HomeMy WebLinkAbout25712AGREEMENT INFORMATION
AGREEMENT NUMBER
25712
NAME/TYPE OF AGREEMENT
OCEAN BANK, CITY OF MIAMI & 8TH STREET PROPERTIES,
LLC
DESCRIPTION
INTERCREDITOR & SUBORDINATION
AGREEMENT/ESSENCE MIA 829, 845, 847 SW 8TH STREET,
MIAMI , FLORIDA 33130/FILE ID: 17577/R-25-0174/MATTER ID:
24-3219/#76
EFFECTIVE DATE
August 7, 2025
ATTESTED BY
TODD B. HANNON
ATTESTED DATE
8/7/2025
DATE RECEIVED FROM ISSUING
DEPT.
8/14/2025
NOTE
This Instrument Was Prepared By:
Brett H. Holland, Esq.
HOLLAND & KNIGHT LLP
701 Brickell Avenue, 33rd Floor
Miami, Florida 33131
INTERCREDITOR AND SUBORDINATION AGREEMENT
THIS INTERCREDITOR AND SUBORDINATION AGREEMENT (this "Agreement")
is entered into as of the -j day of August, 2025 by and among (i) OCEAN BANK, a Florida
banking corporation ("Ocean Bank"), (ii) CITY OF MIAMI (the "City"), and (iii) 8TH STREET
PROPERTIES, LLC, a Florida limited liability company (the "Borrower").
Recitals
A. The Borrower has acquired property to be developed into "The Essence MIA"
(the "Project") located at 829, 845, 847 SW 8t11 Street, Miami, Florida 33130 (the "Property"), as
more particularly described on Exhibit "A" attached hereto.
B. Ocean Bank is making a loan to Borrower in the stated principal amount of
$12,700,000.00 (the "First Mortgage Loan"), the proceeds of which will be used to construct the
Project located on the Property, pursuant to the terms of a Construction Loan Agreement
between Ocean Bank and Borrower dated as of even date herewith (the "Construction Loan
Agreement"). The Borrower's obligation to repay the First Mortgage Loan is evidenced by a
Promissory Note executed of even date herewith by Borrower in favor of Ocean Bank (the "First
Mortgage Note"). The First Mortgage Note is secured by a Mortgage and Security Agreement
executed of even date herewith by Borrower in favor of Ocean Bank (the "First Mortgage") and
granting Ocean Bank a first mortgage lien on the Property. The First Mortgage Note, First
Mortgage, the Construction Loan Agreement, and all documents executed in connection
therewith or as security therefor are herein referred to as the "First Loan Documents".
C. The City of Miami, and Borrower have entered into a Miami Forever Bond Loan
dated as of f , 2025i (the "Miami Forever Bond Agreement"), and certain other loan
documents, agreements, and instruments executed in connection with the Miami Forever Bond
Agreement (the "City Miami Forever Bond Loan Documents", and together with the Miami
Forever Bond Agreement, collectively, the "Miami Forever Bond Documents"), pursuant to
which the City has approved an award to the Borrower of Miami Forever Bond funds of up to
$12,000,000 (the "City Loan").
D. Ocean Bank, City, and Borrower enter into this Agreement with respect to their
relative rights under the First Loan Documents and the Miami Forever Bond Documents.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions
contained herein and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Ocean Bank, City, and Borrower hereby agree as follows:
1. Funding of Loans. The First Mortgage Loan shall be disbursed subject to the
terms and conditions contained in the Construction Loan Agreement and other First Loan
Documents.
2. Consent to Loan Documents; Subordination.
a. Consent of City; Subordination. City consents to the execution and
delivery of the First Loan Documents and the encumbrance of the Property created thereby and
agrees that the execution, delivery and performance thereof shall not constitute a default under
the terms and provisions of the Miami Forever Bond Agreement or other Miami Forever Bond
Documents. The Miami Forever Bond Agreement and any and all extensions, modifications,
amendments, or renewals thereof, and the other Miami Forever Bond Documents and any and
all extensions, modifications, amendments, or renewals thereof, are now and forever hereafter
shall be subordinate and inferior to the First Loan Documents (including without limitation, the
First Mortgage), and to all debt evidenced or secured thereby including principal, interest (both
before and after any default and includes the accrual of interest after the commencement of any
bankruptcy or insolvency proceeding involving the Borrower), costs and expenses, (including
without limitation, taxes and insurance premiums) incurred in accordance with the terms of the
First Loan Documents, and to any and all extensions, modifications, amendments, or renewals
thereof. Further, the terms of the Miami Forever Bond Agreement and other Miami Forever
Bond Documents and all rights and remedies available to City pursuant to the Miami Forever
Bond Agreement and other Miami Forever Bond Documents, are hereby expressly subordinate
to the terms of the First Mortgage and the rights and remedies of Ocean Bank under the First
Mortgage and First Loan Documents.
b. Other Collateral. The subordinations contained in this Provision 2 shall
apply, notwithstanding the availability of other collateral to either Ocean Bank or the actual date
and time of execution, delivery, recordation, filing or perfection of the First Loan Documents or
the lien or priority of payment thereof.
c. Waiver of Subrogation and Diligence. Until such time as the First
Mortgage Loan has been fully repaid and extinguished, City waives and releases (i) any and all
rights of subrogation which it may have against all or any part of the Property, which it may get
or have against the Property for any funds which it may advance either to cure defaults under the
First Loan Documents or pay liens encumbering the Property, and (ii) all diligence in connection
with or protection of or realization upon the First Mortgage Loan or the Property.
3. Insurance, Condemnation. In the event of partial or total destruction of the
Property which results in the payments of insurance proceeds, or in the event of a condemnation
or similar proceeding which results in the payment of an award, the applicable insurance
proceeds or condemnation award shall be applied in accordance with the relevant provisions of
the First Mortgage, unless the First Mortgage Loan has been fully repaid with no further funding
obligations.
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4. Default Under Miami Forever Bond Agreement and Miami Forever Bond
Documents. For so long as the First Mortgage Loan remains outstanding:
a. The City agrees to provide notice to Ocean Bank of any event of default
under the Miami Forever Bond Agreement or other Miami Forever Bond Documents.
b. The City will not, without the prior written consent (which consent may be
withheld in its sole discretion) of Ocean Bank, commence or prosecute any legal, equitable or
administrative action against Borrower to enforce any of its rights or remedies under or with
respect to the Miami Forever Bond Agreement or other Miami Forever Bond Documents. The
failure by the City to obtain Ocean Bank's written consent prior to seeking any of the
aforementioned remedies shall render any attempt by the City to foreclose on or pursue any other
remedy available in connection with such Miami Forever Bond Agreement or other Miami
Forever Bond Documents void ab initio.
c. If the City shall commence, prosecute, or participate in any suit, action or
proceeding without having first obtained the prior written consent of Ocean Bank as required in
Provision 4b. above, Ocean Bank may intervene and interpose such defense or plea in its name
or in the name of Borrower. If the City shall attempt to enforce the its security interests under
the Miami Forever Bond Agreement or other Miami Forever Bond Documents in violation of
this Agreement, Ocean Bank may, by virtue of this Agreement, restrain the enforcement thereof
in its name or in the name of Borrower. If the City obtains all or any portion of the Property (or
any other assets of Borrower related to the Property) as the result of any administrative, legal or
equitable action, or otherwise, the City shall forthwith pay, deliver and assign to Ocean Bank any
such assets for application toward the First Mortgage Note or any other amount now or hereafter
owing to Ocean Bank by Borrower under the First Loan Documents.
5. Waiver of Right to Payment in foreclosure. City waives its rights, if any, under
applicable law to request that a final judgment in a foreclosure of the First Mortgage direct
payment of all or any part of the Miami Forever Bond from the proceeds of the foreclosure sale
of the First Mortgage prior to full repayment of the First Mortgage Loan, including all interest
accruing after the commencement of any bankruptcy or insolvency proceeding involving the
Borrower.
6. Right to Cure. City shall, simultaneously with the sending of any notice of a
default under the Miami Forever Bond Agreement or other Miami Forever Bond Documents to
Borrower (a " Miami Forever Bond Default"), send to Ocean Bank a copy of said notice.
Additionally, Ocean Bank shall have the right, but shall not have any obligation, to cure any
Miami Forever Bond Default until forty-five (45) days following any default notice given by the
City as a consequence of the Miami Forever Bond Default. City acknowledges that all amounts
advanced or expended by Ocean Bank to cure a Miami Forever Bond Default shall be added to
and become a part of First Mortgage Loan pursuant to the terms of the First Mortgage Loan
Documents.
7. Bankruptcy of Borrower. City hereby agrees that so long as any sum shall remain
outstanding on the First Mortgage Loan:
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a. In the event of a proceeding by or against Borrower or a member or
manager of Borrower, whether voluntary or involuntary, for insolvency, liquidation,
reorganization, dissolution, bankruptcy or other similar proceeding pursuant to the Bankruptcy
Code or other applicable federal or state law (in any such event, a "Bankruptcy Proceeding"),
Ocean Bank's First Mortgage Loan shall include all interest accruing thereon, in accordance with
and at the rates specified in the First Loan Documents, both for periods before and after the
commencement of any of such proceedings.
b. City shall not, without the prior written consent of Ocean Bank,
commence, or join with any other creditor in commencing, any Bankruptcy Proceeding
commenced under Title 11 of the United States Code (the "Bankruptcy Code") or other
applicable federal or state law with respect to Borrower.
c. In any reorganization proceeding of Borrower, the rights of City shall be
expressly limited to the exercise of its rights to file a proof of claim in respect of the Miami
Forever Bond Agreement and other Miami Forever Bond Documents, respectively, and send to
Ocean Bank a copy thereof, together with evidence of the filing with the appropriate court or
other authority, and defend any objection filed to said proof of claim. City waives the right to
exercise any rights in any bankruptcy proceeding involving Borrower not expressly identified in
this paragraph.
d. City agrees that it will not oppose any motion by Ocean Bank for relief
from the automatic stay in order for Ocean Bank to exercise its rights under the First Mortgage
and the other First Loan Documents.
e. To the extent any payment under the First Loan Documents (whether by or
on behalf of the Borrower, as proceeds of security or enforcement of any right of setoff or
otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to a trustee,
receiver or other similar party under any bankruptcy, insolvency, receivership or similar law,
then if such payment is recovered by, or paid over to, such trustee, receiver or other similar
party, the First Mortgage Loan or part thereof, originally intended to be satisfied shall be deemed
to be reinstated and outstanding as if such payment has not occurred.
8. Notices. Each notice, request, demand, consent, approval or other communication
(hereinafter in this Section referred to collectively as "notices" and referred to singly as a
"notice") which Ocean Bank, City is required or permitted to give to the other party pursuant to
this Agreement shall be in writing and shall be deemed to have been duly and sufficiently given
if (a) personally delivered with proof of delivery thereof (any notice so delivered shall be
deemed to have been received at the time so delivered), or (b) sent by Federal Express (or other
similar national overnight courier) designating early morning delivery (any notice so delivered
shall be deemed to have been received on the next business day following receipt by the courier),
or (c) sent by United States registered or certified mail, return receipt requested, postage prepaid,
at a post office regularly maintained by the United States Postal Service (any notice so sent shall
be deemed to have been received three (3) days after mailing in the United States), addressed to
the respective parties as follows:
If to Ocean Bank: Ocean Bank
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If to the City:
With a copy to:
If to Borrower:
780 N.W. 42' Avenue
Miami, Florida 33126
Attn: Jesus Garcia
City of Miami
City Attorney's Office
444 SW 2nd Ave, F19
Miami, FL 33130-1910
Attn: George K. Wysong III
City of Miami
Department of Housing and
Community Developement
444 SW 2nd Ave, Fl 9
Miami, FL 33130-1910
Attn: Victor Turner, Director
8th Street Properties, LLC
16426 NE 32nd Ave
North Miami Beach, Florida 33160
Attn: Nuri Dorra
Any party may, by notice given pursuant to this Paragraph, change the person or persons and/or
address or addresses, or designate an additional person or persons or an additional address or
addresses for its notices, but notice of a change of address shall only be effective upon receipt.
9. Conflict. The Borrower, Ocean Bank, and City each agrees that, in the event of
any conflict or inconsistency between the terms of the First Loan Documents, the Miami
Forever Bond Agreement or other Miami Forever Bond Documents, and the terms of this
Agreement, the terms of this Agreement shall govern and control: (i) the relative priority of the
security interests of Ocean Bank and City in the Property; (ii) the timing of the exercise of
remedies by Ocean Bank and City under the First Mortgage and the Miami Forever Bond
Agreement and other Miami Forever Bond Documents, respectively; and (iii) the notice
requirements, cure rights, and the other rights and obligations which Ocean Bank and City have
agreed to as expressly provided in this Agreement.
10. No Modification of Loan Documents. The Borrower and City each agrees that,
until the principal of, interest on and all other amounts payable under the First Loan Documents
have been paid in full, it will not, without the prior written consent of Ocean Bank in each
instance, (i) amend, modify, increase, extend, renew or replace the Miami Forever Bond
Agreement or other Miami Forever Bond Documents, or (ii) assign any interest in the Miami
Forever Bond Agreement or other Miami Forever Bond Documents. Any amendment or
assignment of the Miami Forever Bond Agreement or other Miami Forever Bond Documents
without Ocean Bank's consent shall be void ab initio and of no effect whatsoever.
11. General.
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a. Assignment/Successors. This Agreement shall be binding upon and shall
inure to the benefit of the respective legal successors and assigns of Ocean Bank, City, and
Borrower.
b. Further Assurances. Ocean Bank, Borrower, and City agree to execute
and deliver all additional instruments and/or documents required by any party hereto in order to
evidence that the Miami Forever Bond Agreement and other Miami Forever Bond Documents
are subordinate to the lien, covenants and conditions of the First Mortgage, or to further evidence
the intent of this Agreement.
c. Amendment. This Agreement shall not be amended except by written
instrument signed by all parties hereto.
d. Governing Law. This Agreement shall be governed by the laws of the
State of Florida. Non-exclusive venue for any action arising from this Agreement shall lie in the
jurisdictional courts in and for Miami -Dade County, Florida.
e. Severable Provisions. If any provision of this Agreement shall be invalid
or unenforceable to any extent, then the other provisions of this Agreement, shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
f. Term. The term of this Agreement shall commence on the date hereof and
shall continue until the earliest to occur of the following events: (i) the recordation of a
satisfaction of the First Mortgage or (ii) the acquisition by Ocean Bank of title to the Property
pursuant to a foreclosure of the First Mortgage.
[Signature Pages to Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first written above.
STATE OF FLORIDA
COUNTY OF
)
) ss:
)
OCEAN BANK:
OCEAN BANK,
a Florida banking corporation
By:
Name:
Title:
The foregoing instrument was acknowledged before me by means of D physical
presence or ❑ online notarization, this day of , 2025, by
, as of Ocean Bank, a Florida banking corporation,
on behalf of the bank, who is personally known to me or who has produced
as identification.
[NOTARIAL SEAL] Print Name:
Notary Public, State of Florida
Commission #:
My Commission Expires:
CITY:
7
ATTEST:
APPROVED AS TO FORM AND
CORRECTNESS:
w
George ysong III
City Attorney r'1,p Z 1-3 Z 1,
STATE OF FLORIDA
COUNTY OF
) ss:
CITY OF MIAMI, a municipal
corporation of the State of Florida
By: �2���C�K cjrl huh cj("'4_
Aur Noriega V, City Manager
The foregoing instrument was acknowle d before me by means of ❑ physical
e ence /tor online notarization, this day of
tita5 C WI1►ION , as of City of Miami, who is
me or who has produced
identification.
[NOTARIAL SEAL]
EDITH MCCRAY
Notary Pubic • State of Florida
Commission 4 HH 471900
My Comm. Expires Dec 10, 2027
Bonded through National Notary Assn.
v' �, 21 by
to
as
12cLth �G " U
Print Name: �i`f V krCr(A ✓�
Notary Public, State Florida
Commission #: l-i if y' 7 / 6) U l%
My Commission Expires: pi C, /O .1011
8
BORRO 1 R:
8T S
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B
Na
Titl
PROPERT S, LLC,
ited liabili t ompany
TIT! f �r
t ire"
.4011111
STATE OF FLORIDA )
) ss:
COUNTY OF -IicF "
The foregoing instrument was acknowledged before me by means of WI/physical
presence or ❑ online notarization, this 2. 1 day of -SO 1 \J , 2025, by Nuri Dorra, as
Managing Member of 8T" STREET PROPERTIES, LLC, a Florida limited liability company, on
behalf of the limited liability company, who is personally known to me or who has produced
CA11V-tX5 «u2).1\A-P as identification.
[NOTARIAL SEAL]
MAHANOORABBAS
*' ==r:: I* MY COMMISSION # HH 631069
.',• !fet'.0e`°�� EXPIRES: January26, 2029
Print Name: C9W fSLoiL
Notary Public, State of Florida
Commission #:
My Commission Expires:
9
Exhibit A
Legal Description
PARCEL A:
The South 35 feet of Lots 2 and 3, Lots 10 and 11, less the South 10 feet thereof, in Block R, Riverview
Mrs. Mary Brickell's Subdivision, as recorded in Plat Book 5, Page 43, of the Public Records of Miami -
Dade County, Florida.
PARCEL B:
The West 1/2 of Lot 12, less the South 10 feet thereof, all in Block R, Riverview Mrs. Mary Brickell's
Subdivision, as recorded in Plat Book 5, Page 43 of the Public Records of Miami -Dade County, Florida.
PARCEL C:
The East 1/2 of Lot 12, less the East 6.35 feet of the South 74.86 feet, and less the South 10 feet thereof,
in Block R, Riverview Mrs. Mary Brickell's Subdivision, as recorded in Plat Book 5, Page 43, of the
Public Records of Miami -Dade County, Florida.
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19,1 a