Fort Walton Beach Council agenda — 02-12-13--cra — reading text

13 required by any other party to this Agreement in order to evidence that the Subordinate Loan Documents are subordinate to the lien, covenants and conditions of the Senior Loan Documents, or to further evidence the intent of this Agreement. Senior Lender is hereby authorized to file any and all UCC financing statement amendments required to reflect the priority of the Senior Indebtedness. e) Amendment. This Agreement shall not be amended except by written instrument signed by all parties hereto. f) Governing Law. This Agreement shall be governed by the laws of the State in which the Mortgaged Property is located, except as, so long as the Senior loan is insured or held by HUD, and solely as to rights and remedies of HUD, federal jurisdiction may be appropriate pursuant to any federal requirements. The State courts, and with respect to HUD' s rights and remedies, federal courts, and governmental authorities in the State in which the Mortgaged Property is located, shall have exclusive jurisdiction over all controversies which shall arise under or in relation to the Subordinate Loan Documents. Borrower irrevocably consents to service, jurisdiction, and venue of such courts for any such litigation and waives any other venue to which it might be entitled by virtue of domicile, habitual residence or otherwise. 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 Subordinate Lender is obligated to remit to Senior Lender pursuant to Section 4 hereof; (iii) the acquisition by Senior Lender of title to the Mortgaged Property pursuant to a foreclosure; or ( iv) the acquisition by Subordinate Lender of title to the Mortgaged Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale pursuant to, the Subordinate Lien, but only if such acquisition of title does not violate any of the terms of this Agreement. Notwithstanding the foregoing, in the event the Senior Indebtedness is refinanced, the term of this Agreement shall continue and the Subordinate Indebtedness and Subordinate Loan Documents shall be subordinate to any such indebtedness related to the refinance loan as provided in Section 10 above. 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. Subordination Agreement HUD- 92420M ( 04/ 11) Packet Pg. 34  7. 1. b 14 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. SENIOR LENDER: BERKADIA COMMERCIAL MORTGAGE LLC, a limited liability company By: Dede Matthews, Authorized Representative SUBORDINATE LENDER: CITY OF FORT WALTON BEACH, a Florida municipality By: Mike Anderson, Mayor e; f SOUND SIDE APARTMENTS, LLC, a Florida limited liability company By: Fort Walton Beach Housing Authority, a body corporate and politic organized under Chapter 421 of the Florida Statutes, its sole member 0 Gail Sansbury, Executive Director Subordination Agreement HUD- 92420M ( 04/ 11) Packet Pg. 35  7. i .c U. S. Department of Housing Chad Approval No, 2502 -0598 Surplus Cash Note and Urban Development ( Exp. 04130/ 2014) Office of Housing Public Reporting Burden for this collection of information is estimated to average 0. 5 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of Information. Response to this request for information Is required in order to receive the benefits to be derived. This agency may not collect this information, and you are not equired to complete this form unless it displays a currently valid OMB control number. While no assurance of confidentiality is pledged to respondents, HUD generally discloses this data only in I L response to a Freedom of Information Ad request. Project Name: Sound Side Apartments HUD Project No: 063 -35325 FOR VALUE RECEIVED, SOUND SIDE APARTMENTS, LLC, a Florida limited liability company ( Maker) promises to pay to CITY OF FORT WALTON BEACH, a Florida municipality ( Payee) the sum of Seven Hundred Thousand Dollars ($ 700, 000. 00), payable at 107 Miracle Strip Parkway SW, Fort Walton Beach, Florida 32548, with interest on any remaining balance of principal at one and one half per cent ( 1. 50%) per annum payable in full on the maturity date hereof. In any event, the balance of principal, if any remaining unpaid, plus accrued interest, shall be due and payable on July 1, 2054 ( " Maturity Date "). ( The definition of any capitalized term or word used herein can be found in this Surplus Cash Note, the Note, the Regulatory Agreement between Borrower and HUD, and /or the Security Instrument.) This Surplus Cash Note is subject to the following terms and conditions: In the event that the maturity date of that certain Security Instrument dated 2013 in the principal amount of $ 18, 485, 300. 00 made by Maker to Berkadia Commercial Mortgage LLC ( " Lender ") in connection with the Project referenced above is extended and such extension is approved by HUD then in such event the Maturity Date shall automatically be extended to the extended maturity date of the Security Instrument without the consent of Payee. 2. Except as provided in Section 5 below, as long as HUD is the insurer or holder of y the Note secured by the Security Instrument, payments due under this Surplus n Cash Note shall be payable only from Surplus Cash. The restriction on payment N imposed by this paragraph shall not excuse any default caused by the failure of Maker to pay the indebtedness evidenced by this Surplus Cash Note. y ac 3. In the event the Indebtedness secured by the Security Instrument is paid in full o rn and the Security Instrument released of record, then the holder of this Surplus Cash Note may, at its option, declare the whole principal sum or any balance d thereof, together with interest thereon, immediately due and payable. t Notwithstanding the foregoing, in the event said indebtedness is paid in full by way of any substitute indebtedness of Maker secured by any substitute security a instrument insured or held by HUD under Section 223(a)( 7) of the National Previous editions are obsolete, Surplus Cash Note HUD 92223M ( Rev. 041l 1) Replaces form HUD -92223 ( 01195) FLORIDA DOCUMENTARY STAMP TAX IN THE AMOUNT OF $ 2, 450 HAS BEEN PAID. Packet Pg. 36  7. 1. c Housing Act, as amended, the maturity date of this Surplus Cash Note shall automatically be extended to the maturity date of the substitute security instrument without the consent of Payee. 4. Maker may pay any part or all of the principal of this Surplus Cash Note on any interest payment date, provided no such prepayment of principal in any amount or any payment of interest shall be made except from Surplus Cash in accordance with the conditions prescribed in the Regulatory Agreement. 5. Notwithstanding the provisions of paragraphs numbered 2, 4, and 7, Maker may also make payments due hereunder from sources other than Project income or Project Assets. 6. Any unauthorized payments, as determined by HUD, shall be returned to the Project. 7. Except as permitted pursuant to Paragraph 5 hereof, no prepayment of this Surplus Cash Note shall be made until after final endorsement for mortgage insurance by HUD of the Note, unless such prepayment is made from non - Project sources. 8. This Surplus Cash Note is non -negotiable. 9. Interest on this Surplus Cash Note shall not be compounded as long as HUD is the insurer or holder of the Note secured by the Security Instrument. 10. Maker hereby waives presentment, demand, protest and notice of demand, protest and nonpayment of this Surplus Cash Note. 11. The terms and provisions of this Surplus Cash Note are also for the benefit of and are enforceable by HUD against any party hereto, their successors and assigns. This Surplus Cash Note may not be modified or amended without the written consent of HUD. Previous editions are obsolete; Surplus Cash Note HUD- 92223M ( Rev. 04111) Replaces form HUD -92223( 01195) FLORIDA DOCUMENTARY STAMP TAX IN THE AMOUNT OF $ 2,