HomeMy WebLinkAboutCRA-R-13-0053 LegislationCity of Miami
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CRA Resolution
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File Number: 13-00986 Final Action Date:
A RESOLUTION OF THE BOARD OF COMMISSIONERS OF THE SOUTHEAST
OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY ("CRA")
AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE AN AMENDMENT, IN
SUBSTANTIALLY THE ATTACHED FORM, WITH LYRIC DEVELOPMENT, LLC, IN
CONNECTION WITH THE DEVELOPMENT OF BLOCKS 25 AND 36; APPROVING
THE PROPOSED VARIANCES TO THE SETTLEMENT AGREEMENT BETWEEN
MIAMI-DADE COUNTY, THE CITY OF MIAMI AND THE CRA; FURTHER
AUTHORIZING THE EXECUTIVE DIRECTOR TO TRANSMIT THE PROPOSED
VARIANCES TO MIAMI-DADE COUNTY FOR CONSIDERATION.
WHEREAS, the Southeast Overtown/Park West Community Redevelopment Agency ("CRA")
is responsible for carrying out community redevelopment activities and projects within its
Redevelopment Area in accordance with its approved 2009 Southeast Overtown/Park West
Redevelopment Plan ("Plan"); and
WHEREAS, Section 2, Goal 3/Principles 2 and 3, at pages 12 and 14, of the Plan lists creating
infill housing, and developing a variety of housing options as stated redevelopment goals; and
WHEREAS, Section 2, Goal 3/Principle 4, at pages 12 and 14, of the Plan also lists the
creation of jobs within the community as a stated redevelopment goal; and
WHEREAS, on June 25, 2012, the CRA's Board of Commissioners, by Resolution No.
CRA-R-12-0043, authorized the Executive Director to execute a development agreement with Lyric
Development LLC (the "Developer"), an affiliate of Gatehouse Development Corporation, for the
development of mixed -use development on portions of Blocks 25 and 36 (the "Project"); and
WHEREAS, on December 17, 2012, the CRA and the Developer executed a Development
Agreement for the Project; and
WHEREAS, the Developer wishes to modify and amend certain terms and provisions of the
Development Agreement to provide for, among other things, variances to certain development
requirements for Block 36, as well as additional funding in the event the CRA's Bond Issue is
approved; and
WHEREAS, in accordance with the Settlement Agreement between the City of Miami,
Miami -Dade County, and the CRA, dated May 9, 2013, Miami -Dade County must approve any
variances to the development requirements for Block 36; and
WHEREAS, the Board of Commissioners wishes to authorize the Executive Director to execute
an Amendment to the Development Agreement, in substantially the attached form, with the Developer
in connection with the Project; and
City of Miami Page 1 of 2 File Id: 13-00986 (Version: 1) Printed On: 9/6/2013
File Number: 13-00986
WHEREAS, the Board of Commissioners also wishes to expressly approve the proposed
variances, as reflected in Exhibit "A" of the Amendment attached hereto;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF THE
SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the Preamble to this Resolution are
adopted by reference and incorporated herein as if fully set forth in this Section.
Section 2. The Executive Director is authorized to execute an Amendment, in substantially
the attached form, with Lyric Development, LLC in connection with the development of Blocks 25 and
36.
Section 3. The proposed variances set forth in Exhibit "A" of the Amendment are expressly
approved.
Section 4. The Executive Director is directed to transmit the proposed variances to
Miami -Dade County for consideration.
Section 5. This Resolution shall become effective immediately upon its adoption.
APPROVED AS TO FORM AND LEGAL SUFFICIENCY:
R
WILLIAM R. BLOOM, ESQ.
SPECIAL COUNSEL
City of Miami Page 2 of 2 File Id: 13-00986 (Version: 1) Printed On: 9/6/2013
AMENDMENT
THIS AMENDMENT is made as of September 2013 by and between LYRIC
DEVELOPMENT LLC, a Florida limited liability company (the "Developer") and
SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a
public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the
"CRA").
RECITALS
A. The Developer and the CRA entered into that certain development agreement
dated as of December 17, 2012 (the "Development Agreement").
B. The Developer and the CRA desire to modify and amend certain terms and
provisions of the Development Agreement, as hereinafter provided.
NOW THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Recitals. The Recitals to this Amendment are true and correct and hereby
incorporated by reference and made a part hereof.
2. Defined Terms. All defined terms utilized in this Amendment but not defined in
this Amendment shall have the meanings ascribed to said terms in the Development Agreement.
3. Inspection Period. Developer acknowledges that the Inspection Period has
expired and the Developer has agreed to accept the Property in its "AS IS, WHERE IS, WITH
ALL FAULTS" condition as provided for in Section 4.7 of the Development Agreement.
4. Title and Survey. Developer acknowledges that Developer has obtained the
Commitment and Survey of the Property and that as of June 25, 2013, title to the Property is
acceptable to Developer and Developer waives any right to object to any matters filed of record
affecting title to the Property arising prior to June 25, 2013.
5. Third Party Reports. On or before September 20, 2013 Developer shall provide to
the CRA copies of all third party reports prepared for Developer regarding the physical condition
of the Property in accordance with Section 4.12 of the Development Agreement.
6. Block 36 Restrictions. Exhibit D to the Development Agreement is hereby
deleted. All references to the Block 36 Restrictions contained in the Development Agreement
shall be deemed references to the Declaration of Restrictions recorded May 15, 2013 in Official
Records Book 28631, at Page 1277 of the Public Records of Miami -Dade County, Florida.
7. ( Block 36 Notice. Developer acknowledges that the CRA has provided the Block
36 Notice as (provided for in the Development Agreement and a copy of the final form of Block
36 Restrictions which had been recorded. In accordance with Section 5.4 of the Development
Agreement, Developer has elected to accept Phase III Property and the Phase IV Property subject
to the Block 36 Restrictions.
8. Variances to Block 36 Restrictions. Notwithstanding Developer's election to
proceed with Phase III Property and Phase IV Property subject to the Block 36 Restrictions,
Developer has requested that the CRA Board and the Miami -Dade County Board of County
Commissioners (the "BCC") approve the proposed variances to the Block 36 Restrictions set
forth in Exhibit "A" attached hereto (the "Proposed Variances"). In the event the CRA Board
and the BCC do not approve the Proposed Variances, then Developer shall have ten (10)
business days from written notice from the CRA of rejection of the Proposed Variances, or any
of them, by either the CRA Board or the BCC to terminate the Development Agreement with
respect to Phase IV. If Developer does not terminate the Development Agreement with respect
to Phase IV during such ten (10) business day period, the Development Agreement shall remain
in full force and effect with respect to Phase IV.
9. CRA Bond Issue. If the CRA obtains Bond Issue Approval on or before
December 31, 2013, the Development Agreement shall be deemed amended as follows:
9.1 Description of Phase I. Section 6.1(i) of the Development Agreement shall be
amended and restated to read as follows:
"(i) Phase I of the Project ("Phase I") shall consist of not less than 158 affordable units
with ground floor commercial space along a portion of Northwest 2nd Avenue and a
commercial or residential liner along a portion of the Ninth Street Mall constructed in a
building or buildings not exceeding eight (8) stories. Phase I will not include more than
twenty-six percent (26%) one -bedroom units with an average size of approximately 600
square feet, two -bedroom units with an average size of approximately 800 square feet,
and not less than twenty-eight percent (28%) three -bedroom units with an average size of
approximately 950 square feet, together with approximately eight thousand five hundred
(8,500) square feet of commercial space, to be rented to the public and a sufficient
number of parking spaces to comply with applicable zoning. Phase I amenities may
include a tot lot, fitness center, library, community space, and offices serving Phase I."
9.2 Phase I Property. The Phase I Property shall mean the Phase I Property described
on Exhibit E to the Development Agreement and the Phase II Property described on
Exhibit F to the Development Agreement.
9.3 Phase II. Phase II described in Section 6.1(ii) of the Development Agreement is
hereby deleted.
9.4 Phase I Project Budget. Section 7.5(B) of the Development Agreement is hereby
amended and restated to read as follows:
"(B) The Phase I Project Budget shall include a One Hundred Twenty -Five Thousand
and No/100 Dollars ($125,000.00) line item to be utilized solely to pay third parties
retained by the CRA to assist in monitoring compliance with the terms of this Agreement
and oversee construction of Phase I on behalf of the CRA. The Phase I Funding
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Agreement shall include a mechanism for the Executive Director to be allowed to draw
funds from this line item to pay third party costs and expenses incurred by the CRA."
9.5 CRA Phase I Contribution. Section 7.8.1 of the Development Agreement is
hereby amended and restated to read as follows:
"7.8.1 The CRA covenants and agrees to contribute the Phase I Property having an
agreed upon value of Two Million Nine Hundred Fourteen Thousand Five Hundred and
No/100 Dollars ($2,914,500.00) (the "Phase I Land Contribution") and a cash
contribution to a Non -Profit in an amount of up to Seventeen Million and No/100 Dollars
($17,000,000.00) for the design and construction of the residential portions of Phase I
(the "CRA Phase I Contribution", and together with the Phase I Land Contribution, the
"Total Phase I CRA Contribution"); provided all of the CRA Phase I Conditions
Precedent are satisfied or waived by the CRA. The CRA Phase I Contribution to the
Non -Profit shall be made in accordance with the terms of the Non -Profit Grant
Agreement and the Non -Profit shall loan one hundred percent (100%) of the proceeds of
the CRA Phase I Contribution to GGI (or the Controlled Entity) (the "Non -Profit Loan"),
GGI, the managing member of the Developer, (or the Controlled Entity) shall loan one
hundred percent (100%) of the proceeds of the Non -Profit Loan (the "GP Loan") to the
Developer, to be disbursed in accordance with the Phase I Funding Agreement. Under no
circumstances shall the CRA Phase I Contribution be increased notwithstanding any
increases in the Phase I Budget."
9.6 Phase II. Sections 8, 15 and 16 of the Development Agreement are hereby
deleted. Phase II has been combined with Phase I and all references to Phase II in the
Development Agreement are hereby deleted.
9.7 Phase I Easement. All references to the Phase I Easement in the Development
Agreement are hereby deleted.
9.8 Phase I Affordable Rental Requirement. Section 12.1 of the Development
Agreement is hereby amended and restated to read as follows:
"12.1 Phase I Affordable Rental Requirement. Developer shall rent (i) at least 49 of the
units in Phase I to qualified households whose gross income is at or below sixty percent
(60%) of the Miami -Dade County median income ("AMP'), (ii) at least 79 units in Phase
I to qualified households whose income is at or below eighty percent (80%) of AMI
(which 79 units shall be reduced by the number of units complying with 12.1(i)), (iii) up
to 30 of the units in Phase I to qualified households whose gross income is not more than
120% of AMI; and (iv) rent the balance of the units in Phase I to qualified renters whose
gross income is not more than 150% of AMI for a period of fifteen (15) years as provided
in the Restrictive Covenant and thereafter for an additional fifteen (15) year period
Developer shall rent (i) not less than 98 units in Phase I to qualified households whose
gross income is at or below 120% of AMI; and (ii) rent the balance of the units to
qualified households whose gross income is at or below 150% of AMI as more
particularly provided in the Restrictive Covenant (the "Phase I Affordable Rental
Requirement")."
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9.9 Restrictive Covenant. The Restrictive Covenant attached to the Development
Agreement as Exhibit K is deleted in its entirety and replaced by Exhibit "B" attached to
this Amendment.
10. Failure to Obtain Bond Issue Approval. If the CRA does not obtain Bond Issue
Approval on or before December 31, 2013, Section 9 of this Amendment shall be of no further
force and effect.
11. Phase I Easement. If the CRA does not obtain Bond Issue Approval on or before
December 31, 2013, the Developer and the Executive Director shall agree on the terms of the
Phase I Easement Agreement on or before February 1, 2014.
12. Community Input. The CRA acknowledges that the Developer has complied with
the requirements of Section 6.2 of the Development Agreement with respect to Phase I.
13. Phase III. Sections 6.1(iii), 9, 17 and 18 of the Development Agreement are
hereby deleted in their entirety. Phase III shall not be included under the Development
Agreement and all references to Phase III are hereby deleted. To the extent that the CRA Board
and the BCC approve the Proposed Variance regarding the elimination of the Parking Garage the
Phase III Property shall be incorporated into and become a part of Phase IV. If the Proposed
Variance regarding the elimination of the Parking Garage is not approved by the CRA Board and
the BCC, Developer shall have no rights with respect to the Phase III Property.
14. Phase III/IV Parking Easement Agreement. All references to Phase III/IV
Parking Easement Agreement in the Development Agreement are hereby deleted.
15. Phase IV Project Schedule. Section 10.5 of the Development Agreement is
hereby amended and restated to read as follows:
"10.5 Phase IV Project Schedule. (A) Developer shall obtain all applicable land use
and zoning approvals for Phase IV (other than in connection with the Lyric Plat) on or before
May 14, 2014 (the "Zoning Approval Deadline"). The Developer may extend the Zoning
Approval Deadline for up to six (6) months by complying with the requirements of the Block 36
Restrictions.
(B) Developer shall commence Vertical Construction of Phase IV on
or before May 14, 2015 (the "Vertical Construction Deadline"). The Developer may extend the
Vertical Construction Deadline in accordance with the terms of the Block 36 Restrictions.
(C) Developer shall complete construction of Phase IV substantially in
accordance with the Phase IV Plans within twenty-four (24) months from the commencement of
vertical construction, as same may be extended as a result of Block 36 Unavoidable Delays (the
"Phase IV Completion Date"). If Developer fails to achieve Phase IV Completion within ninety
(90) days of the Phase IV Completion Date, Developer shall pay to the CRA One Thousand and
No/100 Dollars ($1,000.00) per day for each day thereafter until Phase IV Completion. The term
"Phase IV Completion" shall mean that Phase IV has been completed substantially in accordance
with the Phase IV Plans and a certificate of completion, or its equivalent, has been issued by the
City for the shell of all commercial space included in Phase W.
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(D) If Developer has not achieved Phase IV Completion on or before
twenty-four (24) months from the commencement of vertical construction, as same may be
extended as a result of Block 36 Unavoidable Delays, then in addition to the payments
contemplated by Section 10.5(C), the Developer shall pay to each of the CRA and the County
Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) in accordance with the terms of
the Block 36 Restrictions.
(E) If the CRA Board and the BCC approves the Proposed Variances,
the Zoning Approval Deadline and the Vertical Construction Deadline shall be extended to
correspond to the additional time periods requested in the Proposed Variances.
16. Closing Date Phase IV. Section 20.1 of the Development Agreement is hereby
amended to provide that the Phase IV Closing Date shall occur on the earlier of (a) ten (10) days
after all the CRA Phase IV Conditions Precedent have been either satisfied or waived by the
CRA in accordance with Section 19.2, or (b) February 15, 2015, time being of the essence.
Notwithstanding the foregoing, in the event the Lyric Plat has not been recorded on or before
August 1, 2014, as same may be extended by Block 36 Unavoidable Delays and delays caused
by the Black Archives, then the time frame set forth in Section 20.1 shall automatically be
extended one day for each additional day until the Lyric Plat is recorded. In addition if the CRA
Board and the BCC approve the Proposed Variances the Phase IV Closing Date shall be
automatically extended by the number of additional days approved by the CRA Board and the
BCC to commence vertical construction of the Retail Component as defined in the Block 36
Restrictions.
17. Real Estate Tax. Notwithstanding anything to the contrary contained in the
Development Agreement, in connection with each closing contemplated by the Development
Agreement, the Developer and the CRA shall enter into an agreement evidencing the obligations
of Developer and its successors and assigns to make the payments contemplated by Section 31 of
the Development Agreement which shall constitute covenants running with the land.
18. Phase III Legal Description. The legal description for Phase III to be attached to
the Development Agreement as Exhibit G shall be in the form of Schedule 1 attached hereto.
19. Phase IV Legal Description. The legal description for Phase IV to be attached to
the Development Agreement as Exhibit H shall be in the form of Schedule 2 attached hereto.
20. Non -Profit Grant Agreement. Exhibit J to the Development Agreement is hereby
deleted and replaced by Exhibit J attached hereto and made a part hereof except the amount of
the grant shall be increased to $17,000,000.00 if Bond Issue Approval is obtained on or before
December 31, 2013.
21. Non -Profit Loan Documents. The Non -Profit Loan Documents to be affixed to
the Non -Profit Grant Agreement as Exhibit A shall be in the form attached hereto as Exhibit C
except the amount of the grant shall be increased to $17,000,000.00 if Bond Issue Approval is
obtained on or before December 31, 2013.
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22. Restrictive Covenant Agreement. The Restrictive Covenant Agreement attached
to the Development Agreement as Exhibit K is deleted in its entirety and replaced by Exhibit K
attached hereto and made a part hereof. This Section 24 shall not be applicable if the CRA
obtains Bond Issue Approval on or before December 31, 2013.
23. Conflicts. To the extent of any conflicts between the terms and provisions of this
Amendment and the terms and provisions of the Development Agreement, the terms and
provisions of this Amendment shall control.
24. Ratification. Except as modified by this Amendment, all the terms and provisions
of the Development Agreement are hereby ratified and reaffirmed by the parties.
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IN WITNESS HEREOF, the parties have executed this Amendment as of the date first
above written.
DEVELOPER:
LYRIC DEVELOPMENT, LLC,
a Florida limited liability company
The Gatehouse Group, Inc.,
a Commonwealth of Massachusetts corporation,
Its manager
By:
Name:
Title:
CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
By:
Clarence E. Woods, III, Executive Director
ATTEST:
Todd B. Hannon,
Clerk of the Board
Approved for legal sufficiency
By:
William R. Bloom, Esq.
Holland & Knight LLP,
Special Counsel to CRA
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Exhibit "A"
Variances requested from Block 36 Declaration of Restrictions
1. Elimination of the Parking Component and all references to the Parking Component.
2. Extend the Zoning Approval Deadline from May 14, 2014 to May 14, 2015.
3. Extend Vertical Construction Deadline from May 14, 2015 to May 14, 2016.
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#24307491_v4
Exhibit B
Restrictive Covenant
This document prepared by
and return to:
Owner:
Owner's Address:
RESTRICTIVE COVENANT AGREEMENT
Lyric Housing, Ltd.
c/o The Gatehouse Group
120 Forbes Boulevard, Suite 180
Mansfield, MA 02048
Legal Description of Property: See Exhibit "A" attached hereto
Name of Project: The Plaza at the Lyric
Issuer: Southeast Overtown/Park West Community Redevelopment Agency
Issuer's Address: 1490 NW Third Avenue, Suite 105
Miami, Florida 33136
THIS RESTRICTIVE COVENANT AGREEMENT (this "Agreement") is made and
entered into as of [ 1, 201_], by and between Southeast Overtown/Park West
Community Redevelopment Agency (the "Issuer"), a public body corporate and politic created
pursuant to the laws of the State of Florida (the "State"); and Lyric Housing, Ltd., a Florida
limited partnership (together with its successors and assigns, the "Owner").
WITNESSETH:
WHEREAS, the Owner intends to acquire and construct a multifamily residential rental
project located within Miami -Dade County, Florida (the "County"), to be occupied by Lower -
Income Tenants and Moderate -Income Tenants, all for the public purpose of providing decent,
safe, affordable and sanitary housing for persons or families of low or moderate income within
the County; and
WHEREAS, pursuant to a resolution of the Issuer's Board of Commissioners, adopted
September 17, 2012, as supplemented by a resolution of the Issuer's Board of Commissioners,
adopted , 201_ (collectively, the "Bond Resolution"), the Issuer has issued and
delivered its Revenue Bonds, Series 201 L 1 (the "Bonds"), to fund, among other things, a
grant (the "Grant") to [ ], a nonprofit
[ ] formed under the laws of the State of [Florida] (the "Non -Profit Lender"),
which in turn has agreed to make a forgivable loan (the `Von -Profit Loan") to [
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, a 1 (the "Lender"), which in turn has agreed to make a loan (the "Loan")
to the Owner, pursuant to a promissory note (the "Note") dated as of [ 1, 201], by and
between the Lender and the Owner, to finance the construction of the Project (as hereinafter
defined), all under and in accordance with the Constitution and laws of the State; and
WHEREAS, the Bond Resolution require, as a condition of making the Grant, the
execution and delivery of this Agreement; and
WHEREAS, in order to satisfy such requirement, the Issuer and the Owner have
determined to enter into this Agreement to set forth certain terms and conditions relating to the
operation of the Project, which is located on the real property described in Exhibit "A" hereto
(the "Land"); and
WHEREAS, this Agreement shall be properly filed and recorded by the Owner within
the official records of the County and shall constitute a covenant running with the land and a
restriction upon the use of the Land subject to and in accordance with the terms contained herein;
NOW THEREFORE, in consideration of providing the Grant to the Non -Profit Lender
by the Issuer, the Non -Profit Loan to the Lender by the Non -Profit Lender, and the Loan to the
Owner by the Lender, and acknowledging that compliance with this Agreement is necessary to
the accomplishment of the public purpose of the issuance of the Bonds and the making of the
Grant, and to the accomplishment of the Non -Profit Lender's exempt purpose through the
making of the Non -Profit Loan, the Owner covenants and agrees with the Issuer as follows:
Section 1. Definitions and Interpretation.
(a) The following terms shall have the respective meanings set forth below:
"Applicable Income Limit" means, with respect to Lower -Income Tenants, the applicable
income limit set forth in the definition of "Lower -Income Tenants" herein, and with respect to
Moderate -Income Tenants, the applicable income limit set forth in the defmition of "Moderate -
Income Tenants" herein.
"Available Units" means residential units in the Project that are actually occupied and
residential units in the Project that are unoccupied and have been leased at least once after
becoming available for occupancy, provided that a residential unit that is not available for
occupancy due to renovations is not an available unit and does not become an available unit until
it has been leased for the first time after the renovations are completed.
"Certificate of Continuing Program Compliance" means the certificate required to be
delivered by the Owner to the Issuer pursuant to Section 4(d) of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended. Any reference to a Code
section shall include any successor provision; provided that if the Internal Revenue Code is
amended to eliminate corresponding provisions in connection with low income housing tax
credits, then reference shall be to such provision of the Code immediately prior to such
amendment.
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"County" means Miami -Dade County, Florida.
"FHFC" means the Florida Housing Finance Corporation.
"HUD" means the United States Department of Housing and Urban Development or any
successor agency.
"Income Certification" means in a form acceptable to the Issuer (the Issuer agrees that a
tenant income certificate that is in a form acceptable to HUD or FHFC will be acceptable to the
Issuer).
"Lower -Income Tenants" means one or more natural persons or a family, whose income[,
determined in a manner consistent with Section 42(g)(1) of the Code,] does not exceed sixty
percent (60%) of the then current median family income for Miami -Dade County, Florida,
Standard Metropolitan Statistical Area, determined in a manner consistent with Section 42(g)(1)
of the Code, including adjustments for family size.
"Moderate -Income Tenants" means one or more natural persons or a family, whose
income[, determined in a manner consistent with Section 42(g)(1) of the Code,] does not exceed
one hundred twenty percent (120%) of the then current median family income for Miami -Dade
County, Florida, Standard Metropolitan Statistical Area, determined in a manner consistent with
Section 42(g)(1) of the Code, including adjustments for family size.
"Manager" means any agent hired by or on behalf of the Owner to operate and manage
the Project.
"Project" means the multifamily residential rental housing development known as The
Plaza at the Lyric, located on the Land and financed with proceeds of the Grant and the Loan,
excluding approximately 5,000 square feet of ground floor commercial space.
"Qualified Project Period" means the 30-year period beginning on the first day of the
calendar year following the year in which the Project is placed in service. The Owner is
authorized to use Exhibit "C" attached hereto to evidence the foregoing.
"State" means the State of Florida.
(b) Unless the context clearly requires otherwise, as used in this Agreement, words of
the masculine, feminine or neuter gender shall be construed to include any other gender when
appropriate and words of the singular number shall be construed to include the plural number,
and vice versa, when appropriate. This Agreement and all the terms and provisions hereof shall
be construed to effectuate the purposes set forth herein and to sustain the validity hereof.
(c) The titles and headings of the sections of this Agreement have been inserted for
convenience of reference only, and are not to be considered a part hereof and shall not in any
way modify or restrict any of the terms or provisions hereof or be considered or given any effect
in construing this Agreement or any provisions hereof or in ascertaining intent, if any question of
intent shall arise.
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Section 2. Residential Rental Property. The Owner hereby represents, covenants,
warrants and agrees that, during the term of this Agreement:
(a) The Owner will acquire, construct, own and operate the Project for the purpose of
providing a multifamily residential rental project, and the Project shall be continually owned,
managed and operated as multifamily residential rental properties.
(b) Each residential unit in the Project shall be contained in one or more buildings or
structures located on the Land and shall be similarly designed, appointed and constructed (except
as to number of bedrooms and bathrooms), each of which will contain complete facilities for
living, sleeping, eating, cooking and sanitation for an individual or a family, including a living
area, a sleeping area, bathing and sanitation facilities and cooking facilities equipped with a
cooking range, refrigerator and sink, all of which are separate and distinct from the other units.
(c) None of the units in the Project will at any time be (1) utilized on a transient basis,
(2) used as a hotel, motel, dormitory, fraternity or sorority house, rooming house, nursing home,
hospital, sanitarium, rest home, trailer court or park, or (3) rented for initial lease periods of less
than six months. No part of the Project will, at any time during the Qualified Project Period, be
owned or used by a cooperative housing corporation or converted to condominiums.
(d) All of the units (other than one unit for a resident manager or maintenance
personnel who either (i) qualifies as an eligible tenant under Section 3 hereof, or (ii) was a
resident of the Southeast Overtown/Park West Community Redevelopment for at least one year
immediately preceding occupancy of the unit) will be rented or available for rent on a continuous
basis to members of the general public, and the Owner will not give preference to any particular
class or group of persons in renting the units in the Project, except to the extent that units are
required to be leased or rented to Lower -Income Tenants or Moderate -Income Tenants. Lower -
Income Tenants will have equal access to and enjoyment of all common facilities of the Project.
The Owner will not discriminate against children of any age when renting the units in the
Project.
(e) The Owner shall not (i) demolish any part of the Project necessary for the
operation thereof for its intended purposes or substantially subtract from any real or personal
property of the Project; or (ii) permit the use of the dwelling accommodations of the Project for
any purpose except rental residences.
(f) The Owner shall maintain "all risk" property insurance on the Project at 100% of
replacement cost, with deductible amounts which are commercially reasonably, consistent with
other similar properties.
Section 3. Lower -Income Tenants and Moderate -Income Tenants. The Owner
hereby represents, warrants and covenants as follows:
(a) At all times during the term of this Agreement, one hundred percent (100%) of
the Available Units shall be occupied by Moderate -Income Tenants; however, notwithstanding
the language from the previous phrase in this section, during the first 15 years of the Qualified
Project Period, at least fifty percent (50%) of the Available Units shall be occupied by Lower -
Income Tenants. The Available Units occupied or held for occupancy by Lower -Income Tenants
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shall be generally distributed throughout the Project, and shall consist of approximately fifty
percent (50%) of the one -bedroom units, approximately fifty percent (50%) of the two -bedroom
units, and approximately fifty percent (50%) of the three -bedroom units.
(b) During the term of this Agreement, the monthly rent of the units occupied by
Lower -Income Tenants in the Project shall not exceed the amount permitted to qualify a unit as
"rent -restricted" under Section 42(g) of the Code.
For purposes of paragraph (a) of this Section 3 and Section 2(d), a unit occupied by an
individual or family who at the commencement of the occupancy of such unit is a Lower -Income
Tenant or a Moderate -Income Tenant shall be counted as occupied by a Lower -Income Tenant or
a Moderate -Income Tenant, as the case may be, during such individual's or family's tenancy in
such unit, even though such individual or family ceases to be a Lower -Income Tenant or a
Moderate -Income Tenant, as the case may be; however, any such unit shall cease to be treated as
occupied by a Lower -Income Tenant (but shall continue to be treated as occupied by a Moderate -
Income Tenant) upon a determination that the tenant's most recently reported income exceeds
140% of the Applicable Income Limit. In addition, a vacant unit that was occupied by a Lower -
Income Tenant or a Moderate -Income Tenant shall be counted as occupied by a Lower -Income
Tenant or a Moderate -Income Tenant, as the case may be, until it is reoccupied other than for a
temporary period of not more than thirty-one days, at which time the unit shall be considered to
be occupied by a Lower -Income Tenant or a Moderate -Income Tenant only if the individual or
family then occupying the unit satisfies the definition of a Lower -Income Tenant or a Moderate -
Income Tenant, as the case may be.
Section 4. Reporting Requirements. During the term of this Agreement:
(a) Income Certifications shall be obtained from each occupant (i) no less than one
day prior to the time of initial occupancy of the unit by such occupant, and (ii) no less frequently
than once each year thereafter.
(b) The Owner shall maintain on file at the Project copies of the Income
Certifications specified in Section 4(a) hereof for a period of time of six (6) years, and shall
provide copies thereof to the Owner promptly upon request.
(c) The Owner shall maintain at the Project complete and accurate records pertaining
to the incomes of (as of the date of initial occupancy of each tenant and not less than annually
thereafter) and rentals charged to Lower -Income Tenants and Moderate -Income Tenants residing
in the Project, and shall permit during normal business hours and upon five business days' notice
to the Owner, any duly authorized representative of the Issuer to inspect, at the Project, the books
and records of the Owner pertaining to the incomes of and rentals charged to all tenants residing
in the Project.
(d) The Owner shall prepare and submit to the Issuer at the beginning of the Qualified
Project Period, and on or before the tenth day of each January (and if the tenth of January falls on
a weekend or holiday, submission must be made the day before) thereafter, a Certificate of
Continuing Program Compliance in the form attached hereto as Exhibit "B," executed by the
Owner stating (i) the percentage of residential rental units that were occupied by Lower -Income
6
Tenants and the unit mix of rental units that were occupied by Lower -Income Tenants; (ii) the
percentage of residential rental units that were occupied by Moderate -Income Tenants and the
unit mix of rental units that were occupied by Moderate -Income Tenants; (iii) the percentage of
residential rental units that were vacant and (iv) that at all times during the previous year, all of
the residential rental units were occupied (or deemed occupied) by Lower -Income Tenants or
Moderate -Income Tenants (as determined in accordance with Section 3 of this Agreement) and
no default has occurred under this Agreement or, if the units failed to be so occupied, or such a
default has occurred, the nature of such failure or default and the steps, if any, the Owner has
taken or proposes to take to correct such failure or default. If any such report indicates that the
vacancy rate at the Project is 10%, or higher, the Issuer shall be permitted during normal business
hours and upon five business days' notice to the Owner, to inspect all or some of the vacant units
to determine to its reasonable satisfaction that such vacant units are ready and available for
rental.
(e) No later than one hundred twenty (120) days after the end of each year, the Owner
shall submit to the Issuer and the Lender a certification by an independent compliance agency
which is selected by the Owner and reasonably acceptable to the Issuer (the Issuer hereby
approves any independent compliance agency selected by the Owner which is then currently
engaged by FHFC as the independent compliance agency for the Project), evidencing
compliance or non-compliance with Section 3 hereof.
(f) In the event of that the Owner fails to submit to the Issuer the items which the
Owner is required to submit under paragraphs (d) and (e) above on or before the date required,
the Owner shall be liable for the payment to the Issuer of a late fee of $100.00 per day which
shall be payable within ten business days of written notification from the Issuer of the amount of
such late fee. The failure of the Owner to timely pay a late fee shall be an event of default by the
Owner under this Agreement.
(g) If the certificate prepared by the independent compliance agency in accordance
with Section 4(e) evidences that the Owner has failed to comply with the requirements of Section
3(a), then in such event, the Owner shall pay to the Issuer, as a penalty for non-compliance with
such requirements, the sum of (i) $1,000 for the initial unit which is not in compliance, (ii)
$2,500 for a second unit which is not in compliance, and (iii) $5,000 for each additional unit
which is not in compliance, all determined on an annual basis, based upon such certificate.
Amounts, if any, due from the Owner in accordance with this Section 4(g) shall be calculated
annually as of each January 1 and paid by the Owner within thirty (30) days of issuance of the
certificate in accordance with Section 4(e). The failure of the Owner to timely pay the amount
due under this Section 4(g) shall be an event of default by Owner under this Agreement.
Section 5. Indemnification. The Owner hereby covenants and agrees that it shall
indemnify and hold harmless the Issuer and its past, present and future officers, members,
governing body members, employees, agents and representatives (any or all of the foregoing
being hereinafter referred to as the "Indemnified Persons") from and against any and all losses,
costs, damages, expenses and liabilities of whatsoever nature or kind (including but not limited
to, reasonable attorneys' fees, litigation and court costs related to trial and appellate proceedings,
amounts paid in settlement and amounts paid to discharge judgments) directly or indirectly
resulting from, arising out of, the design, construction, installation, operation, use, occupancy,
7
maintenance or ownership of the Project other than for their own negligent, illegal or unlawful
acts or omissions. In the event that any action or proceeding is brought against any Indemnified
Person with respect to which indemnity may be sought hereunder, the Owner, upon timely
written notice from the Indemnified Person, shall assume the investigation and defense thereof,
including the employment of counsel and the payment of all expenses. The Indemnified Person
shall have the right to participate in the investigation and defense thereof and may employ
separate counsel either with the approval and consent of the Owner, which consent shall not be
unreasonably withheld, or in the event the Indemnified Person reasonably determines that a
conflict of interest exists between such Indemnified Person and the Owner in connection
therewith, and in either such event the Owner shall pay the reasonable fees and expenses of such
separate counsel.
Section 6. Fair Housing Laws. The Owner will comply with all applicable fair
housing laws, rules, regulations or orders applicable to the Project and shall not discriminate on
the basis of race, color, sex, religion, familial status, handicap/disability, or national origin in the
lease, use or occupancy of the Project or in connection with the employment or application for
employment of persons for the operation and management of the Project.
Section 7. Tenant Lists. All tenants lists, applications, and waiting lists (if any)
relating to the Project shall at all times be kept separate and identifiable from any other business
of the Owner which is unrelated to the Project, and shall be maintained, as required by the Issuer
from time to time, in a reasonable condition for proper audit and subject to examination during
business hours by representatives of the Issuer. Failure to keep such lists and applications or to
make them available to the Issuer will be a default hereunder.
Section 8. Tenant Lease Restrictions. All tenant leases shall contain clauses, among
others, wherein each individual lessee:
(a) Certifies the accuracy of the statements made in the Income Certification;
(b) Agrees that the family income, family composition and other eligibility
requirements shall be deemed substantial and material obligations of such lessee's tenancy; that
such lessee will comply promptly with all requests for information with respect thereto from the
Owner or the Issuer, and that such lessee's failure to provide accurate information in the Income
Certification or refusal to comply with a request for information with respect thereto shall be
deemed a violation of a substantial obligation of such lessee's tenancy; and
(c) Agrees not to sublease to any person or family who does not execute, and deliver
to the Owner or the Issuer, an Income Certification.
Section 9. Sale, Lease or Transfer of Project. The Owner shall not sell, assign,
convey or transfer any material portion of the Land, fixtures or improvements constituting a part
of the Project or any material portion of the personal property constituting a portion of the
Project during the term of this Agreement without the prior written consent of the Issuer, which
consent shall not be unreasonably withheld. If a material portion of the Project is sold during the
term hereof and such material portion of such Project consisted of personal property or
equipment, the proceeds from the sale thereof may be used by the Owner to purchase property of
8
similar function to be used in connection with the Project. If such material portion of such
Project consists of real property and improvements, the purchaser thereof must execute and
deliver to the Owner and the Issuer a document in form and substance reasonably satisfactory to
the Issuer pursuant to which such purchaser shall agree to operate such property in compliance
with the terms and conditions of this Agreement.
The Owner shall not sell or otherwise transfer the Project in whole without the prior
written consent of the Issuer (which shall respond within a reasonable period of time not
exceeding thirty days, and shall not unreasonably withhold such consent, provided (a) the Owner
is not in default hereunder, and (b) the purchaser or transferee executes any document reasonably
requested by the Issuer with respect to (i) assumption of the obligations of the Owner under this
Agreement, and (ii) compliance with the terms and conditions of this Agreement. It is hereby
expressly stipulated and agreed that any sale, transfer or other disposition of the Project in
violation of this Section shall be null, void and without effect, shall cause a reversion of title to
the Owner and shall be ineffective to relieve the Owner of its obligations under this Agreement.
In the event that the purchaser or transferee shall assume the obligations of the Owner under this
Agreement, the Owner shall be released from its obligations hereunder, other than its obligations
under Section 5 hereof arising prior to such date of assumption.
Notwithstanding anything in this Section 9 to the contrary, the restrictions set forth above
on the sale, transfer or other disposition or encumbrance of the Project or any portion thereof
shall not be applicable to any of the following: (i) leases of apartment units as contemplated by
this Agreement, (ii) grants of utility related easements and service or concession related leases or
easements, including, without limitation, coin -operated laundry service leases and/or television
cable easements on the Project, providing same are granted in connection with the operation of
the Project as contemplated by this Agreement, (iii) any sale or conveyance to a condemning
governmental authority as a direct result of the condemnation or a governmental taking or a
threat thereof, (iv) any transfer pursuant to or in lieu of a foreclosure or any exercise of remedies
(including, without limitation, foreclosure) under any mortgage on the Project; provided, that the
transferee acquires the Project subject to the terms of this Agreement, (v) any sale, transfer,
assignment, encumbrance or addition of general or limited partnership interests in the Owner;
(vi) the placing of a mortgage lien, assignment of leases and rents or security interests on or
pertaining to the Project if made expressly subject and subordinate to this Agreement; or (vii)
any change in allocations or preferred return of capital, depreciation or losses or any final
adjustment in capital accounts (all of which may be freely transferred or adjusted by Owner
pursuant to Owner's partnership agreement); or (viii) any title encumbrance existing at the time
the Issuer conveys the Land to the Owner. Any other transfer or lien granted by the Owner or its
transferees shall be and remain subject to the restrictions contained herein.
The Project name may not be changed after the bond sale is authorized by the Issuer,
unless the owner submits a written request clearly stating the proposed new name. The Issuer
shall act promptly upon any such requests that are received at least ten days before the next
meeting of the board of the Issuer.
Section 10. Covenants to Run with the Land. This Agreement and the covenants,
reservations and restrictions set forth herein shall be deemed covenants running with the Land
and, during the term of this Agreement, shall pass to and be binding upon the Owner's assigns
9
and successors and all subsequent owners of the Land and the Project or any interest therein;
provided, however, that upon the termination of this Agreement in accordance with the terms
hereof said covenants, reservations and restrictions shall expire. Each and every contract, deed
or other instrument hereafter executed covering or conveying the Land and the Project or any
portion thereof or interest therein shall conclusively be held to have been executed, delivered and
accepted subject to such covenants, reservations and restrictions, regardless of whether such
covenants, reservations and restrictions are set forth in such contract, deed or other instruments.
If a portion or portions of the Land or the Project are conveyed, all of such covenants,
reservations and restrictions shall run to each portion of the Land or the Project.
Section 11. Term. This Agreement shall remain in full force and effect during the
Qualified Project Period.
Section 12. Burden and Benefit. The Issuer and the Owner hereby declare their
understanding and intent that the burden of the covenants set forth herein touch and concern the
Land in that the Owner's legal interest in the Land and the Project is rendered less valuable
thereby. The Issuer and the Owner hereby further declare their understanding and intent that the
benefit of such covenants touch and concern the Land by enhancing and increasing the
enjoyment and use of the Land and the Project by Lower -Income Tenants and Moderate -Income
Tenants, the intended beneficiaries of such covenants, reservations and restrictions, and by
furthering the public purposes for which the Bonds were issued. The Owner hereby expressly
acknowledges that this Agreement is necessary to accomplishment of the Issuer's public purpose
of the issuance of the Bonds and the making of the Grant, and covenants and agrees that in
connection with the construction, ownership and operation of the Project, it shall and shall
require any subsequent purchaser of the Project to fully comply with all terms and conditions of
this Agreement.
Section 13. Application of Insurance and Condemnation Proceeds. If during the
Qualified Project Period the Project is damaged or destroyed or if all or a portion thereof is taken
through eminent domain proceedings, or under threat thereof, proceeds from insurance on the
Project or any condemnation awards pertaining to such eminent domain proceedings shall be
applied solely to the repair, reconstruction or replacement of the Project, except that any excess
proceeds available after the Project has been restored may be utilized by the Owner for other
purposes.
Section 14. Correction for Non -Compliance.
(a) The failure of the Owner to comply with the terms of Section 2(a), 2(b), 2(c), 2(d)
and 2(e), Section 5, Section 6, Section 7, Section 8, and Section 13 shall not be deemed a default
hereunder unless such failure is not cured within thirty (30) days following the date the Owner
learns of such failure or should have learned of such failure by the exercise of reasonable
diligence.
(b) The failure of Owner to maintain the insurance required by Section 2(f) shall be
an event default by Owner under this Agreement and no cure period shall apply.
10
(c) The failure of the Owner to comply with the terms of Section 3 shall not be
deemed a default hereunder if Owner makes the payment required by Section 4(g) on or before
the date required. The failure to make such payment on or before the date due shall be deemed
an event of default by Owner under this Agreement for which not grace period shall apply.
(d) The failure of Owner to comply with the terms of Section 3(d) and Section 3(e)
shall not be deemed a default hereunder if Owner makes the payments required by Section 4(f)
on or before the date due. The failure of the Owner to make such payments on or before the date
due shall be an event of default by Owner under this Agreement for which not grace period shall
apply.
Section 15. Remedies; Enforceability. The benefits of this Agreement shall inure to,
and may be enforced by, the Issuer and its successors and, solely as to Sections 2, 3, 6 and 10
hereof, the Lower -Income Tenants and Moderate Income Tenants and their successors who shall
reside or be eligible to reside in the units set aside for their occupancy pursuant to Section 3 of
this Agreement. If a material violation of any of the provisions hereof occurs, such parties may
institute and prosecute any proceeding at law or in equity to abate, prevent or enjoin any such
violation or attempted violation; and to compel specific performance hereunder, it being
recognized that the beneficiaries of the Owner's obligations hereunder c nnot be adequately
compensated by monetary damages in the event of the Owner's default. In addition to such other
remedies as may be provided for herein, if a violation of any of the provisions hereof occurs or is
attempted, and is caused by Manager's act or omission within Manager's control and authority,
the Issuer shall have the right (but not the obligation) and is specifically authorized by the Owner
hereunder (but only in the event the default is caused by the Manager's act or omission and only
after the Manager is given 30 days' prior notice and right to cure), to appoint a new Manager to
operate the Project in accordance with this Agreement and take all actions reasonably necessary,
in the reasonable judgment of the Issuer, to cure any default by the Owner hereunder, and such
new Manager assuming such management hereunder shall be paid by or on behalf of the Owner,
from the rents, revenues, profits and income from the Project, a management fee not to exceed
the prevailing management fee paid to managers of similar housing projects in the County. No
delay in enforcing the provisions hereof as to any breach or violation shall impair, damage or
waive the right of any party entitled to enforce the provisions hereof or to obtain relief against or
recover for the continuation or repetition of such breach or violation or any similar breach or
violation hereof at any later time or times. The remedies of Lower -Income Tenants and
Moderate -Income Tenants shall be limited to specific performance.
Section 16. Filing. Upon execution and delivery by the parties hereto, the Owner shall
cause this Agreement and all amendments and supplements hereto to be recorded and filed in the
official public records of the County, and in such manner and in such other places as the Issuer
may reasonably request, and shall pay all fees and charges incurred in connection therewith. If
the Owner has failed to make any such filing, the Issuer may cause such document(s) to be filed.
State.
Section 17. Governing Law. This Agreement shall be governed by the laws of the
11
Section 18. Assignment. The Owner shall not assign its interest hereunder, except by
writing and in connection with an assignment of the Project in accordance with the provisions of
Section 9 hereof.
Section 19. Amendments. This Agreement shall not be amended, revised, or
terminated except by a written instrument, executed by the parties hereto (or their successors in
title), and duly recorded in the official public records for the County.
Section 20. Notice. Any notice required to be given hereunder shall be given by
certified or registered mail, postage prepaid, return receipt requested, to the Issuer and the Owner
at their respective addresses set forth in the first paragraph hereof, or at such other addresses as
may be specified in writing by the parties hereto.
Notice shall be deemed given on the third business day after the date of mailing.
Section 21. Severability. If any provision hereof shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not
in any way be affected or impaired thereby.
Section 22. Multiple Counterparts. This Agreement may be simultaneously executed
in multiple counterparts, all of which shall constitute one and the same instrument, and each of
which shall be deemed to be an original.
[Remainder of page intentionally left blank]
12
IN WITNESS WHEREOF, the Issuer and the Owner have executed this Agreement by
duly authorized representatives, all as of the closing date.
(SEAL)
ATTEST:
By:
SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
By:
Clerk of the Board
Approved for form and legal sufficiency:
By:
Special Counsel
LYRIC HOUSING, LTD., a Florida limited
partnership
By: Lyric GP LLC, a Florida limited liability
company, as its general partner
By: The Gatehouse Group, Inc., a
Massachusetts corporation, its
manager
By:
Name:
Title:
RESTRICTIVE COVENANT AGREEMENT
SIGNATURE PAGE
STATE OF FLORIDA
)SS:
COUNTY OF MIAMI-DADE
I, , a Notary Public in and for the said County in the State
aforesaid, do hereby certify that and , known
to me to be the same persons whose names are subscribed to the foregoing instrument as
and , respectively, of the Southeast Overtown/Park West Community
Redevelopment Agency, appeared before me this day in person and acknowledged that they,
being thereunto duly authorized, signed, sealed with the seal of said Agency, and delivered the
said instrument as the free and voluntary act of said Agency and as their own free and voluntary
act, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this day of , 2012
NOTARY PUBLIC, STATE OF FLORIDA
(SEAL)
Personally known to me, or
Produced identification:
(Type of Identification Produced)
RESTRICTIVE COVENANT AGREEMENT
SIGNATURE PAGE
STATE OF FLORIDA
)SS:
COUNTY OF MIAMI-DADE
I, , a Notary Public in and for the said County
in the State aforesaid, do hereby certify that , known to me to be the
of The Gatehouse Group, Inc., the manager of Lyric GP LLC,
general partner of Lyric Housing, Ltd., a Florida limited partnership (the "Owner"), appeared
before me this day in person and acknowledged that [s]he, being thereunto duly authorized,
signed and delivered the said instrument as the free and voluntary act of said corporation, said
limited liability company, and the Owner and as his or her own free and voluntary acts, for the
uses and purposes therein set forth.
GIVEN under my hand and notarial seal this
day of , 2012
NOTARY PUBLIC, STATE OF FLORIDA
(SEAL)
Personally known to me, or
Produced identification:
(Type of Identification Produced)
RESTRICTIVE COVENANT AGREEMENT
SIGNATURE PAGE
EXHIBIT A
LEGAL DESCRIPTION OF REAL ESTATE
[To be provided]
EXHIBIT B
FORM OF CERTIFICATION OF CONTINUING PROGRAM COMPLIANCE
Witnesseth that on this day of , 20, the undersigned
(the "Owner"), having borrowed certain funds from , which in turn
borrowed certain funds from , which in turn obtained such funds
through a grant from Southeast Overtown/Park West Community Redevelopment Agency for the
purpose of acquiring or constructing Apartments, does hereby certify that such multi -family
rental housing project is in continuing compliance with the Restrictive Covenant Agreement
executed by the undersigned and filed in the official public records of Miami -Dade County,
Florida (including the requirement that all units be and remain rental units), that an Income
Certification has been obtained for each new tenant in such multi -family rental housing project
and that the same are true and correct to the best of the undersigned's knowledge and belief. At
all times during the previous year, 100% of the residential units were occupied (or deemed
occupied) by either Lower -Income or Moderate -Income Tenants and at all times during the
previous year [[if such year was during the first fifteen (15) years of the Qualified Project
Period]], at least 50% of the residential units were occupied (or deemed occupied) by Lower -
Income Tenants. No default has occurred under the Restrictive Covenant Agreement, or, if a
default has occurred, the nature of the default and the steps, if any, Owner has taken or proposes
to take to correct such default are outlined on the Schedule attached hereto. As of the date of this
Certificate, the following percentages of completed residential units in the Project are occupied
by Lower -Income Tenants, occupied by Moderate -Income Tenants or vacant:
Total number of units available for
occupancy as of , 20
Lower -Income Tenants
Moderate -Income Tenants
Vacant Units
Percentage Number
Total Number of 1-Bedroom Number of Occupied Units by % of 1-Bedroom Units
Units Lower -Income Tenants Occupied by Lower -Income
Tenants
(A) (B) (B/A)
Total Number of 2-Bedroom Number of Occupied Units by % of 2-Bedroom Units
Units Lower -Income Tenants Occupied by Lower -Income
Tenants
(A) (B) (B/A)
Total Number of 3-Bedroom Number of Occupied Units by % of 3-Bedroom Units
Units Lower -Income Tenants Occupied by Lower -Income
Tenants
(A) (B) (B/A)
Total Number of 1-Bedroom Number of Occupied Units by % of 1-Bedroom Units
Units Moderate -Income Tenants Occupied by Moderate -
Income Tenants
(A) (B) (B/A)
Total Number of 2-Bedroom Number of Occupied Units by % of 2-Bedroom Units
Units Moderate -Income Tenants Occupied by Moderate -
Income Tenants
(A) (B) (B/A)
Total Number of 3-Bedroom Number of Occupied Units by % of 3-Bedroom Units
Units Moderate -Income Tenants Occupied by Moderate -
Income Tenants
(A) (B) (B/A)
Authorized Representative for
EXHIBIT C
FORM OF CERTIFICATE CONCERNING COMMENCEMENT
AND TERMINATION OF QUALIFIED PROJECT PERIOD
THIS CERTIFICATE is being executed pursuant to the provisions of the Restrictive
Covenant Agreement, dated as of 1, 201_, (the "Agreement), between Southeast
Overtown/Park West Community Redevelopment Agency (the "Issuer"), and Lyric Housing,
Ltd., a Florida limited partnership (the "Owner") in connection with the fmancing of The Plaza
at the Lyric (the "Project") in the County located on real property described on Exhibit "A"
hereto, through the issuance of the Issuer's [$_,000,000] Tax Increment Revenue Bonds, Series
2011-] (the "Bonds").
The period for which the restrictions set forth in the Agreement are applicable to the
Project is referred to as the "Qualified Project Period" and is defined in the Agreement as
follows:
"Qualified Project Period" means the 30-year period beginning on the first day of the
calendar year following the year in which the Project is placed in service.
To evidence the Qualified Project Period with respect to the Project, the Owner certifies
that of the calendar year in which the Project is placed in service was
Prior to the recording of this Certificate in the official records of the County, the Owner
has supplied the Issuer with documentation to establish the facts relating to the Project set forth
in this Certificate, which documentation has been found satisfactory to all parties. Nothing in this
Certificate is intended to modify the requirement of the Agreement that all units in the Project be
rented as residential rental property or any other provision of the Agreement.
IN WITNESS WHEREOF, the Owner has caused this Certificate to be executed by its
duly authorized representative as of this day of , 20_.
STATE OF FLORIDA
)SS:
COUNTY OF MIAMI-DADE
LYRIC HOUSING, LTD., a Florida limited
partnership
By: Lyric GP LLC, a Florida limited liability
company, as its general partner
By: The Gatehouse Group, Inc., a
Massachusetts corporation, its
manager
By:
Name:
Title:
I, , a Notary Public in and for the said County in the State aforesaid,
do hereby certify that , known to me to be of The Gatehouse Group, Inc.,
the manager of Lyric GP LLC, general partner of Lyric Housing, Ltd., a Florida limited
partnership (the "Owner"), appeared before me this day in person and acknowledged that [s]he,
being thereunto duly authorized, signed and delivered the said instrument as the free and
voluntary act of said corporation, said limited liability company, and the Owner and as his or her
own free and voluntary acts, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this day of , 20_.
NOTARY PUBLIC, STATE OF FLORIDA
(SEAL)
Personally known to me, or
Produced identification:
(Type of Identification Produced)
EXHIBIT A
to
Certificate Concerning Commencement
and Termination of Qualified Project Period
REAL PROPERTY DESCRIPTION
#11915688_v2
Exhibit J
Non -Profit Grant Agreement
NON-PROFIT GRANT AGREEMENT
THIS NON-PROFIT GRANT AGREEMENT (the "Agreement") is made of the
day of , 2013, by and between South Florida Community Development
Coalition, Inc., a not for profit Florida corporation (the "NON-PROFIT") and the Southeast
Overtown/Park West Community Redevelopment Agency, a public agency and body corporate
created pursuant to Section 163.356, Florida Statutes (the "CRA").
RECITALS
A. The CRA has entered into a development agreement dated as of December 17,
2012 (the "Development Agreement"), by and between the CRA and Lyric Development, LLC, a
Florida limited liability company (the "Developer"), with respect to the development of a project
consisting of between 90 and 100 affordable rental units as more particularly described in the
Development Agreement.
B. Pursuant to the terms of the Development Agreement, the CRA has agreed to
make a grant in an amount of up to Ten Million and No/100 Dollars ($10,000,000.00) (the "CRA
Contribution") to the NON-PROFIT which CRA Contribution will be loaned by the NON-
PROFIT to the GGI (or the Controlled Entity) which will loan the funds to the Developer
pursuant to the terms of the Development Agreement and this Agreement.
C. The NON-PROFIT and the CRA desire to enter into this Agreement to set forth
the terms and provisions pursuant to which the CRA will make the CRA Contribution to the
NON-PROFIT and the NON-PROFIT will loan the CRA Contribution to the GGI (or the
Controlled Entity) which will loan the funds to the Developer.
NOW THEREFORE, for and in consideration of $10.00 and other good and valuable
consideration and the covenants and agreements hereinafter set forth, the parties agree as
follows:
1. RECITALS. The Recitals to this Agreement are true and correct and are
incorporated herein by reference and made a part hereof.
2. DEFINED TERMS. All defined terms utilized in this Agreement but not defined
in this Agreement shall have the meaning ascribed to said terms in the Development Agreement.
3. GRANT. Subject to the satisfaction of the Conditions Precedent, as hereinafter
defined, the CRA agrees to make the CRA Contribution to the NON-PROFIT, subject to
adjustment in accordance with the terms of Section 7.8 of the Development Agreement.
4. USE OF CRA CONTRIBUTION. NON-PROFIT covenants and agrees to use the
CRA Contribution solely for the purpose of loaning the CRA Contribution to the GGI (or the
Controlled Entity) in accordance with the terms and provisions of the Non -Profit Loan
Documents and the Development Agreement. The NON-PROFIT covenants and agrees to enter
into the Phase I Funding Agreement contemplated by the Development Agreement. The NON-
PROFIT acknowledges and agrees that the CRA will fund the CRA Contribution to the NON-
2
PROFIT in accordance with the terms of the Phase I Funding Agreement. The NON-PROFIT
covenants and agrees to not unreasonably withhold its consent to the terms and provisions of the
Phase I Funding Agreement.
5. TERMS OF LOAN TO THE DEVELOPER. The NON-PROFIT covenants and
agrees to loan to the GGI (or the Controlled Entity) the CRA Contribution (the "Non -Profit
Loan") in accordance with the terms and provisions of the loan documents substantially in the
form of Exhibit "A" attached hereto and made a part hereof (the "Non -Profit Loan Documents").
The GGI (or the Controlled Entity) will loan the proceeds of the Non -Profit Loan to the
Developer (the "GP Loan") in accordance with the terms and provisions of the loan documents
substantially in the form of Exhibit "B" attached hereto and made a part hereof (the "GP Loan
Documents").
6. REPAYMENT OF THE LOAN. In the event the GGI (or the Controlled Entity)
repays all or any portion of the Non -Profit Loan to the NON-PROFIT, the NON-PROFIT
covenants and agrees to repay said amount to the CRA within ten (10) days of the receipt of the
funds from the GGI (or the Controlled Entity).
7. CONDITIONS PRECEDENT. The obligations of the CRA to make the CRA
Contribution to the NON-PROFIT is subject to the satisfaction or waiver of the following
conditions precedent (the "Conditions Precedent"):
a. All of the CRA Conditions Precedent set forth in Section 13 of the
Development Agreement have either been satisfied or waived by the CRA.
b. The closing of the transaction for Phase I contemplated by the
Development Agreement shall be consummated simultaneously with the
funding of the CRA Contribution.
c. The NON-PROFIT has executed the Phase I Funding Agreement.
d. The GGI (or the Controlled Entity) and the NON-PROFIT have executed
the Non -Profit Loan Documents in substantially the form attached hereto.
e. The GGI (or the Controlled Entity) and the Developer have executed the
GP Loan Documents substantially in the form attached hereto.
In the event the Conditions Precedent are not satisfied or waived by the CRA on or before
the Phase I Closing Date, the CRA may either (i) terminate this Agreement, in which event the
parties shall be released from all further obligations under this Agreement, or (ii) waive the
conditions and proceed in accordance with this Agreement.
8. FUNDING OF THE CRA CONTRIBUTION. The CRA covenants and agrees to
fund the CRA Contribution to the NON-PROFIT simultaneously with the closing of the
transaction for Phase I contemplated by the Development Agreement providing all the
Conditions Precedent have been satisfied.
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9. REPRESENTATIONS OF THE CRA. The CRA makes the following
representations:
a. The CRA is duly organized and validly existing under the laws of the
State of Florida and has full power and capacity to own its properties, to
carry out its business as presently conducted by the CRA and perform its
obligations under this Agreement.
b. The CRA's execution, delivery and performance of this Agreement have
been duly authorized by all necessary legal actions and does not and shall
not conflict with or constitute a default under any indenture, agreement or
instrument to which the CRA is a party or by which the CRA or the CRA's
properties may be bound or affected.
c. This Agreement constitutes the valid and binding obligation of the CRA
enforceable against the CRA in accordance with its terms, subject to
bankruptcy, insolvency and other similar laws affecting the rights of
creditors generally.
10. REPRESENTATIONS OF THE NON-PROFIT. The NON-PROFIT makes the
following representations:
a. The NON-PROFIT is a corporation duly organized and validly existing
under the laws of the State of Florida and has full power and capacity to
carry out its businesses as currently conducted and to enter into the
transactions contemplated by this Agreement and the Funding Agreement.
b. The execution, delivery and performance of this Agreement have been
duly authorized by all necessary corporate actions and does not and shall
not conflict with or constitute a default under any indenture, agreement or
instrument to which it is a party or by which it may be bound or affected.
c. The NON-PROFIT (i) is an organization described in Section 501(c)(3) of
the Code, (ii) has received a letter or other notification from the Internal
Revenue Service to that effect and such letter or other notification has not
been modified, limited or revoked, (iii) is in compliance with all terms,
conditions and limitations, if any, contained in such letter or other
notification, it being expressly represented that the facts and circumstances
which form the basis of such letter or other notification as represented to
the Internal Revenue Service continue to exist, (iv) is exempt from federal
income taxes under Section 501(a) of the Code and (v) is not controlled in
any way by the Developer, the CRA, the City of Miami, Florida or Miami -
Dade County, Florida, or the State of Florida within the meaning of
Treasury Regulation § 1.150-1(b).
d. The NON-PROFIT has all requisite power and authority necessary to own,
lease and operate its properties, to carry on its activities as now conducted
and as presently proposed to be conducted and is, or will be, duly
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authorized to operate the loan the proceeds, under the laws, rulings,
regulations and ordinances of the State of Florida and the departments,
agencies and political subdivisions thereof.
e. Neither the execution and delivery of this Agreement or the Funding
Agreement and the other documents contemplated thereby to which the
NON-PROFIT is a party or the consummation of the transactions
contemplated thereby nor the fulfillment of or compliance with the
provisions of any of the other documents contemplated thereby, will
conflict with or result in a breach of or constitute a default by the NON-
PROFIT under any applicable law or ordinance of the State of Florida or
any applicable political subdivision thereof or of the NON-PROFIT's
articles of incorporation or bylaws, or any corporate restriction or any
agreement or instrument to which the NON-PROFIT is a party or by
which it is bound, or result in the creation or imposition of any lien of any
nature upon any of the property of the NON-PROFIT under the terms of
any such law, ordinance, articles of incorporation or bylaws, restriction,
agreement or instrument except as permitted by this Agreement and the
Funding Agreement.
f. The NON-PROFIT covenants that it (i) shall not perform any act or enter
into any agreement which would adversely affect its federal income tax
status and shall conduct its operations in the manner which conforms to
the standards necessary to qualify the NON-PROFIT as a charitable
organization within the meaning of Section 501(c)(3) of the Code or any
successor provisions of federal income tax law.
g.
The NON-PROFIT does not anticipate or have any intention or obligation
to make any repayments to the CRA for repayment of the CRA
Contribution except as provided in this Agreement.
h. Proceeds of the CRA Contribution will not be used to pay fees and
expenses of the NON-PROFIT.
This Agreement constitutes the valid and binding obligation of the NON-
PROFIT enforceable against the NON-PROFIT in accordance with its
terms, subject to bankruptcy, insolvency and other similar laws affecting
the rights of creditors generally.
11. SURVIVAL OF REPRESENTATIONS. All the representations of the CRA and
the NON-PROFIT contained in this Agreement shall be trued and correct on the execution of this
Agreement and shall be deemed to be repeated on the Closing Date and shall be true and correct
on the Closing Date. All the representations and warranties contained in this Agreement shall
survive -the Closing.
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12. ASSIGNABILITY. The rights and obligations under this Agreement may not be
assigned by the NON-PROFIT without prior written approval of the CRA, which may be granted
or withheld in the sole discretion of the CRA.
13. NOTICES. Any notices required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been given if delivered by hand, sent by
recognized overnight courier (such as Federal Express), sent by fax and another method provided
herein or mailed by certified or registered mail, return receipt requested, in a postage prepaid
envelope, and addressed as follows:
If to NON-PROFIT:
South Florida Community Development Coalition, Inc.
300 NW 12th Avenue
Miami, FL 33128
Attention: Arden Shank
Fax: 305-
With a copy to:
John Little, Esq.
Legal Services of Greater Miami, Inc.
3000 Biscayne Blvd., Suite 500
Miami, FL 33137
Fax: 305-576-5112
If to CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
Attention: Clarence E. Woods, III, Executive Director
1490 NW Third Avenue
Suite 105
Miami, FL 33136
Fax: 305-679-6836
With a copy to:
William R. Bloom, Esq.
Holland & Knight, LLP
Suite 3000
701 Brickell Avenue
Miami, FL 33131
Fax: 305-789-7799
And with a copy to:
6
Staff Counsel
Southeast Overtown/Park West
Community Redevelopment Agency
1490 NW Third Avenue
Suite 105
Miami, FL 33136
Fax: 305-679-6836
Notices personally delivered or sent by fax shall be deemed given on the date of delivery
and notices mailed in accordance with the foregoing shall be deemed given upon receipt or the
date delivery is refused.
14. MISCELLAENOUS.
a. This Agreement shall be construed and governed in accordance with the
laws of the State of Florida. Venue shall be in Miami -Dade County,
Florida. All of the parties to this Agreement have participated fully in the
negotiation and preparation hereof, and, accordingly, this Agreement shall
not be more strictly construed against any one of the parties hereto.
b. In the event any term or provision of this Agreement is determined by
appropriate judicial authority to be illegal or otherwise invalid, such
provision shall be given its nearest legal meaning or be construed as
deleted as such authority determines, and the remainder of this Agreement
shall be construed to be in full force and effect.
c. In the event of any litigation between the parties under this Agreement, the
prevailing party shall be entitled to reasonable attomey's fees and court
costs at all trial and appellate levels.
d. In construing this Agreement, the singular shall be held to include the
plural, the plural shall be held to include the singular, the use of any
gender shall be held to include every other and all genders, and captions
and Paragraph headings shall be disregarded.
e. All of the exhibits attached to this Agreement are incorporated in, and
made a part of, this Agreement.
f. Time shall be of the essence for each and every provision of this
Agreement.
g. This Agreement may not be recorded in the Public Records of Miami -
Dade County.
h. The "Effective Date" shall mean the date this Agreement is last executed
by NON-PROFIT and the CRA.
7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
and year first above written.
CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
By:
Clarence E. Woods, III, Executive Director
ATTEST:
Clerk of the Board
Approved for legal sufficiency
By:
William R. Bloom, Esq.
Holland & Knight LLP,
Special Counsel to CRA
NON-PROFIT:
South Florida Community Development Coalition, Inc.
By:
Name:
Title:
8
EXHIBIT "A"
9
EXHIBIT "B"
10
#12131905_vl
Exhibit C
Non -Profit Loan Documents
1
THIS INSTRUMENT WAS PREPARED BY,
RECORD AND RETURN TO:
Terry M. Lovell, Esq.
Stearns Weaver Miller, et al.
150 West Flagler Street, Suite 2200
Miami, Florida 33130
MORTGAGE AND SECURITY AGREEMENT
AND ASSIGNMENT OF LEASES
THIS MORTGAGE AND SECURITY AGREEMENT AND ASSIGNMENT OF
LEASES (the "Mortgage"), dated as of the th day of , 2013, by LYRIC
HOUSING, LTD., a Florida limited partnership, with an address of 120 Forbes Boulevard, Suite
180, Mansfield, MA 02048 ("Mortgagor"), in favor of
a , with an address of 120 Forbes Boulevard, Suite 180, Mansfield, MA
02048 ("Mortgagee").
WITNESSETH
That for good and valuable consideration, and to secure the payment of the Promissory
Note executed by the Mortgagor in favor of the Mortgagee in the original principal amount of
TEN MILLION DOLLARS and NO/100 (U.S. $10,000,000), as the same may be renewed,
extended or amended, from time to time, (referred to as the "Note" or the "Promissory Note"),
the final payment of which is due on or before the due date provided in the Promissory Note and
to secure any other indebtedness owed by Mortgagor to Mortgagee, now or hereafter arising
under the terms of this Mortgage or in any other instrument constituting additional security for
the Note, and all other sums of money secured as provided under this Mortgage, the Mortgagor
does grant, bargain, sell, remise, release, and convey unto the Mortgagee, its successors and
assigns, the real estate described in Exhibit A, which is attached and made a part of this
Mortgage, which, together with the property hereinafter described, is referred to herein as the
"Property";
TOGETHER WITH:
(a) All buildings and improvements, now or hereafter located on the Property, all
privileges and other rights now or hereafter made appurtenant thereto, including, without
limitation, all right, title and interest of Mortgagor in and to all streets, roads and public places,
opened or proposed, and all easements and rights -of -way, public or private, now or hereafter
used in connection with the Property; and
(b) All fixtures, fittings, furnishings, appliances, apparatus, goods, equipment, and
machinery, and all building material, supplies and equipment now or hereafter delivered to the
Property and installed or used in the Property, all other fixtures and personal property of
whatever kind and nature owned by the Mortgagor on the date of this Mortgage contained in or
hereafter placed in any building standing on the Property; such other goods, equipment, chattels
and personal property as are usually furnished by landlords in letting premises of the character
hereby conveyed, and all renewals or replacements thereof or articles in substitution thereof, all
2
of the estate, right, title and interest of the Mortgagor in and to all property of any nature
whatsoever, now or hereafter situated on the Premises or intended to be used in connection with
the operation thereof, all of which shall be deemed to be fixtures and accessions to the freehold
and a part of the realty as between the parties hereto, and all persons claiming by, through or
under them, and shall be deemed to be a portion of the security for the indebtedness herein
mentioned and secured by the Mortgage. If the lien of this Mortgage on any fixtures or personal
property is or becomes subject to a lease agreement, conditional sale agreement or chattel
mortgage of the Mortgagor, any and all deposits made thereof or therefor are hereby assigned to
the Mortgagee, together with the benefit of any payments now or hereafter made thereon. There
is also transferred, set over, and assigned hereby Mortgage to Mortgagee, its successors and
assigns, all leases and use agreements of machinery, equipment and other personal property of
Mortgagor in the categories hereinabove set forth, under which Mortgagor is the lessee of, or
entitled to use, such items, and Mortgagor agrees to execute and deliver to Mortgagee specific
separate assignments to Mortgagee of such leases and agreements when requested by Mortgagee,
but nothing herein constitutes Mortgagee's consent to any financing of any fixture or personal
property, and nothing herein shall obligate Mortgagee to perform any obligations of Mortgagor
under any such leases or agreements unless it so chooses, which obligations Mortgagor hereby
covenants and agrees to well and punctually perform. The items set forth in this paragraph (b)
are sometimes hereinafter separately referred to as "Collateral"; and
(c) All rents, royalties, issues, profits, revenue, income and other benefits from the
property described in paragraph (a) and (b) hereof to be applied against the indebtedness and
other sums secured hereby, provided, however, that permission is hereby given to Mortgagor so
long as no default has occurred hereunder, to collect, receive, take, use and enjoy such rents,
royalties, issues, profits, revenue, income and other benefits as they become due and payable, but
not in advance thereof. The foregoing assignment shall be fully operative without any further
action on the part of either party and specifically Mortgagee shall be entitled, at its option upon
the occurrence of a default hereunder, to all rents, royalties, issues, profits, revenue, income and
other benefits from the property described in paragraphs (a) and (b) hereof whether or not
Mortgagee takes possession of such property. Upon any such default hereunder, the permission
hereby given to Mortgagor to collect such rents, royalties, issues, profits, revenue, income and
other benefits from the property described in paragraphs (a) and (b) hereof shall terminate and
such permission shall be reinstated upon a cure of the default upon Mortgagee's specific
consent. Neither the exercise of any rights under this paragraph by Mortgagee nor the
application of any such rents, royalties, issues, profits, revenue, income or other benefits to the
indebtedness and other sums secured hereby, shall cure or waive any default or notice of default
hereunder or invalidate any act done pursuant hereto or to any such notice, but shall be
cumulative of all other rights and remedies.
(d) All right, title and interest of Mortgagor in and to all leases now or hereafter on or
affecting the property described in paragraphs (a) and (b) hereof, together with all security
therefor and all monies payable thereunder, subject, however, to the conditional permission
hereinabove given to Mortgagor to collect the rentals under any such lease. The foregoing
assignment of any lease shall not be deemed to impose upon Mortgagee any of the obligations or
duties of Mortgagor provided in any such lease, and, Mortgagor agrees to fully perform all
obligations of the lessor under all such leases. Upon Mortgagee's request, Mortgagor agrees to
send to Mortgagee a list of all leases covered by the foregoing assignment and as any such lease
3
shall expire or terminate or as any new lease shall be made, Mortgagor shall so notify Mortgagee
in order that at all times Mortgagee shall have a current list of all leases affecting the property
described in paragraphs (a) and (b) hereof. Mortgagee shall have the right, at any time and from
time to time, to notify any lessee of the rights of Mortgagee as provided by this paragraph. From
time to time, upon request of Mortgagee, Mortgagor shall specifically assign to Mortgagee as
additional security hereunder, by an instrument in writing in such form as may be approved by
Mortgagee, all right, title and interest of Mortgagor in and to any and all leases now or hereafter
on or affecting the Premises, together with all security therefor and all monies payable
hereunder, subject to the conditional permission hereinabove given to Mortgagor to collect the
rentals under any such lease. Mortgagor shall execute and deliver to Mortgagee any notification,
financing statement or other document reasonably required by Mortgagee to perfect the
foregoing assignment as to any such lease.
(e) To the extent of the indebtedness secured herein, all judgments, awards of
damages and settlements hereafter made as a result of or in lieu of any taking of the Property or
any part thereof or interest therein under the power of eminent domain, or for any damage
(whether caused by such taking or otherwise) to the Property or the improvements thereon or any
part thereof or interest therein, including any award for change of grade of streets.
(f) To the extent of the indebtedness secured herein, all insurance policies covering
all or any portion of the Property and all blueprints, plans, maps, documents, books and records
relating to the Property.
(g) To the extent of the indebtedness secured herein, all proceeds of the conversion,
voluntary or involuntary, of any of the foregoing into cash or liquidated claims.
TO HAVE AND TO HOLD the above granted Property, with all the privileges and
appurtenances to the same belonging to the said Mortgagee, its successors and assigns, to its and
their use and behoof forever.
PROVIDED, HOWEVER, that if the Mortgagor shall pay or cause to be paid to the
Holder of the Note the principal due under the Note, at the time and in the manner stipulated
therein, and shall pay or cause to be paid all other sums payable hereunder and all indebtedness
hereby secured, then, in such case, the estate, right, title and interest of the Mortgagee in the
Property shall cease, determine and become void and the Mortgagee shall, cancel, release and
discharge this Mortgage.
ARTICLE ONE
Mortgagor's Covenants
Mortgagor covenants and agrees with Mortgagee that:
1.1 Title.
a. The Mortgagor warrants that: it has good and marketable title to an
indefeasible fee simple estate in the Property, subject to no liens, charges or encumbrances other
than the lien of this Mortgage, any encumbrances existing and recorded in the public record prior
to or in connection with the recording of this Mortgage (collectively, the "Permitted
4
Encumbrances"); that it has good right and lawful authority to mortgage the Property in the
manner and form herein provided; that Mortgagor has full power and authority to mortgage the
Property in the manner and form herein done or intended hereafter to be done; that this Mortgage
is and shall remain a valid and enforceable lien on the Property, subject only to the Permitted
Encumbrances which constitute senior mortgage liens, including but not limited to that certain
[mortgage in favor of [ ] (the "Senior Lender") (collectively, the "Prior
Encumbrances"); that Mortgagor and its successors and assigns shall warrant and defend the
same and priority of this lien forever against the lawful claims and demands of all persons
whomsoever (other than the Prior Encumbrances); and, that this covenant shall not be
extinguished by any foreclosure hereof but shall run with the land. Notwithstanding any
language to the contrary contained herein, any encumbrances approved or allowed by the Senior
Lender and/or the Mortgagee shall be considered a Permitted Encumbrance under this Mortgage.
b. Mortgagor shall maintain the property free of all security interests, liens
and encumbrances, other than Permitted Encumbrances, the security interest hereunder or any
lien or encumbrance disclosed to and approved by Mortgagee in writing.
c. The Mortgagor shall do, execute, acknowledge and deliver all and every
such further acts, deeds, conveyances, mortgages, assignments, notices of assignments, transfers
and assurances as the Mortgagee shall from time to time require, for the better assuring,
conveying, assigning, transferring and confirming unto the Mortgagee the property and rights
hereby conveyed or assigned or intended now or hereafter so to be, or which the Mortgagor may
be or may hereafter become bound to convey or assign to the Mortgagee, or for carrying out the
intention of facilitating the performance of the terms of this Mortgage, or for filing, registering or
recording this Mortgage and, on demand, shall execute and deliver, and hereby authorizes the
Mortgagee to execute in the name of the Mortgagor to the extent it may lawfully do so, one or
more fmancing statements, chattel mortgages or comparable security instruments, to evidence
more effectively the lien hereof upon the Collateral.
d. The Mortgagor shall, upon the execution of this Mortgage and the Note
(the "Loan Documents"), cause all recordable Loan Documents, to be filed, registered or
recorded in such manner and in such places as may be required by any present or future law in
order to publish notice of and fully to protect the lien hereof upon, and the interest of the
Mortgagee in the Property.
e. The Mortgagor shall pay for all filing, registration or recording fees, and
all expenses incident to the preparation, execution and acknowledgment of this Mortgage, any
mortgage supplemental hereto, any security instrument with respect to the Collateral, and any
instrument of further assurance, and all federal, state, county and municipal stamp taxes and
other taxes, duties, imposts, assessments and charges arising out of or in connection with the
execution and delivery of the Note, this Mortgage, any mortgage supplemental hereto, any
security instrument with respect to the Collateral or any instrument of further assurance.
f. The Mortgagor, so long as all or part of the indebtedness secured hereby is
outstanding shall preserve in its present form and keep in full force and effect its existence, as a
legal entity under the laws of the state of its formation and shall comply with all regulations,
5
rules, ordinances, statutes, orders and decrees of any governmental authority or court applicable
to the Premises or any part thereof.
1.2 Payment of Note. The Mortgagor shall promptly and punctually pay principal,
and all other sums due or to become due pursuant to the terms of the Note, in the time and
manner set forth therein.
1.3 Maintenance and Repair. The Mortgagor shall keep the Property in good
condition and operating order and shall not commit or permit any waste thereof. Mortgagor shall
diligently maintain the Property and make any needed repairs, replacements, renewals, additions
and improvements, and complete and restore promptly and in a good workmanlike manner.
Mortgagor shall not remove any part of the Collateral from the Property or demolish any part of
the Property or materially alter any part of the Property without the prior written consent of the
Mortgagee which consent shall not be unreasonably denied, conditioned or delayed. Mortgagor
shall permit Mortgagee or its agents the opportunity to inspect the Property, including the
interior of any structures, at any reasonable time.
1.4 Compliance with Laws. The Mortgagor shall comply with all laws, ordinances,
regulations, covenants, conditions and restrictions affecting the Property or the operation thereof,
and shall pay all fees or charges of any kind in connection therewith.
1.5 Insurance. The Mortgagor shall keep all buildings and improvements now or
hereafter situated on the Property insured against loss or damage by fire and other hazards as
may reasonably be required by any senior mortgagee under the Prior Encumbrances.
1.6 Casualty. Mortgagor shall promptly notify Mortgagee of any material loss
whether covered by insurance or not. Any insurance proceeds shall be used to restore the
Property
1.7 Condemnation. The Mortgagor, immediately upon obtaining knowledge of the
institution of any proceeding for the condemnation of the Property or any portion thereof, shall
notify Mortgagee in writing of the pendency thereof. Subject to the rights of any senior lenders
under the Prior Encumbrances, the Mortgagor hereby assigns, transfers and sets over unto the
Mortgagee to the extent of the indebtedness secured herein, all compensation, rights of action,
proceeds of any award and any claim for damages for any of the Property taken or damaged
under the power of eminent domain or by condemnation or by sale of the Property in lieu
thereof. Any proceeds of a condemnation award shall be used for the restoration or rebuilding of
the Property.
1.8 Liens and Encumbrances. Except as set forth herein, the Mortgagor shall not
permit the creation of any liens or encumbrances on the Property other than the lien of this
Mortgage and of any Permitted Encumbrances, and shall pay when due all obligations, lawful
claims or demands of any person, which, if unpaid, might result in, or permit the creation of, a
lien or encumbrance on the Property or on the rents, issues, income and profits arising therefrom,
whether such lien would be senior or subordinate hereto, including all claims of mechanics,
materialmen, laborers and others for work or labor performed, or materials or supplies furnished
in connection with any work done in and to the Property and the Mortgagor will do or cause to
6
be done everything necessary so that the lien of this Mortgage is fully preserved, at no cost to
the Mortgagee. Notwithstanding any language to the contrary contained herein or in any of the
other Loan Documents, the Mortgagor may refinance any other mortgage encumbering the
Property and the Mortgagee shall executed any requested Subordination Agreement related to
such refinancing.
1.9 Taxes and Assessments. The Mortgagor shall pay in full when due, and in any
event before any penalty or interest attaches, all general taxes and assessments, special taxes,
special assessments, water charges, sewer service charges, and all other charges against the
Property and shall furnish to Mortgagee official receipts evidencing the payment thereof.
1.10 Sale of Property.
a. Without the consent of Mortgagee, Mortgagor may transfer the Property
as long as after such transfer the Property continues to be subject to the lien of this Mortgage.
b. Any change in the legal or equitable title of the Property or in the
beneficial ownership of the Property, whether or not of record and whether or not for
consideration, or sale or other disposition of the partnership interests of the borrowing entity,
shall not be deemed a transfer of an interest in the Property.
c. Any deed conveying the Property, or any part thereof, shall provide that
the grantee thereunder assumes all of the grantor's obligations under this Mortgage, the Note and
all other instruments or agreements evidencing or securing the repayment of the Mortgage
indebtedness. In the event such deed shall not contain such provisions, the grantee under such
deed shall be deemed to assume, by its acquisitions of the Property all the obligations
established by the Loan Documents.
d. Mortgagor shall not sell, assign, transfer or otherwise dispose of any
material portion of the Collateral or any material interest therein and shall not do or permit
anything to be done that may impair the Collateral without the prior consent of the Mortgagee,
unless the Mortgagor is not in default under the terms of this Mortgage and the Collateral which
is to be disposed is fully depreciated or unnecessary for use in the operation of the Property.
e. Mortgagor acknowledges that Mortgagee shall collaterally assign its
interests under this Mortgage to I ' j, Inc., a Florida non profit corporation,
under that certain Collateral Assignment of Mortgage and Other Loan Documents dated of even
date herewith (the "Collateral Assignment"). Notwithstanding any other language to the
contrary contained herein, Sections 1.10(a) and (b) above shall only be applicable during the
existence of the Collateral Assignment which is expected to terminate on the date that is fifteen
years from the date hereof.
1.11 Advances. If Mortgagor shall fail to perform any of the covenants herein
contained or contained in any instrument constituting additional security for the Note, the
Mortgagee may, without creating an obligation to do so, make advances on its behalf. Any and
all sums so advanced shall be a lien upon the Property and shall become secured by this
Mortgage. The Mortgagor shall repay on demand all sums so advanced in its behalf with interest
7
at the rate of four (4%) percent per annum in excess of the rate of the Note at the time of such
advance.
1.12 Estoppel Certificates. The Mortgagor within ten (10) days from receipt of written
request, shall furnish a duly acknowledged written statement setting forth the amount of the debt
secured by this Mortgage, and stating either that no set -offs or defenses exist against the
Mortgage debt, or if any such setoffs or defenses are alleged to exist, the nature thereof.
1.13 Assignment of Rents and Leases. Mortgagor agrees to execute and deliver to
Mortgagee such assignments of the leases and rents applicable to the Property as the Mortgagee
may from time to time request while this Mortgage and the Note and indebtedness secured by
this Mortgage are outstanding.
1.14 Subordination to Prior Encumbrances. Notwithstanding anything herein which is
or which may appear to be to the contrary, the lien of this Mortgage and Mortgagee's rights
hereunder are subordinate and inferior to the lien of the Prior Encumbrances whether now
existing or hereafter created. Mortgagee agrees, by its acceptance hereof, that no action required
to be taken by Mortgagor under the express terms of any Prior Encumbrance shall constitute a
default or an Event of Default hereunder.
1.15 Leases Affecting Mortgaged Property. Mortgagor shall comply with and observe
its obligations as landlord under all leases affecting the Property or any part thereof.
ARTICLE TWO
Default
2.1 Events of Default. The following shall be deemed to be Events of Default
hereunder:
a. Failure to make any payment when due in accordance with the terms of
the Note secured by this Mortgage.
b. Failure to keep or perform any of the other material terms, covenants and
conditions in this Mortgage provided that such failure shall have continued for a period of ninety
(90) days after written notice of such failure from the Mortgagee.
2.2 Remedies.
a. Upon and after any such Event of Default, the Mortgagee, by written
notice given to the Mortgagor, may declare the entire principal of the Note then outstanding, if
not then due and payable, and all other obligations of Mortgagor hereunder, to be due and
payable immediately.
b. Upon and after any such Event of Default, the Mortgagee shall have all of
the remedies of a Secured Party under the Uniform Commercial Code of Florida, Sec. 671-689 et
al. F.S., as amended from time to time.
8
c. Upon and after any such Event of Default, the Mortgagee, with or without
entry, or by its agents or attorneys, insofar as applicable, may:
(i) sell the Property to the extent permitted and pursuant to the
procedures provided by law, and all estate, right, title and interest, claim and demand therein, and
right of redemption thereof, at one or more sales as an entity or in parcels, and at such time and
place upon such terms and after such terms and after such notice thereof as may be required, or
(ii) institute proceedings for the complete or partial foreclosure of this
Mortgage, or
(iii) apply to any court of competent jurisdiction for the appointment of
a receiver or receivers for the Property and of all the earnings, revenues, rents, issues, profits and
income thereof, or
(iv) 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 Note, or in this Mortgage, or in aid of the execution of any power herein
granted, or for any foreclosure hereunder, or for the enforcement of any other appropriate legal
or equitable remedy or otherwise as the Mortgagee shall elect.
d. The Mortgagee may adjourn from time to time any sale by it to be made
under or by virtue of this Mortgage by announcement at the time and place appointed for such
sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable
provision of law, the Mortgagee, without further notice or publication, other than that provided
in sub -paragraph 2.02(c) above may make such sale at the time and place to which the same shall
be so adjourned.
e. Upon the completion of any sale or sales made by the Mortgagee under or
by virtue of this section, the Mortgagor, or an officer of any court empowered to do so, shall
execute and deliver to the accepted purchaser or purchasers a good and sufficient instrument, or
good and sufficient instruments, conveying, assigning and transferring, all estate, right, title and
interest in and to the property and rights sold. The Mortgagor, if so requested by the Mortgagee,
shall ratify and confirm any such sale or sales by executing and delivering to the Mortgagee or to
such purchaser or purchasers all such instruments as may be advisable, in the judgment of the
Mortgagee, for the purpose, and as may be designated in such request. Any such sale or sales
made under or by virtue of this section whether made under the power of sale herein granted or
under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale,
shall operate to divest all the estate, right, title, interest, claim and demand whatsoever, whether
at law or in equity, of the Mortgagor in and to the properties and rights so sold, and shall be a
perpetual bar both at law and in equity against the Mortgagor and against any and all persons
claiming or who may claim the same, or any part thereof from, through or under the Mortgagor.
f. In the event of any sale made under or by virtue of this section (whether
made under the power of sale herein granted or under or by virtue of judicial proceedings or of a
judgment or decree of foreclosure and sale), the entire principal of the Note, if not previously due
and payable, and all other sums required to be paid by the Mortgagor pursuant to this Mortgage,
9
immediately thereupon shall, anything in the Note or in this Mortgage to the contrary
notwithstanding, become due and payable.
g. The purchase money proceeds or avails of any sale made under or by
virtue of this section, together with any other sums which then may be held by the Mortgagee
under the provisions of this section or otherwise, shall be applied as follows:
First: To the payment of the costs and expenses of such sale, including
reasonable compensation to the Mortgagee, its agents and counsel, and of any judicial
proceedings wherein the same may be made, and of all expenses, liabilities and advances made
or incurred by the Mortgagee under this Mortgage.
Second: To the payment of any other sums required to be paid by the
Mortgagor pursuant to any provisions of this Mortgage or of the Note.
Third: To the payment of the whole amount then due, owing or unpaid
under the Note.
Fourth: To the payment of the surplus, if any, to the Mortgagor or
whomsoever is lawfully entitled to receive the same.
Upon any sale made under or by virtue of this section, whether made
under the power of sale herein granted or under or by virtue of judicial proceedings or of a
judgment or decree of foreclosure and sale, the Mortgagee may bid for and acquire the Property
or any part thereof and in lieu of paying cash therefor may make settlement for the purchase
price by crediting upon the indebtedness of the Mortgagor secured by this Mortgage the net sales
price after deducting therefrom the expenses of the sale and the cost of the action and any other
sums which the Mortgagee is authorized to deduct under this Mortgage. The Mortgagee, upon
so acquiring the Property, or any part thereof shall be entitled to hold, lease, rent, operate,
manage and sell the same in any manner provided by applicable laws.
ARTICLE THREE
Miscellaneous Terms and Conditions
3.1 Rules of Construction. When the identity of the parties hereto or other
circumstances make it appropriate, the masculine gender shall include the feminine and/or
neuter, plural and the singular number shall include the plural. The headings of each paragraph
are for information and convenience only and do not limit or construe the contents of any
provision hereof
3.2 Severability. If any term of this Mortgage, or the application thereof to any
person or circumstances, shall, to any extent, be invalid or unenforceable, the remainder of this
Mortgage, or the application of such term to persons or circumstances other than those as to
which it is invalid or unenforceable, shall not be affected thereby, and each term of this
Mortgage shall be valid and enforceable to the fullest extent permitted by law.
3.3 Successors in Interest. This Mortgage applies to, inures to the benefit of, and is
binding not only on the parties hereto, but on their heirs, executors, administrators, successors
10
and assigns. All obligations of Mortgagor hereunder are joint and several.The term "Mortgagee"
shall mean the holder and owner, including pledges, of the Note secured hereby, whether or not
named as Mortgagee herein.
3.4 Notices. All notices to be given pursuant to this Mortgage shall be sufficient if
mailed postage prepaid, certified or registered mail, return receipt requested, to the above
described addresses of the parties hereto, or to such other address as a party may request in
writing. Any time period provided in the giving of any notice shall commence upon the date
such notice is deposited in the mail.
3.5 Modifications. This Mortgage may not be amended, modified or changed, nor
shall any waiver of any provision be effective, except only by an instrument in writing and
signed by the party against whom enforcement of any waiver, amendment, change, modification
or discharge is sought.
3.6 Governing Law. This Mortgage shall be construed according to and governed by
the laws of the State of Florida.
3.7 Limitation of Liability. Notwithstanding any provision or obligation to the
contrary hereinbefore or hereinafter set forth, from and after the date of this Mortgage, the
indebtedness secured by this Mortgage including the Note shall be a non -recourse obligation and
the liability of the Mortgagor (including, without limitation, its partners, members, officers,
directors or employees) hereunder shall be limited to the interest in the Premises and the
Mortgagee shall look exclusively thereto, or to such other security as may from time to time be
given for payment of the obligations hereunder, and any judgment rendered against the
Mortgagor under this Mortgage shall be limited to the Premises and any other security so given
for satisfaction thereof. No deficiency or other personal judgment nor any order or decree of
specific performance shall be rendered against the Mortgagor (including, without limitation, its
partners, members, officers, directors or employees), their heirs, personal representatives,
successors, transferees or assigns, as the case may be, in any action or proceeding arising out of
this Mortgage, or any judgment, order or decree rendered pursuant to any such action or
proceeding.
3.8 Notice and Cure. Notwithstanding the foregoing, the Mortgagee hereby agrees
that any cure of any default made or tendered by the Mortgagor's investor limited partner and/or
special limited partner ( and , respectively, or their affiliates,
or their successors or assigns) shall be deemed to be a cure by the Mortgagor and shall be
accepted or rejected on the same basis as if made or tendered by Mortgagor. Copies of all
notices which are sent to Mortgagor under the terms of this Agreement shall also be sent to:
Attention:
with a copy to ,
, Attention:
[Signature on Following Page]
11
IN WITNESS WHEREOF, the said Mortgagor caused this instrument to be signed and
sealed as of the date first above written.
Signed, sealed and delivered MORTGAGOR:
in the presence of:
Name:
Name:
STATE OF FLORIDA
COUNTY OF
) ss:
LYRIC HOUSING, LTD., a Florida limited
partnership
By: Lyric GP LLC, a Florida limited
liability company, as its general
partner
By: The Gatehouse Group, Inc., a
Massachusetts corporation, its
manager
By:
Name:
Title:
The foregoing instrument was acknowledged before me this day of , 2013
by , as of The Gatehouse Group, Inc., a Massachusetts
corporation, the manager of Lyric GP LLC, a Florida limited liability company, a general partner
of Lyric Housing, Ltd., a Florida limited partnership, on behalf of the corporation, the limited
liability company and the limited partnership.
Personally Known OR Produced Identification
Type of Identification Produced
NOTARY STAMP
Print or Stamp Name:
Notary Public, State of Florida at Large
Commission No.:
My Commission Expires:
12
EXIIIBIT A
LEGAL DESCRIPTION
13
#11951516_v2
PROMISSORY NOTE
2013
$10,000,000 Miami, Florida
FOR VALUE RECEIVED, the undersigned, LYRIC HOUSING, LTD., a Florida
limited partnership ("Maker"), promises to pay to the order of
a , together with any other holder hereof ("Holder"), at
, Florida , or such other place as Holder may from
time to time designate in writing, the principal sum of TEN MILLION DOLLARS and NO/100
(U.S. $10,000,000) (the "Principal"), plus interest on the outstanding principal balance at the rate
set forth in the next paragraph ("Interest or Interest Rate"), to be paid in lawful money of the
United States of America in accordance with the terms of this Promissory Note (the "Note").
The term of this Note is fifteen (15) years and shall end on 20_ (the
"Maturity Date"). Before the Maturity Date no payments of principal or interest will be made.
Interest shall accrue and compound annually at the greater of (i) the annual interest rate of
percent ( %) which rate is the Long Term Applicable Federal Rate; or (ii) the
annual interest rate of five percent (5%). The Principal, any outstanding Interest and any other
amounts outstanding under this Note shall be due and payable on the Maturity Date.
The proceeds of this Note shall be disbursed pursuant to the terms of that certain funding
agreement (the "Funding Agreement") dated of even date herewith by and between the Southeast
Overtown/Park West Community Redevelopment Agency (the "CRA"), (the
"Non -Profit"), (the "Institutional Investment"), the Senior Lender, as hereinafter
defined, Maker and Holder. The terms of the Funding Agreement are incorporated herein by
reference and made a part hereof.
To the extent required by Section 7.8 of the Development Agreement dated December
17, 2012 (the "Development Agreement") by and between Maker and the CRA, Maker shall
within ten (10) days of demand by Holder repay to Holder the amount determined to be due
pursuant to Section 7.8 of the Development Agreement, the terms of which are incorporated
herein by reference and made a part hereof.
This Note is secured by a Mortgage and Security Agreement and Assignment of Leases
(the "Mortgage") encumbering certain real property located in Miami -Dade County, Florida (the
"Premises"). The Mortgage and all other agreements, instruments and documents, delivered in
connection with this Note are collectively referred to as the "Loan Documents."
This Note has been executed and delivered in, and is to be governed by and construed
under the laws of, the State of Florida, as amended, except as modified by the laws and
regulations of the United States of America.
Maker shall have no obligation to pay interest or payments in the nature of interest in
excess of the maximum rate of interest allowed to be contracted for by law, as changed from
time to time, applicable to this Note (the "Maximum Rate"). Any interest in excess of the
Maximum Rate paid by Maker ("Excess Sum") shall be credited as a payment of principal, or, if
1
Maker so requests in writing, returned to Maker, or, if the indebtedness and other obligations
evidenced by this Note have been paid in full, returned to Maker together with interest at the
same rate as was paid by Maker during such period. Any Excess Sum credited to Principal shall
be credited as of the date paid to Holder. The Maximum Rate varies from time to time and from
time to time there may be no specific maximum rate. Holder may, without such action
constituting a breach of any obligations to Maker, seek judicial determination of the Maximum
Rate of interest, and its obligation to pay or credit any proposed excess sum to Maker.
The "Default Interest Rate" and, in the event no specific maximum rate is applicable, the
Maximum Rate shall be eighteen percent (18%) per annum. Any payment under this Note or the
Loan Documents not paid when due (at maturity, upon acceleration or otherwise) taking into
account applicable grace periods shall bear interest at the Default Interest Rate from the due date
until paid.Time is of the essence. In the event that this Note is collected by law or through
attorneys at law, or under their advice, Maker agrees, to pay all reasonable costs of collection,
including reasonable attorneys' fees, whether or not suit is brought, and whether incurred in
connection with collection, trial, appeal, bankruptcy or other creditors proceedings or
otherwise.Holder shall have the right to declare the total unpaid balance of this Note to be
immediately due and payable in advance of the Maturity Date upon the failure of Maker to pay
when due, taking into account applicable grace periods, any payment of Principal or Interest or
other amount due under the Loan Documents; or upon the occurrence of an event of default,
which is not cured prior to the expiration of any applicable cure periods, pursuant to any other
Loan Documents now or hereafter evidencing, securing or guarantying payment of this Note.
Exercise of this right shall be without notice to Maker or to any other person liable for payment
hereof, notice of such exercise being hereby expressly waived.
This Note may be paid in whole or in part at any time by Maker without penalty.
Acceptance of partial payments or payments marked "payment in full" or "in satisfaction" or
words to similar effect shall not affect the duty of Maker to pay all obligations due, and shall not
affect the right of Holder to pursue all remedies available to it under the Loan Documents.
Any of the following shall be deemed to be an Event of Default hereunder: (a) failure to
make any payment when due in accordance with the terms of this Note; and (b) failure to keep or
perform any of the other material terms, covenants and conditions in this Note provided that such
failure shall have continued for a period of ninety (90) days after written notice of such failure
from the Holder.
Upon an Event of Default hereunder, the Holder shall have all of the remedies set forth in
the Mortgage. The remedies of Holder shall be cumulative and concurrent, and may be pursued
singularly, successively or together, at the sole discretion of Holder, and may be exercised as
often as occasion therefor shall arise. No action or omission of Holder, including specifically
any failure to exercise or forbearance in the exercise of any remedy, shall be deemed to be a
waiver or release of the same, such waiver or release to be effected only through a written
document executed by Holder and then only to the extent specifically recited therein. A waiver
or release with reference to any one event shall not be construed as continuing or as constituting
a course of dealing, nor shall it be construed as a bar to, or as a waiver or release of, any
subsequent remedy as to a subsequent event.
2
Any notice to be given or to be served upon any party in connection with this Note,
whether required or otherwise, may be given in any manner permitted under the Loan
Documents.
The term "other person liable for payment of this Note" shall include any endorser,
guarantor, surety or other person now or subsequently primarily or secondarily liable for the
payment of this Note, whether by signing this Note or any other instrument.
This Note shall be a non -recourse promissory note and neither the Maker, nor any of its
partners shall have any personal liability for the payment of any portion of the indebtedness
evidenced by this Note, and in the event of a default by the Maker under this Note, the Holder's
sole remedy shall be limited to exercising its rights under the Loan Documents, including
foreclosure and the exercise of the power of sale or other rights granted under such Loan
Documents, but shall not include a right to proceed directly against the Maker, or any of its
partners, or the right to obtain a deficiency judgment after foreclosure against the Maker or any
of its partners.
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 [Multifamily Mortgage;
Assignment of Rents, ,Security Agreement and Fixture Filing] by the Maker in favor of
, a national banking association), in the original maximum principal amount of
$ , executed by Maker and payable to , as assigned to
("Senior Lender") to the extent and in the manner provided in that certain
[Subordination and Intercreditor Agreement], dated as of even date herewith, between Senior
Lender and the holder of this Note (the "Senior 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 Senior
Subordination Agreement.
Whenever the context so requires, the neutral gender includes the feminine and/or
masculine, as the case may be, and the singular number includes the plural, and the plural
number includes the singular.
Maker and any other person liable for the payment of this Note respectively, hereby (a)
expressly waive any valuation and appraisal, presentment, demand for payment, notice of
dishonor, protest, notice of nonpayment or protest, all other forms of notice whatsoever, and
diligence in collection; (b) consent that Holder may, from time to time and without notice to any
of them or demand, (i) extend, rearrange, renew or postpone any or all payments, (ii) release,
exchange, add to or substitute all or any part of the collateral for this Note, and/or (iii) release
Maker (or any co -maker) or any other person liable for payment of this Note, without in any way
modifying, altering, releasing, affecting or limiting their respective liability or the lien of any
security instrument; and (c) agree that Holder, in order to enforce payment of this Note against
any of them, shall not be required first to institute any suit or to exhaust any of its remedies
3
against Maker (or any co -maker) or against any other person liable for payment of this Note or to
attempt to realize on any collateral for this Note.
BY EXECUTING THIS NOTE, MAKER KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ITS RIGHTS OR THE RIGHTS OF ITS HEIRS, ASSIGNS,
SUCCESSORS OR PERSONAL REPRESENTATIVES TO A TRIAL BY JURY, IF ANY,
IN ANY ACTION, PROCEEDING OR SUIT, WHETHER ARISING IN CONTRACT,
TORT OR OTHERWISE, AND WHETHER ASSERTED BY WAY OF COMPLAINT,
ANSWER, CROSSCLAIM, COUNTERCLAIM, AFFIRMATIVE DEFENSE OR
OTHERWISE, BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH,
THIS NOTE OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT TO BE
EXECUTED IN CONNECTION HEREWITH OR WITH THE INDEBTEDNESS OR
THE RENEWAL, MODIFICATION OR EXTENSION OF ANY OF THE FOREGOING
OR ANY FUTURE ADVANCE THEREUNDER. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR HOLDER'S EXTENDING CREDIT TO MAKER AND NO
WAIVER OR LIMITATION OF HOLDER'S RIGHTS HEREUNDER SHALL BE
EFFECTIVE UNLESS IN WRITING AND MANUALLY SIGNED ON HOLDER'S
BEHALF.
Maker acknowledges that the above paragraph has been expressly bargained for by
Holder as part of the transaction with Maker and that, but for Maker's agreement, Holder would
not have agreed to lend the Maker the Principal on the terms and at the Interest Rate.
[Signature on Following Page]
4
WHEREFORE, Maker has executed this Note as of the first date mentioned above.
MAKER:
LYRIC HOUSING, LTD., a Florida limited
partnership
5
By: Lyric GP LLC, a Florida limited
liability company, as its general
partner
By: The Gatehouse Group, Inc., a
Massachusetts corporation, its
manager
By:
Name:
Title:
#11951534 v2
PROMISSORY NOTE
, 2013
$10,000,000 Miami, Florida
FOR VALUE RECEIVED, the undersigned, , , a
("Maker"), promises to pay to the order of
, INC., a Florida non-profit corporation, together with any
other holder hereof ("Holder"), at , , Florida 33 , or
such other place as Holder may from time to time designate in writing, the principal sum of TEN
MILLION DOLLARS and NO/100 (U.S. $10,000,000) (the "Principal"), plus interest, if any, on
the outstanding principal balance at the rate set forth in the next paragraph ("Interest or Interest
Rate"), to be paid in lawful money of the United States of America in accordance with the terms
of this Promissory Note (the "Note").
The term of this Note is fifteen (15) years and shall end on , 20_ (the
"Maturity Date"). Before the Maturity Date no payments of principal or interest will be made.
Interest shall not accrue or be payable under this Note. In the event that on the Maturity Date,
there is not then a current, uncured and properly issued and outstanding notice of default against
Lyric Housing, Ltd., a Florida limited partnership (the "Owner") under that certain Restrictive
Covenant Agreement dated of even date herewith between the Owner and Southeast
Overtown/Park West Community Redevelopment Agency, the Principal, any outstanding
Interest and any other amounts outstanding under this Note shall be deemed to be forgiven on the
Maturity Date and the Holder shall execute any documents necessary to evidence such
forgiveness.
The proceeds of this Note shall be disbursed pursuant to the terms of that certain funding
agreement (the "Funding Agreement") dated of even date herewith by and between the Southeast
Overtown/Park West Community Redevelopment Agency (the "CRA"), Holder,
(the "institutional Investment"), the Senior Lender, as hereinafter defined, Maker and Lyric
Housing, Ltd., a Florida limited partnership (the "Owner"). The terms of the Funding Agreement
are incorporated herein by reference and made a part hereof.
To the extent required by Section 7.8 of the Development Agreement dated December
17, 2012 (the "Development Agreement") by and between Lyric Housing, Ltd., a Florida limited
partnership (the "Owner") and the CRA, Maker shall within ten (10) days of demand by Holder
repay to Holder the amount determined to be due pursuant to Section 7.8 of the Development
Agreement, the terms of which are incorporated herein by reference and made a part hereof.
This Note is secured by a Collateral Assignment of Mortgage and Other Loan Documents
(the "Collateral Assignment") with respect to a Mortgage and Security Agreement and
Assignment of Leases (the "Mortgage") encumbering certain real property located in Miami -
Dade County, Florida (the "Premises"). The Collateral Assignment and the Mortgage and all
other agreements, instruments and documents, delivered in connection with this Note are
collectively referred to as the "Loan Documents."
This Note has been executed and delivered in, and is to be governed by and construed
under the laws of, the State of Florida, as amended, except as modified by the laws and
regulations of the United States of America.
Maker shall have no obligation to pay interest or payments in the nature of interest in
excess of the maximum rate of interest allowed to be contracted for by law, as changed from
time to time, applicable to this Note (the "Maximum Rate"). Any interest in excess of the
Maximum Rate paid by Maker ("Excess Sum") shall be credited as a payment of principal, or, if
Maker so requests in writing, returned to Maker, or, if the indebtedness and other obligations
evidenced by this Note have been paid in full, returned to Maker together with interest at the
same rate as was paid by Maker during such period. Any Excess Sum credited to Principal shall
be credited as of the date paid to Holder. The Maximum Rate varies from time to time and from
time to time there may be no specific maximum rate. Holder may, without such action
constituting a breach of any obligations to Maker, seek judicial determination of the Maximum
Rate of interest, and its obligation to pay or credit any proposed excess sum to Maker.
Time is of the essence. In the event that this Note is collected by law or through
attorneys at law, or under their advice, Maker agrees, to pay all reasonable costs of collection,
including reasonable attorneys' fees, whether or not suit is brought, and whether incurred in
connection with collection, trial, appeal, bankruptcy or other creditors proceedings or otherwise.
This Note may be paid in whole or in part at any time by Maker without penalty.
Acceptance of partial payments or payments marked "payment in full" or "in satisfaction" or
words to similar effect shall not affect the duty of Maker to pay all obligations due, and shall not
affect the right of Holder to pursue all remedies available to it under the Loan Documents.
Any of the following shall be deemed to be an Event of Default hereunder: (a) failure to
make any payment when due in accordance with the terms of this Note; and (b) failure to keep or
perform any of the other material terms, covenants and conditions in this Note provided that such
failure shall have continued for a period of ninety (90) days after written notice of such failure
from the Holder.
Upon an Event of Default hereunder, the Holder shall have all of the remedies set forth in
the Collateral Assignment. The remedies of Holder shall be cumulative and concurrent, and may
be pursued singularly, successively or together, at the sole discretion of Holder, and may be
exercised as often as occasion therefor shall arise. No action or omission of Holder, including
specifically any failure to exercise or forbearance in the exercise of any remedy, shall be deemed
to be a waiver or release of the same, such waiver or release to be effected only through a written
document executed by Holder and then only to the extent specifically recited therein. A waiver
or release with reference to any one event shall not be construed as continuing or as constituting
a course of dealing, nor shall it be construed as a bar to, or as a waiver or release of, any
subsequent remedy as to a subsequent event.
Any notice to be given or to be served upon any party in connection with this Note,
whether required or otherwise, may be given in any manner permitted under the Loan
Documents.
2
The term "other person liable for payment of this Note" shall include any endorser,
guarantor, surety or other person now or subsequently primarily or secondarily liable for the
payment of this Note, whether by signing this Note or any other instrument.
This Note shall be a non -recourse promissory note and neither the Maker, nor any of its
partners shall have any personal liability for the payment of any portion of the indebtedness
evidenced by this Note, and in the event of a default by the Maker under this Note, the Holder's
sole remedy shall be limited to exercising its rights under the Loan Documents, including
foreclosure and the exercise of the power of sale or other rights granted under such Loan
Documents, but shall not include a right to proceed directly against the Maker, or any of its
partners, or the right to obtain a deficiency judgment after foreclosure against the Maker or any
of its partners.
Whenever the context so requires, the neutral gender includes the feminine and/or
masculine, as the case may be, and the singular number includes the plural, and the plural
number includes the singular.
Maker and any other person liable for the payment of this Note respectively, hereby (a)
expressly waive any valuation and appraisal, presentment, demand for payment, notice of
dishonor, protest, notice of nonpayment or protest, all other forms of notice whatsoever, and
diligence in collection; (b) consent that Holder may, from time to time and without notice to any
of them or demand, (i) extend, rearrange, renew or postpone any or all payments, (ii) release,
exchange, add to or substitute all or any part of the collateral for this Note, and/or (iii) release
Maker (or any co -maker) or any other person liable for payment of this Note, without in any way
modifying, altering, releasing, affecting or limiting their respective liability or the lien of any
security instrument; and (c) agree that Holder, in order to enforce payment of this Note against
any of them, shall not be required first to institute any suit or to exhaust any of its remedies
against Maker (or any co -maker) or against any other person liable for payment of this Note or to
attempt to realize on any collateral for this Note.
BY EXECUTING THIS NOTE, MAKER KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ITS RIGHTS OR THE RIGHTS OF ITS HEIRS, ASSIGNS,
SUCCESSORS OR PERSONAL REPRESENTATIVES TO A TRIAL BY JURY, IF ANY,
IN ANY ACTION, PROCEEDING OR SUIT, WHETHER ARISING IN CONTRACT,
TORT OR OTHERWISE, AND WHETHER ASSERTED BY WAY OF COMPLAINT,
ANSWER, CROSSCLAIM, COUNTERCLAIM, AFFIRMATIVE DEFENSE OR
OTHERWISE, BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH,
THIS NOTE OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT TO BE
EXECUTED IN CONNECTION HEREWITH OR WITH THE INDEBTEDNESS OR
THE RENEWAL, MODIFICATION OR EXTENSION OF ANY OF THE FOREGOING
OR ANY FUTURE ADVANCE THEREUNDER. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR HOLDER'S EXTENDING CREDIT TO MAKER AND NO
WAIVER OR LIMITATION OF HOLDER'S RIGHTS HEREUNDER SHALL BE
EFFECTIVE UNLESS IN WRITING AND MANUALLY SIGNED ON HOLDER'S
BEHALF.
3
Maker acknowledges that the above paragraph has been expressly bargained for by
Holder as part of the transaction with Maker and that, but for Maker's agreement, Holder would
not have agreed to lend the Maker the Principal on the terms and at the Interest Rate.
WHEREFORE, Maker has executed this Note as of the first date mentioned above.
MAKER:
4
,a
By:
Name:
Title:
#11951545_v2