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Item Q10 Nov 18 03 05:04p Ha~or Spehar 292 3466 p. 1 AGENDA ITEM SUMMARY ~ /IJI,.) BOARD OF COUNTY COMMISSIONERS Meeting Date: November 19, 2003 Division: District 1 Bulk Item: Yes No Department: Mayor Dixie M. Spehar AGENDA ITEM WORDING: Approval to execute a subordination agreement to neighborhood lending partners of South Florida, Inc. for the proposed Monroe County State Housing Initiatives Partnership (SHIP) program Joan in support of Meridian West, J 02 units of affordable housing. ITEM BACKGROUND: The primary lender on this project is requiring each junior lender, including SJDP, to execute a subordination agreement. This agreement is in addition to the SHIP Mortgage. Approval does not alter or otherwise change the proposed mortgage or position. PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: STAFF ,RECOMMENDATIONS: TOTAL COST: BUDGETED: Yes No COST TO COUNTY: SOL"RCE OF FUNDS: REVENUE PRODUCING: Yes No AMOUNT PER MONTH Year APPROVED BY: County Atty _ OMB/Purchasing _ Risk Management_ DIVISION DIRECTOR APPROVAL: #,~. >n ~ I:l~ Mayor ixie M. Spehar DOCUMENTATION: Included To Follow Not Required_ AGENDA ITEM # q - \ C) DISPOSITION: Revised 1/03 ,...-- /r:/S Nov 18 03 05:04p Ha~o,. Speha,. 292 3466 p.2 SUBORDINA nON AGREEMENT THIS AGREEMENT made as of the _ day of October, 2003, by (i) NEIGHBORHOOD LENDING PARTNERS OF SOUTH FLORIDA, INC., a Florida not-for-profit corporation (the "Senior Mortgagee"), whose address is 2002 North Lois Avenue, Suite 150, Tampa, Florida, 33607; (ii) MONROE COUNTY, a political subdivision of the State of Florida (the "Subordinate Mortgagee"), whose address is 500 Whitehead Street, Key West, Florida 33040; and (iii) MERIDIAN WEST, LTD., a Florida limited parlnership ('<Borrower"), whose address is c/o The Carlisle Group, 2950 S.W, 27'h Avenue, Suite 200, Coconut Grove, Florida, 33133, RECITALS A. Borrower executed and delivered to the Subordinate Mortgagee a promissory note (the "Subordinate Note") in the original principal amount of $75,000, evidencing a loan (the "Subordinate Loan") secured by a Mortgage dated September _, 2003. The aforesaid Mortgage encumbers the real property described in Exhibit "A" attached hereto and made a part hereof, the improvements thereon, and certain personal property relating thereto (collectively, the "Property"). Hereinafter the aforesaid Subordinate Note and the Mortgage in favor of the Subordinate Mortgagee are collectively referred to as the "Subordinate Mortgage". B. Borrower executed and delivered to the Senior Mortgagee a promissory note (the "Senior Note") in the original principal amount 0[$4,271 ,000, evidencing a loan (the "Senior Loan") secured by a Multifamily Mortgage, Assignment of Rents and Security Agreement dated September 3, 2003. Hereinafter the aforesaid Senior Note and the Multifamily Mortgage, Assignment of Rents and Security Agreement in favor of Senior Mortgagee are collectively referrcd to as the "Senior Mortgage" . C. Senior Mortgagee will not make the Senior Loan unless it is secured by a fIrst mortgage upon and security interest in the Property, and to induce the Senior Mortgagec to make the Senior Loan, the Subordinate Mortgagee is willing to subordinate the Subordinate ~ortgage to the Senior Mortgage. AGREEMENT NOW, THEREFORE, in consideration of the sum of TEN AND NO/IOO DOLLARS (SIO.OO) and other good and valuable consideration, from one to the other paid, the receipt and sufficiency whereof is hereby acknowledged, and to induce Senior Mortgagee to make the Senior Loan, the parties do hereby agree: I. Recitals. The Recitals are true and correct and are made a part hereof 2. Subordination, (a) The Subordinate Mortgage is now and forever hereafter made subordinate and inferior to the Senior Mortgage and to all debt evidenced or secured thereby including principal, Nov 18 03 05:04p l'ta~o,.Speha,. 2'92 3466 p.3 interest, costs and expenses, and to any and all extensions, modifications, amendments, enlargements or renewals thereof or future advances made thereunder. Further, the terms of the Subordinate Mortgage and all rights and remedies of the Subordinate Mortgagee available to the Subordinate Mortgagee pursuant to the Subordinate Mortgage, including but not limited to the right to claim or receive any insurance or condemnation awards or proceeds, are hereby expressly subordinate to the terms of the Senior Mortgage and the rights and remedies of Senior Mortgagee under the Senior Mortgage. (b) The indebtedness of Borrower, and any other obligor pursuant to the Subordinate Note, and any and all other indebtedness and other obligations of Borrower to Subordinate Mortgagee, and the Subordinate Mortgage and aU other liens, encumbrances and security interests given to secure the payment of the Subordinate Note and any other obligations of payment or performance of Borrower to Subordinate Mortgagee, whether now existing or hereafter created or acquired. shall be and hereby are subordinated in lien, priority and payment of principal and interest and all other charges and fees, including, without limitation, taxes and insurance premiums paid by Senior Mortgagee and interest accruing after any default or petition in bankruptcy, to the indebtedness of Borrower pursuant to the Senior Note, and all liens, encumbrances and security interests given to secure the payment thereof, whether now existing or hereafter created or acquired, including, without limitation, the Senior Mortgage and to anyand all other loans, advances, extensions of credit, or other accommodations to or for the account of Bon-ower as Senior Mortgagee may elect to make from time to time, and any and all other indebtedness of Borrower to Senior Mortgagee, whether now existing or hereafter created or acquired, and any and all liens, encumbrances, and security interests given to secure the repayment or payment thereof, whether now existing or hereafter created or acquired, and to such renewals and extensions thereof as Senior Mortgagee may elect to make from time to time. 3. Conditions Precedent to Remedial Action If a default occurs under the Subordinate Mortgage (a "Subordinate Loan Default") and is continuing, the Subordinate Mortgagee agrees that, without the Senior Mortgagee's prior written consent, i twill not commence foreclosure proceedings with respect to the Property under the Subordinate Mortgage or exercise any other rights or remedies it may have under the Subordinate Mortgage, including, but not limited to accelerating the Subordinate Loan (and enforcing any "due on sale" provision included in the Subordinate Mortgage), collecting rents, appointing (or seeking the appointment of) a receiver or exercising any other rights or remedies thereunder unless and until it has given the Senior Mortgagee at least 30 days' prior written notice, The Senior Mortgagee shall have the right, but not the obligation, to cure any Subordinate Loan Default within the same time period for curing a default which is given to the Borrower under the Subordinate Loan Documents, except that the Senior Mortgagee's time period for cure shall begin on the date on which it receives notice of the Subordinate Loan Default. All amounts advanced or expended by the Senior Mortgagee to cure a Subordinate Loan Default shall be deemed to have been advanced by the Senior Mortgagee pursuant to, and shall be secured by the lien of, the Senior Mortgage, 4, Insurance. Condemnation. In the event of partial or total destruction of the Property which results in the payment of insurance proceeds, or in the event of a condemnation or -2- Nov 18 03 05:04p Ha~or Spehar 292 3466 p.4 similar proceeding which results in the payment of an award. the proceeds or award shall be applied in accordance with the relevant provisions of the Senior Mortgage. 5. Notices. All notices hereunder shall be in writing and shall be deemed to have been sufficiently given or served for all pwposes when presented personally or three (3) days after mailing when sent by registered or certified mail. return receipt requested, postage prepaid, to the addresses set forth above. or at such other address of which a party shall have notified the party giving such notice in writing. 6. No Waiver, The giving of consent by Senior Mortgagee to the giving of the Subordinate Mortgage is not and shall not be deemed a waiver of the Senior Mortgagee's rights to prohibit any other junior mortgage of the Property. No delay on the part of Senior Mortgagee or Subordinate Mortgagee in the exercise of any right or remedy hereunder or under the Senior Mortgage or Subordinate Mortgage. respectively, shall operate as a waiver of any right hereunder. 7. Counterparts. The parties hereto agree that this Subordination Agreement may be executed in two or more counterparts. each of which shall be an original, but all of which shall constitute one and the same instrument. 8. Costs of Enforcement. Should suit be brought to entorce the provisions of this Agreement. the prevailing party shall be entitled to recover its reasonable attorneys' fees incurred both at trial and on appeal. 9. Paral!fat)h Headings. The headings of the various parngraphs of this Subordination Agreement have been inserted only for the purposes of convenience, and are not part of this Subordination Agreement and shall not be deemed in any manner to modify, explain or restrict any of the provisions of this Subordination Agreement. 10. Choice of Law. This Agreement shall be construed, interpreted, enforced and governed by and in accordance with the Jaws of the State of Florida, excluding the principles thereof governing conflicts of law . If any provision shall be held prohibited or invalid under appl icable law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating any other provision of this Agreement. II. Binding Effect. This Agreement shall be binding upon the Borrower and the Subordinate Mortgagee and their respective heirs, successors and assigns and shall inure to the benefit of the Senior Mortgagee, its successors and assigns, -3- Nov 18 03 05:04p Ma~or' Spehar' 292 3466 p.5 EXECUTED the day and year above mentioned. SENIOR MORTGAGEE: NEIGHBORHOOD LENDING PARTNERS OF SOUTH FLORIDA, INC., a Florida not-for-profit corporation By: Print Name: , as its Print Name: STATE OF FLORIDA COUNTY OF HILLSBOROUGH The foregoing Subordination Agreement was acknowledged before me this _ day of _' 2003, by , as of NEIGHBORHOOD LENDING PARTNERS OF SOUTH FLORIDA, INC., a Florida not-for-profit corporation, on behalf of the corporation. He/She is personally known to me or has produced as identification. Notary Public Printed Name My commission ex.pires: -4- Nov 18 03 05:05p "8~or .Spehar 292 34SS p.S SUBORDINATE MORTGAGEE: MONROE COUNTY By: PrilItNamc: . as its Prin. Nome: STATE OF FLORIDA COUNTY OF MONROE The foregoing instrument was acknowledged before me this _ day of October, 2003, by , as of Monroe County, He/She is either personally known by me or has produced as identification. Notary Public Printed Name My commission expires: -5- -6-