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HomeMy WebLinkAbout24435AGREEMENT INFORMATION AGREEMENT NUMBER 24435 NAME/TYPE OF AGREEMENT THE VILLAGE MIAMI PHASE II, LLC, THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. & MIAMI-DADE COUNTY DESCRIPTION SUBORDINATION AGREEMENT/CONSTRUCTION IMPROVEMENTS ON A 120 UNIT MULTIFAMILY HOUSING FACILITY/#79 EFFECTIVE DATE April 1, 2023 ATTESTED BY NICOLE EWAN ATTESTED DATE 4/26/2023 DATE RECEIVED FROM ISSUING DEPT. 4/10/2023 NOTE GT Draft 4/19/23 SUBORDINATION AGREEMENT by and among THE VILLAGE MIAMI PHASE II, LLC, THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee, MIAMI-DADE COUNTY, FLORIDA and CITY OF MIAMI, FLORIDA, Dated as of April 1, 2023 Relating to: $32,500,000 Housing Finance Authority of Miami -Dade County, Florida Multifamily Housing Revenue Bonds (The Villages Apartments, Phase II), Series 2023 This instrument prepared by and when recorded return to: Greenberg Traurig, LLP 1717 Arch Street, Suite 400 Philadelphia, Pennsylvania 19103 Alexander L. Scarola, Esquire ACTIVE 682508262v6 SUBORDINATION AGREEMENT This SUBORDINATION AGREEMENT dated as of April 1, 2023 (as amended, modified, supplemented or assigned from time to time, this "Agreement") by and among THE VILLAGE MIAMI PHASE II, LLC, a limited liability company duly organized and validly existing under the laws of the State of Florida (together with its permitted successors and assigns, the "Borrower"), THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association duly organized and validly existing under the laws of the United States of America, as trustee (together with its permitted successors and assigns, the "Trustee" or the "Senior Lender"), MIAMI-DADE COUNTY, FLORIDA, a political subdivision of the State of Florida (together with its permitted successors and assigns, the "Surtax/DIAF Subordinate Lender") and CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida (together with its permitted successors and assigns, the "GAP Subordinate Lender," and together with the Surtax/DIAF Subordinate Lender, the "Subordinate Lender," individually or collectively as the context may require). WITNESSETH: WHEREAS, the Borrower is the holder of a leasehold estate of certain property located in the City of Miami and in Miami -Dade County, Florida, more particularly described on Exhibit A attached hereto, on which the Borrower intends to construct certain improvements consisting of a 120-unit multifamily housing facility, together with related amenities (such property and the improvements described above are collectively referred to herein as the "Property"); WHEREAS, the Property is being acquired and constructed, in part, with the proceeds of those certain $32,500,000 Multifamily Housing Revenue Bonds (The Villages Apartments, Phase II), Series 2023 (the "Bonds"), issued by Housing Finance Authority of Miami -Dade County, Florida (the "Issuer"), pursuant to an Indenture of Trust dated as of April 1, 2023, by and between the Issuer and the Trustee (as amended, modified or supplemented from time to time, the "Indenture"); WHEREAS, the proceeds of the Bonds are being loaned to the Borrower pursuant to the terms of a Loan Agreement dated as of April 1, 2023, by and between the Issuer and the Borrower (as amended, modified or supplemented from time to time, the "Loan Agreement"); WHEREAS, the Borrower's obligations under the Loan Agreement are evidenced by a promissory note dated as of the date of issuance of the Bonds (as amended, modified or supplemented from time to time, the "Note"), and are secured by, among other things, a first -priority mortgage lien on the Property granted pursuant to a Leasehold Mortgage, Assignment of Rents, Security Agreement and Fixture Filing dated as of the date hereof (as amended, modified or supplemented from time to time, the "Senior Mortgage"), and an Assignment of Leases, Rents and Other Income dated as the date hereof (as amended, modified or supplemented from time to time, the "Senior Assignment" and together with the Senior Mortgage, the "Senior Mortgage Documents," which, together with the Loan Agreement, the Note and all other agreements contemplated therein or evidencing or securing the Borrower's obligations under the Loan Agreement are hereinafter collectively referred to as the "Senior Loan Documents" and the indebtedness evidenced and secured by the Senior Loan Documents is hereinafter collectively referred to as the "Senior Indebtedness"); WHEREAS, the Property is also being acquired and constructed, in part, with the proceeds of (i) a Surtax and Development Inflation Adjustment Fund ("DIAF") loans to the Borrower made by the Surtax/DIAF Subordinate Lender pursuant to a Loan Agreement dated as of April 28, 2023 (the "Surtax/DIAF Subordinate Loan Agreement") and evidenced by promissory notes in the original face amount of $4,788,000.00 and $1,000,000.00 (the "Surtax/DIAF Subordinate Notes," and together with ACTIVE 682508262v6 the Surtax/DIAF Subordinate Loan Agreement and all documents executed pursuant thereto, the "Surtax/DIAF Subordinate Loan Documents"); and (ii) a gap loan to the Borrower made by the Gap Subordinate Lender pursuant to a Loan Agreement dated as of April 28, 2023 (the "Gap Subordinate Loan Agreement") and evidenced by a promissory note in the original face amount of $2,500,000.00 (the "Gap Subordinate Note" and together with the Gap Loan Agreement, the "Gap Subordinate Loan Documents," and together with the Surtax/DIAF Subordinate Loan Documents, the "Subordinate Loan Documents"); WHEREAS, the Surtax/DIAF Subordinate Notes and the Gap Subordinate Note are referred to as the "Subordinate Notes" herein; WHEREAS, the Borrower's obligations to the Surtax/DIAF Subordinate Lender under the Surtax/DIAF Subordinate Loan Documents (the "Surtax/DIAF Subordinate Indebtedness") are secured by a Leasehold Mortgage and Security Agreement and Assignment of Leases, Rents and Profits dated as of April 28, 2023 (the "Surtax/DIAF Subordinate Mortgage") and a Collateral Assignment of Leases, Rents and Contract Rights dated as of April 28, 2023 (the "Surtax/DIAF Subordinate Assignment," and together with the Surtax/DIAF Subordinate Mortgage, the "Surtax/DIAF Subordinate Mortgage Documents"); WHEREAS, the Borrower's obligations to the Gap Subordinate Lender under the Gap Subordinate Loan Documents (the "Gap Subordinate Indebtedness," and together with the Surtax/DIAF Subordinate Indebtedness, the "Subordinate Indebtedness") are secured by a Leasehold Mortgage and Security Agreement and Assignment of Leases, Rents and Profits dated as of April 28, 2023 (the "Gap Subordinate Mortgage") and a Collateral Assignment of Leases, Rents and Contract Rights dated as of April 28, 2023 (the "Gap Subordinate Assignment," and together with the Gap Subordinate Mortgage, the "Gap Subordinate Mortgage Documents"); WHEREAS, the Subordinate Loan Agreement, Subordinate Notes and Subordinate Mortgage Documents are collectively referred to herein as the "Subordinate Loan Documents"; WHEREAS, it is a requirement of the Senior Loan Documents that the Senior Mortgage Documents shall be and remain liens or charges upon the Property prior and superior to the lien or charge of the Subordinate Mortgage Documents, that the Subordinate Indebtedness be subordinated in right of payment to the Senior Indebtedness and that the Subordinate Indebtedness be payable solely from cash available after payment of operating expenses of the Property and amounts due and owing in respect of the Senior Indebtedness; NOW, THEREFORE, in consideration of the foregoing and the mutual benefits accruing to the parties hereto and for other good and valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged and intending to be legally bound hereby, it is hereby declared, understood and agreed by the parties as follows: 1. Subordination of Subordinate Mortgage Documents. The Subordinate Lender declares, agrees and acknowledges that the Senior Mortgage Documents, and any renewals or extensions thereof, and any modifications thereof or substitutions therefor which do not increase the principal balance secured thereby (except increases by reason of protective advances or payment of the Senior Lender's costs) and all advances made pursuant to the Senior Mortgage Documents, all costs and expenses secured thereby and interest on the foregoing, shall unconditionally be and remain at all times liens or charges on the Property prior and superior to the lien or charge of the Subordinate Mortgage Documents. 2 ACTIVE 682508262v6 2. Subordination of Subordinate Indebtedness; Remitting Subordinate Loan Payments to Senior Lenders Reinstatement. (a) The Subordinate Indebtedness is hereby subordinated in right of payment to any and all of the Senior Indebtedness and shall be payable only from and to the extent of revenues of the Property available after payment of all amounts then due and owing under the Senior Loan Documents and all current operating expenses of the Property. Notwithstanding the foregoing, unless and until the Senior Lender gives the Subordinate Lender notice of the occurrence of a default under the Senior Loan Documents, the Subordinate Lender may receive and accept payments on account of principal and interest payable under the Subordinate Note to the extent of cash flow of the Borrower available after payment of current operating expenses of the Property and amounts then due and owing under the Senior Loan Documents. (b) If the Subordinate Lender shall receive any payments or other rights in any property of the Borrower after the Senior Lender has given the Subordinate Lender notice of a default under the Senior Loan Documents, such payment or property shall be received by the Subordinate Lender in trust for the Senior Lender and shall immediately be delivered and transferred to the Senior Lender. (c) If at any time payment of all or any part of the Senior Indebtedness is rescinded or must otherwise be restored or returned by the Senior Lender in connection with any bankruptcy, reorganization, arrangement, insolvency, liquidation or similar proceedings (a "Proceeding") in respect of the Borrower or the Manager, and the Subordinate Lender has received payment of all or any part of the Subordinate Indebtedness, the Subordinate Lender shall forthwith turn over the same to, and for the account of, the Senior Lender, until the Senior Lender has received indefeasible payment in full of any such payments on the Senior Indebtedness that have been so rescinded, restored or returned. 3. Exercise of Remedies. (a) The Subordinate Lender declares, agrees, and acknowledges that it will not, except as otherwise provided herein, without the prior written consent of the Senior Lender: (i) sue the Borrower under any of the Subordinate Loan Documents; (ii) accelerate or accept a prepayment in full of the Subordinate Indebtedness; (iii) accept a deed or assignment in lieu of foreclosure for the Property or any part or portion thereof; (iv) seek or obtain a receiver for the Property or any part or portion thereof; (v) take possession or control of the Property, or collect or accept any rents from the Property; (vi) take any action that would terminate any leases or other rights held by or granted to or by third parties with respect to the Property; (vii) initiate or join any other creditor in commencing any Proceeding with respect to the Borrower; (viii) incur any obligation to the Borrower other than as provided in the Subordinate Loan Agreement, (ix) exercise any other remedies under the Subordinate Loan Documents; or (x) take any other enforcement action against the Property or any part or portion thereof. The Subordinate Lender may commence any action to foreclose or exercise any power of sale under the Subordinate Mortgage upon thirty (30) calendar days' written notice to the Senior Lender. Senior Lender shall have the right to cure any defaults of the Borrower prior to the commencement of such action to foreclose. (b) The Subordinate Lender agrees that the Senior Lender shall have, as determined in accordance with and subject to the terms of the Senior Loan Documents, upon the occurrence of an Event of Default under and as defined in the Senior Loan Documents, the right to (i) accelerate the Senior Indebtedness; (ii) commence any action to foreclose or exercise any power of sale under the Senior Mortgage; (iii) accept a deed or assignment in lieu of foreclosure for the Property or any part or portion thereof; (iv) seek or obtain a receiver for the Property or any part or portion thereof; (v) take possession or control of the Property, and collect and accept rents from the Property; (vi) sue the Borrower under any of the Senior Loan Documents; (vii) exercise any rights of set-off or recoupment that the Senior Lender may 3 ACTIVE 682508262v6 have against the Borrower; or (viii) take any other enforcement action against the Property or any part or portion thereof, all without any responsibility or liability to the Subordinate Lender with respect to the Property. (c) The Subordinate Lender agrees that the Senior Lender shall have absolute power and discretion, without notice to the Subordinate Lender, to deal in any manner with the Senior Indebtedness, including interest, costs and expenses payable by the Borrower to the Senior Lender, and any security and guaranties therefor, including, but not by way of limitation, release, surrender, extension, renewal, acceleration, compromise or substitution; provided that the Senior Lender shall not increase the principal amount of the indebtedness to which the Subordinate Loan Documents are subordinate (other than increases resulting from protective advances or payment of the Senior Lender's costs) without the prior written consent of the Subordinate Lender, which consent shall not be unreasonably withheld or delayed. (d) The Subordinate Lender further agrees that if at any time the Subordinate Lender should commence any foreclosure proceeding, or commence any action to execute on any lien obtained by way of attachment or otherwise on the Property, or otherwise take any action prohibited under Section 3(a) hereof, the Senior Lender shall (unless the Senior Lender has consented to such action or remedy or Subordinate Lender has provided the requisite notice) be entitled to have the same vacated, dissolved and set aside by such proceedings at law or otherwise as the Senior Lender may deem proper, and this Agreement shall be and constitute full and sufficient grounds therefor and shall entitle the Senior Lender to become a party to any proceedings at law or otherwise in or by which the Senior Lender may deem it proper to protect its interests hereunder. (e) No act, omission, breach or other event under this Agreement shall defeat, invalidate or impair in any respect the absolute, unconditional and irrevocable subordination of the Subordinate Loan Documents to the Senior Loan Documents as provided in this Agreement. 4. No Marshaling of Assets. The Subordinate Lender specifically waives and renounces any right which it may have under any applicable statutes, whether at law or in equity, to require the Senior Lender to marshal collateral or to otherwise seek satisfaction from any particular assets or properties of the Borrower or from any third party. 5. Bankruptcy Matters. (a) The subordination provided for in this Agreement shall apply, notwithstanding the availability of other collateral to the Senior Lender or the actual date and time of execution, delivery, recordation, filing or perfection of the Senior Mortgage Documents or the Subordinate Mortgage Documents and, insofar as the Subordinate Lender is concerned, notwithstanding the fact that the Senior Indebtedness or any claim for the Senior Indebtedness may be subordinated, avoided or disallowed, in whole or in part, as against the Borrower under the Bankruptcy Code or other applicable federal or state law. In the event of any Proceeding, the Senior Indebtedness shall include all interest and fees accrued on the Senior Indebtedness, in accordance with and at the rates specified in the Senior Loan Documents, both for periods before and for periods after the commencement of such Proceeding, even if the claim for such interest and/or fees is not allowed as against the Borrower pursuant to applicable law. (b) Without the prior written consent of the Senior Lender, the Subordinate Lender shall not, and the Subordinate Lender waives any and all right to: (i) request adequate protection (as that term is defined in the Bankruptcy Code) (and in the event any such adequate protection is awarded to the Subordinate Lender, the Subordinate Lender hereby assigns any adequate protection in the form of cash to the Senior Lender and any adequate protection in the form of a lien on or security interest in the Property 4 ACTIVE 682508262v6 or any other Collateral is hereby subordinated to all of the Senior Lender's rights, liens or security interests in or to the Property and such other Collateral), (ii) file or support any motion for dismissal or relief from the automatic stay (as defined in the Bankruptcy Code), (iii) request any post -petition interest, (iv) request any sale of the Borrower's assets, or (v) file, propose, support, accept or reject any plan of reorganization of the Borrower. The Subordinate Lender further agrees that, with respect to any Proceeding: (1) it shall not make any election, give any consent, commence any action or file any motion, claim, obligation, notice or application or take any other action in any Proceeding by or against the Borrower or the Manager without the prior written consent of the Senior Lender; (2) the Senior Lender may vote in any such Proceeding any and all claims of the Subordinate Lender against the Borrower or the Manager, and the Subordinate Lender hereby appoints the Senior Lender as its agent, and grants to the Senior Lender an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of exercising any and all rights and taking any and all actions available to the Subordinate Lender in connection with any case by or against the Borrower or the Manager in any Proceeding, including, without limitation, the right to file and/or prosecute any claims, to vote to accept or reject a plan, and to make any election under Section 1111(b) of the Bankruptcy Code; and (3) the Subordinate Lender shall not challenge the validity or amount of any claim submitted in such Proceeding by the Senior Lender in good faith or any valuations of the Property or any other Collateral, or any portion of the foregoing, or other Senior Indebtedness collateral submitted by the Senior Lender in good faith, in such Proceeding or take any other action in such Proceeding, which is adverse to the Senior Lender's enforcement of its claim or receipt of adequate protection (as that term is defined in the Bankruptcy Code). (c) The Subordinate Lender agrees that the Senior Lender does not owe any fiduciary duty to the Subordinate Lender in connection with the administration of the Senior Indebtedness and the Senior Loan Documents and the Subordinate Lender agrees not to assert any such claim. The Subordinate Lender acknowledges that the Senior Lender shall have the sole discretion to exercise or not exercise the rights set forth in this Agreement from time to time; and that such rights may be exercised solely in the interest of the Senior Lender and without regard to the interest of the Subordinate Lender in any action or proceeding, including in connection with any Proceeding. 6. Payment Set Aside. To the extent any payment under any of the Senior Loan Documents (whether by or on behalf of the Borrower, as proceeds of security or enforcement of any right of set-off, 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 the Bankruptcy Code or any federal or state 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 Senior Indebtedness or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred. 7. Casualty and Condemnation Proceeds. The Subordinate Lender shall have no right to participate in the adjustment of the proceeds of insurance payable as the result of any casualty to the Improvements, or to participate in any manner whatsoever in activities relating to restoration or reconstruction of the Improvements, and the Senior Lender shall have the exclusive right to receive, administer and apply all such proceeds as set forth in the Senior Loan Documents. In the event the Senior Lender shall release, for the purposes of restoration of all or any part of the Property, its right, title and interest in and to the proceeds under policies of insurance thereon, and/or its right, title and interest in and to any awards, or its right, title and interest in and to other compensation made for any damages, losses or compensation for other rights by reason of a taking in eminent domain, the Subordinate Lender shall simultaneously release for such purpose all of the Subordinate Lender's right, title and interest, if any, in and to all such insurance proceeds, awards or compensation. The Subordinate Lender agrees that the balance of such proceeds remaining after such restoration, or all of such proceeds in the event such proceeds are not released for any such restoration pursuant to the Senior Loan Documents, shall be 5 ACTIVE 682508262v6 applied to the payment of amounts due under the Senior Loan Documents until all such amounts have been indefeasibly paid in full, prior to being applied to the payment of any amounts due under the Subordinate Loan Documents. If the Senior Lender holds such proceeds, awards or compensation and/or monitors the disbursement thereof, the Subordinate Lender agrees that the Senior Lender shall also hold and monitor the disbursement of such proceeds, awards and compensation to which the Subordinate Lender is or may be entitled. Nothing contained in this Agreement shall be deemed to require the Senior Lender, in any way whatsoever, to act for or on behalf of the Subordinate Lender or to hold or monitor any proceeds, awards or compensation in trust for or on behalf of the Subordinate Lender. 8. Indemnification and Subrogation. If the Subordinate Lender or any affiliate shall, by virtue of its role as Subordinate Lender and not by virtue of its role as a government body, acquire, by indemnification, subrogation or otherwise, any lien, estate, right or other interest in the Property, that lien, estate, right or other interest shall be subordinate to the Senior Mortgage Documents and the other Senior Loan Documents as provided herein, and the Subordinate Lender or such affiliate hereby waives, until all amounts owed under the Senior Loan Documents have been indefeasibly paid in full, the right to exercise any and all such rights it may acquire by indemnification, subrogation or otherwise. 9. Subordination Effective. This Agreement, the subordination effected hereby, and the respective rights and priorities of the parties hereto in and to the Property, shall be effective as stated herein, notwithstanding any modification or amendment of any Senior Loan Document (other than any modification or amendment of any Senior Loan Document that increases the amount of indebtedness to which the Subordinate Indebtedness is subordinate for reasons other than protective advances or costs of the Senior Lender), or the obtaining by the Senior Lender or the Subordinate Lender of any additional document confirming, perfecting or otherwise affecting the Senior Loan Documents, or the Subordinate Loan Documents, as the case may be. 10. Amendments of Subordinate Loan Documents and Senior Loan Documents. The Borrower and the Subordinate Lender agree that they will not enter into any amendment, modification or supplement to any of the Subordinate Loan Documents without the express prior written consent of the Senior Lender (which consent shall not be unreasonably withheld). No consent of the Subordinate Lender shall be required for any amendment, modification or supplement to any of the Senior Loan Documents, provided that no amendment, modification or supplement to any of the Senior Loan Documents shall increase the amount of indebtedness to which the Subordinate Loan Documents are subordinate other than increases resulting from protective advances or costs of the Senior Lender. 11. Notice of Defaults. The Subordinate Lender hereby agrees to give notice to the Senior Lender of any default (or event that, with the giving of notice or passage of time, or both, would constitute a default) under the Subordinate Loan Documents. 12. Cross Default. The Borrower and the Subordinate Lender agree that a default under the Subordinate Loan Documents or the Subordinate Lender's default hereunder shall, at the election of the Senior Lender, constitute a default under the Senior Loan Documents and the Senior Lender shall have the right to exercise all rights or remedies under the Senior Loan Documents in the same manner as in the case of any other default under the Senior Loan Documents. If the Subordinate Lender notifies the Senior Lender in writing that any default under the Subordinate Loan Documents has been cured or waived, as determined by the Subordinate Lender in its sole discretion, then provided that the Senior Lender has not conducted a foreclosure or exercised its rights with respect to the power of sale of the Property pursuant to its rights under the Senior Loan Documents, any default under the Senior Loan Documents arising solely from such default under the Subordinate Loan Documents shall be deemed cured, and the Senior Indebtedness shall be reinstated. 6 ACTIVE 682508262v6 13. Further Assurances. The parties hereto shall cooperate fully with each other in order to carry out promptly and fully the terms and provisions of this Agreement. Each party hereto shall from time to time execute and deliver such other agreements, documents or instruments and take such other actions as may be reasonably necessary or desirable to effectuate the terms of this Agreement. 14. No Waiver. No failure or delay on the part of any party hereto in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. 15. Equitable Remedies. Each party hereto acknowledges that, to the extent that no adequate remedy at law exists for breach of its obligations under this Agreement, in the event any party fails to comply with its obligations hereunder, the aggrieved party shall have the right to obtain specific performance of the obligations of such defaulting party, injunctive relief, or such other equitable relief as may be available, other than consequential or punitive damages. 16. Notices. Any notice to be given under this Agreement shall be in writing and shall be deemed to be given when received by the party to whom it is addressed. Notwithstanding the foregoing, if any such notice is not received or cannot be delivered due to a change in the address of the receiving party of which notice was not previously given to the sending party or due to a refusal to accept by the receiving party, such notice shall be deemed received on the date delivery is attempted. Notices shall be in writing and sent by certified U.S. mail, hand delivery, or by special courier (in each case, return receipt requested). Notices to any other party hereto shall be sent to the parties at the following addresses or such other address or addresses as shall be designated by such party in a written notice to the other parties: If to the Trustee: The Bank of New York Mellon Trust Company, N.A., as trustee 4655 Salisbury Road, Suite 300 Jacksonville, Florida 32256 If to the Surtax/DIAF Subordinate Lender: Miami -Dade County, Florida Office of Public Housing and Community Development 701 N.W. 1st Court, 14th Floor Miami, Florida 33136 With a copy to: Miami -Dade County Attorney's Office 111 N.W. 1st Street, Suite 2810 Miami, Florida 33128 Attention: Terrence A. Smith Assistant County Attorney 7 ACTIVE 682508262v6 If to the Gap Subordinate Lender: City of Miami Department of Housing and Community Development One Flagler Building 14 Northeast 1st Avenue, Second Floor Miami, Florida 33132 Attn: George Mensah, Director With a copy to: City Attorney City of Miami 444 S.W. 2nd Avenue Miami, FL 33130-1910 Attn: Victoria Mendez If to the Borrower: The Village Miami Phase II, LLC c/o New Urban Development LLC 8500 NW 25th Avenue Miami, Florida 33147 Attention: Oliver L. Gross With a copy to: Bilzin Sumberg Baena Price & Axelrod LLP 1450 Brickell Avenue, 23rd Floor Miami, Florida 33131 Attention: Terry M. Lovell, Esquire Each notice shall be effective the day delivered if personally delivered, the next Business Day if sent by overnight courier or three (3) days after being deposited in the United States mail as aforesaid. Rejection or other refusal to accept or the inability to deliver because of changed address for which no notice was given shall be deemed to be receipt of the notice sent. Each of the parties hereto shall have the right from time to time and at any time during the term of this Agreement to change its respective address and the right to specify as its address any other address within the United States of America. 17. No Third Party Beneficiaries. No person or entity other than the parties hereto and their respective successors and assigns shall have any rights under this Agreement. To the fullest extent permitted by applicable law, facsimile or electronically transmitted signatures shall constitute original signatures for all purposes under this Agreement. 18. Subordinate Lender Executes Solely in Capacity as Lender. Subordinate Lender executes this Agreement solely in their capacity as a lender toward the Property. Nothing contained in this Agreement is intended, nor will it be construed, to in any way restrict, limit or govern the rights of Subordinate Lender under circumstances, including but not limited to (i) when acting in its capacity as a sovereign, (ii) when exercising their governmental powers 8 ACTIVE 682508262v6 (including police, regulatory and taxing powers), (iii) when exercising its powers to take by eminent domain, or (iv) when acting in its capacity as an enforcement authority with respect to Borrower or the property to the same extent as if it were not a party to this Agreement. Therefore, nothing contained herein shall affect Subordinate Lender's ability to lawfully (i) enforce the Miami -Dade County Code of Ordinances and City of Miami Code of Ordinances, (ii) take property and give just compensation for said taking, (iii) to be compensated if the Property is taken by a sovereign other than Miami -Dade County, or (iv) exercises any other rights and powers outside their role of Subordinate Lender. Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. To the fullest extent permitted by applicable law, facsimile or electronic transmitted signatures shall constitute original signatures for all purposes under this Agreement. 20. Amendment, Supplement, Modification, Waiver and Termination. No amendment, supplement, modification, waiver or termination of this Agreement shall be effective against a party against whom the enforcement of such amendment, supplement, modification, waiver or termination would be asserted, unless such amendment, supplement, modification, waiver or termination was made in a writing signed by such party. All amendments shall be made in accordance with any applicable provisions of Article VIII of the Indenture. This Agreement shall terminate upon the indefeasible payment in full of the Senior Indebtedness and the release of the Senior Mortgage as a lien on the Property. 21. Severability. In case any one or more of the provisions contained in this Agreement, or any application thereof, shall be invalid, illegal or unenforceable in any respect, the validity, legality and other application thereof, shall not in any way be affected or impaired thereby. 22. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Florida, without giving effect to its conflict of laws principles. 23. Captions. Captions and headings in this Agreement are for convenience of reference only and shall not define, expand or limit the provisions hereof. 24. Successors and Assigns. This Agreement shall bind and inure to the benefit of the parties hereto and their respective successors and assigns. 25. Integration. This Agreement sets forth the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, written or oral, relating thereto. 26. No Modification. This Agreement shall not be deemed or interpreted so as to expand or otherwise modify the rights and remedies of the Senior Lender under the Senior Loan Documents or the Subordinate Lender under the Subordinate Loan Documents with respect to the Borrower, or to diminish or change the obligations of, the Borrower under any of the foregoing. 27. Defmitions. Capitalized terms used herein and not defined shall have the meanings ascribed to such terms in the Indenture. [The remainder of this page is left intentionally blank.] 9 ACTIVE 682508262v6 IN WITNESS WHEREOF, the parties hereto have duly executed and validly delivered this Subordination Agreement as of the day and year first above written. THE VILLAGE MIAMI PHASE II, LLC, a Florida limited liability company By: Villages II Manager, LLC, a Florida limited liability company, its Manag By: Name: Oliver L. Gross Title: President ACKNOWLEDGMENT STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was ackn wleged before me by means ofphysical presence or ❑ online notarization this pt. day of ` , 2023, by Oliver L. Gross, as President of Villages II Manager, LLC, the Manager of Th Village Miami Phase II, LLC, a Florida limited liability company, on behalf of the limited liability company. He is personally known to me or has produced as identification. 4444444 ► .tary Public, state of aL Print Name: Commission N 0`‘ .,,.G My Commist.• . P � ,p �.,� MYCOMMISSION i `s EXPIRES 7-23-2027 • tonesiimiliono s-1 [The Villages Apartments, Phase II — Subordination Agreement] ACTIVE 682508262v6 STATE OF COUNTY OF THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee By: Name: Title: ACKNOWLEDGMENT The foregoing instrument was acknowledged before me by means of ❑ physical presence or ❑ online notarization this day of , 2023, by , as of The Bank of New York Mellon Trust Company, N.A., on behalf of such entity. He or she is personally known to me or has produced as identification. Notary Public, State of Print Name: Commission No.: My Commission Expires: S-2 [The Villages Apartments, Phase II — Subordination Agreement] ACTIVE 682508262v6 MIAMI-DADE COUNTY, FLORIDA By: Name: Morris Copeland Title: Chief Community Services Officer ACKNOWLEDGMENT STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me by means of 0 physical presence or 0 online notarization this day of , 2023, by Morris Copeland, as Chief Community Services Officer of Miami -Dade County, a political subdivision of the State of Florida, on behalf of such entity. He or she is personally known to me or has produced as identification. Notary Public, State of Print Name: Commission No.: My Commission Expires: S-3 [The Villages Apartments, Phase II — Subordination Agreement] ACTIVE 682508262v6 WITNE . SED BY: B (_, Todd B. City Cl STATE OF FLORIDA COUNTY OF MIAMI-DADE CITY OF MIAM By: Name: ur No Title: City Manag ORIDA APPROVED AS TO FORM AND CORRECTNESS: By: Viet Mende City Attorney ACKNOWLEDGMENT XeA The foregoing instrument was acknowledged before me by means ofhysical presence or ❑ online notarization this o�G day of P'i A , 2023, by )(k/ I)�Dt F)-. as C. sf of City of Miami, Florida, on behalf of such entity. He or she is personally known a or has produced as identification. Not blic, State of Print ame: Co 'ssion No.: My Commission Expires: S-4 [The Villages Apartments, Phase II — Subordination Agreement] ACTIVE 682508262v6 OFELIAE. PEREZ MY COMMISSION sG2 2 360880 EXPIRES: P ttUnderwriters Notary �_- EXHIBIT A LEGAL DESCRIPTION OF REAL PROPERTY That leasehold estate created by that Lease by and between New Urban Development LLC, a Florida limited liability company, Lessor, to The Village Miami Phase II, LLC, a Florida limited liability company, Lessee, as evidenced by the Memorandum of Lease, recorded March 31, 2023, in Official Records Book 33646, Page 2466, over the following described lands: A PORTION OF TRACT "A," NORTHWESTERN TRACTS, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 170, AT PAGE 72 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA, DESCRIBED AS FOLLOWS: COMMENCE AT THE INTERSECTION OF THE CENTERLINE OF NW 69TH STREET AND NW 7TH AVENUE; THENCE NORTH 89 DEGREES 41 MINUTES 44 SECONDS WEST, ALONG THE CENTERLINE OF NW 69TH STREET, FOR 712.96 FEET; THENCE SOUTH 00 DEGREES 00 MINUTES 00 SECONDS EAST FOR 25.00 FEET TO THE POINT OF BEGINNING; THENCE CONTINUE SOUTH 00 DEGREES 00 MINUTES 00 SECONDS EAST FOR 96.90 FEET; THENCE NORTH 90 DEGREES 00 MINUTES 00 SECONDS WEST FOR 118.30 FEET; THENCE SOUTH 00 DEGREES 00 MINUTES 00 SECONDS EAST FOR 142.02 FEET; THENCE NORTH 90 DEGREES 00 MINUTES 00 SECONDS EAST FOR 137.63 FEET; THENCE SOUTH 00 DEGREES 07 MINUTES 27 SECONDS EAST FOR 72.14 FEET; THENCE NORTH 89 DEGREES 40 MINUTES 47 SECONDS WEST FOR 618.97 FEET; THENCE NORTH 00 DEGREES 09 MINUTES 32 SECONDS WEST, ALONG THE WEST LINE OF TRACT "A", FOR 285.59 FEET TO THE POINT OF CURVATURE OF A CIRCULAR CURVE TO THE RIGHT, HAVING FOR ITS ELEMENTS A RADIUS OF 25.00 FEET AND A CENTRAL ANGLE OF 90 DEGREES 27 MINUTES 48 SECONDS; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE, CONCAVE TO THE SOUTHEAST, FOR AN ARC DISTANCE OF 39.47 FEET; THENCE SOUTH 89 DEGREES 41 MINUTES 44 SECONDS EAST, ALONG THE NORTH LINE OF SAID TRACT "A", FOR 575.14 FEET TO THE POINT OF BEGINNING. A-1 ACTIVE 682508262v6 111111111111111111111111111111111111111111111 CFN 2023R0239636 OR SK 33687 P9s 1057-1071 (15P9s) RECORDED 05/02/2023 10:02154 LUIS G. MONTALDO, CLERK. AD INTERIM MIAMI-DADE COUNTY. FL SUBORDINATION AGREEMENT by and among THE VILLAGE MIAMI PHASE II, LLC, THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee, MIAMI-DADE COUNTY, FLORIDA and CITY OF MIAMI, FLORIDA, Dated as of April 1, 2023 Relating to: $32,500,000 Housing Finance Authority of Miami -Dade County, Florida Multifamily Housing Revenue Bonds (The Villages Apartments, Phase II), Series 2023 30-10535 .0MC This instrument prepared by and when recorded return to: Greenberg Traurig, LLP 1717 Arch Street, Suite 400 Philadelphia, Pennsylvania 19103 Alexander L. Scarola, Esquire Book33687/Page1057 CFN#20230289636 Page 1 of 15 SUBORDINATION AGREEMENT This SUBORDINATION AGREEMENT dated as of April 1, 2023 (as amended, modified, supplemented or assigned from time to time, this "Agreement") by and among THE VILLAGE MIAMI PHASE II, LLC, a limited liability company duly organized and validly existing under the laws of the State of Florida (together with its permitted successors and assigns, the "Borrower"), THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association duly organized and validly existing under the laws of the United States of America, as trustee (together with its permitted successors and assigns, the "Trustee" or the "Senior Lender"), MIAMI-DADE COUNTY, FLORIDA, a political subdivision of the State of Florida (together with its permitted successors and assigns, the "Surtax/DIAF Subordinate Lender") and CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida (together with its permitted successors and assigns, the "GAP Subordinate Lender," and together with the Surtax/DIAF Subordinate. Lender, the "Subordinate Lender," individually or collectively as the context may require). WITNESSETH: WHEREAS, the Borrower is the holder of a leasehold estate of certain property located in the City of Miami and in Miami -Dade County, Florida, more particularly described on Exhibit A attached hereto, on which the Borrower intends to construct certain improvements consisting of a 120-unit multifamily housing facility, together with related amenities (such property and the improvements described above are collectively referred to herein as the "Property"); WHEREAS, the Property is being acquired and constructed, in part, with the proceeds of those certain $32,500,000 Multifamily Housing Revenue Bonds (The Villages Apartments, Phase II), Series 2023 (the "Bonds"), issued by Housing Finance Authority of Miami -Dade County, Florida (the "Issuer"), pursuant to an Indenture of Trust dated as of April 1, 2023, by and between the Issuer and the Trustee (as amended, modified or supplemented from time to time, the "Indenture"); WHEREAS, the proceeds of the Bonds are being loaned to the Borrower pursuant to the terms of a Loan Agreement dated as of April 1, 2023, by and between the Issuer and the Borrower (as amended, modified or supplemented from time to time, the "Loan Agreement"); WHEREAS, the Borrower's obligations under the Loan Agreement are evidenced by a promissory note dated as of the date of issuance of the Bonds (as amended, modified or supplemented from time to time, the "Note"), and are secured by, among other things, a first -priority mortgage lien on the Property granted pursuant to a Leasehold Mortgage, Assignment of Rents, Security Agreement and Fixture Filing dated as of the date hereof (as amended, modified or supplemented from time to time, the "Senior Mortgage"), and an Assignment of Leases, Rents and Other Income dated as the date hereof (as amended, modified or supplemented from time to time, the "Senior Assignment" and together with the Senior Mortgage, the "Senior Mortgage Documents," which, together with the Loan Agreement, the Note and all other agreements contemplated therein or evidencing or securing the Borrower's obligations under the Loan Agreement are hereinafter collectively referred to as the "Senior Loan Documents" and the indebtedness evidenced and secured by the Senior Loan Documents is hereinafter collectively referred to as the "Senior Indebtedness"); WHEREAS, the Property is also being acquired and constructed, in part, with the proceeds of (i) a Surtax and Development Inflation Adjustment Fund ("DIAF") loans to the Borrower made by the Surtax/DIAF Subordinate Lender pursuant to a Loan Agreement dated as of April 28, 2023 (the "Surtax/DIAF Subordinate Loan Agreement") and evidenced by promissory notes in the original face amount of $4,788,000.00 and $1,000,000.00 (the "Surtax/DIAF Subordinate Notes," and together with Book33687/Page1058 CFN#20230289636 Page 2 of 15 the Surtax/DIAF Subordinate Loan Agreement and all documents executed pursuant thereto, the "Surtax/DIAF Subordinate Loan Documents"); and (ii) a gap loan to the Borrower made by the Gap Subordinate Lender pursuant to a Loan Agreement dated as of April 28, 2023 (the "Gap Subordinate Loan Agreement") and evidenced by a promissory note in the original face amount of $2,500,000.00 (the "Gap Subordinate Note" and together with the Gap Loan Agreement, the "Gap Subordinate Loan Documents," and together with the Surtax/DIAF Subordinate Loan Documents, the "Subordinate Loan Documents"); WHEREAS, the Surtax/DIAF Subordinate Notes and the Gap Subordinate Note are referred to as the "Subordinate Notes" herein; WHEREAS, the Borrower's obligations to the Surtax/DIAF Subordinate Lender under the Surtax/DIAF Subordinate Loan Documents (the "Surtax/D1AF Subordinate Indebtedness") are secured by a Leasehold Mortgage and Security Agreement and Assignment of Leases, Rents and Profits dated as of April 28, 2023 (the "Surtax/DIAF Subordinate Mortgage") and a Collateral Assignment of Leases, Rents and Contract Rights dated as of April 28, 2023 (the "Surtax/DIAF Subordinate Assignment," and together with the Surtax/DIAF Subordinate Mortgage, the "Surtax/DIAF Subordinate Mortgage Documents"); WHEREAS, the Borrower's obligations to the Gap Subordinate Lender under the Gap Subordinate Loan Documents (the "Gap Subordinate Indebtedness," and together with the Surtax/DIAF Subordinate Indebtedness, the "Subordinate Indebtedness") are secured by a Leasehold Mortgage and Security Agreement and Assignment of Leases, Rents and Profits dated as of April 28, 2023 (the "Gap Subordinate Mortgage") and a Collateral Assignment of Leases, Rents and Contract Rights dated as of April 28, 2023 (the "Gap Subordinate Assignment," and together with the Gap Subordinate Mortgage, the "Gap Subordinate Mortgage Documents"); WHEREAS, the Subordinate Loan Agreement, Subordinate Notes and Subordinate Mortgage Documents are collectively referred to herein as the "Subordinate Loan Documents"; WHEREAS, it is a requirement of the Senior Loan Documents that the Senior Mortgage Documents shall be and remain liens or charges upon the Property prior and superior to the lien or charge of the Subordinate Mortgage Documents, that the Subordinate Indebtedness be subordinated in right of payment to the Senior Indebtedness and that the Subordinate Indebtedness be payable solely from cash available after payment of operating expenses of the Property and amounts due and owing in respect of the Senior Indebtedness; NOW, THEREFORE, in consideration of the foregoing and the mutual benefits accruing to the parties hereto and for other good and valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged and intending to be legally bound hereby, it is hereby declared, understood and agreed by the parties as follows: 1. Subordination of Subordinate Mortgage Documents. The Subordinate Lender declares, agrees and acknowledges that the Senior Mortgage Documents, and any renewals or extensions thereof, and any modifications thereof or substitutions therefor which do not increase the principal balance secured thereby (except increases by reason of protective advances or payment of the Senior Lender's costs) and all advances made pursuant to the Senior Mortgage Documents, all costs and expenses secured thereby and interest on the foregoing, shall unconditionally be and remain at all times liens or charges on the Property prior and superior to the lien or charge of the Subordinate Mortgage Documents. 2 Error) Unknown document property name. Book33687/Page1059 CFN#20230289636 Page 3 of 15 2. Subordination of Subordinate Indebtedness; Remitting Subordinate Loan Payments to Senior Lender; Reinstatement. (a) The Subordinate Indebtedness is hereby subordinated in right of payment to any and all of the Senior Indebtedness and shall be payable only from and to the extent of revenues of the Property available after payment of all amounts then due and owing under the Senior Loan Documents and all current operating expenses of the Property. Notwithstanding the foregoing, unless and until the Senior Lender gives the Subordinate Lender notice of the occurrence of a default under the Senior Loan Documents, the Subordinate Lender may receive and accept payments on account of principal and interest payable under the Subordinate Note to the extent of cash flow of the Borrower available after payment of current operating expenses of the Property and amounts then due and owing under the Senior Loan Documents. (b) If the Subordinate Lender shall receive any payments or other rights in any property of the Borrower after the Senior Lender has given the Subordinate Lender notice of a default under the Senior Loan Documents, such payment or property shall be received by the Subordinate Lender in trust for the Senior Lender and shall immediately be delivered and transferred to the Senior Lender. (c) If at any time payment of all or any part of the Senior Indebtedness is rescinded or must otherwise be restored or returned by the Senior Lender in connection with any bankruptcy, reorganization, arrangement, insolvency, liquidation or similar proceedings (a "Proceeding") in respect of the Borrower or the Manager, and the Subordinate Lender has received payment of all or any part of the Subordinate Indebtedness, the Subordinate Lender shall forthwith turn over the same to, and for the account of, the Senior Lender, until the Senior Lender has received indefeasible payment in full of any such payments on the Senior Indebtedness that have been so rescinded, restored or returned. 3. Exercise of Remedies. (a) The Subordinate Lender declares, agrees, and acknowledges that it will not, except as otherwise provided herein, without the prior written consent of the Senior Lender: (i) sue the Borrower under any of the Subordinate Loan Documents; (ii) accelerate or accept a prepayment in full of the Subordinate Indebtedness; (iii) accept a deed or assignment in lieu of foreclosure for the Property or any part or portion thereof; (iv) seek or obtain a receiver for the Property or any part or portion thereof; (v) take possession or control of the Property, or collect or accept any rents from the Property; (vi) take any action that would terminate any leases or other rights held by or granted to or by third parties with respect to the Property; (vii) initiate or join any other creditor in commencing any Proceeding with respect to the Borrower; (viii) incur any obligation to the Borrower other than as provided in the Subordinate Loan Agreement, (ix) exercise any other remedies under the Subordinate Loan Documents; or (x) take any other enforcement action against the Property or any part or portion thereof. The Subordinate Lender may commence any action to foreclose or exercise any power of sale under the Subordinate Mortgage upon thirty (30) calendar days' written notice to the Senior Lender. Senior Lender shall have the right to cure any defaults of the Borrower prior to the commencement of such action to foreclose. (b) The Subordinate Lender agrees that the Senior Lender shall have, as determined in accordance with and subject to the terms of the Senior Loan Documents, upon the occurrence of an Event of Default under and as defined in the Senior Loan Documents, the right to (i) accelerate the Senior Indebtedness; (ii) commence any action to foreclose or exercise any power of sale under the Senior Mortgage; (iii) accept a deed or assignment in lieu of foreclosure for the Property or any part or portion thereof; (iv) seek or obtain a receiver for the Property or any part or portion thereof; (v) take possession or control of the Property, and collect and accept rents from the Property; (vi) sue the Borrower under any of the Senior Loan Documents; (vii) exercise any rights of set-off or recoupment that the Senior Lender may 3 Error! Unknown document property name. Book33687/Page1060 CFN#20230289636 Page 4 of 15 have against the Borrower; or (viii) take any other enforcement action against the Property or any part or portion thereof, all without any responsibility or liability to the Subordinate Lender with respect to the Property. (c) The Subordinate Lender agrees that the Senior Lender shall have absolute power and discretion, without notice to the Subordinate Lender, to deal in any manner with the Senior Indebtedness, including interest, costs and expenses payable by the Borrower to the Senior Lender, and any security and guaranties therefor, including, but not by way of limitation, release, surrender, extension, renewal, acceleration, compromise or substitution; provided that the Senior Lender shall not increase the principal amount of the indebtedness to which the Subordinate Loan Documents are subordinate (other than increases resulting from protective advances or payment of the Senior Lender's costs) without the prior written consent of the Subordinate Lender, which consent shall not be unreasonably withheld or delayed. (d) The Subordinate Lender further agrees that if at any time the Subordinate Lender should commence any foreclosure proceeding, or commence any action to execute on any lien obtained by way of attachment or otherwise on the Property, or otherwise take any action prohibited under Section 3(a) hereof, the Senior Lender shall (unless the Senior Lender has consented to such action or remedy or Subordinate Lender has provided the requisite notice) be entitled to have the same vacated, dissolved and set aside by such proceedings at law or otherwise as the Senior Lender may deem proper, and this Agreement shall be and constitute full and sufficient grounds therefor and shall entitle the Senior Lender to become a party to any proceedings at law or otherwise in or by which the Senior Lender may deem it proper to protect its interests hereunder. (e) No act, omission, breach or other event under this Agreement shall defeat, invalidate or impair in any respect the absolute, unconditional and irrevocable subordination of the Subordinate Loan Documents to the Senior Loan Documents as provided in this Agreement. 4. No Marshaling of Assets. The Subordinate Lender specifically waives and renounces any right which it may have under any applicable statutes, whether at law or in equity, to require the Senior Lender to marshal collateral or to otherwise seek satisfaction from any particular assets or properties of the Borrower or from any third party. 5. Bankruptcy Matters. (a) The subordination provided for in this Agreement shall apply, notwithstanding the availability of other collateral to the Senior Lender or the actual date and time of execution, delivery, recordation, filing or perfection of the Senior Mortgage Documents or the Subordinate Mortgage Documents and, insofar as the Subordinate Lender is concerned, notwithstanding the fact that the Senior Indebtedness or any claim for the Senior Indebtedness may be subordinated, avoided or disallowed, in whole or in part, as against.the Borrower under the Bankruptcy Code or other applicable federal or state law. In the event of any Proceeding, the Senior Indebtedness shall include all interest and fees accrued on the Senior Indebtedness, in accordance with and at the rates specified in the Senior Loan Documents, both for periods before and for periods after the commencement of such Proceeding, even if the claim for such interest and/or fees is not allowed as against the Borrower pursuant to applicable law. (b) Without the prior written consent of the Senior Lender, the Subordinate Lender shall not, and the Subordinate Lender waives any and all right to: (i) request adequate protection (as that term is defined in the Bankruptcy Code) (and in the event any such adequate protection is awarded to the Subordinate Lender, the Subordinate Lender hereby assigns any adequate protection in the form of cash to the Senior Lender and any adequate protection in the form of a lien on or security interest in the Property 4 Error! Unknown document property name. Book33687/Page1061 CFN#20230289636 Page 5 of 15 or any other Collateral is hereby subordinated to all of the Senior Lender's rights, liens or security interests in or to the Property and such other Collateral), (ii) file or support any motion for dismissal or relief from the automatic stay (as defined in the Bankruptcy Code), (iii) request any post -petition interest, (iv) request any sale of the Borrower's assets, or (v) file, propose, support, accept or reject any plan of reorganization of the Borrower. The Subordinate Lender further agrees that, with respect to any Proceeding: (I) it shall not make any election, give any consent, commence any action or file any motion, claim, obligation, notice or application or take any other action in any Proceeding by or against the Borrower or the Manager without the prior written consent of the Senior Lender; (2) the Senior Lender may vote in any such Proceeding any and all claims of the Subordinate Lender against the Borrower or the Manager, and the Subordinate Lender hereby appoints the Senior Lender as its agent, and grants to the Senior Lender an irrevocable power of attorney coupled with an interest, and its proxy, for the purpose of exercising any and all rights and taking any and all actions available to the Subordinate Lender in connection with any case by or against the Borrower or the Manager in any Proceeding, including, without limitation, the right to file and/or prosecute any claims, to vote to accept or reject a plan, and to make any election under Section 1111(b) of the Bankruptcy Code; and (3) the Subordinate Lender shall not challenge the validity or amount of any claim submitted in such Proceeding by the Senior Lender in good faith or any valuations of the Property or any other Collateral, or any portion of the foregoing, or other Senior Indebtedness collateral submitted by the Senior Lender in good faith, in such Proceeding or take any other action in such Proceeding, which is adverse to the Senior Lender's enforcement of its claim or receipt of adequate protection (as that term is defined in the Bankruptcy Code). (c) The Subordinate Lender agrees that the Senior Lender does not owe any fiduciary duty to the Subordinate Lender in connection with the administration of the Senior Indebtedness and the Senior Loan Documents and the Subordinate Lender agrees not to assert any such claim. The Subordinate Lender acknowledges that the Senior Lender shall have the sole discretion to exercise or not exercise the rights set forth in this Agreement from time to time; and that such rights may be exercised solely in the interest of the Senior Lender and without regard to the interest of the Subordinate Lender in any action or proceeding, including in connection with any Proceeding. 6. Payment Set Aside. To the extent any payment under any of the Senior Loan Documents (whether by or on behalf of the Borrower, as proceeds of security or enforcement of any right of set-off, 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 the Bankruptcy Code or any federal or state 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 Senior Indebtedness or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred. 7. Casualty and Condemnation Proceeds. The Subordinate Lender shall have no right to participate in the adjustment of the proceeds of insurance payable as the result of any casualty to the Improvements, or to participate in any manner whatsoever in activities relating to restoration or reconstruction of the Improvements, and the Senior Lender shall have the exclusive right to receive, administer and apply all such proceeds as set forth in the Senior Loan Documents. In the event the Senior Lender shall release, for the purposes of restoration of all or any part of the Property, its right, title and interest in and to the proceeds under policies of insurance thereon, and/or its right, title and interest in and to any awards, or its right, title and interest in and to other compensation made for any damages, losses or compensation for other rights by reason of a taking in eminent domain, the Subordinate Lender shall simultaneously release for such purpose all of the Subordinate Lender's right, title and interest, if any, in and to all such insurance proceeds, awards or compensation. The Subordinate Lender agrees that the balance of such proceeds remaining after such restoration, or all of such proceeds in the event such proceeds are not released for any such restoration pursuant to the Senior Loan Documents, shall be 5 Errorl Unknown document property name. Book33687/Page1062 CFN#20230289636 Page 6 of 15 applied to the payment of amounts due under the Senior Loan Documents until all such amounts have been indefeasibly paid in full, prior to being applied to the payment of any amounts due under the Subordinate Loan Documents. If the Senior Lender holds such proceeds, awards or compensation and/or monitors the disbursement thereof, the Subordinate Lender agrees that the Senior Lender shall also hold and monitor the disbursement of such proceeds, awards and compensation to which the Subordinate Lender is or may be entitled. Nothing contained in this Agreement shall be deemed to require the Senior Lender, in any way whatsoever, to act for or on behalf of the Subordinate Lender or to hold or monitor any proceeds, awards or compensation in trust for or on behalf of the Subordinate Lender. 8.. Indemnification and Subrogation. If the Subordinate Lender or any affiliate shall, by virtue of its role as Subordinate Lender and not by virtue of its role as a government body, acquire, by indemnification, subrogation or otherwise, any lien, estate, right or other interest in the Property, that lien, estate, right or other interest shall be subordinate to the Senior Mortgage Documents and the other Senior Loan Documents as provided herein, and the Subordinate Lender or such affiliate hereby waives, until all amounts owed under the Senior Loan Documents have been indefeasibly paid in full, the right to exercise any and all such rights it may acquire by indemnification, subrogation or otherwise. 9. Subordination Effective. This Agreement, the subordination effected hereby, and the. respective rights and priorities of the parties hereto in and to the Property, shall be effective as stated herein, notwithstanding any modification or amendment of any Senior Loan Document (other than any modification or amendment of any Senior Loan Document that increases the amount of indebtedness to which the Subordinate Indebtedness is subordinate for reasons other than protective advances or costs of the Senior Lender), or the obtaining by the Senior Lender or the Subordinate Lender of any additional document confirming, perfecting or otherwise affecting the Senior Loan Documents, or the Subordinate Loan Documents, as the case may be. 10. Amendments of Subordinate Loan Documents and Senior Loan Documents. The Borrower and the Subordinate Lender agree that they will not enter into any amendment, modification or supplement to any of the Subordinate Loan Documents without the express prior written consent of the Senior Lender (which consent shall not be unreasonably withheld). No consent of the Subordinate Lender shall be required for any amendment, modification or supplement to any of the Senior Loan Documents, provided that no amendment, modification or supplement to any of the Senior Loan Documents shall increase the amount of indebtedness to which the Subordinate Loan Documents are subordinate other than increases resulting from protective advances or costs of the Senior Lender. 11. Notice of Defaults. The Subordinate Lender hereby agrees to give notice to the Senior Lender of any default (or event that, with the giving of notice or passage of time, or both, would constitute a default) under the Subordinate Loan Documents. 12. Cross Default. The Borrower and the Subordinate Lender agree that a default under the Subordinate Loan Documents or the Subordinate Lender's default hereunder shall, at the election of the Senior Lender, constitute a default under the Senior Loan Documents and the Senior Lender shall have the right to exercise all rights or remedies under the Senior Loan Documents in the same manner as in the case of any other default under the Senior Loan Documents. If the Subordinate Lender. notifies the Senior Lender in writing that any default under the Subordinate Loan Documents has been cured or waived, as determined by the Subordinate Lender in its sole discretion, then provided that the Senior Lender has not conducted a foreclosure or exercised its rights with respect to the power of sale of the Property pursuant to its rights under the Senior Loan Documents, any default under the Senior Loan Documents arising solely from such default under the Subordinate Loan Documents shall be deemed cured, and the Senior Indebtedness shall be reinstated. 6 Error! Unknown document property name. Book33687/Page1063 CFN#20230289636 Page 7 of 15 13. Further Assurances. The parties hereto shall cooperate fully with each other in order to carry out promptly and fully the terms and provisions of this Agreement. Each party hereto shall from time to time execute and deliver such other agreements, documents or instruments and take such other actions as may be reasonably necessary or desirable to effectuate the terms of this Agreement. 14. No Waiver. No failure or delay on the part of any party hereto in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. 15. Equitable Remedies. Each party hereto acknowledges that, to the extent that no adequate remedy at law exists for breach of its obligations under this Agreement, in the event any party fails to comply with its obligations hereunder, the aggrieved party shall have the right to obtain specific performance of the obligations of such defaulting party, injunctive relief, or such other equitable relief as may be available, other than consequential or punitive damages. 16. Notices. Any notice to be given under this Agreement shall be in writing and shall be deemed to be given when received by the party to whom it is addressed. Notwithstanding the foregoing, if any such notice is not received or cannot be delivered due to a change in the address of the receiving party of which notice was not previously given to the sending party or due to a refusal to accept by the receiving party, such notice shall be deemed received on the date delivery is attempted. Notices shall be in writing and sent by certified U.S. mail, hand delivery, or by special courier (in each case, return receipt requested). Notices to any other party hereto shall be sent to the parties at the following addresses or such other address or addresses as shall be designated by such party in a written notice to the other parties: If to the Trustee: The Bank of New York Mellon Trust Company, N.A., as trustee 4655 Salisbury Road, Suite 300 Jacksonville, Florida 32256 If to the Surtax/DIAF Subordinate Lender: Miami -Dade County, Florida Office of Public Housing and Community Development 701 N.W. 1st Court, 14th Floor Miami, Florida 33136 With a copy to: Miami -Dade County Attorney's Office 111 N.W. 1st Street, Suite 2810 Miami, Florida 33128 Attention: Terrence A. Smith Assistant County Attorney 7 Error! Unknown document property name. Book33687/Page1064 CFN#20230289636 Page 8 of 15 If to the Gap Subordinate Lender: City of Miami Department of Housing and Community Development One Flagler Building 14 Northeast 151 Avenue, Second Floor Miami, Florida 33132 Attn: George Mensah, Director With a copy to: City Attorney City of Miami 444 S.W. 2nd Avenue Miami, FL 33130-1910 Attn: Victoria Mendez If to the Borrower: The Village Miami Phase II, LLC c/o New Urban Development LLC 8500 NW 25th Avenue Miami, Florida 33147 Attention: Oliver L. Gross With a copy to: Bilzin Sumberg Baena Price & Axelrod LLP 1450 Brickell Avenue, 23rd Floor Miami, Florida 33131 Attention: Terry M. Lovell, Esquire Each notice shall be effective the day delivered if personally delivered, the next Business Day if sent by overnight courier or three (3) days after being deposited in the United States mail as aforesaid. Rejection or other refusal to accept or the inability to deliver because of changed address for which no notice was given shall be deemed to be receipt of the notice sent. Each of the parties hereto shall have the right from time to time and at any time during the term of this Agreement to change its respective address and the right to specify as its address any other address within the United States of America. 17. No Third Party Beneficiaries. No person or entity other than the parties hereto and their respective successors and assigns shall have any rights under this Agreement. To the fullest extent permitted by applicable law, facsimile or electronically transmitted signatures shall constitute original signatures for all purposes under this Agreement. 18. Subordinate Lender Executes Solely in Capacity as Lender. Subordinate Lender executes this Agreement solely in their capacity as a lender toward the Property. Nothing contained in this Agreement is intended, nor will it be construed, to in any way restrict, limit or govern the rights of Subordinate Lender under circumstances, including but not limited to (i) when acting in its capacity as a sovereign, (ii) when exercising their governmental powers (including police, regulatory and taxing 8 Error) Unknown document property name. Book33687/Page1065 CFN#20230289636 Page 9 of 15 powers), (iii) when exercising its powers to take by eminent domain, or (iv) when acting in its capacity as an enforcement authority with respect to Borrower or the property to the same extent as if it were not a party to this Agreement. Therefore, nothing contained herein shall affect Subordinate Lender's ability to lawfully (i) enforce the Miami -Dade County Code of Ordinances and City of Miami Code of Ordinances, (ii) take property and give just compensation for said taking, (iii) to be compensated if the Property is taken by a sovereign other than Miami -Dade County, or (iv) exercises any other rights and powers outside their role of Subordinate Lender 19. Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. To the fullest extent permitted by applicable law, facsimile or electronic transmitted signatures shall constitute original signatures for all purposes under this Agreement. 20. Amendment, Supplement, Modification, Waiver and Termination. No amendment, supplement, modification, waiver or termination of this Agreement shall be effective against a party against whom the enforcement of such amendment, supplement, modification, waiver or termination would be asserted, unless such amendment, supplement, modification, waiver or termination was made in a writing signed by such party. All amendments shall be made in accordance with any applicable provisions of Article VIII of the Indenture. This Agreement shall terminate upon the indefeasible payment in full of the Senior Indebtedness and the release of the Senior Mortgage as a lien on the Property. 21. Severability. In case any one or more of the provisions contained in this Agreement, or any application thereof, shall be invalid, illegal or unenforceable in any respect, the validity, legality and other application thereof, shall not in any way be affected or impaired thereby. 22. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Florida, without giving effect to its conflict of laws principles. 23. Captions. Captions and headings in this Agreement are for convenience of reference only and shall not define, expand or limit the provisions hereof. 24. Successors and Assigns. This Agreement shall bind and inure to the benefit of the parties hereto and their respective successors and assigns. 25. Integration. This Agreement sets forth the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, written or oral, relating thereto. 26. No Modification. This Agreement shall not be deemed or interpreted so as to expand or otherwise modify the rights and remedies of the Senior Lender under the Senior Loan Documents or the Subordinate Lender under the Subordinate Loan Documents with respect to the Borrower, or to diminish or change the obligations of, the Borrower under any of the foregoing. 27. Definitions. Capitalized terms used herein and not defined shall have the meanings ascribed to such terms in the Indenture. [The remainder of this page is left intentionally blank.] 9 Error! Unknown document property name. Book33687/Page1066 CFN#20230289636 Page 10 of 15 IN WITNESS WHEREOF, the parties hereto have duly executed andvalidly delivered this Subordination Agreement as of the day and year first above written. THE VILLAGE MIAMI PHASE II, LLC, a Florida limited liability company By: Villages II Manager, LLC, a Florida limited liability company, its Manag By: Name: Oliver L. Gross Title: President ACKNOWLEDGMENT STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was ackno ledged before me by means of physical presence or 0 online notarization this _ day of / / , 2023, by Oliver L. Gross, as President of Villages II Manager, LLC, the Manager of The illage Miami Phase II, LLC, a Florida limited liability company, on behalf of the limite4 liability company. He is personally known to me or has produced as identification. Cale.0 7 N Public Print Name: Commission No.: My Commission Expires: • to of .. 7 r S-1 [The Villages Apartments, Phase 1l — Subordination Agreement] Book33687/Page1067 CFN#20230289636 Page 11 of 15 THE BANK OF NEW YORK MELLON TRUST COMP , N.A., as Trustee hanie A. eene-Matthews President ACKNOWLEDGMENT STATE OF FLORIDA COUNTY OF DUVAL The foregoing instrument was acknowledged before me by means of 0 physical presence or ❑ online notarization this 13th day of April , 2023, by Stephanie A. Greene -Matthews , as ViCe President of The Bank of New York Mellon Trust Company, N.A., on behalf of such entity. He or she is personally known to me or has produced as identification. Kiotary Publics State of Florida Print Name:,L et - Commission No.: My Commission Expires:: S-2 [The Villages Apartments, Phase II — Subordination Agreement] DANIEL TODD Notary Public State of Florida Comm# HH296013 Expires 8/1/2026 Book33687/Page1068 CFN#20230289636 Page 12 of 15 STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing day of I _ 2023, by Morris Copeland, as Chief Community Services Aiiiii• -. cer of Miami -Dade County, a i olitical subdivision of the State of Florida, on behalf of such entity. iii.v.r she is personally known to me or has produced as identification. MLAM1-DADE COUNTY, FLORIDA By: Name: Morns Copeland Title: Chief Community _Services Officer MORRIS COPELAND, CPM CHIEF COMMUNITYSERVICES OFFICER MIAMI-DADE COUNTY, FL ACKNOWLEDGMENT t_i ! o ►. Public' to e of r /! P ' . Name: VDO.' L " • mmission No.: -t-1- My Commission Expires: notarization this nt was aill -w - , • ed before me by means of�9-physical presence or 0 online a L ,o�!;���,,, YVONNE RAMIREZ o•� `4 Notary Public -State of Florida • t� Commission # HH 312751 `� [lob; My Commission Expires 'iiiiu" January 13. 2027 S-3 [The Villages Apartments, Phase I1— Subordination Agreement] ACTIVE 682508262v6 Book33687/Page1069 CFN#20230289636 Page 13 of 15 CITY OF MIANII By: Name: Title: City Manager ORIDA .4(411t 4urNo71.V APPROVED AS TO FORM AND CORRE TNESS: By: Vict'j a Mend z Xfk City Attorney o2 3- geSds ACKNOWLEDGMENT STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me by means of physical presence or DI online notarization this ale day of AO; I , 2023, by Fi t j3t r ey. , as (i ► Ma 50 /- of City of Miami, Florida, on behalf of such entity. He or she is personally known toe or has produced as identification. Commission No.: My Commission Expires: [The Villages Apartments, Phase II— Subordination Agreement] ACTIVE 682508262v6 PI'. OFEId%E. PEREZ ; 80 MY CO�AMdSS10N # GG 3(i08 EXPIRES: AuguSt2,2023 r " Bond � Notary PublicU S-4 Book33687/Page1070 CFN#20230289636 Page 14 of 15 OR Bk 33687 PG 1071 LAST PAGE EXHIBIT A LEGAL DESCRIPTION OF REAL PROPERTY That leasehold estate created by that Lease by and between New Urban Development LLC, a Florida limited liability company, Lessor, to The Village Miami Phase II, LLC, a Florida limited liability company, Lessee, as evidenced by the Memorandum of Lease, recorded March 31, 2023, in Official Records Book 33646, Page 2466, over the following described lands: A PORTION OF TRACT "A," NORTHWESTERN TRACTS, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 170, AT PAGE 72 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA, DESCRIBED AS FOLLOWS: COMMENCE AT THE INTERSECTION OF THE CENTERLINE OF NW 69TH STREET AND NW 7TH AVENUE; THENCE NORTH 89 DEGREES 41 MINUTES 44 SECONDS WEST, ALONG THE CENTERLINE OF NW 69TH STREET, FOR 712.96 FEET; THENCE SOUTH 00 DEGREES 00 MINUTES 00 SECONDS EAST FOR 25.00 FEET TO THE POINT OF BEGINNING; THENCE CONTINUE SOUTH 00 DEGREES 00 MINUTES 00 SECONDS EAST FOR 96.90 FEET; THENCE NORTH 90 DEGREES 00 MINUTES 00 SECONDS WEST FOR 118.30 FEET; THENCE SOUTH 00 DEGREES 00 MINUTES 00 SECONDS EAST FOR 142.02 FEET; THENCE NORTH 90 DEGREES 00 MINUTES 00 SECONDS EAST FOR 137.63 FEET; THENCE SOUTH 00 DEGREES 07 MINUTES 27 SECONDS EAST FOR 72.14 FEET; THENCE NORTH 89 DEGREES 40 MINUTES 47 SECONDS WEST FOR 618.97 FEET; THENCE NORTH 00 DEGREES 09 MINUTES 32 SECONDS WEST, ALONG THE WEST LINE OF TRACT "A", FOR 285.59 FEET TO THE POINT OF CURVATURE OF A CIRCULAR CURVE TO THE RIGHT, HAVING FOR ITS ELEMENTS A RADIUS OF 25.00 FEET AND A CENTRAL ANGLE OF 90 DEGREES 27 MINUTES 48 SECONDS; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE, CONCAVE TO THE SOUTHEAST, FOR AN ARC DISTANCE OF 39.47 FEET; THENCE SOUTH 89 DEGREES 41 MINUTES 44 SECONDS EAST, ALONG THE NORTH LINE OF SAID TRACT "A", FOR 575.14 FEET TO THE POINT OF BEGINNING. A-1 aq 435 Book33687/Page1071 CFN#20230289636 Page 15 of 15