Loading...
HomeMy WebLinkAbout24153AGREEMENT INFORMATION AGREEMENT NUMBER 24153 NAME/TYPE OF AGREEMENT EDISON TOWERS, LLLP & TALCOLCY ECONOMIC DEVELOPMENT CORPORATION, INC. DESCRIPTION MODIFICATION & ASSUMPTION AGREEMENT/REHABILITATE AFFORDABLE HOUSING DEVELOPMENT AT EDISON TOWERS EFFECTIVE DATE September 29, 2022 ATTESTED BY TODD B. HANNON ATTESTED DATE 9/29/2022 DATE RECEIVED FROM ISSUING DEPT. 11/16/2022 NOTE Prepared by, and return to upon Recordation: Victoria Mendez, Esq. Office of the City Attorney, City of Miami 444 SW 2nd Avenue, 2nd Floor Miami, FL 33130 Folio: 01-3113-090-0010 MODIFICATION AND ASSUMPTION AGREEMENT THIS MODIFICATION AND ASSUMPTIONGREEMENT (hereinafter referred to as the "Agreement") made and entered into as of this ri day of Stipier6C/2022, by and between Edison Towers, LLLP, a Florida limited liability limited partnership (hereinafter referred to as "Borrower"), having an address at 5900 NW 7th Avenue, Miami, FL 33127, Tacolcy Economic Development Corporation, Inc., a Florida limited liability company (hereinafter referred to as the "Original Mortgagor"), having an address at 5900 NW 7th Avenue, Miami, FL 33127, and the City of Miami, a municipal corporation of the State of Florida (hereinafter referred to as the "Lender" or "City"), with an address at 444 S.W. 2nd Avenue, Miami, FL 33130. RECITALS WHEREAS, in 2010, Lender loaned Original Mortgagor $200,000.00 in Community Development Block Grant funds in order to rehabilitate the affordable housing development known as Edison Towers Apartments ("Loan"); and WHEREAS, the Loan matures on October 6, 2031; and WHEREAS, Lender is the holder and owner of the loan documents made in connection with the Loan (hereinafter sometimes collectively referred to as the "Loan Documents") including but not limited to: i. Promissory Note dated March 30, 2010, in the principal face amount of Two Hundred Thousand and 00/100 Dollars ($200,000.00) executed and delivered by Original Mortgagor in favor of Lender (hereinafter referred to as the "Note"); and, ii. Mortgage and Security Agreement given by Original Mortgagor, as mortgagor, to Lender, as mortgagee, dated March 30, 2010, and recorded June 29, 2010 in Official Records Book 27335, Page 4200-4214 of the Public Records of Miami -Dade County, Florida (hereinafter referred to as the "Mortgage"), and which Mortgage encumbers the real property as described therein (hereinafter referred to as the "Property"); and, iii. Community Development Block Grant Program Loan Agreement, dated March 30, 2010, made between the Lender and the Original Mortgagor (hereinafter referred to as the "Loan Agreement"); and Page 1 of 8 iv. Restrictive Covenant made by Original Mortgagor in favor of Lender, dated March 30, 2010 and recorded on June 29, 2010 in Official Records Book 27335, Pages 4215-4219 of the Public Records of Miami -Dade County, Florida (hereinafter referred to as the "Covenant"); and v. Rent Regulatory Agreement between Original Mortgagor and Lender, dated March 30, 2010 and recorded on June 29, 2010 in Official Records Book 27335, Pages 4220-4227 of the Public Records of Miami -Dade County, Florida (hereinafter referred to as the "Rent Regulatory Agreement"); and vi. Disbursement Agreement between Original Mortgagor and Lender dated March 30, 2010 (hereinafter referred to as the "Disbursement Agreement"); and WHEREAS, at date present, Original Mortgagor shall assign its interest in the Property to the Borrower, provided that Borrower assumes, by virtue of this Agreement, all Loan Documents and agrees to perform all covenants, conditions, terms, duties, requirements, and obligations in the Loan Documents; and WHEREAS, the City agrees to the assumption provided that all parties hereto execute this agreement and Borrower executes the Amended and Restated Promissory Note and Amended and Restated Mortgage and Security Agreement, both attached hereto and incorporated herein; and NOW, THEREFORE, for and in consideration of the sum of TEN DOLLARS ($10.00) and in consideration of the Premises and of the mutual covenants contained herein, and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties hereto agree as follows: 1. Assumption: Borrower expressly assumes all obligations and liabilities of Original Mortgagor under the Loan Documents from and after the date hereof and agrees, from and after the date hereof, to perform and be bound by all covenants, conditions, terms, duties, requirements, and obligations contained therein, including, but not limited to, payment of the Amended and Restated Note and the obligations evidenced thereby. 2. Nonrecourse for Original Mortgagor: The Note is a non -recourse promissory note and neither the Maker, nor any of its partners members, officers, directors or employees shall have any personal liability for the payment of any portion of the indebtedness evidenced by the Note, except that the exceptions to non -recourse liability applicable to any and all senior indebtedness encumbering the Property shall also apply to this Loan. 3. Amended Loan Documents: The Mortgage is amended and restated in the Amended and Restated Mortgage and Security Agreement, which is attached hereto and is incorporated herein by this reference (hereinafter referred to as the "Amended and Restated Mortgage") to the extent legally necessary for Borrower to be liable for the Loan as debtor and Mortgagor, as defined in the Amended and Restated Mortgage. The Note is amended and restated in the Amended and Restated Promissory Note, which is attached hereto and is incorporated herein by this reference (hereinafter referred to as the "Amended and Restated Promissory Note" or "Amended and Restated Note") to the extent legally necessary for Borrower to be liable for the Loan as Maker, as Page 2 of 8 defined in the Amended and Restated Promissory Note. The Covenant is hereby amended to the extent legally necessary for Borrower to be liable, bound, and assume all responsibilities and obligations as the covenantor and the Project Sponsor, as defined in the Covenant. The Disbursement Agreement is hereby amended to the extent legally necessary for Borrower to be liable, bound, and assume all responsibilities and obligations as the Subrecipient, as defined in the Disbursement Agreement. The Rent Regulatory Agreement is hereby amended to the extent legally necessary for Borrower to be liable, bound, and assume all responsibilities and obligations as Borrower, as defined in the Rent Regulatory Agreement. The Loan Agreement is hereby amended to the extent legally necessary for Borrower to be liable, bound, and assume all responsibilities and obligations as Subrecipient, as defined in the Loan Agreement. Except as specifically modified hereby, the Loan is subject to the same terms and conditions contained in the Loan Documents. 4. Warranties and Representations: Borrower affirms warrants, represents and covenants it has no defenses nor rights of set-off against Lender or against the payment, collection or enforcement of the indebtedness evidenced by the Amended and Restated Promissory Note and owed to Lender. Borrower further warrants and represents as follows: a. Borrower has done no acts nor omitted to do any act which might prevent Lender from, or limit Lender in, acting upon or under any of the provisions herein; in the Amended and Restated Mortgage, in the Amended and Restated Promissory Note or any other Loan Document executed in connection therewith, as amended hereby; b. Borrower is not prohibited under any other agreement with any other person, corporation, or any judgment or decree, from the execution and delivery of this Agreement, or the performance of each and every covenant hereunder or under the Amended and Restated Mortgage, Amended and Restated Note or any other Loan Document executed in connection therewith, as amended hereby; c. No action has been brought or threatened which would in any way interfere with the right of Borrower to execute this Agreement and perform all of Borrower's obligations contained herein, in the Amended and Restated Promissory Note, in the Amended and Restated Mortgage, or in any other Loan Document executed in connection therewith, as amended hereby; d. All financial statements of Borrower are true and correct in all respects, fairly present the respective financial conditions of the subjects thereof as of the respective dated thereof and no material adverse change has occurred that would affect Borrower's ability to repay the indebtedness assumed hereby; e. Borrower is duly formed, validly existing and in good standing under the laws of the State of Florida and has full power and authority to consummate the transactions contemplated under this Agreement. 5. Acknowledgments: Page 3 of 8 a. To the best of their knowledge, the parties hereto all acknowledge that the Loan Documents are in full force and effect as of the date hereof. City acknowledges that there are no defaults as of date hereof; and, b. Borrower acknowledges that the principal balance of the Loan as represented by the aforesaid Amended and Restated Note as of the date of this Agreement is Two Hundred Thousand Dollars ($200,000.00) and principal and interest are unconditionally due and owing to the Lender as provided in the Amended and Restated Note. 6. Attorney's fees: In the event litigation, arbitration, or mediation, between the parties hereto, arises out of the terms of this Agreement, each party shall be responsible for its own attorney's fees, costs, charges, and expenses through the conclusion of all appellate proceedings, and including any final settlement or judgment. In the event that it is determined that additional costs relating to this transaction are due, Borrower agrees to pay such costs immediately upon demand. 7. No Novation: It is the intent of the parties that this instrument shall not constitute a novation and shall in no way adversely affect the lien priority of the Mortgage and other Loan Documents referred to above. The parties hereto shall be bound by all terms and conditions hereof until all indebtedness owing from the Borrower to the Lender shall have been paid in full. 8. Counterparts: This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall together constitute but one and the same Agreement. The parties shall be entitled to sign and transmit an electronic signature of this Agreement (whether by facsimile, PDF or other email transmission), which signature shall be binding on the party whose name is contained therein. Any party providing an electronic signature agrees to promptly execute and deliver to the other parties an original signed Agreement upon request. 9. Recordation: The recording of this Agreement on the public Records shall evidence the closing of the transaction described herein. 10. Paragraph Headings: The paragraph headings used herein are for convenience of reference only and shall not be used in the interpretation or construction hereof. 11. Governing Law and Venue: This Agreement shall be construed and enforced pursuant to the laws of the State of Florida, excluding all principles of choice of laws, conflict of laws and comity. Any action pursuant to a dispute under this Agreement 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. 12. Time of the Essence: Time is of the essence in the performance of this Agreement. Page 4 of 8 13. Amendment and Modification: This Agreement may be modified, amended, or released as to any portion of the Property by a written instrument executed on behalf of the City and Borrower. Should this instrument be modified, amended or released, the City Manager shall execute a written instrument in recordable form to be recorded in the Public Records of Miami - Dade County, Florida, effectuating and acknowledging such modification, amendment, or release. 14. Severability: Invalidation of one of the provisions of this Covenant by judgment of Court shall not affect any of the other provisions of the Covenant, which shall remain in full force and effect. 15. Binding Effect: This Agreement shall inure to the benefit of and be binding upon the parties hereto as well as their successors and assigns, heirs and personal representatives. 16. Number and Gender: Whenever the singular or plural number, masculine or feminine or neuter gender is used herein, it shall equally include the others and shall apply jointly and severally. 17. Third Party Beneficiaries: It is expressly agreed and by this statement specifically intended by the parties that nothing within this Agreement shall be construed as indicating any intent by either party to benefit any other entity or person not a party signatory to this Agreement by any provision or to entitle any such third party to any right of action on account hereof 18. Recitals: The recitals and findings set forth in the preamble of this Agreement are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. 19. Assignment: Neither this Agreement nor any rights, interest or obligations hereunder, shall be assigned by any party hereto without the prior written consent of the other parties hereto. 20. Limited Partner: Notwithstanding anything contained in this Agreement, RBC Community Investments, LLC, its successors and/or assigns (the "Limited Partner") shall have the right, but not the obligation, to cure an event of default hereunder within the same time periods afforded to the Borrower to cure such event of default. The Lender shall deliver to the Limited Partner at 600 Superior Avenue Suite 2300 Cleveland, Ohio 44114 a copy of any written notice of any event of default delivered by the Lender to the Borrower. Any cure of an event of default made by the Limited Partner shall be deemed to be a cure by the Borrower and shall be accepted or rejected on the same basis as if made by the Borrower. Neither giving nor failure to give notice to the Limited Partner, as described in this section, will impact the validity of notice given to Borrower. Notwithstanding anything to the contrary stated herein, Lender consents to the Limited Partner's transfer of its interest in the Borrower to a related entity within one hundred eighty (180) days of the date hereof [Signature Pages Follow] Page 5 of 8 IN WITNESS WHEREOF, the parties hereto have duty executed this Agreement as follows: As to Borrower, the 8 •day of , 2022. WITNESSES: Name: 5 di Print Name: IA.L.4 i c4 e & Edison Towers, LLLP, a Florida limited liability limited partnership By: Edison Towers GP, LLC, a Florida limited liability company, its sole general partner By: Print Name: Carol Gardner Title: President STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me by means of physical presence or O online notarization, this p 'day of 6/ by Carol Gardner, as President of Edison Towers GP, LLC., the general partner of Edison Towers, LLLP, a Florida limited liability limited partnership, on behalf of the partnership. He/she is personally known to mg or has prooliced T� as identification. (NOTARY PUBLIC SEAL) Notary Public State of Florida 4' Tti Shamika S. Gordon g My Commission HH 042939 yq Expires 09/15/2024 OF a Page 6 of 8 ignature of Person Taking Acknowledgment Printed, Typed, or Stamped Name of Notary Public) tle or Rank Serial Number, if any As to Original Mortgagor, the a g day of WITNESSES: Na Print Name: &E S STATE OF FLORIDA COUNTY OF MIAMI-DADE 2022. Tacolcy Economic Development Corporation, Inc, a Florida not for profit corporation By: Print Name: Carol Gardner Title: President The foregoing instrument was acknowledged before me by means of I physical presence or O online notarization, thisl day of S tM I € by Carol Gardner, as President for Tacolcy Economic Development Corporation, Inc, a not for profit corporation of the State of Florida, on behalf of the corporation. He/she is personally known to me or has produced as)dentif catipn (NOTARY PUBLIC SEAL) Notary Public State of Florida Shamike S. Gordon • My Commission HH 042939 %Y.— Expires 09/1512024 cu Page 7 of 8 ignature of Person Taking Acknowledgment (Printed, Typed, or Stamped Name of Notary Public) Title or Rank Serial Number, if any As to Lender, the _day of , 2022. ATTEST: odd Hanno Date: L), Cl rk a'\(a0a Approy¢i.% • s To Fo )P and Correctness: or" —Victoria Mende City Attorney CITY: City of Miami, a murjipal corporation of the State of Flo By: Arthur Noriega,ity Manager STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me by means of,2"alysical presence or C I online notarization, thi 1 C, day of 3qt . , p�.� by Arthur Noriega V as Ci Manager for the City of Miami, a municipal corporation of the State of Florida, on behalf of the municipal corporation. He/she is ersonally known e or has produced ntification. (NOTARY PUBLIC SEAL) ...... re• Bonded Tin Notary KW Undenfaters EXPIRES: August 2, 2023 Person Signatuof ;•'edgment Takin owl (Printed, Typed, or Stamped Name of Notary Public) Title or Rank Serial Number, if any a,L4t5� Page 8 of 8