New York Mellon
Trust Company, N.A., a national banking association, in the original
maximum principal amount of $[11,950,000] [NOTE: AS MAY BE
INCREASED PER THE EARN-OUT]) to the extent and in the manner
provided in that certain Subordination and Intercreditor Agreement, dated
as of [_____], 20[_], between Citibank, N.A. (“Senior Lender”) and the
holder of this Note (the “Subordination Agreement”). The rights and
remedies of the payee and each subsequent holder of this Note shall be
deemed, by virtue of such holder’s acquisition of this Note, to have agreed
to perform and observe all of the terms, covenants and conditions to be
performed or observed by the “Junior Lender” under the Subordination
Agreement.”
Subordination and Intercreditor Agreement (FHFC) 8 Vista Breeze
4889-5265-7294v.3
(i) Junior Lender consents to any agreement or arrangement in which Senior
Lender waives, postpones, extends, reduces or modifies any provisions of the Senior Loan
Documents, including any provision requiring the payment of money. Notwithstanding the
foregoing, Senior Lender may not modify any provisions of the Senior Loan Documents
that increases the interest rate, extends the term (other than extensions expressly provided
for in accordance with the Senior Loan Documents) or increases the Senior Loan, except
for increases in the interest rate, extensions of the term or increases in the Senior Loan that
results from advances made by Senior Lender to protect the security or lien priority of
Senior Lender under the Senior Loan Documents or to cure defaults under the Junior Loan
Documents. Junior Lender hereby acknowledges and agrees that, upon the occurrence and
continuation of a Senior Loan Default, Senior Lender may, without the consent or approval
of Junior Lender, agree with Borrower to extend, consolidate, modify, increase or amend
any or all the Senior Loan Documents and otherwise act or fail to act with respect to any
matter set forth in any Senior Loan Document (including, without limitation, the exercise
of any rights or remedies, waiver, forbearance or delay in enforcing any rights or remedies,
the declaration of acceleration, the declaration of defaults or events of default, the release,
in whole or in part, of any collateral or other property, and any consent, approval or waiver),
and all such extensions, consolidations, modifications, amendments acts and omissions
shall not release, impair or otherwise affect Junior Lender’s obligations and agreements
hereunder. In the event of a Potential Default under the Senior Loan documents, Senior
Lender may exercise its remedies and take such actions as it believes necessary to preserve
is security and lien position as long as such actions shall not release, impair or otherwise
affect Junior Lender’s obligations and agreements hereunder. The Senior Lender shall
endeavor to provide Junior Lender with notice of any such modifications in a reasonable
amount of time after such modifications are made, however, failure to provide such notice
shall not cause a breach of any obligations of Senior Lender under this Agreement. All
notices shall be sent in accordance with Section 8 hereof.
3. Junior Lender Agreements.
(a) Without the prior written consent of Senior Lender in each instance, Junior
Lender shall not (i) amend, modify, waive, extend, renew or replace any provision of any
of the Junior Loan Documents, or (ii) pledge, assign, transfer, convey, or sell any interest
in the Junior Indebtedness or any of the Junior Loan Documents; or (iii) accept any
payment on account of the Junior Indebtedness other than a regularly scheduled payment
of interest or principal and interest made not earlier than ten (10) days prior to the due date
thereof; or (iv) take any action which has the effect of increasing the Junior Indebtedness;
or (v) appear in, defend or bring any action in connection with the Property; or (vi) take
any action concerning environmental matters affecting the Property. Regardless of any
contrary provision in the Junior Loan Documents, Junior Lender shall not collect payments
for the purpose of escrowing for any cost or expense related to the Property or for any
portion of the Junior Indebtedness.
(b) Senior Lender shall have the right, but shall not have any obligation, to cure
any Junior Loan Default until ninety (90) days following Senior Lender’s receipt of an
Enforcement Action Notice given by Junior Lender as a consequence of the Junior Loan
Default. Senior Lender shall not be subrogated to the rights of Junior Lender under the
Subordination and Intercreditor Agreement (FHFC) 9 Vista Breeze
4889-5265-7294v.3
Junior Loan Documents by reason of Senior Lender having cured any Junior Loan Default.
However, Junior Lender acknowledges that all amounts advanced or expended by Senior
Lender to cure a Junior Loan Default shall be added to and become a part of the Senior
Indebtedness pursuant to the terms of the Senior Security Instrument.
(c) Other than as provided below in this subsection (c), in the event and to the
extent that each of Senior Lender and Junior Lender have under their respective loan
documents certain approval or consent rights over the same subject matters (regardless of
whether the obligations or rights are identical or substantially identical), Junior Lender
agrees that Senior Lender shall exercise such approval rights on behalf of both Senior
Lender and Junior Lender, and Junior Lender shall have no right to object to any such
action or approval taken by Senior Lender and shall consent thereto and be bound thereby;
but only in the event that Senior Lender shall have provided Junior Lender with written
notice regarding such approval and consent and the Junior Lender has not notified Senior
Lender that it objects to Senior Lender taking such action or giving such approval within
ten Business Days of such notice. Notwithstanding the prior sentence, the Senior Lender
shall have all approval, consent and oversight rights in connection with any insurance
claims relating to the Property, and any decisions regarding the use of insurance proceeds
after a casualty loss or condemnation awards and Junior Lender shall have no right to object
to any such action or approval taken by Senior Lender and shall consent thereto and be
bound thereby.
(d) Junior Lender agrees that, except as may otherwise be provided in the Junior
LURA, in any action commenced to enforce the obligation of Borrower to pay any portion
of the Junior Indebtedness, the judgment shall not be enforceable personally against
Borrower or Borrower’s assets, and the recourse of Junior Lender for the collection of the
Junior Indebtedness shall be limited to actions against the Property and the rents, profits,
issues, products, and income from the Property.
(e) Junior Lender shall not commence or join with any other creditor in
commencing any Bankruptcy Proceeding involving Borrower, and Junior Lender shall not
initiate and shall not be a party to any action, motion or request, in a Bankruptcy Proceeding
involving any other person or entity, which seeks the consolidation of some or all of the
assets of Borrower into such Bankruptcy Proceeding. In the event of any Bankruptcy
Proceeding relating to Borrower or the Property or, in the event of any Bankruptcy
Proceeding relating to any other person or entity into which (notwithstanding the covenant
in the first sentence of this clause) the assets or interests of Borrower are consolidated, then
in either event, the Senior Loan shall first be paid in full before Junior Lender shall be
entitled to receive and retain any payment or distribution in respect to the Junior Loan.
Junior Lender agrees that (i) Senior Lender shall receive all payments and distributions of
every kind or character in respect of the Junior Loan to which Junior Lender would
otherwise be entitled from the Borrower, but for the subordination provisions of this
Agreement (including without limitation, any payments or distributions during the
pendency of a Bankruptcy Proceeding involving Borrower or the Property), and (ii) the
subordination of the Junior Loan and the Junior Loan Documents shall not be affected in
any way by Senior Lender electing, under Section 1111(b) of the federal bankruptcy code,
to have its claim treated as being a fully secured claim. In addition, Junior Lender hereby
Subordination and Intercreditor Agreement (FHFC) 10 Vista Breeze
4889-5265-7294v.3
covenants and agrees that, in connection with a Bankruptcy Proceeding involving
Borrower, neither Junior Lender nor any of its affiliates shall (i) make or participate in a
loan facility to or for the benefit of Borrower on a basis that is senior to or pari passu with
the liens and interests held by Senior Lender pursuant to the Senior Loan Documents, (ii)
not vote affirmatively in favor of any plan of reorganization or liquidation unless Senior
Lender has also voted affirmatively in favor of such plan, and (iii) not contest the continued
accrual of interest on the Senior Indebtedness, in accordance with and at the rates specified
in the Senior Loan Documents, both for periods before and for periods after the
commencement of such Bankruptcy Proceedings. In the event of any such Bankruptcy
Proceeding, Junior Lender shall execute and deliver to Senior Lender powers of attorney,
assignments or other instruments, as may be requested by Senior Lender in order to enable
it to exercise the above-described authority or powers with respect to any or all of the Junior
Loan Documents, and to collect and receive any and all payments or distributions which
may be payable or deliverable at any time upon or with respect to any of the Junior Loan
Documents to Junior Lender.
(f) Junior Lender covenants and agrees that the effectiveness of this Agreement
and the rights of Senior Lender hereunder shall be in no way impaired, affected, diminished
or released by any renewal or extension of the time of payment of the Senior Loan,
provided for in this Agreement, by any delay, forbearance, failure, neglect or refusal of
Senior Lender in enforcing payment thereof or in enforcing the lien of or attempting to
realize upon the Senior Loan Documents or any other security which may have been given
or may hereafter be given for the Senior Loan, by any waiver or failure to exercise any
right or remedy under the Senior Loan Documents, or by any other act or failure to act by
Senior Lender. Junior Lender acknowledges that Senior Lender, at its sole option, may
release all or any portion of the Property from the lien of the Senior Security Instrument,
and may release or waive any guaranty, surety or indemnity providing additional collateral
to Senior Lender, and Junior Lender hereby waives any legal or equitable right in respect
of marshaling it might have in connection with any such release of all or any portion of the
Property by Senior Lender. Senior Lender may pursue all rights and remedies available to
it under the Senior Loan Documents, at law, or in equity, regardless of any Enforcement
Action by Junior Lender. At any time or from time to time and any number of times,
without notice to Junior Lender and without affecting the liability of Junior Lender, (a) the
time for Borrower’s performance of or compliance with any covenant or agreement
contained in the Senior Loan Documents, whether presently existing or hereinafter entered
into, may be extended or such performance or compliance may be waived; (b) the maturity
of the Senior Indebtedness may be accelerated as provided in the Senior Loan Documents;
and (c) any security for the Senior Indebtedness may be modified, exchanged, surrendered
or otherwise dealt with or additional security may be pledged or mortgaged for the Senior
Indebtedness. If, after the occurrence of a Senior Loan Default, Senior Lender acquires
title to any of the Property pursuant to a mortgage foreclosure conducted in accordance
with applicable law, the lien, operation, and effect of the Junior Security Instrument and
other Junior Loan Documents automatically shall terminate with respect to such Property
upon Senior Lender’s acquisition of title.
(g) Junior Lender acknowledges that it entered into the transactions
contemplated by the Junior Loan Documents and made the Junior Loan to Borrower
Subordination and Intercreditor Agreement (FHFC) 11 Vista Breeze
4889-5265-7294v.3
without reliance upon any information or advice from Senior Lender. Junior Lender made
its own underwriting analysis in connection with the Junior Loan, its own credit review of
Borrower, and investigated all matters pertinent, in Junior Lender’s judgment, to its
determination to make the Junior Loan to Borrower. Junior Lender acknowledges that it
is a sophisticated, experienced governmental lender, and was represented by competent
counsel in connection with this Agreement.
(h) Junior Lender hereby further represents and warrants that as of the date
hereof: (i) Junior Lender is now the owner and holder of the Junior Loan Documents; (ii)
the Junior Loan Documents are now in full force and effect; (iii) the Junior Loan
Documents have not been modified or amended; (iv) no default or event which, with the
passing of time or giving of notice would constitute a default, under the Junior Loan
Documents has occurred; (v) the current principal balance of the Junior Indebtedness is
$[_]; (vi) no scheduled monthly payments under the Junior Loan Documents have been or
will be prepaid except with the prior written consent of Senior Lender; (vii) none of the
rights of Junior Lender under any of the Junior Loan Documents are subject to the rights
of any third parties, by way of subrogation, indemnification or otherwise; and (viii) there
are no other Junior Loan Documents other than those listed on Exhibit B hereto. Borrower
further represents and warrants that it has provided to Senior Lender a true, complete, and
correct copy of all the Junior Loan Documents.
(i) Junior Lender further agrees that its agreement to subordinate hereunder
shall, subject to favorable credit underwriting and the approval of its Board of Directors,
extend to any new mortgage debt which is for the purpose of refinancing all or any part of
the Senior Indebtedness (including reasonable and necessary costs associated with the
closing and/or the refinancing), as long as the principal amount of such new mortgage debt
is not greater than the original principal amount of the Senior Indebtedness unless such
excess amount is used to improve the Property or to compensate Senior Lender for costs,
fees and/or expenses incurred in protecting the security of the Senior Security Instrument;
and that all the terms and covenants of this Agreement shall inure to the benefit of any
holder of any such refinanced debt; and that all references to the Senior Indebtedness, the
Senior Note, the Senior Security Instrument, the Senior Loan Documents and Senior
Lender shall mean, respectively, the refinance loan, the refinance note, the mortgage
securing the refinance note, all documents evidencing securing or otherwise pertaining to
the refinance note and the holder of the refinance note. In the event the principal amount
of any new mortgage debt is greater than the original principal amount of the Senior
Indebtedness and such excess is not used to either improve the Property or to compensate
Senior Lender for costs, fees and/or expenses incurred in protecting the security of the
Senior Security Instrument, Senior Lender and Borrower agree to seek the written consent
of Junior Lender which consent shall not be unreasonably withheld, conditioned or
delayed.
4. Standstill Agreement; Right to Cure Senior Loan Default.
(a) Until such time as any of the Senior Indebtedness has been repaid in full
and the Senior Security Instrument has been released and discharged, Junior Lender shall
not without the prior written consent of Senior Lender, which may be withheld in Senior
Subordination and Intercreditor Agreement (FHFC) 12 Vista Breeze
4889-5265-7294v.3
Lender’s sole and absolute discretion, (i) accelerate the Junior Loan, (ii) exercise any of
Junior Lender’s remedies under the Junior Security Instrument or any of the other Junior
Loan Documents (including, without limitation, the commencement of any judicial or non-
judicial action or proceeding (a) to enforce any obligation of Borrower under any of the
Junior Loan Documents, (b) to collect any monies payable to Borrower, (c) to have a
receiver appointed to collect any monies payable to Borrower; or (d) to foreclose the lien(s)
created by the Junior Security Instrument) or (iii) file or join in the filing of any involuntary
Bankruptcy Proceeding against Borrower or any person or entity which owns a direct or
indirect interest in Borrower; provided, however, that such limitation on the remedies of
Junior Lender shall not derogate or otherwise limit Junior Lender’s rights under the Junior
Loan Documents to (a) compute interest on all amounts due and payable under the Junior
Loan at the default rate described in the Junior Loan Documents, (b) compute prepayment
premiums and late charges, (c) enforce against any person, other than Borrower and any
guarantors or indemnitors under the Senior Loan Documents, any guaranty of the
obligations of Borrower under the Junior Loan, and (d) enforce the Junior LURA through
equitable remedies, including specific performance as provided therein.
(b) Senior Lender shall, simultaneously with the sending of any notice of a
Senior Loan Default to Borrower, send to Junior Lender a copy of said notice under the
Senior Loan Documents; provided, however, failure to do so shall not affect the validity of
such notice or any obligation of Borrower to Senior Lender and shall not affect the relative
priorities between the Senior Loan and the Junior Loan as set forth herein. Borrower
covenants and agrees to forward to Junior Lender, within three (3) business days of
Borrower’s receipt thereof, a copy of any notice of a Senior Loan Default Borrower
receives from Senior Lender.
(c) Junior Lender shall have the right, but shall have no obligation, to cure any
Senior Loan Default; provided, if Junior Lender shall elect to cure any such Default, it shall
so notify Senior Lender and shall commence and complete such curing within any
applicable notice or grace period, if any, as Borrower is permitted by the terms of the Senior
Loan Documents to cure such Senior Loan Default. Junior Lender shall not be subrogated
to the rights of Senior Lender under the Senior Loan Documents by reason of Junior Lender
having cured any Senior Loan Default. However, Senior Lender acknowledges that, to the
extent so provided in the Junior Loan Documents, amounts advanced or expended by
Junior Lender to cure a Senior Loan Default may be added to and become a part of the
Junior Indebtedness.
(d) Junior Lender agrees that, notwithstanding any contrary provision
contained in the Junior Loan Documents, a Senior Loan Default shall not constitute a
default under the Junior Loan Documents if no other default occurred under the Junior
Loan Documents.
(e) Junior Lender acknowledges that any conveyance or other transfer of title
to the Property pursuant to a foreclosure of the Junior Security Instrument (including a
conveyance or other transfer of title pursuant to the exercise of a power of sale contained
in the Junior Security Instrument), or any deed or assignment in lieu of foreclosure or
similar arrangement, shall be subject to the transfer provisions of the Senior Loan
Subordination and Intercreditor Agreement (FHFC) 13 Vista Breeze
4889-5265-7294v.3
Documents; and the person (including Junior Lender) who acquires title to the Property
pursuant to the foreclosure proceeding (or pursuant to the exercise of a power of sale
contained in the Junior Security Instrument) shall not be deemed to be automatically
approved by Senior Lender.
5. Insurance. Junior Lender agrees that all original policies of insurance required
pursuant to the Senior Security Instrument shall be held by Senior Lender. The preceding sentence
shall not preclude Junior Lender from requiring that it be named as a loss payee, as its interest may
appear, under all policies of property damage insurance maintained by Borrower with respect to
the Property, provided such action does not affect the priority of payment of the proceeds of
property damage insurance under the Senior Security Instrument, or that it be named as an
additional insured under all policies of liability insurance maintained by Borrower with respect to
the Property.
6. Default. Junior Lender and Borrower acknowledge and agree that a default by
either such party under this Agreement shall, at the sole option of Senior Lender, constitute a
default under the Senior Loan Documents. Each party hereto acknowledges that in the event any
party fails to comply with its obligations hereunder, the other parties shall have all rights available
at law and in equity, including the right to obtain specific performance of the obligations of such
defaulting party and injunctive relief. No failure or delay on the part of any party hereto in
exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy preclude any other or further exercise
thereof or the exercise of any other right, power or remedy hereunder.
7. Enforcement Costs. Borrower agrees to reimburse Senior Lender for any and all
costs and expenses (including reasonable attorneys’ fees) incurred by Senior Lender in connection
with enforcing its rights against Junior Lender under this Agreement.
8. Notices. Any notice which any party hereto may be required or may desire to give
hereunder shall be deemed to have been given and shall be effective only if it is in writing and (i)
delivered personally, (ii) mailed, postage prepaid, by United State registered or certified mail,
return receipts requested, (iii) delivered by overnight express courier or (iv) sent by telecopier, in
each instance addressed as follows:
To Junior Lender:
With a copy to:
Florida Housing Finance Corporation
227 N. Bronough Street, Suite 5000
Tallahassee, Florida 32301-1329
Attention: Executive Director
Weiss Serota Helfman Cole + Bierman
2800 Ponce de Leon Blvd., Suite 1200
Coral Gables, FL 33134
Attention: Maria Victoria Currais, Esq.
Subordination and Intercreditor Agreement (FHFC) 14 Vista Breeze
4889-5265-7294v.3
If to Senior Lender: Citibank, N.A.
388 Greenwich Street, Trading 4th Floor
New York, New York 10013
Attention: Transaction Management Group
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (212) 723-8209
With a copy to: Citibank, N.A.
325 East Hillcrest Drive, Suite 160
Thousand Oaks, California 91360
Attention: Operations Manager/Asset Manager
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (805) 557-0924
With a copy to: Citibank, N.A.
388 Greenwich Street, Trading 4th Floor
New York, New York 10013
Attention: Account Specialist
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (212) 723-8209
And a copy of any notices
of default sent to:
Citibank, N.A.
388 Greenwich Street, 17th Floor
New York, New York 10013
Attention: General Counsel’s Office
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (646) 291-5754
or at such other addresses or to the attention of such other persons as may from time to time be
designated by the party to be addressed by written notice to the other in the manner herein
provided. Notices, demands and requests given in the manner aforesaid shall be deemed
sufficiently served or given for all purposes hereunder when received or when delivery is refused
or when the same are returned to sender for failure to be called for.
9. WAIVER OF TRIAL BY JURY. TO THE MAXIMUM EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF THE PARTIES HERETO (A) COVENANTS AND
AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING
OUT OF THIS AGREEMENT OR THE RELATIONSHIP BETWEEN THE PARTIES THAT IS
TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY
WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS
NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS
SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE
BENEFIT OF COMPETENT LEGAL COUNSEL.
10. Term. The term of this Agreement shall commence on the date hereof and shall
continue until the earliest to occur of the following events: (i) the payment of all of the principal
of, interest on and other amounts payable under the Senior Loan Documents; (ii) the payment of
Subordination and Intercreditor Agreement (FHFC) 15 Vista Breeze
4889-5265-7294v.3
all of the principal of, interest on and other amounts payable under the Junior Loan Documents,
other than by reason of payments which Junior Lender is obligated to remit to Senior Lender
pursuant to the terms hereof; (iii) the acquisition by Senior Lender of title to the Property pursuant
to a foreclosure, or a deed in lieu of foreclosure, of (or the exercise of a power of sale contained
in) the Senior Security Instrument; or (iv) the acquisition by Junior Lender of title to the Property
pursuant to a foreclosure, or a deed in lieu of foreclosure, of (or the exercise of a power of sale
contained in) the Junior Security Instrument, but only if such acquisition of title does not violate
any of the terms of this Agreement.
11. Miscellaneous.
(a) Junior Lender shall, within ten (10) business days following a request from
Senior Lender, provide Senior Lender with a written statement setting forth the then current
outstanding principal balance of the Junior Loan, the aggregate accrued and unpaid interest
under the Junior Loan, and stating whether, to the knowledge of Junior Lender, any default
or event of default exists under the Junior Loan, and containing such other information
with respect to the Junior Indebtedness as Senior Lender may require. Upon notice from
Senior Lender from time to time, Junior Lender shall execute and deliver such additional
instruments and documents, and shall take such actions, as are required by Senior Lender
in order to further evidence or effectuate the provisions and intent of this Agreement.
(b) Senior Lender shall, within ten (10) business days following a request from
Junior Lender, provide Junior Lender with a written statement setting forth the then current
outstanding principal balance of the Senior Loan, the aggregate accrued and unpaid interest
under the Senior Loan, and stating whether, to the knowledge of Senior Lender, any default
or event of default exists under the Senior Loan, and containing such other information
with respect to the Senior Indebtedness as Junior Lender may require.
(c) Junior Lender shall give Senior Lender a concurrent copy of each notice of
a Junior Loan Default or other material notice given by Junior Lender under the Junior
Loan Documents.
(d) Senior Lender shall endeavor to give Junior Lender a concurrent copy of
each notice of a Senior Loan Default or other material notice given by Senior Lender under
the Senior Loan Documents; provided however, failure to provide such notice shall not in
any manner impair the rights of the Senior Lender under this Agreement or the
subordination of the Junior Loan to the Senior Loan in accordance with this Agreement.
(e) This Agreement shall bind and inure to the benefit of all successors and
assigns of Junior Lender and Senior Lender. Senior Lender may assign its interest in the
Senior Loan Documents without notice to or consent of Junior Lender. Junior Lender may
assign its rights and interests hereunder upon notice to the Senior Lender.
(f) Senior Lender hereby consents to the Junior Loan and the Junior Loan
Documents; provided, however, that this Agreement does not constitute an approval by
Senior Lender of the terms of the Junior Loan Documents. Junior Lender hereby consents
to the Senior Loan and the Senior Loan Documents; provided, however, that this
Subordination and Intercreditor Agreement (FHFC) 16 Vista Breeze
4889-5265-7294v.3
Agreement does not constitute an approval by Junior Lender of the terms of the Senior
Loan Documents.
(g) This Agreement may be executed in multiple counterparts, each of which
shall constitute an original document and all of which together shall constitute one
agreement.
(h) IN ALL RESPECTS, INCLUDING, WITHOUT LIMITATION,
MATTERS OF CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT
AND THE OBLIGATIONS ARISING HEREUNDER, THIS AGREEMENT HAS BEEN
ENTERED INTO AND DELIVERED IN, AND SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY, THE LAWS OF THE STATE WHERE
THE PROPERTY IS LOCATED, WITHOUT GIVING EFFECT TO ANY PRINCIPLES
OF CONFLICTS OF LAW.
(i) Time is of the essence in the performance of every covenant and agreement
contained in this Agreement.
(j) If any provision or remedy set forth in this Agreement for any reason shall
be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or remedy of this Agreement and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision or
remedy had never been set forth herein, but only to the extent of such invalidity, illegality
or unenforceability.
(k) Each party hereto hereby represents and warrants that this Agreement has
been duly authorized, executed and delivered by it and constitutes a legal, valid and binding
agreement enforceable in all material respects in accordance with its terms.
(l) Borrower hereby acknowledges and consents to the execution of this
Agreement, and agrees to be bound by the provisions hereof that are applicable to
Borrower. Solely as between Senior Lender and Junior Lender, all of the signatories below
hereby agree that to the extent of any conflict between the terms and provisions of this
Agreement and the terms and provisions of the Senior Loan Documents and/or the Junior
Loan Documents respectively, the terms and provisions of this Agreement shall govern and
control. By executing this Agreement in the place provided below, Borrower hereby (i)
acknowledges the provisions hereof, (ii) agrees not to take any action inconsistent with
Senior Lender’s rights or Junior Lender’s rights under this Agreement or the Junior Loan
Documents, (iii) waives and relinquishes to the maximum extent permitted by law any and
all rights, defenses and claims now existing or hereinafter accruing relating to Junior
Lender’s forbearance from exercising any rights and remedies pursuant to Section 4 of this
Agreement, including, without limitation, any defenses based on the statute of limitations
or any equitable defenses, such as laches, and (iv) acknowledges and agrees that (A) this
Agreement is entered into for the sole protection and benefit of Senior Lender and Junior
Lender (and their respective successors, assigns and participants), and no other person
(including Borrower) shall have any benefits, rights or remedies under or by reason of this
Agreement, (B) nothing in this Agreement is intended, or shall be construed to, relieve or
Subordination and Intercreditor Agreement (FHFC) 17 Vista Breeze
4889-5265-7294v.3
discharge the obligations or liabilities of any third party (including Borrower under the
Senior Loan Documents and the Junior Loan Documents), (C) it is required to comply with
its obligations and duties set forth in the Senior Loan Documents and the Junior Loan
Documents, (D) neither it nor any of its affiliates shall be, or be deemed to be, beneficiaries
of any of the provisions hereof or have any rights hereunder whatsoever, and (D) no
provision of this Agreement is intended to, or shall be construed to, give any such third
party (including Borrower) any right subrogating to the rights of, or action against, Senior
Lender or Junior Lender.
(m) No amendment, supplement, modification, waiver or termination of this
Agreement shall be effective against any party unless such amendment, supplement,
modification, waiver or termination is contained in a writing signed by such party.
(n) No party other than Senior Lender and Junior Lender shall have any rights
under, or be deemed a beneficiary of any of the provisions of, this Agreement.
(o) Nothing herein or in any of the Senior Loan Documents or Junior Loan
Documents shall be deemed to constitute Senior Lender or Junior Lender as a joint venturer
or partner of Junior Lender.
(p) Notwithstanding any provision in this Agreement, the obligations of Junior
Lender hereunder are subject to compliance with all applicable Florida laws and
regulations, including but not limited to Chapter 420, Part V, Florida Statutes and Rule
Chapter 67-48, Florida Administrative Code.
(q) Except as specifically provided herein, this Agreement does not amend,
modify, waive or limit any provision, term or condition of the Junior Loan Documents or
the Senior Loan Documents.
12. Intentionally Omitted.
13. Attached Exhibits.
The following Exhibits are attached to this Agreement and are incorporated by reference
herein as if more fully set forth in the text hereof:
Exhibit A – Legal Description
Exhibit B – Junior Loan Documents
Exhibit C – Modifications to Subordination and Intercreditor Agreement
The terms of this Agreement are modified and supplemented as set forth in said Exhibits.
To the extent of any conflict or inconsistency between the terms of said Exhibits and the text of
this Agreement, the terms of said Exhibits shall be controlling in all respects.
Subordination and Intercreditor Agreement (FHFC) 18 Vista Breeze
4889-5265-7294v.3
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Subordination and Intercreditor Agreement (FHFC) A-1 Vista Breeze
4889-5265-7294v.3
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Subordination and Intercreditor Agreement or caused this Subordination and Intercreditor
Agreement to be duly executed and delivered by their respective authorized representatives as of
the date first set forth above.
JUNIOR LENDER:
WITNESS OR ATTEST: 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
________________________________
Name: __________________________
By:_______________________________
Name:
Title:
________________________________
Name: __________________________
STATE OF ________
COUNTY OF _______
The foregoing instrument was acknowledged before me by means of [ ] physical presence
or [ ] online notarization this __ day of _______, 20__, by _____________________, as
____________________________ of the 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, on behalf of Florida Housing. Said person is personally known to me or
has produced a valid driver’s license as identification.
[Notary Seal] Signature of person taking acknowledgment
Name (typed, printed or stamped):_____________
Title or Rank:
Serial number (if any):
Subordination and Intercreditor Agreement (FHFC) 2 Vista Breeze
4889-5265-7294v.3
SENIOR LENDER:
WITNESS OR ATTEST:
______________________________
Name:_________________________
______________________________
Name:_________________________
CITIBANK, N.A.,
By: ___________
Name:
Title:
Deal ID No. 60001596
ACKNOWLEDGEMENT
STATE OF ____________
COUNTY OF ____________
The foregoing instrument was acknowledged before me by means of ☐ physical presence
or ☐ online notarization, this _____ day of _______________, 20___, by ________________, as
________________ of Citibank., N.A.. Said person is personally known to me or has produced
_________________ as identification.
[Notary Seal] Signature of person taking acknowledgment
Name (typed, printed or stamped):_____________
Title or Rank:
Serial number (if any):
Subordination and Intercreditor Agreement (FHFC) 3 Vista Breeze
4889-5265-7294v.3
ACKNOWLEDGED AND AGREED AS OF THE DATE FIRST SET FORTH ABOVE:
BORROWER:
WITNESS OR ATTEST:
______________________________
Name:_________________________
______________________________
Name:_________________________
VISTA BREEZE, LTD.,
a Florida limited partnership
By: APC Vista Breeze, LLC,
a Florida limited liability company,
Duly Authorized
By:
Name:
Title:
ACKNOWLEDGEMENT
STATE OF ____________
COUNTY OF ____________
The foregoing instrument was acknowledged before me by means of ☐ physical presence
or ☐ online notarization, this _____ day of _______________, 20___, by ___________________,
as ___________ of APC Vista Breeze, LLC, a Florida limited liability company, a duly authorized
signatory of Vista Breeze, Ltd., a Florida limited partnership. Said person is personally known to
me or has produced a valid driver's license as identification.
[Notary Seal] Signature of person taking acknowledgment
Name (typed, printed or stamped): __________________
Title or Rank:
Serial number (if any):
Subordination and Intercreditor Agreement (FHFC) A-1 Vista Breeze
4889-5265-7294v.3
EXHIBIT A
LEGAL DESCRIPTION
That leasehold estate created by that Second Amended and Restated Ground Lease, by and
between Vista Breeze, Ltd., a Florida limited partnership, and the Housing Authority of The City
of Miami Beach, a public body corporate and politic, as evidenced by that Amended and
Restated Memorandum of Lease to be recorded over the following described lands:
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.
Subordination and Intercreditor Agreement (FHFC) B-1 Vista Breeze
4889-5265-7294v.3
EXHIBIT B
JUNIOR LOAN DOCUMENTS
Viability Loan
1. Land Use Restriction Agreement.
2. Promissory Note.
3. Leasehold Mortgage and Security Agreement.
4. Assignment of Leases, Rents and Contract Rights.
5. Construction Loan Agreement.
6. Environmental Indemnity Agreement.
7. Compliance Monitoring and Servicing Agreement.
8. Continuing, Absolute and Unconditional Guaranty of Recourse Obligations.
9. Completion and Operating Deficit Guaranty.
10. Further Assurance Agreement.
11. Assignment of Management and Service Contracts.
12. Adverse Change Certificate of Borrower.
13. Affidavit of No Liens and Possession.
14. Anti-Coercion Statement.
15. Assignment of Permits, Agreements, Approvals, Fees and Deposits.
16. Business Purposes Affidavit.
17. Collateral Assignment of Construction Contract and Permits.
18. Flood Insurance Information and Insurance Acknowledgment.
19. Architect’s Agreement with Florida Housing Finance Corporation.
20. Assignment of Architect Agreement and Architect Plans and Specifications.
21. Consent to Assignment of Construction Contract.
22. Contractor’s Agreement with Florida Housing Finance Corporation.
23. Consent of Owner of Fee Title to Leasehold Mortgage and Security Agreement.
24. UCC-1 (State)
25. UCC-1 (County)
SAIL Loan
1. Land Use Restriction Agreement.
2. Promissory Note.
3. Leasehold Mortgage and Security Agreement.
4. Assignment of Leases, Rents and Contract Rights.
5. Construction Loan Agreement.
6. Environmental Indemnity Agreement.
7. Compliance Monitoring and Servicing Agreement.
8. Continuing, Absolute and Unconditional Guaranty of Recourse Obligations.
9. Completion and Operating Deficit Guaranty.
10. Further Assurance Agreement.
11. Assignment of Management and Service Contracts.
12. Adverse Change Certificate of Borrower.
13. Affidavit of No Liens and Possession.
Subordination and Intercreditor Agreement (FHFC) 2 Vista Breeze
4889-5265-7294v.3
14. Anti-Coercion Statement.
15. Assignment of Permits, Agreements, Approvals, Fees and Deposits.
16. Business Purposes Affidavit.
17. Collateral Assignment of Construction Contract and Permits.
18. Flood Insurance Information and Insurance Acknowledgment.
19. Architect’s Agreement with Florida Housing Finance Corporation.
20. Assignment of Architect Agreement and Architect Plans and Specifications.
21. Consent to Assignment of Construction Contract.
22. Contractor’s Agreement with Florida Housing Finance Corporation.
23. Consent of Owner of Fee Title to Leasehold Mortgage and Security Agreement.
24. UCC-1 (State)
25. UCC-1 (County)
ELI Loan
1. Land Use Restriction Agreement.
2. Promissory Note.
3. Leasehold Mortgage and Security Agreement.
4. Assignment of Leases, Rents and Contract Rights.
5. Construction Loan Agreement.
6. Environmental Indemnity Agreement.
7. Compliance Monitoring and Servicing Agreement.
8. Continuing, Absolute and Unconditional Guaranty of Recourse Obligations.
9. Completion and Operating Deficit Guaranty.
10. Further Assurance Agreement.
11. Assignment of Management and Service Contracts.
12. Adverse Change Certificate of Borrower.
13. Affidavit of No Liens and Possession.
14. Anti-Coercion Statement.
15. Assignment of Permits, Agreements, Approvals, Fees and Deposits.
16. Business Purposes Affidavit.
17. Collateral Assignment of Construction Contract and Permits.
18. Flood Insurance Information and Insurance Acknowledgment.
19. Architect’s Agreement with Florida Housing Finance Corporation.
20. Assignment of Architect Agreement and Architect Plans and Specifications.
21. Consent to Assignment of Construction Contract.
22. Contractor’s Agreement with Florida Housing Finance Corporation.
23. Consent of Owner of Fee Title to Leasehold Mortgage and Security Agreement.
24. UCC-1 (State)
25. UCC-1 (County)
NHTF Loan
1. Land Use Restriction Agreement.
2. Promissory Note.
3. Leasehold Mortgage and Security Agreement.
4. Assignment of Leases, Rents and Contract Rights.
Subordination and Intercreditor Agreement (FHFC) 3 Vista Breeze
4889-5265-7294v.3
5. Construction Loan Agreement.
6. Environmental Indemnity Agreement.
7. Compliance Monitoring and Servicing Agreement.
8. Continuing, Absolute and Unconditional Guaranty of Recourse Obligations.
9. Completion and Operating Deficit Guaranty.
10. Further Assurance Agreement.
11. Assignment of Management and Service Contracts.
12. Adverse Change Certificate of Borrower.
13. Affidavit of No Liens and Possession.
14. Anti-Coercion Statement.
15. Assignment of Permits, Agreements, Approvals, Fees and Deposits.
16. Business Purposes Affidavit.
17. Collateral Assignment of Construction Contract and Permits.
18. Flood Insurance Information and Insurance Acknowledgment.
19. Architect’s Agreement with Florida Housing Finance Corporation.
20. Assignment of Architect Agreement and Architect Plans and Specifications.
21. Consent to Assignment of Construction Contract.
22. Contractor’s Agreement with Florida Housing Finance Corporation.
23. Consent of Owner of Fee Title to Leasehold Mortgage and Security Agreement.
24. UCC-1 (State)
25. UCC-1 (County)
Subordination and Intercreditor Agreement (FHFC) C-1 Vista Breeze
4889-5265-7294v.3
EXHIBIT C
MODIFICATIONS TO
SUBORDINATION AND INTERCREDITOR AGREEMENT
The following modifications are made to the text of the Agreement that precedes this
Exhibit:
None.
Capitalized terms used and not defined herein shall have the respective meanings ascribed to them
in the Agreement.
D
Forward Purchase Agreement Vista Breeze
EXHIBIT D-15 TO FORWARD PURCHASE AGREEMENT
FORM OF SUBORDINATION AND INTERCREDITOR AGREEMENT (HACMB)
[See attached]
4860-0474-2293v.3
THIS INSTRUMENT PREPARED BY:
Aviva Yakren, Esq.
Sidley Austin LLP
787 Seventh Avenue
New York, New York 10019
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Citibank, N.A.
Transaction and Asset Management Group/Post Closing
Citi Community Capital
3800 Citibank Center
Tampa, Florida 33610
Re: Vista Breeze Deal ID No. 60001596
ABOVE SPACE RESERVED FOR
RECORDING PURPOSES ONLY
EXHIBIT D-15 TO FORWARD PURCHASE AGREEMENT
FORM OF
SUBORDINATION AND INTERCREDITOR AGREEMENT
Subordination and Intercreditor Agreement (HACMB) Vista Breeze
4860-0474-2293v.3
EXHIBIT D-15 TO FORWARD PURCHASE AGREEMENT
FORM OF
SUBORDINATION AND INTERCREDITOR AGREEMENT
THIS SUBORDINATION AND INTERCREDITOR AGREEMENT (this
“Agreement”) dated as of the [_] day of [Month], 202[_], is made by and between HOUSING
AUTHORITY OF THE CITY OF MIAMI BEACH, a public body corporate and politic (“Junior
Lender”) and CITIBANK, N.A., a national banking association (“Senior Lender”) and
acknowledged by VISTA BREEZE, LTD., a Florida limited partnership (“Borrower”). The date of
this Agreement as set forth above is for reference purposes only, and this Agreement will not be
effective and binding until the Conversion Date (as defined in the Original Borrower Loan
Agreement (as hereinafter defined)).
RECITALS:
A. The Housing Authority of the City of Miami Beach, a public body corporate and
politic established pursuant to Chapter 421, Florida Statutes (the “Landlord”), is the legal owner
of fee simple title to the Land (as defined in the Security Instrument (as hereinafter defined)) and
pursuant to that certain Second Amended and Restated Ground Lease, dated as of December 15,
2023, between the Landlord and the Borrower, the Borrower is the holder of a leasehold interest
in the Land.
B. Borrower previously applied to the Housing Finance Authority of Miami-Dade
County, Florida, a public body corporate and politic organized and existing under the laws of the
State of Florida (“Governmental Lender”), for a loan (the “Borrower Loan”) for the acquisition,
construction, development and/or equipping of a 119-unit multifamily residential project, located
in the City of Miami Beach, Florida, known as Vista Breeze (the “Mortgaged Property”).
C. Borrower previously requested that the Governmental Lender enter into that certain
Funding Loan Agreement, dated as of December 1, 2023 (the “Original Funding Loan
Agreement”), among the Governmental Lender, 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 Governmental Lender in the original principal amount
of $32,500,000 (the “Funding Loan”), the proceeds of which Governmental Lender used to make
the Borrower Loan pursuant to that certain Construction Phase Borrower Loan Agreement, dated
as of December 1, 2023, (the “Original Borrower Loan Agreement”), by and between the
Governmental Lender and the Borrower.
D. The Borrower Loan was evidenced by that certain Construction Phase Project Loan
Note, dated as of December 15, 2023 (the “Original Borrower Note”), made by Borrower payable
to the order of Governmental Lender, as endorsed and assigned to Fiscal Agent for the benefit of
the Original Funding Lender.
E. The Borrower Loan was secured by, among other things, that certain Leasehold
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated as of December 15,
Subordination and Intercreditor Agreement (HACMB) 2 Vista Breeze
4860-0474-2293v.3
2023, executed by Borrower for the benefit of Governmental Lender (the “Original Security
Instrument”), which Original Security Instrument encumbers the Mortgaged Property.
F. The Original Borrower Note, the Original Security Instrument, the Original
Borrower Loan Agreement and all other Borrower Loan Documents except for the Unassigned
Rights (as defined in the Original Funding Loan Agreement), were each assigned by Governmental
Lender to Fiscal Agent for the benefit of Original Funding Lender to secure the Funding Loan.
G. At the request of Borrower, the Borrower, Original Funding Lender and Senior
Lender entered into that certain Forward Purchase Agreement, dated as of December 1, 2023,
pursuant to which Senior Lender agreed to acquire Original Funding Lender’s interests in the
Funding Loan and Funding Loan Documents (as defined in the Original Funding Loan Agreement)
upon satisfaction of the terms and conditions set forth therein (the “Loan Purchase Conditions”).
H. Insofar as the Loan Purchase Conditions have been satisfied or waived, the
Borrower Loan has converted into a permanent loan (the “Senior Loan”), and in connection
therewith, (i) Senior Lender has agreed to enter into a certain Amended and Restated Funding
Loan Agreement, dated as of the date hereof (the “Funding Loan Agreement”), by and among
Governmental Lender, Fiscal Agent, and Senior Lender, which amends and restates the Original
Funding Loan Agreement; (ii) Borrower and Governmental Lender have entered into an Amended
and Restated Borrower Loan Agreement, dated as of the date hereof (the “Borrower Loan
Agreement”), which amends and restates the Original Borrower Loan Agreement; (iii) Borrower
has executed and delivered an Amended and Restated Multifamily Note, dated as of [_], 202[_],
in the principal amount of $[11,875,000][NOTE: AS MAY BE INCREASED PER THE EARN-
OUT] (the “Borrower Note”), which amends and restates the Original Borrower Note; (iv)
Borrower has executed and delivered an Amended and Restated Multifamily Leasehold Mortgage,
Assignment of Rents, Security Agreement and Fixture Filing (Florida) executed and delivered by
Borrower and dated as of the date hereof (the “Security Instrument”), which amends and restates
the Original Security Instrument; and (v) Senior Lender and Borrower have entered into a certain
the Loan Covenant Agreement executed and delivered by Borrower and dated as of the date hereof
(the “Loan Covenant Agreement”).
I. Borrower has executed and delivered to Junior Lender a Promissory Note (the
“Junior Note”) dated as of December 15, 2023, evidencing a total debt owed to Subordinate
Lender in the original principal amount of $8,800,000 (the “Junior Obligation”), which Junior
Obligation is subject to the terms and conditions of that certain Note Covenant Agreement, dated
as of December 15, 2023, by and between Borrower and Junior Lender (the “HACMB
Agreement”), and secured by the Junior Security Instrument (as hereinafter defined) encumbering
the Property.
J. As a condition to the making of the Senior Loan, Senior Lender requires that Junior
Lender execute and deliver this Agreement prior to the making of the Junior Obligation and the
granting of the Junior Security Instrument by Borrower.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and to induce the making of the
Subordination and Intercreditor Agreement (HACMB) 3 Vista Breeze
4860-0474-2293v.3
Senior Loan and to induce Senior Lender to consent to the Junior Obligation and the Junior
Security Instrument, Junior Lender hereby agrees as follows:
1. Definitions. Capitalized terms used but not defined in this Agreement shall have
the meanings ascribed thereto in the Senior Security Instrument. As used in this Agreement, the
terms set forth below shall have the respective meanings indicated:
“Bankruptcy Proceeding” means any bankruptcy, reorganization, insolvency, composition,
restructuring, dissolution, liquidation, receivership, assignment for the benefit of creditors, or
custodianship action or proceeding under any federal or state law with respect to Borrower, any
guarantor of any of the Senior Indebtedness, any of their respective properties, or any of their
respective partners, members, officers, directors, or shareholders.
“Casualty” means the occurrence of damage to or loss of any of the Property by fire or
other casualty.
“Condemnation” means any proposed or actual condemnation or other taking, or
conveyance in lieu thereof, of all or any part of the Property, whether direct or indirect.
“Enforcement Action” means any exercise of any of Junior Lender’s remedies under the
Junior Security Instrument or any of the other Junior Documents, including, without limitation,
any of the following: (i) the acceleration of all or any part of the Junior Indebtedness, (ii) the
commencement of any judicial or non-judicial action or proceeding to enforce any obligation of
Borrower under any of the Junior Documents, collect any monies payable to Borrower or have a
receiver appointed to collect any monies payable to Borrower, or foreclose the lien(s) created by
the Junior Security Instrument, (iii) the filing or joining in the filing of any involuntary Bankruptcy
Proceeding against Borrower or any person or entity which owns a direct or indirect interest in
Borrower, (iv) the advertising of or commencement of any foreclosure or trustee’s sale
proceedings, (v) the exercise of any power of sale, (vi) the acceptance of a deed or assignment in
lieu of foreclosure or sale, (vii) the collecting of Rents, (viii) the obtaining of or seeking of the
appointment of a receiver, (ix) the seeking of default interest, (x) the taking of possession or control
of any of the Property, (xi) the commencement of any suit or other legal, administrative, or
arbitration proceeding based upon the Junior Note or any other of the Junior Documents, (xii) the
exercising of any banker’s lien or rights of set-off or recoupment, or (xiii) the taking of any other
enforcement action against Borrower, any other party liable for any of the Junior Indebtedness or
obligated under any of the Junior Documents, or the Property.
“Enforcement Action Notice” means a written notice from Junior Lender to Senior Lender,
given following a Junior Default and the expiration of any notice or cure periods provided for such
Junior Default in the Junior Documents, setting forth in reasonable detail the Enforcement Action
proposed to be taken by Junior Lender.
“Junior Indebtedness” means all indebtedness of any kind at any time evidenced or secured
by, or arising under, the Junior Documents, whether incurred, arising or accruing before or after
the filing of any Bankruptcy Proceeding.
Subordination and Intercreditor Agreement (HACMB) 4 Vista Breeze
4860-0474-2293v.3
“Junior Default” means any act, failure to act, event, condition, or occurrence which
constitutes, or which with the giving of notice or the passage of time, or both, would constitute, an
“Event of Default” as defined in the Junior Security Instrument.
“Junior Documents” means, collectively, the Junior Note, the Junior Security Instrument,
and all other documents evidencing, securing or delivered in connection with the Junior
Obligation, all of which are listed on Exhibit B attached hereto, together with such modifications,
amendments and supplements thereto as are approved in writing by Senior Lender prior to their
execution.
“Junior Security Instrument” means, collectively, that certain Open-End Leasehold
Mortgage and Security Agreement, dated as of December 15, 2023, made by Borrower for the
benefit of Junior Lender, as the same may from time to time be extended, consolidated, substituted
for, modified, amended or supplemented upon receipt of the consent of Senior Lender.
“Loss Proceeds” means all monies received or to be received under any insurance policy,
from any condemning authority, or from any other source, as a result of any Condemnation or
Casualty.
“Property” means (i) the land and improvements known or to be known as Vista Breeze,
located in the City of Miami Beach, Miami-Dade County, State of Florida, which Property is more
particularly described on Exhibit A attached hereto, and (ii) all furniture, fixtures and equipment
located at such apartments and other property, accounts, deposits and rights and interests of
Borrower encumbered by the Senior Security Instrument and/or the other Senior Loan Documents.
“Senior Indebtedness” means all indebtedness of any kind at any time evidenced or secured
by, or arising under, the Senior Loan Documents, whether incurred, arising or accruing before or
after the filing of any Bankruptcy Proceeding.
“Senior Loan Default” means any act, failure to act, event, condition, or occurrence which
constitutes, or which with the giving of notice or the passage of time, or both, would constitute, an
“Event of Default” as defined in the Senior Security Instrument.
“Senior Loan Documents” means, collectively, the Senior Security Instrument, the Senior
Note, the Borrower Loan Agreement and all of the other documents, instruments and agreements
now or hereafter evidencing, securing or otherwise executed in connection with the Senior Loan,
as the same may from time to time be extended, consolidated, substituted for, modified, increased,
amended and supplemented in accordance with the provisions of this Agreement.
2. Junior Obligation and Junior Documents are Subordinate; Acts by Senior
Lender do not Affect Subordination.
(a) Junior Lender hereby covenants and agrees on behalf of itself and its
successors and permitted assigns that the Junior Indebtedness is and shall at all times
continue to be, subordinate, subject and inferior (in payment and priority) to the prior
payment in full of the Senior Indebtedness, except as set forth in the Junior Note and that
the liens, rights, payment interests, priority interests and security interests granted to Junior
Lender in connection with the Junior Obligation and under the Junior Documents are, and
Subordination and Intercreditor Agreement (HACMB) 5 Vista Breeze
4860-0474-2293v.3
are hereby expressly acknowledged to be in all respects and at all times, subject,
subordinate and inferior in all respects to the liens, rights, payment, priority and security
interests granted to Senior Lender under the Senior Loan and the Senior Loan Documents
and the terms, covenants, conditions, operations and effects thereof, except as set forth in
the Junior Note.
(b) Except as expressly set forth herein, repayment of the Junior Indebtedness,
is and shall be postponed and subordinated to repayment in full of the Senior Loan. Prior
to a Senior Loan Default (regardless of whether such Senior Loan Default occurs prior to
or during the pendency of a Bankruptcy Proceeding), Junior Lender shall be entitled to
receive and retain payments made pursuant to and in accordance with the terms of the
Junior Documents; provided, however, that no such payment is made more than ten (10)
days in advance of the due date thereof. Junior Lender agrees that from and after such time
as it has received from either Senior Lender or Borrower written notice that a Senior Loan
Default then exists (which has not been expressly waived in writing by Senior Lender) or
otherwise has actual knowledge of such a Senior Loan Default, Junior Lender shall not
receive or accept any payments under the Junior Obligation. If (i) Junior Lender receives
any payment, property, or asset of any kind or in any form on account of the Junior
Indebtedness (including, without limitation, any proceeds from any Enforcement Action)
after a Senior Loan Default of which Junior Lender has actual knowledge or has been given
notice of, or (ii) Junior Lender receives, voluntarily or involuntarily, by operation of law
or otherwise, any payment, property, or asset in or in connection with any Bankruptcy
Proceeding, such payment, property, or asset will be received and held in trust for Senior
Lender. Junior Lender will promptly remit, in kind and properly endorsed as necessary,
all such payments, properties, and assets to Senior Lender. Senior Lender shall apply any
payment, asset, or property so received from Junior Lender to the Senior Indebtedness in
such order, amount (with respect to any asset or property other than immediately available
funds), and manner as Senior Lender shall determine in its sole and absolute discretion.
(c) Without limiting the complete subordination of the Junior Indebtedness to
the payment in full of the Senior Indebtedness, in any Bankruptcy Proceeding, upon any
payment or distribution (whether in cash, property, securities, or otherwise) to creditors (i)
the Senior Indebtedness shall first be paid in full in cash before Junior Lender shall be
entitled to receive any payment or other distribution on account of or in respect of the
Junior Indebtedness, and (ii) until all of the Senior Indebtedness is paid in full in cash, any
payment or distribution to which Junior Lender would be entitled but for this Agreement
(whether in cash, property, or other assets) shall be made to Senior Lender.
(d) The subordination of the Junior Indebtedness shall continue in the event that
any payment under the Senior Loan Documents (whether by or on behalf of Borrower, as
proceeds of security or enforcement of any right of set-off or otherwise) is for any reason
repaid or returned to Borrower or its insolvent estate, or avoided, set aside or required to
be paid to Borrower, a trustee, receiver or other similar party under any bankruptcy,
insolvency, receivership or similar law. In such event, the Senior Indebtedness or part
thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding
to the extent of any repayment, return, or other action, as if such payment on account of
the Senior Indebtedness had not been made.
Subordination and Intercreditor Agreement (HACMB) 6 Vista Breeze
4860-0474-2293v.3
(e) The subordination of the Junior Documents and of the Junior Indebtedness
shall apply and continue notwithstanding (i) the actual date and time of execution, delivery,
recording, filing or perfection of the Senior Security Instrument and other Senior Loan
Documents and of the Junior Security Instrument and other Junior Documents, and (ii) the
availability of any collateral to Senior Lender, including the availability of any collateral
other than the Property.
(f) By reason of, and without in any way limiting, the full subordination of the
Junior Indebtedness and the Junior Documents provided for in this Agreement, all rights
and claims of Junior Lender under the Junior Security Instrument or under the Junior
Documents in or to the Property or any portion thereof, the proceeds thereof, the Leases
thereof, the Rents, issues and profits therefrom, and the Loss Proceeds payable with respect
thereto, are expressly subject and subordinate in all respects to the rights and claims of
Senior Lender under the Senior Loan Documents in and to the Property or any portion
thereof, the proceeds thereof, the Leases thereof, the Rents, issues and profits therefrom,
and the Loss Proceeds payable with respect thereto.
(g) If Junior Lender, in its capacity as lender, by indemnification, subrogation
or otherwise, shall acquire any lien, estate, right or other interest in any of the Property,
that lien, estate, right or other interest shall be fully subject and subordinate to the receipt
by Senior Lender of payment in full of the Senior Indebtedness, and to the Senior Loan
Documents, to the same extent as the Junior Indebtedness and the Junior Documents are
subordinate pursuant to this Agreement.
(h) In confirmation, and not as a condition, of the subordination of the Junior
Indebtedness and the Junior Documents provided for in this Agreement, Junior Lender
shall place on or attach to the Junior Note a notice to the following effect, and shall provide
Senior Lender with a copy of the Junior Note showing such notice:
“The indebtedness evidenced by this Note is and shall be subordinate in
right of payment, to the extent and in the manner provided in the
Subordination Agreement (as defined herein), to the prior payment in full
of all amounts then due and payable (including, but not limited to, all
amounts due and payable by virtue of any default or acceleration or upon
maturity) with respect to the indebtedness evidenced by the Note (as defined
by that certain Amended and Restated Multifamily Leasehold Mortgage,
Assignment of Rents, Security Agreement and Fixture Filing (Florida) by
the Borrower in favor of Governmental Lender and assigned to The Bank
of New York Mellon Trust Company, N.A., a national banking association,
in the original maximum principal amount of $[11,875,000] [NOTE: AS
MAY BE INCREASED PER THE EARN-OUT]) to the extent and in the
manner provided in that certain Subordination and Intercreditor Agreement,
dated as of [_____], 20[_], between Citibank, N.A. (“Senior Lender”) and
the holder of this Note (the “Subordination Agreement”). The rights and
remedies of the payee and each subsequent holder of this Note shall be
deemed, by virtue of such holder’s acquisition of this Note, to have agreed
to perform and observe all of the terms, covenants and conditions to be
Subordination and Intercreditor Agreement (HACMB) 7 Vista Breeze
4860-0474-2293v.3
performed or observed by the “Junior Lender” under the Subordination
Agreement.”
(i) Junior Lender hereby acknowledges and agrees that Senior Lender may,
without the consent or approval of Junior Lender, agree with Borrower to extend,
consolidate, modify, increase or amend any or all the Senior Loan Documents and
otherwise act or fail to act with respect to any matter set forth in any Senior Loan Document
(including, without limitation, the exercise of any rights or remedies, waiver, forbearance
or delay in enforcing any rights or remedies, the declaration of acceleration, the declaration
of defaults or events of default, the release, in whole or in part, of any collateral or other
property, and any consent, approval or waiver), and all such extensions, consolidations,
modifications, amendments acts and omissions shall not release, impair or otherwise affect
Junior Lender’s obligations and agreements hereunder.
3. Junior Lender Agreements.
(a) Without the prior written consent of Senior Lender in each instance, Junior
Lender shall not (i) amend, modify, waive, extend, renew or replace any provision of any
of the Junior Documents, or (ii) pledge, assign, transfer, convey, or sell any interest in the
Junior Indebtedness or any of the Junior Documents; or (iii) accept any payment on account
of the Junior Indebtedness other than a regularly scheduled payment of interest or principal
and interest made not earlier than ten (10) days prior to the due date thereof; or (iv) take
any action which has the effect of increasing the Junior Indebtedness; or (v) appear in,
defend or bring any action in connection with the Property; or (vi) take any action
concerning environmental matters affecting the Property. Regardless of any contrary
provision in the Junior Documents, Junior Lender shall not collect payments for the
purpose of escrowing for any cost or expense related to the Property or for any portion of
the Junior Indebtedness.
(b) Junior Lender hereby agrees that Senior Lender may, at its option (but
without any obligation to do so), at any time (including during the pendency of a
Bankruptcy Proceeding), purchase the Junior Obligation at par (and without liability for
any prepayment premiums or liquidated damages set forth in the Junior Documents). Such
transfer and assignment of the Junior Obligation shall be without representation or
recourse, except that Junior Lender shall represent that it is the sole holder of the Junior
Obligation, that it has authority to assign and convey the Junior Documents, that, to the
best of its knowledge, there are no defaults or breaches under the Junior Documents, and
as to the total amount then outstanding under the Junior Obligation. Junior Lender shall
give Senior Lender a concurrent copy of each notice of a Junior Default, Enforcement
Action Notice or other material notice given by Junior Lender under the Junior Documents.
Notwithstanding any contrary provision in the Junior Documents, Senior Lender shall have
the right, but shall not have any obligation, to cure any Junior Default until ninety (90) days
following Senior Lender’s receipt of an Enforcement Action Notice given by Junior Lender
as a consequence of the Junior Default. Senior Lender shall not be subrogated to the rights
of Junior Lender under the Junior Documents by reason of Senior Lender having cured any
Junior Default. However, Junior Lender acknowledges that all amounts advanced or
Subordination and Intercreditor Agreement (HACMB) 8 Vista Breeze
4860-0474-2293v.3
expended by Senior Lender to cure a Junior Default shall be added to and become a part of
the Senior Indebtedness pursuant to the terms of the Senior Security Instrument.
(c) In the event and to the extent that each of Senior Lender and Junior Lender
have under their respective loan documents certain approval or consent rights over the same
subject matters (regardless of whether the obligations or rights are identical or substantially
identical), Junior Lender agrees that Senior Lender shall exercise such approval rights on
behalf of both Senior Lender and Junior Lender, and Junior Lender shall have no right to
object to any such action or approval taken by Senior Lender and shall consent thereto and
be bound thereby. Without limiting the generality of the foregoing, Senior Lender shall
have all approval, consent and oversight rights in connection with any insurance claims
relating to the Property, any decisions regarding the use of insurance proceeds after a
casualty loss or condemnation awards, the hiring or firing of property managers, or
otherwise related in any way to the Property, and Junior Lender shall have no right to object
to any such action or approval taken by Senior Lender and shall consent thereto and be
bound thereby.
(d) Junior Lender agrees that in any action commenced to enforce the obligation
of Borrower to pay any portion of the Junior Indebtedness, the judgment shall not be
enforceable personally against Borrower or Borrower’s assets, and the recourse of Junior
Lender for the collection of the Junior Indebtedness shall be limited to actions against the
Property and the rents, profits, issues, products, and income from the Property.
(e) Junior Lender shall not commence or join with any other creditor in
commencing any Bankruptcy Proceeding involving Borrower, and Junior Lender shall not
initiate and shall not be a party to any action, motion or request, in a Bankruptcy Proceeding
involving any other person or entity, which seeks the consolidation of some or all of the
assets of Borrower into such Bankruptcy Proceeding. In the event of any Bankruptcy
Proceeding relating to Borrower or the Property or, in the event of any Bankruptcy
Proceeding relating to any other person or entity into which (notwithstanding the covenant
in the first sentence of this clause) the assets or interests of Borrower are consolidated, then
in either event, the Senior Loan shall first be paid in full before Junior Lender shall be
entitled to receive and retain any payment or distribution in respect to the Junior Obligation.
Junior Lender agrees that (i) Senior Lender shall receive all payments and distributions of
every kind or character in respect of the Junior Obligation to which Junior Lender would
otherwise be entitled, but for the subordination provisions of this Agreement (including
without limitation, any payments or distributions during the pendency of a Bankruptcy
Proceeding involving Borrower or the Property), and (ii) the subordination of the Junior
Obligation and the Junior Documents shall not be affected in any way by Senior Lender
electing, under Section 1111(b) of the federal bankruptcy code, to have its claim treated as
being a fully secured claim. In addition, Junior Lender hereby covenants and agrees that,
in connection with a Bankruptcy Proceeding involving Borrower, neither Junior Lender
nor any of its affiliates shall (i) make or participate in a loan facility to or for the benefit of
Borrower on a basis that is senior to or pari passu with the liens and interests held by Senior
Lender pursuant to the Senior Loan Documents, (ii) not vote affirmatively in favor of any
plan of reorganization or liquidation unless Senior Lender has also voted affirmatively in
favor of such plan, and (iii) not contest the continued accrual of interest on the Senior
Subordination and Intercreditor Agreement (HACMB) 9 Vista Breeze
4860-0474-2293v.3
Indebtedness, in accordance with and at the rates specified in the Senior Loan Documents,
both for periods before and for periods after the commencement of such Bankruptcy
Proceedings. Junior Lender shall execute and deliver to Senior Lender powers of attorney,
assignments or other instruments, as may be requested by Senior Lender in order to enable
it to exercise the above-described authority or powers with respect to any or all of the Junior
Documents, and to collect and receive any and all payments or distributions which may be
payable or deliverable at any time upon or with respect to any of the Junior Documents to
Junior Lender.
(f) Junior Lender covenants and agrees that the effectiveness of this Agreement
and the rights of Senior Lender hereunder shall be in no way impaired, affected, diminished
or released by any renewal or extension of the time of payment of the Senior Loan,
provided for in this Agreement, by any delay, forbearance, failure, neglect or refusal of
Senior Lender in enforcing payment thereof or in enforcing the lien of or attempting to
realize upon the Senior Loan Documents or any other security which may have been given
or may hereafter be given for the Senior Loan, by any waiver or failure to exercise any
right or remedy under the Senior Loan Documents, or by any other act or failure to act by
Senior Lender. Junior Lender acknowledges that Senior Lender, at its sole option, may
release all or any portion of the Property from the lien of the Senior Security Instrument,
and may release or waive any guaranty, surety or indemnity providing additional collateral
to Senior Lender, and Junior Lender hereby waives any legal or equitable right in respect
of marshaling it might have in connection with any such release of all or any portion of the
Property by Senior Lender. Senior Lender may pursue all rights and remedies available to
it under the Senior Loan Documents, at law, or in equity, regardless of any Enforcement
Action by Junior Lender. At any time or from time to time and any number of times,
without notice to Junior Lender and without affecting the liability of Junior Lender, (a) the
time for Borrower’s performance of or compliance with any covenant or agreement
contained in the Senior Loan Documents, whether presently existing or hereinafter entered
into, may be extended or such performance or compliance may be waived; (b) the maturity
of the Senior Indebtedness may be accelerated as provided in the Senior Loan Documents;
and (c) any security for the Senior Indebtedness may be modified, exchanged, surrendered
or otherwise dealt with or additional security may be pledged or mortgaged for the Senior
Indebtedness. If, after the occurrence of a Senior Loan Default, Senior Lender acquires
title to any of the Property pursuant to a mortgage foreclosure conducted in accordance
with applicable law, the lien, operation, and effect of the Junior Security Instrument and
other Junior Loan Documents automatically shall terminate with respect to such Property
upon Senior Lender’s acquisition of title.
(g) Junior Lender acknowledges that it entered into the transactions
contemplated by the Junior Documents and made the Junior Obligation to Borrower
without reliance upon any information or advice from Senior Lender. Junior Lender made
its own underwriting analysis in connection with the Junior Obligation, its own credit
review of Borrower, and investigated all matters pertinent, in Junior Lender’s judgment, to
its determination to make the Junior Obligation to Borrower. Junior Lender acknowledges
that it is a sophisticated, experienced commercial lender, and was represented by competent
counsel in connection with this Agreement.
Subordination and Intercreditor Agreement (HACMB) 10 Vista Breeze
4860-0474-2293v.3
(h) Junior Lender hereby further represents and warrants that: (i) Junior Lender
is now the owner and holder of the Junior Documents; (ii) the Junior Documents are now
in full force and effect; (iii) the Junior Documents have not been modified or amended; (iv)
no default or event which, with the passing of time or giving of notice would constitute a
default, under the Junior Documents has occurred; (v) the current outstanding principal
balance of the Junior Indebtedness is $[_]; (vi) no scheduled monthly payments under the
Junior Documents have been or will be prepaid except with the prior written consent of
Senior Lender; (vii) none of the rights of Junior Lender under any of the Junior Documents
are subject to the rights of any third parties, by way of subrogation, indemnification or
otherwise; and (viii) there are no other Junior Documents other than those listed on Exhibit
B hereto. Borrower further represents and warrants that it has provided to Senior Lender
a true, complete, and correct copy of all the Junior Documents.
4. Standstill Agreement; Right to Cure Senior Loan Default.
(a) Until such time as any of the Senior Indebtedness has been repaid in full
and the Senior Security Instrument has been released and discharged, Junior Lender shall
not without the prior written consent of Senior Lender, take any Enforcement Action,
including, without limitation, (i) accelerate the Junior Obligation, (ii) exercise any of Junior
Lender’s remedies under the Junior Security Instrument or any of the other Junior
Documents (including, without limitation, the commencement of any judicial or non-
judicial action or proceeding (a) to enforce any obligation of Borrower under any of the
Junior Documents, (b) to collect any monies payable to Borrower, (c) to have a receiver
appointed to collect any monies payable to Borrower; or (d) to foreclose the lien(s) created
by the Junior Security Instrument) or (iii) file or join in the filing of any involuntary
Bankruptcy Proceeding against Borrower or any person or entity which owns a direct or
indirect interest in Borrower; provided, however, that such limitation on the remedies of
Junior Lender shall not derogate or otherwise limit Junior Lender’s rights, following an
event of default under the Junior Documents to (a) compute interest on all amounts due
and payable under the Junior Obligation at the default rate described in the Junior
Documents, (b) compute prepayment premiums and late charges, and (c) enforce against
any person, other than Borrower and any guarantors or indemnitors under the Senior Loan
Documents, any guaranty of the obligations of Borrower under the Junior Obligation.
(b) Senior Lender shall, simultaneously with the sending of any notice of a
Senior Loan Default to Borrower, send to Junior Lender a copy of said notice under the
Senior Loan Documents; provided, however, failure to do so shall not affect the validity of
such notice or any obligation of Borrower to Senior Lender and shall not affect the relative
priorities between the Senior Loan and the Junior Obligation as set forth herein. Borrower
covenants and agrees to forward to Junior Lender, within three (3) business days of
Borrower’s receipt thereof, a copy of any notice of a Senior Loan Default Borrower
receives from Senior Lender.
(c) Junior Lender shall have the right, but shall have no obligation, to cure any
Senior Loan Default; provided, if Junior Lender shall elect to cure any such Default, it shall
so notify Senior Lender and shall commence and complete such curing within any
applicable notice or grace period, if any, as Borrower is permitted by the terms of the Senior
Subordination and Intercreditor Agreement (HACMB) 11 Vista Breeze
4860-0474-2293v.3
Loan Documents to cure such Senior Loan Default. Junior Lender shall not be subrogated
to the rights of Senior Lender under the Senior Loan Documents by reason of Junior Lender
having cured any Senior Loan Default. However, Senior Lender acknowledges that, to the
extent so provided in the Junior Documents, amounts advanced or expended by Junior
Lender to cure a Senior Loan Default may be added to and become a part of the Junior
Indebtedness.
(d) Junior Lender agrees that, notwithstanding any contrary provision
contained in the Junior Documents, a Senior Loan Default shall not constitute a default
under the Junior Documents if no other default occurred under the Junior Documents.
(e) Junior Lender acknowledges that any conveyance or other transfer of title
to the Property pursuant to a foreclosure of the Junior Security Instrument (including a
conveyance or other transfer of title pursuant to the exercise of a power of sale contained
in the Junior Security Instrument), or any deed or assignment in lieu of foreclosure or
similar arrangement, shall be subject to the transfer provisions of the Senior Loan
Documents; and the person (including Junior Lender) who acquires title to the Property
pursuant to the foreclosure proceeding (or pursuant to the exercise of a power of sale
contained in the Junior Security Instrument) shall not be deemed to be automatically
approved by Senior Lender.
5. Insurance. Junior Lender agrees that all original policies of insurance required
pursuant to the Senior Security Instrument shall be held by Senior Lender. The preceding sentence
shall not preclude Junior Lender from requiring that it be named as a loss payee, as its interest may
appear, under all policies of property damage insurance maintained by Borrower with respect to
the Property, provided such action does not affect the priority of payment of the proceeds of
property damage insurance under the Senior Security Instrument, or that it be named as an
additional insured under all policies of liability insurance maintained by Borrower with respect to
the Property.
6. Default. Junior Lender and Borrower acknowledge and agree that a default by
either such party under this Agreement shall, at the sole option of Senior Lender, constitute a
default under the Senior Loan Documents. Each party hereto acknowledges that in the event any
party fails to comply with its obligations hereunder, the other parties shall have all rights available
at law and in equity, including the right to obtain specific performance of the obligations of such
defaulting party and injunctive relief. No failure or delay on the part of any party hereto in
exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy preclude any other or further exercise
thereof or the exercise of any other right, power or remedy hereunder.
7. Enforcement Costs. Borrower and Junior Lender agree to reimburse Senior
Lender for any and all costs and expenses (including reasonable attorneys’ fees) incurred by Senior
Lender in connection with enforcing its rights against Junior Lender under this Agreement.
8. Notices. Any notice which any party hereto may be required or may desire to give
hereunder shall be deemed to have been given and shall be effective only if it is in writing and (i)
delivered personally, (ii) mailed, postage prepaid, by United State registered or certified mail,
Subordination and Intercreditor Agreement (HACMB) 12 Vista Breeze
4860-0474-2293v.3
return receipts requested, (iii) delivered by overnight express courier or (iv) sent by telecopier, in
each instance addressed as follows:
To Junior Lender:
With a copy to:
Vista Breeze HACMB, Inc.
c/o 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
Fox Rothschild LLP
BNY Mellon Center
500 Grant Street, Suite 2500
Pittsburgh, PA 15219
Attention: Michael H. Syme, Esq.
Email: msyme@foxrothschild.com
Phone: (412) 391-2450
If to Senior Lender: Citibank, N.A.
388 Greenwich Street, Trading 4th Floor
New York, New York 10013
Attention: Transaction Management Group
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (212) 723-8209
With a copy to: Citibank, N.A.
325 East Hillcrest Drive, Suite 160
Thousand Oaks, California 91360
Attention: Operations Manager/Asset Manager
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (805) 557-0924
With a copy to: Citibank, N.A.
388 Greenwich Street, Trading 4th Floor
New York, New York 10013
Attention: Account Specialist
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (212) 723-8209
And a copy of any notices
of default sent to:
Citibank, N.A.
388 Greenwich Street, 17th Floor
New York, New York 10013
Attention: General Counsel’s Office
Re: Vista Breeze Deal ID No. 60001596
Facsimile: (646) 291-5754
Subordination and Intercreditor Agreement (HACMB) 13 Vista Breeze
4860-0474-2293v.3
or at such other addresses or to the attention of such other persons as may from time to time be
designated by the party to be addressed by written notice to the other in the manner herein
provided. Notices, demands and requests given in the manner aforesaid shall be deemed
sufficiently served or given for all purposes hereunder when received or when delivery is refused
or when the same are returned to sender for failure to be called for.
9. WAIVER OF TRIAL BY JURY. TO THE MAXIMUM EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF THE PARTIES HERETO (A) COVENANTS AND
AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING
OUT OF THIS AGREEMENT OR THE RELATIONSHIP BETWEEN THE PARTIES THAT IS
TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY
WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS
NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS
SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE
BENEFIT OF COMPETENT LEGAL COUNSEL.
10. Term. The term of this Agreement shall commence on the date hereof and shall
continue until the earliest to occur of the following events: (i) the payment of all of the principal
of, interest on and other amounts payable under the Senior Loan Documents; (ii) the payment of
all of the principal of, interest on and other amounts payable under the Junior Documents, other
than by reason of payments which Junior Lender is obligated to remit to Senior Lender pursuant
to the terms hereof; (iii) the acquisition by Senior Lender of title to the Property pursuant to a
foreclosure, or a deed in lieu of foreclosure, of (or the exercise of a power of sale contained in) the
Senior Security Instrument; or (iv) the acquisition by Junior Lender of title to the Property pursuant
to a foreclosure, or a deed in lieu of foreclosure, of (or the exercise of a power of sale contained
in) the Junior Security Instrument, but only if such acquisition of title does not violate any of the
terms of this Agreement.
11. Miscellaneous.
(a) Junior Lender shall, within fifteen (15) business days following a request
from Senior Lender, provide Senior Lender with a written statement setting forth the then
current outstanding principal balance of the Junior Obligation, the aggregate accrued and
unpaid interest under the Junior Obligation, and stating whether, to the knowledge of Junior
Lender, any default or event of default exists under the Junior Obligation, and containing
such other information with respect to the Junior Indebtedness as Senior Lender may
require. Upon notice from Senior Lender from time to time, Junior Lender shall execute
and deliver such additional instruments and documents, and shall take such actions, as are
required by Senior Lender in order to further evidence or effectuate the provisions and
intent of this Agreement.
(b) This Agreement shall bind and inure to the benefit of all successors and
assigns of Junior Lender and Senior Lender. Senior Lender may assign its interest in the
Senior Loan Documents without notice to or consent of Junior Lender. Junior Lender may
only assign its rights and interests hereunder following the prior written consent of Senior
Lender, which consent may be withheld or conditioned in its sole and absolute discretion.
Subordination and Intercreditor Agreement (HACMB) 14 Vista Breeze
4860-0474-2293v.3
(c) Senior Lender hereby consents to the Junior Obligation and the Junior
Documents; provided, however, that this Agreement does not constitute an approval by
Senior Lender of the terms of the Junior Documents. Junior Lender hereby consents to the
Senior Loan and the Senior Loan Documents; provided, however, that this Agreement does
not constitute an approval by Junior Lender of the terms of the Senior Loan Documents.
(d) This Agreement may be executed in multiple counterparts, each of which
shall constitute an original document and all of which together shall constitute one
agreement.
(e) IN ALL RESPECTS, INCLUDING, WITHOUT LIMITATION,
MATTERS OF CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT
AND THE OBLIGATIONS ARISING HEREUNDER, THIS AGREEMENT HAS BEEN
ENTERED INTO AND DELIVERED IN, AND SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY, THE LAWS OF THE STATE WHERE
THE PROPERTY IS LOCATED, WITHOUT GIVING EFFECT TO ANY PRINCIPLES
OF CONFLICTS OF LAW.
(f) Time is of the essence in the performance of every covenant and agreement
contained in this Agreement.
(g) If any provision or remedy set forth in this Agreement for any reason shall
be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or remedy of this Agreement and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision or
remedy had never been set forth herein, but only to the extent of such invalidity, illegality
or unenforceability.
(h) Each party hereto hereby represents and warrants that this Agreement has
been duly authorized, executed and delivered by it and constitutes a legal, valid and binding
agreement enforceable in all material respects in accordance with its terms.
(i) Borrower hereby acknowledges and consents to the execution of this
Agreement, and agrees to be bound by the provisions hereof that are applicable to
Borrower. Solely as between Senior Lender and Junior Lender, all of the signatories below
hereby agree that to the extent of any conflict between the terms and provisions of this
Agreement and the terms and provisions of the Senior Loan Documents and/or the Junior
Documents respectively, the terms and provisions of this Agreement shall govern and
control. By executing this Agreement in the place provided below, Borrower hereby (i)
acknowledges the provisions hereof, (ii) agrees not to take any action inconsistent with
Senior Lender’s rights or Junior Lender’s rights under this Agreement, (iii) waives and
relinquishes to the maximum extent permitted by law any and all rights, defenses and
claims now existing or hereinafter accruing relating to Junior Lender’s forbearance from
exercising any rights and remedies pursuant to Section 4 of this Agreement, including,
without limitation, any defenses based on the statute of limitations or any equitable
defenses, such as laches, and (iv) acknowledges and agrees that (A) this Agreement is
entered into for the sole protection and benefit of Senior Lender and Junior Lender (and
Subordination and Intercreditor Agreement (HACMB) 15 Vista Breeze
4860-0474-2293v.3
their respective successors, assigns and participants), and no other person (including
Borrower) shall have any benefits, rights or remedies under or by reason of this Agreement,
(B) nothing in this Agreement is intended, or shall be construed to, relieve or discharge the
obligations or liabilities of any third party (including Borrower under the Senior Loan
Documents and the Junior Documents), (C) neither of them nor any of their affiliates shall
be, or be deemed to be, beneficiaries of any of the provisions hereof or have any rights
hereunder whatsoever, and (D) no provision of this Agreement is intended to, or shall be
construed to, give any such third party (including Borrower) any right subrogating to the
rights of, or action against, Senior Lender or Junior Lender.
(j) No amendment, supplement, modification, waiver or termination of this
Agreement shall be effective against any party unless such amendment, supplement,
modification, waiver or termination is contained in a writing signed by such party.
(k) No party other than Senior Lender and Junior Lender shall have any rights
under, or be deemed a beneficiary of any of the provisions of, this Agreement.
(l) Nothing herein or in any of the Senior Loan Documents or Junior
Documents shall be deemed to constitute Senior Lender as a joint venturer or partner of
Junior Lender.
12. Intentionally Omitted.
13. Attached Exhibits.
The following Exhibits are attached to this Agreement and are incorporated by reference
herein as if more fully set forth in the text hereof:
Exhibit A – Legal Description
Exhibit B – Junior Documents
Exhibit C – Modifications to Subordination and Intercreditor Agreement
The terms of this Agreement are modified and supplemented as set forth in said Exhibits.
To the extent of any conflict or inconsistency between the terms of said Exhibits and the text of
this Agreement, the terms of said Exhibits shall be controlling in all respects.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Subordination and Intercreditor Agreement (HACMB) A-1 Vista Breeze
4860-0474-2293v.3
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Subordination and Intercreditor Agreement or caused this Subordination and Intercreditor
Agreement to be duly executed and delivered by their respective authorized representatives as of
the date first set forth above.
JUNIOR LENDER:
WITNESS OR ATTEST: HOUSING AUTHORITY OF THE CITY OF
MIAMI BEACH, a public body corporate and
politic
________________________________
Name: __________________________
By:_______________________________
Name:
Title:
________________________________
Name: __________________________
STATE OF ________
COUNTY OF _______
The foregoing instrument was acknowledged before me by means of [ ] physical presence
or [ ] online notarization this __ day of _______, 2023, by _____________________, as
____________________________ of Housing Authority of the City of Miami Beach, a public
body corporate and politic.
[Notary Seal] Signature of person taking acknowledgment
Name (typed, printed or stamped):_____________
Title or Rank:
Serial number (if any):
Subordination and Intercreditor Agreement (HACMB) 2 Vista Breeze
4860-0474-2293v.3
SENIOR LENDER:
WITNESS OR ATTEST:
______________________________
Name:_________________________
______________________________
Name:_________________________
CITIBANK, N.A.,
By: ___________
Name:
Title:
Deal ID No. 60001596
ACKNOWLEDGEMENT
STATE OF ____________
COUNTY OF ____________
The foregoing instrument was acknowledged before me by means of ☐ physical presence
or ☐ online notarization, this _____ day of _______________, 20___, by ________________, as
________________ of Citibank., N.A. Said person is personally known to me or has produced
_________________ as identification.
[Notary Seal] Signature of person taking acknowledgment
Name (typed, printed or stamped):_____________
Title or Rank:
Serial number (if any):
Subordination and Intercreditor Agreement (HACMB) 3 Vista Breeze
4860-0474-2293v.3
ACKNOWLEDGED AND AGREED AS OF THE DATE FIRST SET FORTH ABOVE:
BORROWER:
WITNESS OR ATTEST:
______________________________
Name:_________________________
______________________________
Name:_________________________
VISTA BREEZE, LTD.,
a Florida limited partnership
By: APC Vista Breeze, LLC,
a Florida limited liability company,
Duly Authorized
By:
Name:
Title:
ACKNOWLEDGEMENT
STATE OF ____________
COUNTY OF ____________
The foregoing instrument was acknowledged before me by means of ☐ physical presence
or ☐ online notarization, this _____ day of _______________, 20___, by ___________________,
as ___________ of APC Vista Breeze, LLC, a Florida limited liability company, duly authorized
signatory of Vista Breeze, Ltd., a Florida limited partnership. Said person is personally known to
me or has produced a valid driver's license as identification.
[Notary Seal] Signature of person taking acknowledgment
Name (typed, printed or stamped): __________________
Title or Rank:
Serial number (if any):
Subordination and Intercreditor Agreement (HACMB) A-1 Vista Breeze
4860-0474-2293v.3
EXHIBIT A
LEGAL DESCRIPTION
That leasehold estate created by that Second Amended and Restated Ground Lease, by and
between Vista Breeze, Ltd., a Florida limited partnership, and the Housing Authority of The City
of Miami Beach, a public body corporate and politic, as evidenced by that Amended and
Restated Memorandum of Lease to be recorded over the following described lands:
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.
Subordination and Intercreditor Agreement (HACMB) B-1 Vista Breeze
4860-0474-2293v.3
EXHIBIT B
JUNIOR DOCUMENTS
1. Junior Note.
2. Junior Security Agreement.
2. The HACMB Agreement.
Subordination and Intercreditor Agreement (HACMB) C-1 Vista Breeze
4860-0474-2293v.3
EXHIBIT C
MODIFICATIONS TO
SUBORDINATION AND INTERCREDITOR AGREEMENT
The following modifications are made to the text of the Agreement that precedes this
Exhibit:
None.
Capitalized terms used and not defined herein shall have the respective meanings ascribed to them
in the Agreement.
D
Forward Purchase Agreement Vista Breeze
EXHIBIT D-16 TO FORWARD PURCHASE AGREEMENT
FORM OF INSURANCE ANTI-COERCION STATEMENT
[See attached]
EXHIBIT D-16 TO FORWARD PURCHASE AGREEMENT
FORM OF
INSURANCE ANTI-COERCION STATEMENT
The following statement is required under Rule 69B-124.002 of the Florida Administrative
Code, regarding rules promulgated by the Chief Financial Officer of the State of Florida relative
to anti-coercion:
The Insurance Laws of this state provide that a lender may not require its borrower to take
insurance through any particular insurance agent or company to protect the mortgaged property.
The borrower, subject to the rules adopted by the Chief Financial Officer, has the right to
have the insurance placed with an insurance agent or company of its choice, provided the company
meets the requirements of the lender. The lender has the right to designate reasonable financial
requirements as to the company and the adequacy of the coverage.
I have read the foregoing statement or the rules of the Chief Financial Officer relative
thereto, and understand my rights and privileges and those of the lender relative to the placing of
such insurance.
I have selected [_] to write the hazard, general public liability, workmen’s compensation,
and flood insurance covering the property described on Exhibit “A” attached hereto and made a
part hereof.
(Signature Page to Follow)
Borrower:
VISTA BREEZE, LTD.,
a Florida limited partnership
By: APC Vista Breeze, LLC,
a Florida limited liability company,
Duly Authorized
By: ________________________
Name:
Title:
Exhibit A
Legal Description
That leasehold estate created by that Second Amended and Restated Ground Lease, by and
between Vista Breeze, Ltd., a Florida limited partnership, and the Housing Authority of The City
of Miami Beach, a public body corporate and politic, as evidenced by that Amended and Restated
Memorandum of Lease to be recorded over the following described lands:
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.
4867-3296-4746
D
Forward Purchase Agreement Vista Breeze
EXHIBIT D-17 TO FORWARD PURCHASE AGREEMENT
FORM OF BUSINESS PURPOSES AFFIDAVIT
[See attached]
Business Purpose Affidavit
Vista Breeze
4883-6194-4971v.4
EXHIBIT D(17) TO FORWARD PURCHASE AGREEMENT
FORM OF
BUSINESS PURPOSES AFFIDAVIT
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
BEFORE ME, the undersigned, a Notary Public in and for the County and State
aforesaid, personally appeared [_] (“Affiant”) who, being first duly sworn, on oath, says:
1. That this Affidavit is given on the personal knowledge of Affiant.
2. Affiant is the [_] of APC Vista Breeze, LLC, a Florida limited liability company,
the Class B limited partner of Vista Breeze, Ltd., a Florida limited partnership (the “Borrower”),
and is authorized to make this Affidavit on behalf of the Borrower.
3. That Borrower is the owner of a leasehold estate in certain real property located in
Miami-Dade County, Florida, which is more particularly described on Exhibit “A” attached
hereto and made a part hereof.
4. That Citibank, N.A., a national banking association (“Lender”), has agreed to
make a loan to Borrower in the principal amount of [ELEVEN MILLION EIGHT HUNDRED
SEVENTY FIVE THOUSAND] and No/100 Dollars ($[11,875,000.00]) [NOTE: AS MAY BE
INCREASED PER THE EARN-OUT] (the “Loan”).
5. That the Loan is to be made for business or commercial purposes only, not for
personal, family or household purposes, and, specifically will be used for the development and
rental of the real property to third parties.
6. That this Affidavit is made for the purpose of inducing Lender to make the Loan.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Business Purpose Affidavit
Vista Breeze
S-1
4883-6194-4971v.4
[_], individually
Affiant
ACKNOWLEDGEMENT
STATE OF ____________
COUNTY OF ____________
The foregoing instrument was acknowledged before me by means of ☐ physical presence
or ☐ online notarization, this _____ day of _______________, 20___, by ___________, as
_______________ of APC Vista Breeze, LLC, a Florida limited liability company, duly
authorized signatory of Vista Breeze, Ltd., a Florida limited partnership. Said person is
personally known to me or has produced _________________ as identification.
[Notary Seal] Signature of person taking acknowledgment
Name (typed, printed or stamped):_____________
Title or Rank:
Serial number (if any):
Business Purpose Affidavit
Vista Breeze
A-1
4883-6194-4971v.4
EXHIBIT “A”
LEGAL DESCRIPTION
That leasehold estate created by that Second Amended and Restated Ground Lease, by and
between Vista Breeze, Ltd., a Florida limited partnership, and the Housing Authority of The City
of Miami Beach, a public body corporate and politic, as evidenced by that Amended and
Restated Memorandum of Lease to be recorded over the following described lands:
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.
D
Forward Purchase Agreement Vista Breeze
EXHIBIT D-18 TO FORWARD PURCHASE AGREEMENT
FORM OF CONTINUING DISCLOSURE AGREEMENT
[See attached]
CONTINUING DISCLOSURE AGREEMENT
by and between
VISTA BREEZE, LTD,
and
CITIBANK, N.A.
Dated as of ________ 1, 20__
Relating to:
Loan in the amount of $____________ to Vista Breeze, LTD pursuant to an Amended and Restated
Borrower Loan Agreement dated as of ________ 1, 20__ between Housing Finance Authority of Miami-
Dade County, Florida and Vista Breeze, LTD, and a loan to the Housing Finance Authority of Miami-Dade
County, Florida in the amount of $____________ pursuant to an Amended and Restated Funding Loan
Agreement dated as of ________ 1, 20__ among Housing Finance Authority of Miami-Dade County,
Florida and Citibank, N.A., as Funding Lender.
CONTINUING DISCLOSURE AGREEMENT
This CONTINUING DISCLOSURE AGREEMENT dated as of ________ 1, 20__ (this
“Continuing Disclosure Agreement”) is executed and delivered by Vista Breeze, LTD, a Florida limited
partnership (the “Borrower”), and Citibank, N.A., as Funding Lender (the “Funding Lender”).
RECITALS
1. This Continuing Disclosure Agreement is being executed and delivered in connection with a loan
(the “Borrower Loan”) made by the Housing Finance Authority of Miami-Dade County, Florida
(the “Governmental Lender”) to the Borrower pursuant to a Construction Phase Borrower Loan
Agreement, dated as of December 1, 2023, between the Governmental Lender, the Fiscal Agent
and the Borrower (the “Construction Borrower Loan Agreement”) with the proceeds of a loan (the
“Funding Loan”) from Bank of America, N.A. (“BOA”) to the Governmental Lender pursuant to a
Funding Loan Agreement (Construction Phase), dated as of December 1, 2023, among the
Governmental Lender, The Bank of New York Mellon Trust Company, N.A. (“Fiscal Agent”) and
BOA (the “Construction Funding Loan Agreement”). The proceeds of the Borrower Loan were
used to finance the acquisition, construction and equipping of a multifamily rental housing
development located at 175 S. Shore Drive and 280 S. Shore Drive, in the City of Miami Beach,
Miami-Dade County, Florida known as Vista Breeze (the “Project”), and pay certain related costs.
2. The Funding Lender has purchased the Funding Loan from BOA in the outstanding amount of
$[Perm Amount] pursuant to a Forward Purchase Agreement dated as of December 1, 2023 among
the Funding Lender, the Borrower and BOA, and in connection with such purchase the
Construction Funding Loan Agreement is being amended and restated in its entirety by the
Amended and Restated Funding Loan Agreement dated as of _______ 1, 20__, among the
Governmental Lender, the Fiscal Agent and the Funding Lender (the “Funding Loan Agreement”)
and the Construction Borrower Loan Agreement is being amended and restated in its entirety by
the Amended and Restated Borrower Loan Agreement dated as of _______ 1, 20__, between the
Governmental Lender, the Fiscal Agent and the Borrower (the “Borrower Loan Agreement”). The
Funding Lender is requiring the Borrower to enter into this Continuing Disclosure Agreement in
connection with the Funding Lender’s purchase of the Funding Loan.
3. The parties acknowledge that the transaction is presently exempt from the continuing disclosure
requirements of Rule 15c2-12 adopted by the Securities and Exchange Commission under the
Securities and Exchange Act of 1934, as the same may be amended from time to time (the “Rule”)
and that this Continuing Disclosure Agreement is not an undertaking pursuant to the Rule.
Borrower and the Funding Lender are entering into this Continuing Disclosure Agreement as an
agreement between the parties for the benefit of the Funding Lender and its successors and assigns,
to provide disclosure in a manner consistent with the requirements of the Rule. The parties
recognize and acknowledge that the Rule does not require such disclosure with respect to the
Borrower Loan and the Funding Loan.
In consideration of the mutual covenants and agreements in this Continuing Disclosure Agreement,
the Borrower and the Funding Lender covenant and agree as follows:
Section 1. Definitions. In addition to the definitions set forth in the Funding Loan
Agreement, which apply to any capitalized term used in this Continuing Disclosure Agreement unless
otherwise defined in this section and in the Recitals above, the following capitalized terms shall have the
following meanings:
2
“Annual Financial Information” means, in the case of the Borrower, the financial information and
operating data with respect to the Project, provided at least annually, of the type included in Exhibit A
hereto, which Annual Financial Information may, but is not required to, include Audited Financial
Statements.
“Annual Report” means any annual report provided by the Borrower pursuant to, and as described
in, Section 2 of this Continuing Disclosure Agreement.
“Audited Financial Statements” means, in the case of the Borrower, the annual audited financial
statements, if any.
“Beneficial Owner” means the Funding Lender and any permitted transferees of an interest or
interests in the Funding Loan pursuant to the Funding Loan Agreement and any person which (a) has the
power, directly or indirectly, to vote or consent with respect to, or to dispose of ownership of, the Funding
Loan or any interests in the Funding Loan (including persons holding the Funding Loan or any interests in
the Funding Loan through nominees, depositories or other intermediaries), or (b) is treated as the owner of
the Funding Loan or any interests in the Funding Loan for federal income tax purposes.
“Financial Obligation” means (a) a debt obligation, (b) a derivative instrument entered into in
connection with, or pledged as security or a source of payment for, an existing or planned debt obligation,
or (c) a guarantee of (a) or (b). The term Financial Obligation shall not include municipal securities as to
which a final official statement has been provided to the MSRB consistent with the Rule.
“Listed Events” means any of the events listed in Section 3(a) of this Continuing Disclosure
Agreement.
“MSRB” means the Municipal Securities Rulemaking Board established pursuant to Section
15B(b)(1) of the Securities Exchange Act of 1934. All documents provided to the MSRB shall be in an
electronic format and accompanied by identifying information, as prescribed by the MSRB. Initially, any
documents submitted to the MSRB to effect compliance with this Continuing Disclosure Agreement shall
use the MSRB’s Electronic Municipal Market Access (EMMA) system at www.emma.msrb.org.
Section 2. Provision of Annual Reports.
(a) The Borrower shall provide to the Funding Lender, not later than 150 days after the end of
the Borrower’s fiscal year, commencing within 150 days following the end of the Borrower’s current fiscal
year, the Annual Report of the Borrower containing the Annual Financial Information for the prior fiscal
year. The Funding Lender may, but is not obligated to, provide a copy of such Annual Report to the MSRB.
(b) Any or all of the items listed above may be included by specific reference to other
documents, including official statements of debt issues with respect to which the Borrower or any affiliate
is an “obligated person” (as defined by the Rule), which have been filed with the MSRB or the Securities
and Exchange Commission. The Borrower shall clearly identify each such other document so included by
reference.
(c) In each case, the Annual Report may be submitted as a single document or as separate
documents comprising a package, and may cross-reference other information as provided in this section;
provided, that the financial statements of the Borrower may be submitted separately from the balance of
the Annual Report and later than the date required above for the filing of the Annual Report if they are not
available by that date. If the Borrower’s fiscal year changes, it shall give notice of such change in the same
manner as for a Listed Event under Section 3(c).
3
Section 3. Reporting of Listed Events.
(a) Pursuant to the provisions of this section, the Borrower shall give, or cause to be given,
notice to the Funding Lender of the occurrence of any of the following events with respect to the Funding
Loan (“Listed Events”):
(i) principal and interest payment delinquencies;
(ii) non-payment related defaults, if material;
(iii) unscheduled draws on debt service reserves reflecting financial difficulty;
(iv) unscheduled draws on credit enhancements reflecting financial difficulty;
(v) substitution of credit or liquidity providers, or their failure to perform;
(vi) adverse tax opinions, the issuance by the Internal Revenue Service of proposed or
final determinations of taxability, Notices of Proposed Issue (IRS Form 5701-TEB) or other
material notices or determinations with respect to the tax-exempt status of interest paid on the
Governmental Lender Note, or other Listed Events affecting the tax-exempt status of interest paid
on the Governmental Lender Note;
(vii) modifications to rights of owners of any interest in the Funding Loan, if material;
(viii) optional, contingent or unscheduled prepayments of the Borrower Loan or Funding
Loan;
(ix) defeasances of the Borrower Loan or Funding Loan;
(x) release, substitution or sale of property securing repayment of the Borrower Loan
or the Funding Loan, if material;
(xi) rating changes with respect to the Borrower;
(xii) bankruptcy, insolvency, receivership or similar event of the Borrower. For
purposes of this clause (xii), any such event shall be considered to have occurred when any of the
following occur: the appointment of a receiver, fiscal agent or similar officer for the Borrower in a
proceeding under the U.S. Bankruptcy Code or in any other proceeding under state or federal law
in which a court or governmental authority has assumed jurisdiction over substantially all of the
assets or business of the Borrower, or the entry of an order confirming a plan of reorganization,
arrangement or liquidation by a court or governmental authority having supervision or jurisdiction
over substantially all of the assets or business of the Borrower;
(xiii) the consummation of a merger, consolidation, or acquisition involving the
Borrower or the sale of all or substantially all of the assets of the Borrower, other than in the
ordinary course of business, the entry into a definitive agreement to undertake such an action or the
termination of a definitive agreement relating to any such actions, other than pursuant to its terms,
if material; and
(xiv) appointment of a successor or additional trustee or paying agent or the change of
the name of a trustee or paying agent, if material.
4
(xv) incurrence of a Financial Obligation of the Borrower, if material, or agreement to
covenants, events of default, remedies, priority rights, or other similar terms of a Financial
Obligation of the Borrower, any of which affect the holders of the Governmental Lender Note, if
material; and
(xvi) default, event of acceleration, termination event, modification of terms, or other
similar events under the terms of a Financial Obligation of the Borrower, any of which reflect
financial difficulties.
(b) The Funding Lender may, but shall not be expected to, promptly after obtaining knowledge
of the occurrence of any event that it believes may constitute a Listed Event, provide notice to the Borrower
of the occurrence of such event, and request that the Borrower promptly notify the Funding Lender in
writing pursuant to subsection (a). If in response to a request under this subsection (b), the Borrower
determines that such event is not a Listed Event, the Borrower shall so notify the Funding Lender in writing
and provide in writing the basis for such conclusion to the Funding Lender.
(c) Whenever the Borrower obtains knowledge of the occurrence of a Listed Event, because
of a notice from the Funding Lender pursuant to subsection (b) or otherwise, the Borrower shall promptly
(and in any event within ten (10) Business Days of the occurrence of the Listed Event) notify the Funding
Lender in writing pursuant to subsection (a) and include in such notice a description of the basis for its
conclusion that a Listed Event has occurred.
Section 4. Termination of Reporting Obligation. The Borrower’s obligations under this
Continuing Disclosure Agreement shall terminate upon any legal defeasance of the Borrower Loan and the
Funding Loan, prior prepayment or payment in full of all of the obligations of the Borrower under the
Borrower Loan and all of the obligations of the Governmental Lender under the Funding Loan. If the
Borrower’s obligations with respect to the Borrower Loan are assumed in full by some other entity, such
person shall be responsible for compliance with this Continuing Disclosure Agreement in the same manner
as if it were the Borrower and the Borrower shall have no further responsibility hereunder. The Borrower,
in connection with such assumption, shall require the other entity to specifically assume in writing the
obligations of the Borrower hereunder, which written instrument shall be filed with the Funding Lender. If
such termination or substitution occurs prior to the final maturity of the Borrower Loan and the Funding
Loan, the Borrower shall give notice of such termination or substitution in the same manner as for a Listed
Event under Section 3(c).
Section 5. Amendment; Waiver.
(a) Notwithstanding any other provision of this Continuing Disclosure Agreement, the
Borrower and the Funding Lender may amend this Continuing Disclosure Agreement and any provision of
this Continuing Disclosure Agreement may be waived, provided that no waiver by the Funding Lender of
any disclosure obligation of the Borrower hereunder with respect to a particular matter shall constitute a
waiver or release of the Borrower from its disclosure obligations hereunder with respect to any other
matters.
(b) In the event of any amendment or waiver of a provision of this Continuing Disclosure
Agreement, the Borrower shall describe such amendment in the next Annual Report and shall include, as
applicable, a narrative explanation of the reason for the amendment or waiver and its impact on the type
(or, in the case of a change of accounting principles, on the presentation) of financial information or
operating data being presented by the Borrower. In addition, if the amendment relates to the accounting
principles to be followed in preparing financial statements, (1) notice of such change shall be given in the
same manner as for a Listed Event under Section 3(c), and (2) the Annual Report for the year in which the
5
change is made should present a comparison (in narrative form and also, if feasible, in quantitative form)
between the financial statements as prepared on the basis of the new accounting principles and those
prepared on the basis of the former accounting principles.
Section 6. Additional Information. Nothing in this Continuing Disclosure Agreement shall
be deemed to prevent the Borrower from disseminating any other information, using the means of
dissemination set forth in this Continuing Disclosure Agreement or any other means of communication, or
including any other information in any Annual Report or notice of occurrence of a Listed Event, in addition
to that which is required by this Continuing Disclosure Agreement. If the Borrower chooses to include any
information in any Annual Report or notice of occurrence of a Listed Event, in addition to that which is
specifically required by this Continuing Disclosure Agreement, the Borrower shall have no obligation under
this Continuing Disclosure Agreement to update such information or include it in any future Annual Report
or notice of occurrence of a Listed Event.
Section 7. Default. In the event of a failure of the Borrower to comply with any provision of
this Continuing Disclosure Agreement, the Funding Lender may, or any Beneficial Owner of an interest or
interests in the Funding Loan may as its sole and exclusive remedy seek specific performance by court
order, to cause the Borrower, to comply with its obligations under this Continuing Disclosure Agreement.
A default under this Continuing Disclosure Agreement shall not be deemed an event of default under the
Funding Loan Agreement or the Borrower Loan Agreement, and the sole remedy under this Continuing
Disclosure Agreement in the event of any failure of the Borrower to comply with this Continuing Disclosure
Agreement shall be an action to compel performance.
Section 8. Notices. All notices or other communications shall be sufficiently given and shall
be deemed given on the date on which the same have been personally delivered or the second day following
the date on which the same have been mailed by certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to Borrower: Vista Breeze, Ltd.
c/o Atlantic Pacific Communities, LLC
161 NW 6th Street, Suite 1020
Miami, Florida 33136
Attention: Kenneth Naylor
and with a copy to: Klein Hornig LLP
1325 G. Street NW, Suite 770
Washington, DC 20005
Attention: Chris Hornig
Email: chornig@kleinhornig.com
Tel: (202) 926-3402
And with a copy to: Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
(which copy shall not constitute notice to Borrower)
150 W. Flagler Street
Miami, Florida 33130
Attention: Brian McDonough, Esq.
Email: bmcdonough@stearnsweaver.com
With a copy to: Housing Authority of the City of Miami Beach
200 Alton Road Miami Beach, FL 33139
Attention: Miguell Del Campillo, Executive Director
6
Phone: (305) 532-6401, ext. 3020
Email: miguell@hacmb.org
With a copy to: Fox Rothschild LLP
BNY Mellon Center
500 Grant Street, Suite 2500
Pittsburgh, PA 15219
Attention: Michael H. Syme
Telephone: (412) 391-2450
Email: msyme@foxrothschild.com
To the Funding Citibank, N.A.
Lender: 388 Greenwich Street, Trading 4th Floor
New York, New York 10013
Attention: Transaction and Asset Management Group
Deal ID # 60001596
Facsimile: (212) 723-8209
And to: Citibank, N.A.
325 East Hillcrest Drive, Suite 160
Thousand Oaks, California 91360
Attention: Operations Manager/Asset Manager
Deal ID # 60001596
Facsimile: (805) 557 0924
With a copy to: Citibank, N.A.
c/o Berkadia Commercial Servicing Department
322 Norristown Road, Suite 300
Ambler, Pennsylvania 19002
Attention: Client Relations Manager
Deal ID# 60001596
Facsimile: (215) 328-0305
And a copy of any Citibank, N.A., 17th Floor
notices of default 388 Greenwich Street
sent to: New York, New York 10013
Attention: General Counsel’s Office
Deal ID # 60001596
Facsimile: (646) 291-5754
Any person may, by written notice to the other persons listed above, designate a different address
or telephone number to which subsequent notices or communications should be sent.
Section 9. Borrower’s Obligations Non-recourse. In any action or proceeding brought
hereon and except as otherwise provided in the Security Instrument (as defined in the Borrower Loan
Agreement) or the Borrower Loan Agreement, the liability of the Borrower under this Continuing
Disclosure Agreement shall be limited to the Project and any other collateral securing the Borrower Loan
or the Funding Loan.
7
Section 10. Beneficiaries. This Continuing Disclosure Agreement shall inure solely to the
benefit of the Borrower, the Funding Lender and the Beneficial Owners from time to time of any interest
or interests in the Funding Loan, and shall create no rights in any other person or entity.
Section 11. Severability. If any provision in this Continuing Disclosure Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
Section 12. Counterparts. This Continuing Disclosure Agreement may be executed in
several counterparts, each of which shall be an original and all of which shall constitute but one and the
same instrument.
Section 13. Electronic Transactions. The transactions described in this Continuing
Disclosure Agreement may be conducted and the related documents may be stored by electronic means.
Copies, telecopies, facsimiles, electronic files and other reproductions of original executed documents shall
be deemed to be authentic and valid counterparts of such original documents for all purposes, including the
filing of any claim, action or suit in the appropriate court of law.
Section 14. Governing Law. This Continuing Disclosure Agreement shall be governed by
and construed in accordance with the laws of the State of Florida.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Continuing Disclosure Agreement
to be executed by their duly authorized representatives as of the date set forth above.
VISTA BREEZE, LTD.,
a Florida limited partnership
By: APC Vista Breeze, LLC,
a Florida limited liability company,
Duly Authorized
By: _____________________________
Kenneth Naylor, Vice President
[Signatures to the Vista Breeze Continuing Disclosure Agreement continued on following page]
[Counterpart signature page to the Vista Breeze Continuing Disclosure Agreement]
CITIBANK, N.A., as Funding Lender
By:
Name:
Title:
Deal ID #60001596
EXHIBIT A
ANNUAL FINANCIAL INFORMATION
$[Perm Amount]
Housing Finance Authority of Miami-Dade County, Florida
Multifamily Housing Revenue Note
Series 2023
(Vista Breeze)
Report for Period Ending
Name: _________________________
Address: _________________________
Occupancy _________________________
Number of Units _________________________
Number of Units Occupied as of Report Date ________________________
Operating History of the Project[s]
The following table sets forth a summary of the operating results of the Project for fiscal year ended
___________, as derived from the Borrower’s [un]audited financial statements.
Revenues
Operating Expenses1
Net Operating Income
Debt Service on the Loan
Net Operating Income/(Loss)
After Debt Service
The average occupancy of the Project[s] for the fiscal year ended [___] was [___]%.
__________________________
1Excludes depreciation and other non-cash expenses, includes management fee.
E-1-1
Forward Purchase Agreement Vista Breeze
EXHIBIT E-1
ASSIGNMENT AND ASSUMPTION
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Citi Community Capital
CCC Post-Closing Department
3800 Citibank Center
Tampa, FL 33610
Re: Vista Breeze Deal ID No. 60001596
ASSIGNMENT AND ASSUMPTION OF MORTGAGE AND LOAN DOCUMENTS
THIS ASSIGNMENT AND ASSUMPTION OF MORTGAGE AND LOAN
DOCUMENTS (this “Assignment”) is executed by BANK OF AMERICA, N.A., a national
banking association (“Initial Funding Lender”), THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., a national banking association (“Fiscal Agent”; and together with
Initial Funding Lender, sometimes referred to herein as, collectively, the “Assignor”), in favor of
the HOUSING FINANCE AUTHORITY OF MIAMI-DADE COUNTY, FLORIDA, a public
body corporate and politic organized and existing under the laws of the State of Florida
(“Assignee”). Capitalized terms used but not otherwise defined herein shall have the meanings
given them in the Forward Purchase Agreement dated as of December 1, 2023 (the “Forward
Purchase Agreement”) among Assignor, CITIBANK, N.A. (“Citi”) and VISTA BREEZE,
LTD., a Florida limited partnership (the “Borrower”).
FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged,
Assignor and Assignee agree as follows:
1. Assignor hereby grants, assigns, conveys and transfers, without recourse,
representation or warranty, to Assignee, and its successors and assigns, all right, title and interest
of Assignor in and to the following:
a. All of its right, title and interest in and to the Loan, as evidenced by that
certain Multifamily Housing Revenue Note, Series 2023 (Vista Breeze) (the
“Governmental Lender Note”) in the maximum original principal amount of
$32,500,000, the outstanding principal balance of which, as of the date hereof, is
$_______________ (the “Note”);
b. All of its right, title and interest in and to that certain Leasehold Mortgage,
Assignment of Rents, Security Agreement and Fixture Filing (the “Original Security
Instrument”) dated as of December 15, 2023 and executed by Borrower for the benefit of
Assignee, as assigned to Assignor pursuant to that certain Assignment of Mortgage and
Collateral Loan Documents, dated as of December 15, 2023 (collectively, the
“Assignment”);
E-1-2
Forward Purchase Agreement Vista Breeze
c. The other documents described on Schedule I attached hereto, which sets
forth all of the documents to be assigned to Assignee by Assignor (the “Assigned
Documents”), including the foregoing instruments;
d. Except for (i) that certain Environmental Indemnification and Release
Agreement dated December 15, 2023 by and among Borrower, Howard D. Cohen, Howard
D. Cohen Revocable Trust U/A/D 4/6/1993 and Initial Funding Lender, and (ii) the
documents listed on Schedule II attached hereto (the “Terminated Documents”), all other
instruments, and agreements, (other than documents, memos, notes or reports prepared by
Assignor employees solely for the internal use of Assignor) affecting or relating to the
Loan which were prepared and delivered to Assignor in connection with, or executed and
delivered to Assignor in connection with or as security for, the Loan, including but not
limited to any and all security agreements, collateral assignments, pledge agreements,
financial agreements, corporate authorizations, limited liability company consents and
other corporate or limited liability company documents (including any limited liability
company consents or approvals by any member of Borrower), legal opinion letters from
Borrower’s counsel, estoppel letters from Borrower or tenants of the Project, operating
reports, environmental reports, site plans, surveys, soil and substrata studies, architectural
drawings, plans and specifications, engineering plans and studies, floor plans, landscape
plans, external written correspondence, insurance certificates or policies, appraisals,
financial statements of Borrower; provided that, notwithstanding the foregoing provisions
of this Section 1(e), Assignor and Assignee agree that Assignor shall not be required on
the Conversion Date to deliver to Assignee any of the referenced documents (not
constituting a Loan Document) it may have in its files but instead Assignor will retain
copies of the documents in its files for not less than five years after the Conversion Date
and upon the reasonable request of Assignee or Borrower will provide copies thereof to
Assignee, at the expense of Borrower; and
e. Each modification, amendment, assumption, and release, if any, executed
by Assignor (if legally required) and/or Borrower (if legally required) of any of the items
listed above, except for the Terminated Documents.
2. Assignee is purchasing the Loan for a purchase price of $[_]. Assignee hereby
assumes and agrees to perform, from and after the date of recordation of this Assignment in the
Official Records, all liabilities, obligations and duties of Assignor arising from and after the date
hereof with respect to the Loan, including, without limitation, the obligations of Assignor under
the Assigned Documents.
3. This Assignment may be executed in multiple counterparts, each of which shall be
an original and all of which shall constitute but one and the same instrument.
4. This Assignment is made without any recourse or representation whatsoever,
except to the extent set forth in the Forward Purchase Agreement.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
E-1-3
Forward Purchase Agreement Vista Breeze
EXECUTED as of the _______ day of _______, 20___.
ASSIGNOR:
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
By:
Name:
Title:
GENERAL ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF __________________________ )
)
COUNTY OF )
On ____________, 20__, before me, _________________________________, Notary
Public, personally appeared _____________________________, who proved to me on the basis
of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of _____________
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
(Seal)
E-1-4
Forward Purchase Agreement Vista Breeze
ASSIGNOR:
BANK OF AMERICA, N.A.,
a national banking association
By:
Name:
Title:
GENERAL ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF __________________________ )
)
COUNTY OF )
On ____________, 20__, before me, _________________________________, Notary
Public, personally appeared _____________________________, who proved to me on the basis
of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of _____________
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
(Seal)
E-1-1
Forward Purchase Agreement Vista Breeze
ASSIGNEE:
HOUSING FINANCE AUTHORITY OF
MIAMI-DADE COUNTY, FLORIDA
By:__________________________________
Name:
Title:
GENERAL ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF __________________________ )
)
COUNTY OF )
On ____________, 20__, before me, _________________________________, Notary
Public, personally appeared _____________________________, who proved to me on the basis
of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of _____________
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
(Seal)
E-8
Forward Purchase Agreement Vista Breeze
SCHEDULE I
ASSIGNED DOCUMENTS
1. Original Borrower Note
2. Original Funding Loan Agreement
3. Original Borrower Loan Agreement
4. UCC-1 Financing Statements
5. Any non-disturbance agreements delivered in connection with any leases, sub-leases,
and/or sub-sub-leases
6. Any purchase options and rights of first refusal for the Project (if any)
7. All authority documents executed in connection with the above
8. Opinion(s) of counsel
E-2-1
Forward Purchase Agreement Vista Breeze
SCHEDULE II
TERMINATED DOCUMENTS
1. Construction Disbursement Agreement by and between Borrower and Initial Funding
Lender
2. Guaranty Agreement by Howard D. Cohen and Howard D. Cohen Revocable Trust
U/A/D 4/6/1993 in favor of Initial Funding Lender
3. Collateral Assignment and Pledge of Developer Fees and Security Agreement (APC
Vista Breeze Development, LLC) by APC Vista Breeze Development, LLC in favor of
Initial Funding Lender
4. Collateral Assignment and Pledge of Developer Fees and Security Agreement (HACMB
Development, LLC) by HACMB Development, LLC in favor of Initial Funding Lender
5. Collateral Assignment and Pledge of Partnership Interests and Security Agreement (APC
Vista Breeze, LLC) by APC Vista Breeze, LLC in favor of Initial Funding Lender
6. Collateral Assignment and Pledge of Partnership Interests and Security Agreement (Vista
Breeze HACMB, Inc.) by Vista Breeze HACMB, Inc. in favor of Initial Funding Lender
7. Investor Equity Assignment and Security Agreement by Borrower in favor of Initial
Funding Lender
8. Assignment of Contracts by Borrower in favor of Initial Funding Lender
9. Assignment of Management Agreement and Subordination of Management Agreement
and Fees by Borrower in favor of Initial Funding Lender, and consented and agreed to by
Atlantic Pacific Community Management, LLC
E-2-2
Forward Purchase Agreement Vista Breeze
EXHIBIT E-2
FORM OF ALLONGE TO GOVERNMENTAL NOTE
This Allonge is affixed to, and forms a part of, that certain Multifamily Housing Revenue
Note, Series 2023 (Vista Breeze), dated December 15, 2023, in the original principal amount of
THIRTY TWO MILLION FIVE HUNDRED THOUSAND AND 00/100 Dollars ($32,500,000),
made by the Housing Finance Authority of Miami-Dade County, Florida, as Governmental Lender,
and payable to Bank of America, N.A., as Funding Lender, the current holder of thereof.
PAY TO THE ORDER OF CITIBANK, N.A.,
WITHOUT RECOURSE OR
REPRESENTATION, AS OF _________, 20___
BANK OF AMERICA, N.A.
By:
Name:
Title:
E-3-1
Forward Purchase Agreement Vista Breeze
EXHIBIT E-3
FORM OF ALLONGE TO ORIGINAL BORROWER NOTE
This Allonge is affixed to, and forms a part of, that certain Construction Phase Project Loan
Note, dated as of December 15, 2023, in the original principal amount of THIRTY TWO
MILLION FIVE HUNDRED THOUSAND AND 00/100 Dollars ($32,500,000), made by Vista
Breeze, Ltd., a Florida limited partnership, and payable to the Housing Finance Authority of
Miami-Dade County, Florida, as Governmental Lender, and endorsed to The Bank of New York
Mellon Trust Company, N.A., as fiscal agent, for the benefit of Bank of America, N.A., as Funding
Lender, the current holder thereof.
PAY TO THE ORDER OF HOUSING
FINANCE AUTHORITY OF MIAMI-DADE
COUNTY, FLORIDA, WITHOUT RECOURSE
OR REPRESENTATION, AS OF _________,
20___
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
By:
Name:
Title:
F-1
Forward Purchase Agreement Vista Breeze
EXHIBIT F
FORM OF CERTIFICATE OF SELLER
The undersigned, BANK OF AMERICA, N.A., a national banking association (“Seller”)
hereby represents and warrants as set forth below to CITIBANK, N.A. (“Purchaser”), as of
[Month] [Day], 202[_], as an inducement to Purchaser to purchase the Loan, as defined in that
certain Forward Purchase Agreement by and among Purchaser, Seller and VISTA BREEZE,
LTD., a Florida limited partnership (“Borrower”), dated as of December 1, 2023 (the “Forward
Purchase Agreement”). All capitalized terms not otherwise defined herein shall have the same
definition as set forth in the Forward Purchase Agreement.
1. Entire Agreement. The Forward Purchase Agreement and the Assigned
Documents, full and complete copies of each of which have been furnished to Purchaser,
constitute the entire agreement among the parties thereto with respect to the matters set forth
therein, and there are no agreements, understandings, warranties or representations with respect to
the matters set forth therein except as specifically delineated in the foregoing documents. There
has not been any written, oral or other modification, waiver, release, cancellation, extension or
other change in any of the terms, covenants, or condition in the Assigned Documents in any
material respect to the extent that they apply to the Permanent Loan or the obligors thereunder
without the prior written consent of Purchaser.
2. No Release or Subordination. There has been no release or subordination of
Seller’s interest in the Original Security Instrument or in any of the collateral for the Loan under
the Assigned Documents.
3. Sole Owner and Holder. Seller is the sole legal and beneficial owner and holder of
the interests of the “Funding Lender” under the Original Borrower Note and each of the documents
executed by Borrower which relate thereto, with the sole and absolute power and authority to sell
and transfer such interest in the Assigned Documents to Purchaser.
4. Amount Outstanding. The principal indebtedness outstanding under the Loan is
$____________ and interest is paid through __________________, 202__.
5. No Obligation to Make Further Disbursement. The Loan is fully disbursed and
there is no remaining obligation on the part of Seller to disburse any further sum in connection
with the Loan.
6. No Known Default. To the actual knowledge of Seller, without investigation or
inquiry, there is no uncured default with respect to the Loan.
BANK OF AMERICA, N.A., a national banking association
By:
Name:
Title:
Forward Purchase Agreement G-1 Vista Breeze
EXHIBIT G
FORM OF RELEASE AND TERMINATION AGREEMENT
THIS RELEASE AND TERMINATION AGREEMENT (this “Agreement”) is dated
as of [Month] [Day], 202[_], by and among VISTA BREEZE, LTD., a Florida limited partnership
(the “Borrower”), BANK OF AMERICA, N.A., a national banking association (“Seller”), and
CITIBANK, N.A., a national banking association (“Purchaser”). (Seller and Purchaser are
sometimes referred to herein collectively as “Lenders”).
RECITALS:
A. The Borrower previously applied to the Housing Finance Authority of Miami-Dade
County, Florida, a public body corporate and politic established pursuant to Chapter 421, Florida
Statutes (the “Governmental Lender”) for a loan (the “Borrower Loan”) for the acquisition,
construction, development and/or equipping of a 119-unit multifamily residential project, located
in the City of Miami Beach, Miami-Dade County, Florida, known as Vista Breeze (the “Project”).
B. The Borrower previously requested that the Governmental Lender enter into that
certain Funding Loan Agreement, dated as of December 1, 2023 (the “Original Funding Loan
Agreement”), among the Governmental Lender, The Bank of New York Mellon Trust Company,
N.A., a national banking association, as fiscal agent (the “Fiscal Agent”), and Seller, pursuant to
which Seller made a loan to the Governmental Lender in the original principal amount of
$32,500,000 (the “Funding Loan” or the “Loan”), the proceeds of which Governmental Lender
used to make the Borrower Loan.
C. The proceeds of the Borrower Loan were loaned and disbursed to Borrower
pursuant to that certain Borrower Loan Agreement, dated as of December 1, 2023 (the “Original
Borrower Loan Agreement”). Borrower and Seller also entered into that certain Construction
Disbursement Agreement, dated as of December 15, 2023 (the “Disbursement Agreement”),
which provided for the manner, procedures and conditions of disbursements under the Borrower
Loan.
D. The Borrower Loan was evidenced by that certain Construction Phase Project Loan
Note (the “Original Borrower Note”) dated as of December 15, 2023 (the “Closing Date”) made
by Borrower payable to the order of Governmental Lender, as endorsed and assigned to Fiscal
Agent for the benefit of Seller.
E. The Borrower Loan was secured by, among other things, that certain Leasehold
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated as of December 15,
2023, executed by Borrower for the benefit of Governmental Lender (the “Original Security
Instrument”; and together with the Original Borrower Note, the Original Borrower Loan
Agreement, the Disbursement Agreement and all other documents executed in connection with the
Borrower Loan, collectively, the “Borrower Loan Documents”), which Original Security
Instrument will encumber the Mortgaged Property.
F. Pursuant to the Original Funding Loan Agreement, the Original Borrower Note, the
Original Security Instrument, the Original Borrower Loan Agreement; the Funding Loan
Forward Purchase Agreement G-2 Vista Breeze
Documents (as defined in the Original Funding Loan Agreement; and together with the Borrower
Loan Documents, collectively, the “Loan Documents”) and all other Borrower Loan Documents
except for the Unassigned Rights (as defined in the Original Funding Loan Agreement), were
assigned by the Governmental Lender to Fiscal Agent, for the benefit of the Seller to secure the
Funding Loan.
G. Subject only to completion of the Improvements and the other terms and conditions
set forth in that certain Forward Purchase Agreement dated as of December 1, 2023 by and among
Borrower, Seller and Purchaser (the “Forward Purchase Agreement”) to which a form of this
Agreement is an exhibit, Purchaser has agreed to purchase the Loan, the Original Borrower Loan
Agreement and Original Funding Loan Agreement, and certain of the Loan Documents, from
Seller. Upon such purchase, an Assignment of Mortgage and Collateral Loan Documents (the
“Assignment”) will be recorded in the recorder’s office of the county in which the Land is situated
(the date upon which such recordation occurs being the “Conversion Date”), which Assignment
will, among other things, assign and transfer the Original Borrower Note, the Original Security
Instrument and certain of the Loan Documents to Governmental Lender, which will subsequently
be assigned to the Fiscal Agent, for the benefit of the Purchaser.
H. Pursuant to the terms of the Forward Purchase Agreement, the Terminated
Documents (as defined in the Assignment) are to be released and terminated on the Conversion
Date and shall not be deemed Loan Documents assigned to Purchaser. The documents other than
the Terminated Documents being assigned to Purchaser pursuant to the Forward Purchase
Agreement are herein referred to as the “Assigned Documents.”
NOW, THEREFORE in consideration of the mutual promises contained herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto do hereby agree as follows:
SECTION 1
LOAN PURCHASE AND SALE
Concurrently with the execution and delivery of this Agreement by Lenders and Borrower,
the Lenders have caused the recordation of the Assignment and Purchaser has assumed all of
Seller’s obligations under the Assigned Documents arising from and after the Conversion Date. In
the event the Assignment is not or has not been recorded, this Agreement shall be of no force and
effect. The Borrower acknowledges and agrees that from and after the Conversion Date, Seller
shall have no obligations or liabilities under any of the Assigned Documents.
SECTION 2
RELEASE AND ACKNOWLEDGMENT BY BORROWER
2.1.1 Release of Seller. Effective as of the Conversion Date, Borrower, for itself
and each of its agents, employees, representatives, affiliates, assigns, and all persons acting by,
through, under, or under control of any of the foregoing, and anyone claiming by, through or under
them (all of the above hereinafter collectively referred to as “Releasor”), for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, hereby releases,
waives and discharges any right to trial by jury (to the extent permitted by law), and hereby
Forward Purchase Agreement G-3 Vista Breeze
releases, waives, discharges, and covenants not to sue, Seller, its predecessors, successors, assigns
and/or representatives, and each of their respective officers, directors, shareholders, affiliates,
agents, employees, servicers (past and present, and their respective officers, directors,
shareholders, affiliates, agents, and employees), (hereinafter collectively referred to as “Seller
Releasee”), with respect to any and all past and present claims, causes of action, damages,
demands, costs, and other liabilities of any kind, direct or indirect, known or unknown, foreseen
or unforeseen, which any Releasor now has or which may arise in the future and which relate to
or arise from any of the following: (i) any and all of the Seller’s (or beneficiaries’) obligations and
liabilities in connection with the Loan or under any of the Assigned Documents whether accruing
prior to or after the Conversion Date; (ii) any of Purchaser’s administration of the Loan after the
Conversion Date; (iii) the conduct of any Seller Releasee relating to the negotiation,
documentation, execution, and delivery of any of the Assigned Documents or the Forward
Purchase Agreement and the documents executed in connection therewith; (iv) the review,
approval or disapproval of any and all documents, instruments, projections, estimates, plans,
specifications, drawings and other items submitted after the Conversion Date; (v) the disbursement
of funds under the Loan after the Conversion Date; and (vi) any other actions, statements or
omissions by the Seller Releasee in connection with the Loan occurring after the Conversion Date.
2.1.2 Release of Purchaser. Effective as of the Conversion Date, Releasor, for
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
hereby releases, waives and discharges any right to trial by jury (to the extent permitted by law),
and hereby releases, waives, discharges, and covenants not to sue, Purchaser, its predecessors,
successors, assigns and/or representatives, and each of their respective officers, directors,
shareholders, affiliates, agents, employees, servicers (past and present, and their respective
officers, directors, shareholders, affiliates, agents, and employees), (hereinafter collectively
referred to as “Purchaser Releasee”), with respect to any and all past and present claims, causes
of action, damages, demands, costs, and other liabilities of any kind, direct or indirect, known or
unknown, foreseen or unforeseen, which any Releasor now has or which may arise in the future
and which relate to or arise from any of the following: (i) any and all of the Purchaser Releasee’s
(or beneficiaries’) obligations and liabilities in connection with the Loan or under any of the
Assigned Documents accruing prior to the Conversion Date; (ii) any Seller Releasee’s
administration of the Loan on or before the Conversion Date; (iii) the conduct of any Purchaser
Releasee relating to the negotiation, documentation, execution, and delivery of any of the Assigned
Documents or the Forward Purchase Agreement; (iv) the review, approval or disapproval of any
and all documents, instruments, projections, estimates, plans, specifications, drawings and other
items submitted to Purchaser Releasee prior to the Conversion Date; (v) the disbursement of funds
under the Loan prior to the Conversion Date; and (vi) any other actions, statements or omissions
by the Purchaser Releasee in connection with the Loan, the Land or the Improvements occurring
before the Conversion Date.
2.1.3 Advice of Counsel. Borrower, for itself and each of the Releasors, hereby
acknowledges that they have been advised by their legal counsel in connection with the granting
of this waiver and release. Borrower agrees that if Borrower or any other Releasor asserts against
any Seller Releasee or Purchaser Releasee (any of whom is a “Releasee”) any of the claims
released herein, Borrower shall pay, in addition to any other damages caused to the Releasee
thereby, all actual attorneys’ fees incurred by the Releasee in defending or otherwise responding
to the released claims.
Forward Purchase Agreement G-4 Vista Breeze
2.1.4 No Admission. It is expressly understood and agreed that the terms hereof
are contractual and that the releases given hereby shall not be construed as an admission of liability,
any liability being expressly denied.
2.1.5 Assignment of Claims. Borrower represents and warrants that it has not
assigned, in whole or in part, any of the claims released herein.
2.1.6 Voluntary Waiver and Release. Borrower acknowledges that this waiver
and release is voluntary and without any duress or undue influence, and is given as part of the
consideration for Lenders entering into and consummating the transactions contemplated by the
Forward Purchase Agreement.
2.2 Disbursement of Loan. Borrower acknowledges and agrees that the Loan has been
fully disbursed and no further disbursement is required under the Original Borrower Note or any
other Loan Documents, including the Terminated Documents. Borrower hereby waives any right
to seek disbursement of any further Loan proceeds.
2.3 Subsequent Discovered Claims. Borrower expressly acknowledges that it may
hereafter discover facts different from or in addition to those which it now believes to be true with
respect to the release of claims. Borrower agrees that the foregoing release shall be and remain
effective in all respect notwithstanding such different or additional facts.
SECTION 3
TERMINATED DOCUMENTS
As of the Conversion Date, the Terminated Documents shall not be deemed Loan Documents
assigned to Purchaser and shall be deemed terminated and shall be of no further force or effect.
SECTION 4
MISCELLANEOUS
4.1 Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same instrument.
4.2 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida.
4.3 Invalid Provisions. If any one or more of the provisions of this Agreement shall for
any reason be held to be invalid, unenforceable or illegal in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provisions had never been set forth.
4.4 Valid and Enforceable. Borrower represents and warrants to the Lenders that this
Agreement constitutes a valid and binding obligation of Borrower and is enforceable against
Borrower in accordance with its terms.
4.5 Attorneys’ Fees. In the event of any action at law or in equity in relation to this
Agreement, the losing party shall pay the prevailing party’s actual attorneys’ fees and costs.
Forward Purchase Agreement G-5 Vista Breeze
4.6 ADVICE OF INDEPENDENT COUNSEL. BORROWER HEREBY AGREES,
REPRESENTS AND WARRANTS THAT IT HAS HAD THE ADVICE OF INDEPENDENT
LEGAL COUNSEL OF ITS OWN CHOOSING, DULY ADMITTED TO PRACTICE IN THE
STATE OF FLORIDA, IN NEGOTIATIONS FOR AND DURING THE PREPARATION OF
THIS AGREEMENT, THAT IT HAS READ THE PROVISIONS OF THIS AGREEMENT,
THAT ALL PROVISIONS OF THIS AGREEMENT HAVE BEEN FULLY EXPLAINED TO IT
BY ITS ATTORNEYS, AND THAT IT IS FULLY AWARE AND UNDERSTANDS THE
PROVISIONS OF THIS AGREEMENT AND THEIR LEGAL EFFECT AND
CONSEQUENCES. BORROWER HEREBY AGREES, REPRESENTS AND WARRANTS
THAT IT HAS EXECUTED THIS AGREEMENT ON THE ADVICE OF ITS ATTORNEYS,
AFTER CAREFUL AND INDEPENDENT INVESTIGATION, AND IS NOT EXECUTING
THIS AGREEMENT UNDER FRAUD, DURESS OR UNDUE INFLUENCE.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
Forward Purchase Agreement G-6 Vista Breeze
IN WITNESS WHEREOF, this Release and Termination Agreement is hereby made as of
the date first written above.
SELLER:
BANK OF AMERICA, N.A., a national banking
association
By:
Name:
Title:
PURCHASER:
CITIBANK, N.A.,
a national banking association
By:
Name:
Title:
Deal ID No. 60001596
Forward Purchase Agreement G-7 Vista Breeze
BORROWER:
VISTA BREEZE, LTD.,
a Florida limited partnership
By: APC Vista Breeze, LLC,
a Florida limited liability company,
its managing general partner
By: ________________________
Name:
Title:
Forward Purchase Agreement H-1 Vista Breeze
EXHIBIT H
[RESERVED]
Forward Purchase Agreement I-1 Vista Breeze
EXHIBIT I
NOTICE TO FISCAL AGENT
VIA E-MAIL AND OVERNIGHT DELIVERY
[DATE]
The Bank of New York Mellon Trust Company, N.A.
4655 Salisbury Road, Suite 300
Jacksonville, Florida 33256
Attention: Miami-Dade HFA Relationship Manager
Email: [_]
Fax: (904) 645-1926
RE: Vista Breeze
Funding Loan Principal Amount: $32,500,000
Re: Notice of Conversion Date/Funding Loan Agreement dated as of December 1, 2023 (the
“Funding Loan Agreement”) among Bank of America, N.A., a national banking
association (“Initial Funding Lender”), Housing Finance Authority of Miami-Dade
County, Florida, a public body corporate and politic organized and existing under the laws
of the State of Florida, as Governmental Lender, and The Bank of New York Mellon Trust
Company, N.A., as Fiscal Agent.
Dear [_]:
The undersigned, as Initial Funding Lender with respect to the above-referenced Funding
Loan Agreement, hereby notifies you of the occurrence of the purchase of the Funding Loan by
Citibank, N.A., in its capacity as Permanent Lender (the “Permanent Lender”), on the
Conversion Date (which occurred _______________, 20____) as contemplated by the terms of
the Funding Loan Agreement. The Transferee Representations Letter required to be delivered
pursuant to Section 2.6 of the Funding Loan Agreement was delivered by the Funding Lender on
the Conversion Date (a copy of which is attached hereto as Exhibit A). Henceforth, pursuant to
the Funding Loan Agreement, the Permanent Lender (and not the undersigned) shall be the
Funding Lender for all purposes of the Funding Loan Agreement and the other Funding Loan
Documents commencing on and after the Conversion Date. As provided in Section 8.6(a) of the
Funding Loan Agreement, please update your books or other records maintained for the
registration of the Funding Loan accordingly to reflect the Funding Lender as the registered owner
thereof. All capitalized terms used herein and not otherwise defined have the meanings assigned
in the Funding Loan Agreement.
[SIGNATURE PAGE FOLLOWS]
Forward Purchase Agreement I-2 Vista Breeze
BANK OF AMERICA, N.A.,
a national banking association
By:
Name:
Title:
Forward Purchase Agreement I-3 Vista Breeze
EXHIBIT A TO NOTICE TO FISCAL AGENT
TRANSFEREE REPRESENTATIONS LETTER
[See Attached]
Forward Purchase Agreement J-1 Vista Breeze
EXHIBIT J
WIRE INSTRUCTIONS TRANSFER
[DATE]
The Bank of New York Mellon Trust Company, N.A.
4655 Salisbury Road, Suite 300
Jacksonville, Florida 33256
Attention: Miami-Dade HFA Relationship Manager
Email: [_]
Fax: (904) 645-1926
RE: Multifamily Housing Revenue Note, Series 2023 (Vista Breeze)
To Whom It May Concern:
Please accept this letter as direction to change the current wire instructions for payments to
Citibank, N.A., the Funding Lender on the above-referenced note issue. Wire instructions are
detailed on the attached Exhibit A.
Below are two notarized signatures of Citibank, N.A. as the holder of the above-referenced note.
Very truly yours,
FUNDING LENDER:
CITIBANK, N.A.
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
Phone Number _____________________________
CITIBANK, N.A.
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
Phone Number _____________________________
[INSERT APPROPRIATE NOTARY BLOCK FOR EACH SIGNATORY]
Forward Purchase Agreement J-2 Vista Breeze
EXHIBIT A TO WIRE INSTRUCTIONS TRANSFER
WIRE INSTRUCTIONS
Bank Name:
Bank Address:
Bank Account Name:
ABA:
Bank Account #:
OBI Line 1:
OBI Line 2:
OBI Line 3:
4861-9583-1690v.5