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HomeMy WebLinkAbout25359AGREEMENT INFORMATION AGREEMENT NUMBER 25359 NAME/TYPE OF AGREEMENT DFI MUNDY LLC DESCRIPTION 2ND AMENDED & RESTATED PROMISSORY NOTE/$2 MILLION FOR LAND ACQUISITION 3173 MUNDY ST & 3121 MUNDY ST MIAMI, FL 33133/#54 EFFECTIVE DATE December 31, 2024 ATTESTED BY ATTESTED DATE DATE RECEIVED FROM ISSUING DEPT. 12/30/2024 NOTE The following Second Amended and Restated Promissory Note by the below described Maker in favor of the City of Miami, Florida, a municipal corporation of the State of Florida, amends and restates that certain Promissory Note in the principal amount of Two Million Dollars ($2,000,000.00), as amended by the Amended and Restated Promissory Note. SECOND AMENDED AND RESTATED PROMISSORY NOTE (AMERICAN RESCUE PLAN ACT OF 2021 "ARPA" FUNDS) FOR DFI MUNDY LLC Miami, Florida $2,000,000.00 December 31, 2024 FOR VALUE RECEIVED the undersigned, DFI MUNDY LLC, a Florida limited liability company ("Maker"), with an address at 19 West Flagler Street, Suite 1001, Miami, Florida 33130, promises to pay to the order of the CITY OF MIAIVII, a Florida municipal corporation ("Lender"), with an address at 444 S.W. 2nd Avenue, Miami, Florida 33130, or such other location or address as the Lender may direct from time to time, the principal sum of Two Million and 00/100 Dollars ($2,000,000.00), together with interest thereon on funds outstanding as indicated on Attachment 1 hereto. This Second Amended and Restated Promissory Note (the "Note" or "Promissory Note") evidences a Loan from the Lender to the Maker for land acquisition costs for DFI Mundy, an affordable housing Project, as described more fully in that certain ARPA Loan Agreement between the Maker and the Lender of even date herewith (the "ARPA Loan Agreement"). All capitalized terms not defined in this Note shall have the meanings provided in the ARPA Loan Agreement. This Promissory Note is secured by that certain Mortgage and Security Agreement (the "ARPA Mortgage") and the other Loan Documents of even date herewith executed in favor of the Lender, relating to real property located at 3173 Mundy Street Miami, FL 33133, and 3121 Mundy Street Miami, FL 33133 (collectively, the "Property"). All sums advanced pursuant to the terms of this Note together with accrued interest thereon and all other sums due under this Note shall become immediately due and payable, without notice or demand, upon the occurrence of any one or more of the following events of default, subject to any applicable cure period as provided in the Loan Documents: (a) the Maker's failure to promptly pay in full any payment of principal or interest due under this Promissory Note; (b) the Maker's failure to pay any insurance premium when due; (c) the dissolution, termination of existence, insolvency of, business failure, appointment of a receiver for any part of the Property or assignment for the benefit of creditors by, or the commencement of any proceedings under any bankruptcy or insolvency laws, by or against any maker hereof which shall continue beyond any applicable cure period set forth in the ARPA Loan Agreement; (d) any uncured breach, following the giving of notice of breach and the expiration of any applicable cure period(s), by the Maker of any of the terms, covenants or conditions set forth in the ARPA Loan Agreement, the ARPA Mortgage, the Declaration of Restrictive Covenants, or any of the other Loan Documents executed in connection Page 1 of 6 therewith, or any other instrument, document or agreement which secures, collateralizes or otherwise pertains to the Loan evidenced by this Promissory Note; or (e) upon the occurrence of an Event of Default as provided in the ARPA Loan Agreement. Upon the occurrence of any of the foregoing events, and in addition to any other remedies provided in the ARPA Loan Agreement, the amount of the Funds disbursed, together with interest accrued thereon at the rate provided in this Note, all unpaid fees, charges and other obligations of the Maker due under any of the Loan Documents, shall, at Lender's option, be immediately due and payable. Any property of any maker hereof now or hereafter in the possession of the Lender, may at all times be held and treated as collateral and security for the payment of this Promissory Note and all other indebtedness or liability, direct or indirect, joint or several, absolute or contingent, now existing or hereafter created, acquired or contracted, of the Maker to the Lender. The Lender may apply or set-off any funds or other sums against said liabilities at any time in the case of the Maker(s). No delay or omission on the part of the Lender in the exercise of any right under this Note shall operate as a waiver of such right or of any other right under this Note. A waiver by the Lender of any right or remedy conferred to it under this Note on any one occasion shall not be construed as a bar to, or waiver of, any such right and/or remedy as to any future occasion. The Maker agrees that in the event each and every of the terms and conditions of this Note or any instrument which secures or collateralizes the payment of the sums hereunder is not duly performed, complied with, or abided by, subject to applicable notice and cure period(s) set forth in the ARPA Loan Agreement, the whole of said indebtedness then outstanding shall thereupon, at the option of the Lender, become immediately due and payable, as provided in the ARPA Loan Agreement. If this Note becomes in default and is placed in the hands of an attorney for collection, then each party hereto shall bear its own respective costs, expenses, and attorney's fees. The Maker and all persons now or hereafter becoming obligated or liable for the payment hereof, do jointly and severally waive demand, notice of non-payment, protest, notice of dishonor and presentment. The Maker does not intend or expect to pay, nor does the Lender intend or expect to charge, collect or accept, any interest greater than the highest legal rate of interest which may be charged under any applicable law. Should the acceleration hereof or any charges made hereunder result in the computation or earning of interest in excess of such legal rate, any and all such excess shall be and the same is hereby waived by the Lender, and any such excess shall be credited by the Lender to the balance hereof. Each Maker, or any other person, film or corporation now or hereafter becoming liable for the payment of the Loan evidenced by this Note, consents to any renewals, extensions, modifications, releases of security or any indulgence shown to or any dealings between the Lender and any party now or hereafter obligated hereunder, without notice, and jointly and severally agree that they shall remain liable hereunder notwithstanding any such renewals, extensions, modifications or indulgences, until the debt evidenced hereby is fully paid. The Maker agrees to pay a late charge equal to ten percent (10.0%) of each payment of principal and/or interest which is not paid within five (5) days of the date on which it is due. In the event that any payment is returned on account of insufficient or uncollected funds, the Maker Page 2 of 6 shall additionally be liable for a return check charge of five percent (5.0%) of the amount of the check and Lender may require that all future payments be made by cashier's check. Any payment of principal and/or interest due under this Note which is not promptly paid on the date such payment becomes due, shall bear interest at the highest rate allowable by law ("Default Rate") commencing on the date immediately following the day upon which the payment was due. Upon the occurrence of any event of default as described herein or an Event of Default as defined in the Loan Agreement, all sums outstanding under this Promissory Note shall thereon immediately bear interest at the Default Rate from the date of default, without notice to the Maker of this Promissory Note, and without any affirmative action or declaration on the part of the Lender, subject to applicable cure periods. In the event of the sale of the Project or the Property in violation of the requirements set forth in the ARPA Loan Agreement, all sums outstanding under this Note shall bear interest at the Default Rate from the date of default, without notice to the Maker or endorser of this Note, and without any affirmative action or declaration on the part of the Lender: This Note shall be construed and enforced according to the laws of the State of Florida, excluding all principles of choice of laws, conflict of laws or comity. Any action pursuant to a dispute under this Note must be brought in Miami -Dade County and no other venue. All meetings to resolve said dispute, including voluntary arbitration, mediation, or other alternative dispute resolution mechanism, will take place in this venue. The parties hereto both waive any defense that venue in Miami -Dade County is not convenient. This Note shall not be changed, modified, terminated, or discharged in whole or in part, except by an instrument in writing signed by the Maker and the Lender or their respective successors or assigns. This Note is a non -recourse obligation of the Maker and Maker does not have personal liability for repayment of the Loan. THE MAKER OF THIS PROMISSORY NOTE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS NOTE OR ANY LOAN DOCUMENT(S) EXECUTED IN CONNECTION HEREWITH, OR THE FINANCING CONTEMPLATED HEREBY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR THE ACTIONS OF ANY PARTY HERETO. THIS • PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER EXTENDING THE LOAN EVIDENCED BY THIS NOTE. [Signature Page Follows] [Remainder of page intentionally left blank.] Page 3 of 6 IN WITNESS WHEREOF, the Maker has hereunto set its hand and seal the day and year first above written. WITNESSES: Print Name. MAKER: DFI MUNDY, LLC, a Florida limited a liability company / Print Name: /�Gia.b/ r //L-/07/2t2 PROJECT SPONSOR'S ADDRESS: DFI MUNDY, LLC 19 West Flagler Street Suite 1001 Miami, FL 33130 Attention: Irving Weisselberger STATE OF FLORIDA } COUNTY OF MIAMI-DADE } SS: BY: DRAGONFLY INVESTMENTS, LLC, a Florida limited liability company, its manager Irving Weisselberger Title: Manager ACKNOWLEDGMENT The foregoing instrument was acknowledged before me by means of 0,p"hysical presence or O online notarization, this�,(p day of December, 2024 by Irving Weisselberger as Manager of Dragonfly Investments, LLC, a Florida limited liability company, the manager of DFI Mundy, LLC, a Florida limited liability company. He is personally lc_ noon to me or has produced as identification. (NOTARY PUBLIC SEAL) JULIE QUITTNER Commission #HH181787 My Commission Expires October 5, 2025 S4 iature of Person Taking Acknowledgment (Printed, Typed, or Stamped Name of Notary Public) Number, if any Serial Page 4 of 5 Attachment 1 DFI Mundy at 3173 Mundy Street Miami, FL 33133, and 3121 Mundy Street Miami, FL 33133 Payment of principal, interest, and all other charges, expenses, and fees set forth in the Loan Documents shall be deferred and no payments of principal and interest shall be due until the end of the Affordability Period (as defmed in the Loan Agreement). Interest on Principal outstanding shall accrue as follows: The Principal of this Promissory Note shall bear zero percent (0%) from the Effective Date until the Close -Out of the Project. Upon the Close -Out of the Project, the loan will be converted to a permanent loan that shall bear interest at the rate of zero percent (0%) per annum simple interest only, with the entire principal balance and any accrued and unpaid interest and other charges due at the end of the Affordability Period. The City may, at its sole discretion, forgive all remaining indebtedness and other sums due on the Loan and release all documents given as collateral security for no additional consideration at its maturity. If during the Affordability Period any ARPA Assisted Unit fails to comply, beyond any applicable cure period, with the affordability requirements of the applicable funding source and the Agreement and/or the other Loan Documents, the Maker shall repay to the Lender all funds received by the Maker pursuant to this Note, all unpaid interest accrued thereon, all Program Income derived therefrom, as described in ARPA, or in connection therewith, and all unpaid fees, charges and other obligations of the Maker due under any of the Loan Documents. a535c1 Page 5 of 5