HomeMy WebLinkAbout24684AGREEMENT INFORMATION
AGREEMENT NUMBER
24684
NAME/TYPE OF AGREEMENT
U.S. BANK TRUST COMPANY, FIRST HORIZON TE1, LLC &
STADIUM TOWER APARTMENTS
DESCRIPTION
SUBORDINATION AGREEMENT/2320 NW 8TH AVENUE
MIAMI, FLORIDA 33127/FILE ID: 12775/R-22-0420/MATTER ID:
22-2776K
EFFECTIVE DATE
December 21, 2022
ATTESTED BY
NICOLE EWAN
ATTESTED DATE
12/19/2022
DATE RECEIVED FROM ISSUING
DEPT.
12/8/2023
NOTE
THIS INSTRUMENT PREPARED BY,
AND AFTER RECORDING RETURN TO:
Brian J. McDonough, Esq.
Steams Weaver Miller
Weissler Alhadeff & Sitterson, P.A.
150 W. Flagler Street, Suite 2200
Miami, FL 33130
SUBORDINATION AGREEMENT
(ARPA — City)
THIS SUBORDINATION AGREEMENT (this "Agreement") is entered into as of December 21,
2022, by and among (i) U.S. Bank Trust Company, National Association, a national banking association
(the "Senior Lender"); (ii) FIRST HORIZON TE1, LLC, a Delaware limited liability company (the
"Bond Purchaser"); (iii) City of Miami, a municipal corporation of the State of Florida (the
"Subordinate Lender"); and (iv) Stadium Tower Apartments, LLC, a Florida limited liability company
(the "Borrower"). Capitalized terms used but not defined herein shall have the meaning given such term
in the Funding and Loan Agreement dated as of even date herewith among Issuer, Senior Lender and
Borrower.
Recitals
A. Senior Lender is the trustee for the Florida Housing Finance Corporation Multifamily
Mortgage Revenue Bond, 2022 Series Q-1 (Stadium Tower Apartments) in the principal amount of
$12,650,000 (the "2022 Series Q-1 Bond") and the Florida Housing Finance Corporation Multifamily
Mortgage Revenue Bond, 2022 Series Q-2 (Stadium Tower Apartments) in the original principal amount
of $10,850,000 (the "2022 Series Q-1 Bond" and together with the 2022 Series Q-1 Bond, the "Bonds")
issued by Florida Housing Finance Authority (the "Issuer") pursuant to a Trust Indenture dated as of
even date herewith (as amended, modified or supplemented from time to time, the "Indenture") between
the Issuer and Senior Lender, as trustee (together with any successor trustee under the Indenture and their
respective successors and assigns, the "Trustee"). The proceeds of the Bonds will be loaned to the
Borrower (the "Senior Loan") in connection with the acquisition, construction and equipping of a
multifamily housing project located in Miami -Dade County, Florida (the "Property"). The Property is
more fully described in Exhibit A attached hereto. The obligations of Borrower for repayment of the Loan
are evidenced by two promissory notes to the order of the Issuer and assigned to Senior Lender, a 2022
Series Q-1 Promissory Note dated December 21, 2022, in the original principal amount of $12,650,000,
together with all riders and addenda thereto (the "2022 Series Q-1 Note"), evidencing Borrower's
obligation to repay that portion of the Loan funded with the proceeds of the 2022 Series Q-1 Bond and a
2022 Series Q-2 Promissory Note dated December 21, 2022, in the original principal amount of
$10,850,000, together with all riders and addenda thereto (the "2022 Series Q-2 Note" and together with
the 2022 Series Q-1 Note, the "Notes") evidencing Borrower's obligation to repay that portion of the
Loan funded with the proceeds of the 2022 Series Q-2 Bond, and the Financing Agreement dated as of
December 1, 2022, and the Funding and Loan Agreement dated as of December 1, 2022, among Issuer,
Senior Lender and Borrower (together, the "Loan Agreement"), among other documents.
B. The Senior Loan is secured by (i) a Mortgage, Assignment of Leases and Rents, Security
Agreement and Fixture Filing dated as of December 1, 2022, from Borrower, as mortgagor, to Issuer, as
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mortgagee, and assigned to Senior Lender (the "Bond Mortgage" or "Senior Mortgage"), creating
mortgage lien on the Property.
C. Borrower has requested Senior Lender and Bond Purchaser (collectively, the "Senior
Lienholders") to permit the Subordinate Lender to make a subordinate loan to Borrower in the amount of
$1,800,000.00 (the "Subordinate Loan") and to secure the Subordinate Loan by, among other things,
placing a mortgage lien against the Property.
D. Senior Lienholders have agreed to permit Subordinate Lender to make the Subordinate Loan
and to place a subordinate mortgage lien against the Property subject to all of the conditions contained in this
Agreement.
NOW, THEREFORE, in order to induce Senior Lender to permit Subordinate Lender to make the
Subordinate Loan to the Borrower and to place a subordinate mortgage lien against the Property, and in
consideration thereof, the Senior Lender, the Bond Purchaser, the Subordinate Lender and the Borrower
agree as follows:
1. Definitions.
In addition to the terms defined in the Recitals to this Agreement, for purposes of this Agreement
the following terms have the respective meanings set forth below:
"Affiliate" means, when used with respect to a Person, any corporation, partnership, joint venture,
limited liability company, limited liability partnership, trust or individual controlled by, under common
control with, or which controls such Person (the term "control" for these purposes shall mean the ability,
whether by the ownership of shares or other equity interests, by contract or otherwise, to elect a majority of
the directors of a corporation, to make management decisions on behalf of, or independently to select the
managing partner of, a partnership, or otherwise to have the power independently to remove and then select a
majority of those individuals exercising managerial authority over an entity, and control shall be conclusively
presumed in the case of the ownership of 50% or more of the equity interests).
"Borrower" means the Person named as such in the first paragraph of this Agreement and any other
Person (other than the Senior Lienholders) who acquires title to the Property after the date of this Agreement.
"Business Day" means any day other than Saturday, Sunday or a day on which the Senior Lender is
not open for business.
"Declaration of Restrictive Covenants" means the Declaration of Restrictive Covenants for Stadium
Tower Apartments by Borrower in favor of Subordinate Lender.
"Default Notice" means: (a) a copy of the written notice from a Senior Lienholder to Borrower
stating that a Senior Loan Default has occurred under the Senior Loan; or (b) a copy of the written notice
from either of the Subordinate Lender to the Borrower stating that a Subordinate Loan Default has occurred
under either of the Subordinate Loan. Each Default Notice shall specify the default upon which such Default
Notice is based.
"Person" means an individual, estate, trust, partnership, corporation, limited liability company,
limited liability partnership, governmental department or agency or any other entity which has the legal
capacity to own property.
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"Rental Regulatory Agreement" means the Rental Regulatory Agreement between Borrower, as
owner, and Subordinate Lender.
"Senior Loan Default" means the occurrence of an "Event of Default" as that term is defined in the
Senior Loan Documents.
"Senior Loan Documents" means the Senior Mortgage, the Senior Note, the Loan Agreement, and
any and all other documents evidencing, securing or otherwise executed and delivered in connection with the
Senior Loan.
"Subordinate Loan Default" means a default by the Borrower in performing or observing any of
the terms, covenants or conditions in the Subordinate Loan Documents to be performed or observed by it,
which continues beyond any applicable period provided in the Subordinate Loan Documents for curing the
default.
"Subordinate Loan Documents" means the Subordinate Note, the Subordinate Mortgage, the Rental
Regulatory Agreement, the Declaration of Restrictive Covenants, and all other documents evidencing,
securing or otherwise executed and delivered in connection with the Subordinate Loan.
"Subordinate Mortgage" means the Mortgage and Security Agreement, given by Borrower to
Subordinate Lender to secure the Subordinate Note, as the same may be extended, amended, restated,
supplemented or otherwise modified, encumbering the Property as security for the Subordinate Loan, which
the Subordinate Lender will cause to be recorded among the applicable land records immediately before this
Agreement.
"Subordinate Note" means the Promissory Note, in the principal amount of $1,800,000, made by
Borrower to the order of Subordinate Lender, as the same may be extended, amended, restated,
supplemented or otherwise modified, to evidence the Subordinate Loan of ARPA funds.
2. Permission to Place Mortgage Lien Against Property.
Senior Lienholders agree, notwithstanding the prohibition against inferior liens on the Property
contained in the Senior Loan Documents and subject to the provisions of this Agreement, to permit the
Subordinate Lender to record the Subordinate Mortgage and other recordable Subordinate Loan Documents
against the Property (which are subordinate in all respects to the lien of the Senior Mortgage) to secure
Borrower's obligation to repay the Subordinate Note and all other obligations, indebtedness and liabilities of
Borrower to the Subordinate Lender under and in connection with the Subordinate Loan. Such permission is
subject to the condition that each of the representations and warranties made by the Borrower and the
Subordinate Lender in Section 3 is true and correct on the date of this Agreement and on the date on which
the proceeds of the Subordinate Loan are disbursed to the Borrower. If any of the representations and
warranties made by the Borrower and the Subordinate Lender in Section 3 is not true and correct on both of
those dates, the provisions of the Senior Loan Documents applicable to unpermitted liens on the Property
shall apply.
3. Borrower's and Subordinate Lender's Representations and Warranties.
The Borrower and the Subordinate Lender each makes the following representations and warranties
to the Senior Lender:
(a) Subordinate Notes. The Subordinate Note contains the following provision:
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The indebtedness evidenced by this Note is and shall be subordinate in right of payment to the
prior payment in full of the indebtedness secured by the Senior Mortgage in the original principal amount
of $23,500,000, to the extent and in the manner provided in that certain Subordination Agreement of even
date herewith among the payee of this Note, the Senior Lienholders and Borrower (the "Subordination
Agreement"). The Mortgage securing this Note is and shall be subject and subordinate in all respects to
the liens, terms, covenants and conditions of the Senior Mortgage as more fully set forth in the
Subordination Agreement. The rights and remedies of the payee and each subsequent holder of this Note
under the Mortgage securing this Note are subject to the restrictions and limitations set forth in the
Subordination Agreement. Each subsequent holder of this Note shall be deemed, by virtue of such
holder's acquisition of the Note, to have agreed to perform and observe all of the terms, covenants and
conditions to be performed or observed by the Subordinate Lender under the Subordination Agreement.
or other similar language acceptable to Senior Lienholders.
(b) Intentionally Deleted.
(c) Subordinate Loan Documents. The executed Subordinate Loan Documents are
substantially in the same forms as those submitted to, and approved by, Senior Lienholders prior to the date
of this Agreement. Upon execution and delivery of the Subordinate Loan Documents, Borrower shall deliver
to Senior Lienholders an executed copy of each of the Subordinate Loan Documents, certified to be true,
correct and complete.
(d) Senior Loan Documents. The executed Senior Loan Documents are substantially in the
same forms as, when applicable, those submitted to, and approved by, Subordinate Lender prior to the date of
this Agreement. Upon execution and delivery of the Senior Loan Documents, Borrower shall deliver to
Subordinate Lender an executed copy of each of the Senior Loan Documents, certified to be true, correct and
complete.
4. Terms of Subordination.
(a) Agreement to Subordinate. Senior Lienholders and Subordinate Lender agree that: (i) the
indebtedness evidenced by the Subordinate Loan Documents is and shall be subordinated in right of payment,
to the extent and in the manner provided in this Agreement to the prior payment in full of the indebtedness
evidenced by the Senior Loan Documents, and (ii) the Subordinate Mortgage and the other Subordinate Loan
Documents are and shall be subject and subordinate in all respects to the liens, terms, covenants and
conditions of the Senior Mortgage and the other Senior Loan Documents and to all advances heretofore made
or which may hereafter be made pursuant to the Senior Mortgage and the other Senior Loan Documents
(including but not limited to, all sums advanced for the purposes of (1) protecting or further securing the lien
of the Senior Mortgage, curing defaults by the Borrower under the Senior Loan Documents or for any other
purpose expressly permitted by the Senior Mortgage, or (2) constructing, renovating, repairing, furnishing,
fixturing or equipping the Property).
(b) Subordination of Subrogation Rights. Subordinate Lender agrees that if, by reason of its
payment of real estate taxes or other monetary obligations of the Borrower, or by reason of its exercise of any
other right or remedy under the Subordinate Loan Documents, it acquires by right of subrogation or otherwise
a lien on the Property which (but for this subsection) would be senior to the lien of the Senior Mortgage, then,
in that event, such lien shall be subject and subordinate to the lien of the Senior Mortgage.
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(c) Payments before Senior Loan Default. Until Subordinate Lender receives a Default
Notice of a Senior Loan Default from a Senior Lienholder, Subordinate Lender shall be entitled to retain for
its own account all payments made under or pursuant to the Subordinate Loan Documents.
(d) Payments after Senior Loan Default. Borrower agrees that, after it receives notice (or
otherwise acquires knowledge) of a Senior Loan Default, it will not make any payments under or pursuant to
the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late
payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage)
without the Senior Lender's prior written consent. Subordinate Lender agrees that, after it receives any
Default Notice from a Senior Lienholder with written instructions directing Subordinate Lender not to accept
payments from Borrower on account of the Subordinate Loan, it will not accept any payments under or
pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional
interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate
Mortgage) without the Senior Lienholder's prior written consent. If Subordinate Lender receives written
notice from a Senior Lienholder that the Senior Loan Default that gave rise to Subordinate Lender's
obligation not to accept payments has been cured, waived, or otherwise suspended by the Senior Lienholder,
the restrictions on payment to Subordinate Lender in this Section 4 shall terminate, and Senior Lender shall
have no right to any subsequent payments made to Subordinate Lender by the Borrower prior to Subordinate
Lender's receipt of a new Default Notice from a Senior Lienholder in accordance with the provisions of this
Section 4(d).
(e) Remitting Subordinate Loan Payments to Senior Lender. If, after Subordinate Lender
receives a Default Notice from a Senior Lienholder in accordance with subsection (d) above, Subordinate
Lender receives any payments under the Subordinate Loan Documents, Subordinate Lender agrees that such
payment or other distribution will be received and held in trust for Senior Lender and unless Senior Lender
otherwise notifies Subordinate Lender in writing, will be promptly remitted, in kind to Senior Lender,
properly endorsed to Senior Lender, to be applied to the principal of, interest on and other amounts due under
the Senior Loan Documents in accordance with the provisions of the Senior Loan Documents. By executing
this Agreement, Borrower specifically authorizes Subordinate Lender to endorse and remit any such
payments to Senior Lender, and specifically waives any and all rights to have such payments returned to
Borrower or credited against the Subordinate Loan. Borrower and Senior Lender acknowledge and agree that
payments received by Subordinate Lender, and remitted to Senior Lender under this Section 4, shall not be
applied or otherwise credited against the Subordinate Loan, nor shall the tender of such payment to Senior
Lender waive any Subordinate Loan Default that may arise from the inability of Subordinate Lender to retain
such payment or apply such payment to the Subordinate Loan.
(f) Agreement Not to Commence Bankruptcy Proceeding. Subordinate Lender agrees that
during the term of this Agreement it will not commence, or join with any other creditor in commencing any
bankruptcy reorganization, arrangement, insolvency or liquidation proceedings with respect to Borrower,
without the Senior Lender's prior written consent.
5. Default Under Subordinate Loan Documents.
(a) Notice of Default and Cure Rights. Subordinate Lender shall deliver to Senior
Lienholders a Default Notice within five Business Days in each case where Subordinate Lender has given a
Default Notice to Borrower. Failure of Subordinate Lender to send a Default Notice to Senior Lienholders
shall not prevent the exercise of Subordinate Lender's rights and remedies under the Subordinate Loan
Documents, subject to the provisions of this Agreement. Senior Lienholders shall have the right, but not the
obligation, to cure any Subordinate Loan Default within 60 days following the date of such notice; provided,
however that Subordinate Lender shall be entitled, during such 60-day period, to continue to pursue its rights
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and remedies under the Subordinate Loan Documents to the extent permitted under Section 5(b). All amounts
paid by Senior Lender in accordance with the Senior Loan Documents to cure a Subordinate Loan Default
shall be deemed to have been advanced by Senior Lender pursuant to, and shall be secured by the lien of, the
Senior Mortgage.
(b) Subordinate Lender's Agreement to Standstill. If a Subordinate Loan Default occurs and
is continuing, Subordinate Lender agrees that, without Senior Lienholders' prior written consent, it will not
commence foreclosure proceedings with respect to the Property under the Subordinate Loan Documents or
exercise any other rights or remedies they may have under the Subordinate Loan documents, including, but
not limited to accelerating the Subordinate Loan, collecting rents, appointing (or seeking the appointment of)
a receiver or exercising any other rights or remedies thereunder unless and until it has given Senior Lender at
least 60 days' prior written notice. Notwithstanding anything to the contrary in this Section 5(b), during such
60-day period however, Subordinate Lender shall be entitled to exercise and enforce all other rights and
remedies available to Subordinate Lender under the Subordinate Loan Documents and/or under applicable
laws, including, without limitation, rights to enforce the Rental Regulatory Agreement and/or other covenants
and/or agreements of the Borrower relating to income, rent or affordability restrictions.
(c) Cross Default. Borrower and Subordinate Lender agree that a Subordinate Loan Default
shall constitute a Senior Loan Default under the Senior Loan Documents and Senior Lienholders 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 Senior Loan Default. If Subordinate Lender notifies a Senior Lienholder in writing that any
Subordinate Loan Default of which the Senior Lienholders have received a Default Notice has been cured or
waived, as determined by Subordinate Lender in its sole discretion, then provided that Senior Lienholders
have not conducted a sale of the Property pursuant to their rights under the Senior Loan Documents, any
Senior Loan Default under the Senior Loan Documents arising solely from such Subordinate Loan Default
shall be deemed cured, and the Senior Loan shall be reinstated, provided, however, that Senior Lender shall
not be required to return or otherwise credit for the benefit of Borrower any default rate interest or other
default related charges or payments received by Senior Lender during such Senior Loan Default.
6. Default Under Senior Loan Documents.
(a) Notice of Default and Cure Rights. Senior Lienholders shall deliver to Subordinate
Lender a Default Notice within five Business Days in each case where a Senior Lienholder has given a
Default Notice to the Borrower. Failure of any Senior Lienholder to send a Default Notice to Subordinate
Lender shall not prevent the exercise of Senior Lienholders' rights and remedies under the Senior Loan
Documents, subject to the provisions of this Agreement. Subordinate Lender shall have the right, but not the
obligation, to cure any such Senior Loan Default as provided below. Subordinate Lender may have up to 60
days from the date of the Default Notice to cure any monetary default under the Senior Loan Documents;
provided, however, that Senior Lienholders shall be entitled during such 60-day period to continue to pursue
their respective remedies with respect to the Property. Subordinate Lender may have up to 90 days from the
date of the Default Notice to cure a non -monetary default if during such 90-day period Subordinate Lender
keep current all payments required by the Senior Loan Documents. In the event that such a non -monetary
default creates an unacceptable level of risk relative to the Property, or Senior Lienholders' secured positions
relative to the Property, as determined by Senior Lender in its sole discretion, then Senior Lender may
exercise during such 90-day period all available rights and remedies to protect and preserve the Property and
the rents, revenues and other proceeds from the Property. All amounts paid by Subordinate Lender to Senior
Lender to cure a Senior Loan Default shall be deemed to have been advanced by Subordinate Lender
pursuant to, and shall be secured by the lien of, the Subordinate Mortgage.
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(b) Cross Default. Subordinate Lender agrees that, notwithstanding any contrary provision
contained in the Subordinate Loan Documents, a Senior Loan Default shall not constitute a default under the
Subordinate Loan Documents if no other default occurred under the Subordinate Loan Documents until either
(i) Senior Lender has accelerated the maturity of the Senior Loan, or (ii) Senior Lender has taken affirmative
action to exercise its rights under the Senior Mortgage to collect rent, to appoint (or seek the appointment of)
a receiver or to foreclose on (or to exercise a power of sale contained in) the Senior Mortgage. At any time
after a Senior Loan Default is determined to constitute a default under the Subordinate Loan Documents,
Subordinate Lender shall be permitted to pursue any remedies for default under the Subordinate Loan
Documents, subject to the restrictions and limitations of this Agreement. If at any time the Borrower cures
any Senior Loan Default to the satisfaction of the Senior Lienholders, as evidenced by written notice from a
Senior Lienholder to Subordinate Lender, any default under the Subordinate Loan Documents arising from
such Senior Loan Default shall be deemed cured and the Subordinate Loan shall be retroactively reinstated as
if such Senior Loan Default had never occurred.
7. Conflict.
Borrower, Senior Lienholders and Subordinate Lender each agrees that, in the event of any
conflict or inconsistency between the terms of the Senior Loan Documents, the Subordinate Loan
Documents and the terms of this Agreement, the terms of this Agreement shall govern and control solely
as to the following: (a) the relative priority of the security interests of Senior Lienholders and
Subordinate Lender in the Property; (b) the timing of the exercise of remedies by Senior Lienholders and
Subordinate Lender under the Senior Mortgage and the Subordinate Mortgages, respectively; and (c)
solely as between Senior Lienholders and Subordinate Lender, the notice requirements, cure rights, and
the other rights and obligations that Senior Lienholders and Subordinate Lender have agreed to as
expressly provided in this Agreement. Borrower acknowledges that the terms and provisions of this
Agreement shall not, and shall not be deemed to: extend Borrower's time to cure any Senior Loan Default
or Subordinate Loan Default, as the case may be; give Borrower the right to notice of any Senior Loan
Default or Subordinate Loan Default, as the case may be other than that, if any, provided, respectively
under the Senior Loan Documents or the Subordinate Loan Documents; or create any other right or
benefit for Borrower as against Senior Lienholders or Subordinate Lender.
8. Rights and Obligations of the Subordinate Lender under the Subordinate Loan
Documents and of the Senior Lender under the Senior Loan Documents.
Subject to each of the other terms of this Agreement, all of the following provisions shall
supersede any provisions of the Subordinate Loan Documents covering the same subject matter:
(a) Protection of Security Interest. Subordinate Lender shall not, without the prior written
consent of Senior Lienholders in each instance, take any action that has the effect of increasing the
indebtedness outstanding under, or secured by, the Subordinate Loan Documents, except that Subordinate
Lender shall have the right to advance funds to cure Senior Loan Defaults pursuant to Section 6(a) above and
advance funds pursuant to the Subordinate Mortgage for the purpose of paying real estate taxes and insurance
premiums, making necessary repairs to the Property and curing other defaults by Borrower under the
Subordinate Loan Documents.
(b) Condemnation or Casualty. In the event of: a taking or threatened taking by
condemnation or other exercise of eminent domain of all or a portion of the Property (collectively, a
"Taking"); or the occurrence of a fire or other casualty resulting in damage to all or a portion of the Property
(collectively, a "Casualty"), at any time or times when the Senior Mortgage remains a lien on the Property
the following provisions shall apply:
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(1) Subordinate Lender, in its sole capacity as lender, hereby agrees that any rights (under the
Subordinate Loan Documents or otherwise) to participate in any proceeding or action relating to a Taking
and/or a Casualty, or to participate or join in any settlement of, or to adjust, any claims resulting from a
Taking or a Casualty shall be and remain subordinate in all respects to Senior Lienholders' rights under the
Senior Loan Documents with respect thereto, and Subordinate Lender shall be bound by any settlement or
adjustment of a claim resulting from a Taking or a Casualty made by any Senior Lienholder; provided,
however, this subsection and/or anything contained in this Agreement shall not limit the rights of Subordinate
Lender to file any pleadings, documents, claims or notices with the appropriate court with jurisdiction over
the proposed Taking and/or Casualty; and
(2) all proceeds received or to be received on account of a Taking or a Casualty, or both, shall
be applied (either to payment of the costs and expenses of repair and restoration or to payment of the Senior
Loan) in the manner determined by Senior Lender in its sole discretion; provided, however, that if Senior
Lender elects to apply such proceeds to payment of the principal of, interest on and other amounts payable
under the Senior Loan, any proceeds remaining after the satisfaction in full of the principal of, interest on and
other amounts payable under the Senior Loan shall be paid to, and may be applied by, Subordinate Lender in
accordance with the applicable provisions of the Subordinate Loan Documents, provided however, Senior
Lender agrees to consult with Subordinate Lender in determining the application of Casualty proceeds,
provided further however that in the event of any disagreement between Senior Lender and Subordinate
Lender over the application of Casualty proceeds, the decision of Senior Lender, in its sole discretion, shall
prevail.
(c) No Modification of Subordinate Loan Documents. Borrower and Subordinate Lender
each agrees that, until the principal of, interest on and all other amounts payable under the Senior Loan
Documents have been paid in full, it will not, without the prior written consent of Senior Lienholders in each
instance, increase the amount of the Subordinate Loan, increase the required payments due under the
Subordinate Loan, decrease the term of the Subordinate Loan, increase the interest rate on the Subordinate
Loan, or otherwise amend the Subordinate Loan terms in a manner that creates an adverse effect upon Senior
Lienholders under the Senior Loan Documents unless required under applicable law or court order to do so.
Any unauthorized amendment of the Subordinate Loan Documents or assignment of Subordinate Lender's
interest in the Subordinate Loan without the Senior Lienholders' consent shall be void ab initio and of no
effect whatsoever and Subordinate Lender agrees that it shall not transfer or assign the Subordinate Loan or
the Subordinate Loan Documents without the prior written consent of Senior Lienholders unless required
under applicable law or court order to do so.
9. Modification or Refinancing of Senior Loan.
Subordinate Lender consents to any agreement or arrangement in which Senior Lienholders
waive, postpone, extend, reduce or modify any provisions of the Senior Loan Documents, including any
provision requiring the payment of money. The parties hereto acknowledge and agree that Subordinate
Lender's agreement to subordinate hereunder shall not extend to any new mortgage debt which is for the
purpose of refinancing all or any part of the Senior Loan (including reasonable and necessary costs
associated with the closing and/or the refinancing) that has not been previously approved by Subordinate
Lender in writing and in its sole but reasonable discretion. In the event of new mortgage debt approved by
Subordinate Lender, Subordinate Lender shall execute and deliver to Senior Lienholders a new
subordination agreement on the same terms and conditions as this Subordination Agreement.
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10. Default by the Subordinate Lender or Senior Lender.
If Subordinate Lender or any Senior Lienholder defaults in performing or observing any of the
terms, covenants or conditions to be performed or observed by it under this Agreement, the other, non -
defaulting lender(s) shall have the right to all available legal and equitable relief.
11. Notices.
Each notice, request, demand, consent, approval or other communication (hereinafter in this Section
referred to collectively as "notices" and referred to singly as a "notice") which Senior Lender or Subordinate
Lender are required or permitted to give to the other parties pursuant to this Agreement shall be in writing and
shall be deemed to have been duly and sufficiently given if: (a) personally delivered with proof of delivery
thereof (any notice so delivered shall be deemed to have been received at the time so delivered); or (b) sent
by Federal Express (or other similar national overnight courier) designating early morning delivery (any
notice so delivered shall be deemed to have been received on the next Business Day following receipt by the
courier); or (c) sent by United States registered or certified mail, return receipt requested, postage prepaid, at
a post office regularly maintained by the United States Postal Service (any notice so sent shall be deemed to
have been received two days after mailing in the United States), addressed to the respective parties as
follows:
SENIOR LENDER: U.S. Bank Trust Company, N.A.
500 West Cypress Creek Road, Suite 460
Fort Lauderdale, Florida 33309
Attention: Amanda Kumar
Telephone: (954) 938-2475
with a copy to: Akerman LLP
50 North Laura Street, Suite 3100
Jacksonville, Florida 32202
Attention: Peter Dame, Esq.
Phone: (904) 598-8676
Fax: (904) 798-3730
BOND PURCHASER: First Horizon TE1, LLC
c/o First Horizon
200 South Biscayne Boulevard, Suite 2850
Miami, Florida 33131
Attention: Loan Administration
Phone: (305) 808-2216
Fax: (305) 347-4140
with a copy to:
Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
150 West Flagler Street, Suite 2200
Miami, Florida 33130
Attention: Brian J. McDonough, Esq.
Phone: (305) 789-3350
Fax: (305) 789-3395
SUBORDINATE LENDER: City of Miami
Department of Housing and
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with a copy to:
BORROWER:
with a copy to:
Community Development
One Flagler Building
14 Northeast 1st Avenue, Second Floor
Miami, Florida 33132
Attention: George Mensah, Director
City of Miami
Office of the City Attorney
444 S.W. 2nd Avenue, Suite 945
Miami, Florida 33130
Attention: Victoria Mendez
Telephone: (305) 416-1800
Email: law@miamigov.com
Stadium Tower Apartments, LLC
7735 NW 146 Street, Suite 306
Miami Lakes, FL 33016
Attention: Lewis V. Swezy
Attention: Lewis Swezy
Telephone: (305) 821-0330, Ext. 5001
Email: lswezy@centennialmgt.com
Nelson Mullins Riley & Scarborough LLP
390 North Orange Avenue, Suite 1400
Orlando, Florida 32801
Attention: Randy Alligood, Esq.
Phone: (407) 669-4202
Fax: (407) 650-0914
Either party may, by notice given pursuant to this Section, change the person or persons and/or address or
addresses, or designate an additional person or persons or an additional address or addresses for its
notices, but notice of a change of address shall only be effective upon receipt.
12. General.
(a) Assignment/Successors. This Agreement shall be binding upon Borrower, Senior
Lienholders and Subordinate Lender and shall inure to the benefit of the respective legal successors and
assigns of Senior Lienholders and Subordinate Lender.
(b) No Partnership or Joint Venture. Senior Lienholders' permission for the placement of the
Subordinate Loan Documents does not constitute either Senior Lienholder as a joint venturer or partner of
Subordinate Lender. No party hereto shall hold itself out as a partner, agent or Affiliate of any other party
hereto.
(c) Senior Lienholders' and Subordinate Lender's Consent. Wherever Senior Lienholder's
consent or approval is required by any provision of this Agreement, such consent or approval may be granted
or denied by any Senior Lienholder in its sole and absolute discretion, unless otherwise expressly provided in
this Agreement. Wherever Subordinate Lender's consent or approval is required by any provision of this
Agreement, such consent or approval may be granted or denied by Subordinate Lender in its sole and
absolute discretion, unless otherwise expressly provided in this Agreement.
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(d) Further Assurances. Subordinate Lender, Senior Lienholders and Borrower each agrees, at
Borrower's expense, to execute and deliver all additional instruments and/or documents reasonably required
by any other party to this Agreement in order to evidence that the Subordinate Mortgage is subordinate to the
lien, covenants and conditions of the Senior Mortgage, or to further evidence the intent of this Agreement.
(e) Amendment. This Agreement shall not be amended except by written instrument signed by
all parties hereto.
(f) Governing Law and Venue. This Agreement shall be construed in accordance with the
laws of the State of Florida. Any dispute arising under, in connection with, or related to this Agreement or
related to any matter that is subject of this Agreement shall be subject to the exclusive jurisdiction of the state
and/or federal courts located in Miami -Dade County, Florida.
(g) Severable Provisions. If any provision of this Agreement shall be invalid or unenforceable
to any extent, then the other provisions of this Agreement, shall not be affected thereby and shall be enforced
to the greatest extent permitted by law.
(h) Term. The term of this Agreement shall commence on the date hereof and shall continue
until the earliest to occur of the following events: (i) the payment of all of the principal of, interest on and
other amounts payable under the Senior Loan Documents; (ii) the payment of all of the principal of, interest
on and other amounts payable under the Subordinate Loan Documents, other than by reason of payments
which the Subordinate Lender is obligated to remit to Senior Lender pursuant to Section 4 hereof; (iii) the
acquisition by a Senior Lienholder of title to the Property pursuant to a foreclosure or a deed in lieu of
foreclosure of, or the exercise of a power of sale contained in, the Senior Mortgage; or (iv) the acquisition by
Subordinate Lender of title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the
exercise of a power of sale contained in, the Subordinate Mortgage, but only if such acquisition of title does
not violate any of the terms of this Agreement.
(i) Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be considered an original for all purposes; provided, however, that all such counterparts shall
together constitute one and the same instrument.
(j) Subordinate Lender Executes Solely In Capacity As Lender. Subordinate Lender
executes this Agreement solely in its 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 its governmental powers (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 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 the City of Miami, or (iv) exercise
any other rights and powers outside its role of Subordinate Lender.
(k) 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.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first written above.
STATE OF FIairQe;,...,
):SS
COUNTY OF
SENIOR LENDER:
U.S. BANK TRUST COMPANY,
NATIONAL ASSOCIATION, a national
banking association, as trustee
By:.
Name: Amanda Kumar
Title: Vice President
The foregoing instrument was acknowledged before me, by ans of IVphysical presence or Cl
online notarization, this I }day of�`X'��=�`�, 2022, by ��pZrsl63r-fl(.iir, as
VP of U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a
national banking association, as trustee, on behalf of the bank as trustee. S/he is persoIly known to me
or has produced a valid driver's license as identification. /T
:• ANOREA L LATHROP
Notary Public - State of Florida
,"; Commission = GG 320043
My Comm, Expires Apr 28, 2023
411224333 v2
42469-0038
otary Public; State of Florida
Print Name: erne t L L
My Commission Expires: j
My Commission No.:..e71 . _
[SUBORDINATION AGREEMENT — SENIOR LENDER.— CITY LOAN]
BOND PURCHASER:
FIRST HORIZON TE1, LLC, a Delaware
limited liability company
By: First Horizon Bank, its attorney -in -fact,
with full power of substitution
By:
Name:
Ale-, v e 5/.2_,
Title: S. P•
STATE OF FLORIDA )
):SS
COUNTY OF MIAMI-DADE )
The foregoing instrument was executed before me, by means of [4hysical presence or [ ]
online notarization, this 9 day of 1QQ a_p , nJaJ- l • , 2022, by 1sa e 4 i , as
v, f . of First Horizon Bank, attorney -in -fact, with full poNLer of substitution, of
FIRST HORIZON TE1, LLC, a Delaware limited liability company, who is personally known to me or
who has produced a Florida driver license as identification.
4
,ot►R a MIREYA VALLADARES
�1 ?f Notary Public - State of Florida
�y4. Commission # GG 293473
o,_o-My Comm. Expires May 13, 2023
Bonded through National Notary Assn.
#11224333 v2
42469-0038
Notary Pub
Print Name.
My Commission Expires:
My Commission No.:
c; Stat
f Florida
[SUBORDINATION AGREEMENT —BOND PURCHASER —CITY LOAN]
Co
[SEAL]
SUBORDINATE LENDER:
CITY OF MIAMI, a municipal orporation of the
State of Florida
By:
Arthur Noriga
ATTEST: City Manager
Date: Tod
`` Date:
Hannon, City Clerk
APPROVED BY
RISK MANAGE
By:
Ann-M ie S . rpe
Director of ' isk Management
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
Approved as to form and correctness:
Victdez, City Attorney
The foregoing ins r ment wa acknowledged before me by means of Q physical presence or ❑
online notarization, this IA day of\iL•1'Vi , 2022, by ARTHUR NORIEGA as City Manager of
the CITY OF MIAMI, a municipal corporation of the State of Florida, on behalf of said municipal
corporation. Such persons are personally known to me or have produced as
identification.
[Notary Seal]
t�+t? SANDRA GILBERT
,; MY COMMISSION # NH 112572
EXPIRES: April 20, 2025
Bonded Thru Notary Public Undenvi teia
cknowtedgment
Name (tyinted or stamped):
Title or Rank:
Serial number (if any):
[SUBORDINATION AGREEMENT —SUBORDINATE LENDER — CITY LOAN]
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42469-0038
BORROWER:
STADIUM TOWER APARTMENTS LLC, a
Florida limited liability company
By: Stadium Tower Apartments MM
Florida limited liabil'
its
STATE OF FLORIDA )
��� ) SS:
COUNTY OF (�kla\-�_A JIJIK. )
s V. S .► ager
The foregoing in ment was executed before me, by means ofhysical presence or [ ]
online notarization, this k day of (C , 2022, by Lewis V. Swezy, the manager of Stadium
Tower Apartments MM LLC, a Florida limited liability company, the manager of STADIUM TOWER
APARTMENTS LLC, a Florida limited liability company, on behalf of the company, who is personally
known to me or has produced a State of Florida driver license as identification.
#11224333 v2
42469-0038
FLOR M PADILLA
_Notary Public -State of Florida
Commission # HH 177130
My Commission Expires
September 20, 2025
LAVA" I 4
Notary P to of Florida
Print Name
My Commission xpires:
My Commission No.:
[SUBORDINATION AGREEMENT — BORROWER — CITY LOAN]
EXHIBIT A
Legal Description
The land referred to herein below is situated in the County of MIAMI-DADE, State of FL, and described
as follows:
Tract B of MIAMI STADIUM SUBDIVISION, according to the Plat thereof as recorded in Plat Book
157, at Page 76, of the Public Records of MIAMI-DADE County, Florida.
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