HomeMy WebLinkAbout24-001 - HFA RESOLUTION NO. 2024-001
A RESOLUTION OF THE ST. LUCIE COUNTY HOUSING FINANCE
AUTHORITY APPROVING THE FORM OF AND AUTHORIZING THE
EXECUTION AND DELIVERY OF THE SECOND MODIFICATION
AGREEMENT(BLUE SKY LANDING);AMENDING CERTAIN PROVISIONS OF
THE 2021B NOTE IN ORDER TO REVISE THE FORMULA FOR THE INTEREST
RATE CALCULATION AND ENSURE CONSISTENCY WITH THE 2021A NOTE;
RATIFYING THE ISSUANCE OF THE SERIES 2021B BONDS IN ACCORDANCE
WITH THE ORIGINAL DOCUMENTS AS MODIFIED BY THE SECOND
MODIFICATION AGREEMENT; PROVIDING FOR OTHER MATTERS
RELATED THERETO;AND PROVIDING AN EFFECTIVE DATE.
WHEREAS,the St.Lucie County Housing Finance Authority(the"Authority")is a public
body corporate and politic,duly organized,and existing under the provisions of Chapter 159 Part
IV,Florida Statutes, as amended and supplemented; and
WHEREAS,the Authority issued its Multifamily Mortgage Revenue Bonds, Series 2021A
(Blue Sky Landing) (the "Series 2021A Bonds") for the purpose of providing funds for the
acquisition,construction, and equipping of that certain multifamily rental housing development
located in Fort Pierce, St. Lucie County, Florida, more commonly known as the "Blue Sky
Landing" (the"Development"); and
WHEREAS, the Authority used the proceeds of the 2021A Bonds to fund a loan (the
"Series 2021A Loan") to Blue McNeil One, LLC (the "Borrower"), which was evidenced by a
Promissory Note dated September 15, 2021, from the Borrower to the Authority (the "Series
2021A Note"); and
WHEREAS, the "Borrower, JP Morgan Chase (the "Bondholder"), and The Bank of New
York Mellon Trust, N.A. (the "Trustee") entered into and the Authority agreed to a certain
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Modification Agreement dated as of April 1, 2023 (the "Modification Agreement"), which
modified the terms of the Series 2021A Note and replaced the London Interbank Offered Rate,
commonly referred to as "LIBOR," with an index based on the secured overnight financing rate
("SOFR") during the Construction Period consistent with the terms of the 2021A Note and the
Indenture(as defined'below); and,
WHEREAS, the Indenture dated as of September 1, 2021 between the Authority and the
Trustee (the "Indenture") also contemplated, the issuance of$800,000 St. Lucie County Housing
Finance Authority Multifamily Mortgage Revenue Bonds (Blue Sky Landing), Series 2021B (the
"Series 2021B Bonds"), and the Bondholder agreed to purchase such Series 2021B Bonds subject
to the terms and conditions of the Bond Purchase Agreement by and among the Authority, the
Bondholder, and the Borrower dated as of September 1, 2021 (the "Bond Purchase Agreement),
and the Construction and Permanent Loan Covenant Agreement dated as of September 1, 2021;
and
WHEREAS,the proceeds of the Series 2021B Bonds will be used by the Authority to fund
a loan to the Borrower(the"Series 2021B Loan") to provide for the acquisition, construction, and
equipping of the Development; and
WHEREAS,the Series 2021B Loan will be evidenced by that certain Promissory Note from
the Borrower to the Authority("Series 2021B Note"); and
WHEREAS,the Borrower has requested,and the Authority has agreed to modify the form
of the Series 2021B Note so that it is consistent with the Series 2021A Note, replacing the LIBOR
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based index with SOFR and other related adjustments and amendments as may be necessary and
appropriate for the implementation and administration of the SOFR index;
WHEREAS, it is necessary and desirable to approve the form of and authorize the
execution of a Second Modification Agreement, and to ratify the issuance of the 2021B Bonds in
accordance with the Facility Documents (as defined in the Second Modification Agreement);
NOW, THEREFORE, BE IT RESOLVED BY THE ST. LUCIE COUNTY HOUSING
FINANCE AUTHORITY, as follows:
SECTION 1. All terms used but not otherwise defined will have the meaning set forth
in the Second Modification Agreement or the Indenture.
SECTION 2. The Second Modification Agreement (the "Second Modification
Agreement") is hereby approved in substantially the form attached hereto as Exhibit "A." The
Chairman,Vice-Chairman and/or Secretary or Assistant Secretary or any other authorized officer
of the Authority are hereby authorized and directed to execute and deliver the Second
Modification Agreement on behalf of and in the name of the Authority with such additional
changes, insertions and omissions therein as may be otherwise made and approved by the said
officers of the Authority executing the same, such execution to be conclusive evidence of such
approval.
SECTION 3. The Series 2021B Bonds were authorized to be issued by the Authority in
Resolution No. 2021-04, adopted by the Authority on July 14, 2021, and pursuant to the Bond
Purchase Agreement, and the Authority hereby ratifies such authorization for the issuance of the
Series 2021B Bonds in accordance with the Indenture as modified by the Second Modification
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Agreement and the Bond Purchase Agreement. The authorizations regarding the issuance of the
Series 2021A Bonds and the Series 2021B Bonds set forth in Resolution No. 2021-04 remain
applicable to the issuance of the Series 2021B Bonds.
SECTION 4. All prior resolutions and motions of the Authority inconsistent with the
provisions of this resolution are hereby modified,supplemented, and amended to conform with
the provisions herein contained and except as otherwise modified, supplemented, and amended
hereby shall remain in full force and effect.
SECTION 5. To the extent that the Chairman, Vice-Chairman and/or Secretary or
Assistant Secretary of the Authority are unable for any reason to execute or deliver the documents
referred to above, such documents may be executed, attested and/or delivered by any other
member of the Authority,with the same effect as if executed and/or delivered by the Chairman,
Vice-Chairman or Secretary or Assistant Secretary.
SECTION 6. The Chairman,Vice Chairman and the Secretary or Assistant Secretary and
all other members of the Authority and the staff of the Authority are hereby authorized and
directed to execute any and all certifications or other instruments or documents required by the
documents referred to above as a prerequisite or precondition to the delivery of the Series 2021B
Bonds and the Second Modification Agreement and any representation made therein shall be
deemed to be made on behalf of the Authority. All action taken to date by the members of the
Authority and the staff of the Authority in furtherance of the execution and delivery of the
Agreement is hereby approved, confirmed, and ratified.
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SECTION 7. This resolution shall become effective immediately upon its adoption.
ADOPTED this 18th day of January, 2024.
ST. LUCIE COUNTY HOUSING FINANCE
AUTHORITY
(SEAL)
ATTEST: B _.,T...
Chairman
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J ��/ c
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Secretary
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EXHIBIT"A"
FORM OF SECOND MODIFICATION AGREEMENT
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SECOND MODIFICATION AGREEMENT
THIS SECOND MODIFICATION AGREEMENT (this "Agreement") is made as of
1,2024(the"Effective Date")by and among BLUE MCNEIL ONE,LLC,a Florida limited
liability company, having an address and place of business at c/o Blue Sky Communities, 180
Fountain Parkway North, Suite 100, St. Petersburg, Florida 33716 (the "Borrower"),
JPMORGAN CHASE BANK, N.A., a national banking association, having an office at
Community Development Banking, 100 North Tampa Street, Suite 3300, Tampa, Florida 33602
(the`Bondholder") and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a
national banking association, as trustee,having an address and place of business at 4655 Salisbury
Road, Suite 300, Jacksonville, Florida 32256 (the"Trustee"),
WITNESSETH:
1. At the Borrower's request, the Bondholder agreed to purchase Ten Million Four
Hundred Fifty Thousand Dollars ($10,450,000) of St. Lucie County Housing Finance Authority
Multifamily Mortgage Revenue Bonds, Series 2021A (Blue Sky Landing) ("Series 2021A
Bonds")from St.Lucie County Housing Finance Authority,a body corporate and politic organized
and existing under the laws of the State of Florida (the "Issuer"), pursuant to the terms of that
certain Bond Purchase Agreement by and among Issuer,Bondholder and the Borrower dated as of
September 1, 2021 (as modified from time to time, the "Bond Purchase Agreement"), the
proceeds of which are being used by the Issuer to fund a loan to the Borrower in the principal
amount of up to Ten Million Four Hundred Fifty Thousand Dollars ($10,450,000) (the "Series
2021A Loan"), which is evidenced by that certain Promissory Note dated September 15, 2021
from the Borrower to the Issuer(as modified from time to time,the" Series 2021A Note")in the
principal amount of the Series 2021A Loan and secured by that certain Leasehold Mortgage,
Security Agreement, Assignment of Leases and Rents and Fixture Filing dated as of September
1, 2021 given by the Borrower to the Issuer (as modified from time to time, the "Security
Instrument") covering the premises therein described;
2. The Series 2021A Loan is being advanced pursuant to the terms of that certain
Financing Agreement dated as of September 1, 2021 by and among Issuer, Trustee and Borrower
(as modified from time to time,the"Financing Agreement");
3. The Series 2021A Note, Financing Agreement and Security Instrument have been
assigned to the Trustee as collateral security for the payment of the Series 2021A Bonds;
4. The Series 2021A Note and Indenture_(as defined below) contemplated that under
certain circumstances, the Bondholder, on behalf of the holder of the Series 2021A Note and
Borrower may establish an alternate rate of interest to the LIBO Rate during the Construction
Period consistent with the terms thereof, and the Borrower, the Bondholder, the Trustee entered
into and the Issuer acknowledged and agreed to that certain Modification Agreement dated as of
April 1, 2023 (the "Modification Agreement"), which modified certain provisions of the Series
2021A Note;
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5. The Trust Indenture dated as of September 1, 2021 between the Issuer and the
Trustee(as modified from time to time,the"Indenture")also contemplated,upon the Borrower's
request therefor, the issuance of $800,000 St. Lucie County Housing Finance Authority
Multifamily Mortgage Revenue Bonds (Blue Sky Landing), Series 2021B (the "Series 2021B
Bonds",together with the Series 2021A Bonds,the"Bonds"), and the Bondholder has also agreed
to purchase such Series 2021B Bonds subject to the terms and conditions of the Bond Purchase
Agreement and that certain Construction and Permanent Loan Covenant Agreement dated as of
September 1, 2021 (as modified from time to time,the"Covenant Agreement");
6. The proceeds of the Series 2021B Bonds, once issued,will be used by the Issuer to
fund a loan to the Borrower in the principal amount of up to Eight Hundred Thousand Dollars
($800,000) (the "Series 2021B Loan", together with the Series 2021A Loan, the "Loan"), and
will be evidenced by that certain Promissory Note dated , 2024 from the Borrower to
the Issuer(as modified from time to time,the"Series 2021B Note",together with the Series 2021A
Note, the "Note") in the principal amount of the Series 2021B Loan, advanced pursuant to the
Financing Agreement, and secured by the Security Instrument, as modified through a Notice of
Future Advance to be recorded in the real estate records of St. Lucie County; and
7. The Bonds, the Indenture, the Note, the Security Instrument, the Bond Purchase
Agreement, the Financing Agreement, the Covenant Agreement and all other loan agreements,
financing agreements, disbursement agreements, indentures, documents and instruments
evidencing, securing or otherwise relating to the Project or the Bonds are sometimes referred to
individually and collectively as the(the"Facility Documents"); and
8. The Borrower has requested that (i) the Issuer issue the Series 2021B Bonds, (ii)
the parties modify the form of the Series 2021B Note, so that it is consistent with the Series 2021A
Note, as previously modified pursuant to the Modification Agreement, (ie: so that it also has a
SOFR based construction interest rate and a permanent term with a permanent fixed interest rate,
but not to exceed in the aggregate in any event the originally contemplated Permanent Loan
Commitment Amount(as defined in the Indenture)) and make such corresponding changes to the
Series 2021B Bonds under the Indenture, and(iii) the Bondholder extend the Outside Conversion
Date and the parties have agreed to modify certain provisions of the Facility Documents consistent
with such requests.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration,the receipt and sufficiency of which are hereby acknowledged by each of the parties
hereto, and in order to amend the terms of the Facility Documents, the parties hereto agree for
themselves,their successors and assigns as follows with any terms used but not otherwise defined
having the meanings set forth in the Indenture:
1. Borrower Representations and Warranties. The Borrower unconditionally agrees
to pay the Series 2021A Note and the Series 2021B Note, once executed and delivered, in
accordance with its terms and acknowledges, covenants,warrants, represents and agrees that:
(a) the Borrower is indebted under the Series 2021A Note and that there is
currently outstanding thereunder the principal sum as of , 2024 of$
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the Borrower has requested an advance in the principal sum of$800,000 under the Series 2021B
Note, to be made upon issuance of the Series 2021 B Bonds ;
(b) there are no judgments against the Borrower or to Borrower's knowledge
any guarantor in any courts of the United States and there is no litigation, active, pending or to
Borrower's knowledge, threatened, against the Borrower or to Borrower's knowledge any
guarantor which would adversely affect the Borrower's or such guarantor's ability to pay when due
any amounts which may become payable in respect of the Loan;
(c) each and all of the representations and warranties of the Borrower in the
Facility Documents are accurate on the date hereof;
(d) the Borrower has not entered into any agreements with creditors that
expressly or otherwise prohibit the Borrower from entering into any extension or modification of
the Loan or any Facility Document in connection therewith;
(e) the Borrower has no claims,counterclaims,defenses,or setoffs with respect
to its obligations under the Loan or the Facility Documents, as modified herein;
(f) the Facility Documents as modified herein are the legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance with their terms;
(g) the Borrower is validly existing under the laws of the jurisdiction of its
formation or organization and has the requisite power and authority to execute and deliver this
Agreement and the performance of the Facility Documents as modified herein have been duly
authorized by all requisite action by or on behalf of the Borrower; and
(h) no default, nor event which with notice and/or passage of time would
constitute a default, has occurred and is continuing under any Facility Document or under any
other note, loan or security agreement to which the Borrower is a party.
2. Amendments . In order to amend the terms of the Facility Documents, the parties
agree that upon the satisfaction of the conditions set forth in Section 4 below, the Facility
Documents are hereby amended from and after the Effective Date as follows:
(a) The form of the 2021 B Note is hereby amended and restated in its entirety
to read as set forth on Exhibit A attached hereto and made a part hereof.
(b) With respect to the Indenture:
(i) Section 1.01 is hereby amended so that in the Definitions of"Permanent Fixed
Rate","Permanent Loan Amount","Resizing Payment",and"Shortfall Amount"the term"2021A
Bonds" as used therein is deleted in its entirety and replaced with the term `Bonds" in each
instance.
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4876 5673 5792,v.2
(ii) Section 1.01 is hereby amended so that in subsection (e) of the Definition of
"Conditions to Conversion"the phrase "and the Borrower has repaid any issued and outstanding
2021 B Bonds"is deleted in its entirety:
(iii) Section 1.01 is hereby amended so that in the Definition of"Conversion Date"the
phrase "2021A Note converts" is deleted in its entirety and replaced with the phrase "Notes
convert".
(ivii) Section 1.01 is hereby amended so that in the Definition of"Maturity Date" the
term"2021A Bonds"is deleted in its entirety and replaced with the term"Bonds" and the phrase
"and with respect to the Series 2021B Bonds, September 1, 2026"is deleted in its entirety.
(v) Section 1.01 is hereby amended so that the Definition of"Applicable Margin" is
deleted in its entirety and replaced with the following:
"Applicable Margin" has the meaningassigned g in the Notes.
vi Section 1.01 is herebyamended so that the Definition of"CB FloatingRate" is
( )
deleted in its entirety and replaced with the following:
"CB Floating Rate" means the greater of(a) Prime Rate or (b) 2.50%. The CB
Floating Rate is a variable rate and any change in the CB Floating Rate due to any
changes in the Prime Rate shall be effective from and including the effective date
of such change.
(vii) Section 1.01 is hereby amended so that the Definition of"Permanent Term Maturity
Date" is deleted in its entirety and replaced with the following:
"Permanent Term Maturity Date"means March 15, 2039.
(viii) Section 3.06 is hereby amended to add a new Subsection(f)to the end thereof which
shall read as follows:
(f) SOFR Rate Replacement: In the event that a SOFR Replacement(as defined
in the Notes) is required during the Construction Term, the provisions of Section 2(d)of the Notes
shall apply and control, as applicable to each series of Bonds.
(ixiv) Sections 3.07(b), 4.01(a), (b), (c) and (d) and 4.08 are hereby amended so that the
term "2021A Bonds" as used therein is deleted in its entirety and replaced with the term "Bonds"
in each instance.
(xy) Section 4.01(c)is hereby amended so that the calculation of the Resizing Fee,Break
Funding Premium and Prepayment Premium set forth therein shall be modified to be consistent
with the calculation of such amounts under the Notes.
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1876 5673 5792,v.2
(*ixi) Sections 4.01(e) and(f)are hereby amended so that they are deleted in their entirety
and replaced with the following:
(e) [Reserved]
(f) [Reserved]
(xiivii)Section 4.03(c) is hereby amended so that it is deleted in its entirety and replaced
with the following:
(c) Failure of Conversion: If Conversion shall not occur by the Outside
Conversion Date, then the Bonds shall be subject to optional redemption pursuant
to Section 4.01(b)(iv)
(c) With respect to the Covenant Agreement:
(i) Section 1.01 is hereby amended so that in the Definitions of"Conversion Date"and
"Resizing Payment"the term"2021A Loan" as used therein is deleted in its entirety and replaced
with the term"Loan"in each instance.
(ii) Sections 6.01(a)is hereby amended so that the term"2021A Loan"as used therein
is deleted in its entirety and replaced with the term"Loan"in each instance.
(iii) The form Conversion Certificate attached as Exhibit F is hereby amended so that
the term"2021A Loan"as used therein is deleted in its entirety and replaced with the term"Loan"
in each instance.
(d) With respect to the Series 2021A Note:
(i) The Definition of"Construction Interest Rate" in Section 1 is hereby amended so
that it is deleted in its entirety and replaced with the following:
"Construction Interest Rate"means the interest rate under Section 2(a)of this Note.
(ii) The Definition of "Construction Term Maturity Date" in Section 1 is hereby
amended so that it is deleted in its entirety and replaced with the following:
"Construction Term Maturity Date"means June 15,2024.
For the avoidance of doubt,notwithstanding Section 4 of the Series 2021A Note,Borrower
shall have no further right to extend the Construction Term Maturity Date.
(iii) The Definition of "Permanent Loan" in Section 1 is hereby amended so that the
following provision is added at the end thereof: "On the Conversion Date, $800,000 of the
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4876 5673 5792,v.2
principal amount of the Permanent Loan shall be evidenced by the Series 2021B Note, and
the remainder of the principal amount of the Permanent Loan shall be evidenced by this
Note."
(iv) Section 1 is hereby amended so that the following definition is added thereto in the
appropriate alphabetical order:
"Series 2021B Note" means the Promissory Note dated , 2024,
delivered by Borrower to Issuer in connection with the issuance of the
Issuers $800,000 St. Lucie County Housing Finance Authority Multifamily
Mortgage Revenue Bonds, Series 2021B (Blue Sky Landing), as the same
may be modified, amended or replaced from time to time.
(v) The Definition of "Shortfall Amount", Section 5 and Section 6(b) are hereby
amended so that the phrase "Principal Balance" is deleted in its entirety and is replaced
with the phrase"combined Principal Balance hereof and the principal balance of the Series
2021 B Note"in each instance.
3. Outside Conversion Date. Pursuant to the terms of the Indenture, the Outside
Conversion Date may be extended with the written consent of the Majority Owner. As of the
Effective Date, by signing below, Bondholder, as the Majority Owner hereby consents to the
extension of the Outside Conversion Date to June 15, 2024. In addition, Bondholder
acknowledges and agrees as Sole Owner that it has extended its right to require redemption on the
Bond Prepayment Date under Section 4.01(b)(iii) to June 15, 2024.
4. Conditions. The effectiveness of each and all of the modifications and amendments
contained herein is subject to the satisfaction of each of the following conditions precedent:
(a) Bondholder shall have received a fully executed original of this Agreement
executed by Borrower, the Bondholder and the Trustee, and acknowledged by the Issuer and the
Joinder attached hereto executed by the Guarantors on or before , 2024, time being of
the essence.
(b) Bondholder shall have received a fully executed original of the Series
2021B Note, which will be forwarded to the Trustee upon issuance of the 2021B Bonds.
(c) Bondholder shall have received a fully executed original of the Notice of
Future Advance to the Security Instrument, which will be recorded upon issuance of the 2021B
Bonds_
(d) All internal and external costs and expenses incurred by the Bondholder in
connection with this Agreement and the Bondholder's and Trustee's respective outside counsel
fees shall have been paid.
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4876 5673 5792,v.2
(e) Bondholder, Issuer and Trustee shall have received all additional
certificates, reaffirmations, modification agreements or other documentation required by the
Bondholder,Trustee or Issuer or its bond counsel contemplated under Section 3.02 of the Indenture
and Section 3 of the Bond Purchase Agreement in connection with the issuance of the Series 2021 B
Bonds or otherwise in connection with the rate adjustment for the 2021B Loan hereunder, and the
corresponding rate adjustment under the Bonds.
5. Unconditional Obligation; Entire Understanding. The Borrower's obligations
under this Agreement, the Note, the Financing Agreement, the Security Instrument and the other
Facility Documents are absolute and unconditional and are valid irrespective of any other
agreement or circumstance which might otherwise constitute a defense to the obligations under
this Agreement, the Note, the Security Instrument or the other Facility Documents or to the
obligations of others related to it. This Agreement shall be deemed to constitute a "Loan
Document" as defined under the Financing Agreement. This Agreement sets forth the entire
understanding of the parties with respect to all modifications of the Loan which have occurred
since the date of the Note. The amendments set forth in this Agreement are only applicable and
shall only be effective in the specific instance and for the specific purpose for which made, are
expressly limited to the facts and circumstances referred to herein and therein, and except as
specifically set forth herein shall not operate as(i) a waiver of,or consent to non-compliance with
any provision of the Note,the Financing Agreement,the Security Instrument or any other Facility
Document, (ii) a waiver or modification of any right, power or remedy of the Bondholder or
Trustee under the Note, the Financing Agreement, the Security Instrument or any other Facility
Document, or (iii) a waiver or modification of, or consent to, any Default under the Note, the
Financing Agreement, Security Instrument or any other Facility Document.
6. Ratification of Facility Documents. Except as specifically amended herein, all of
the terms, covenants, conditions and stipulations contained in the Note and all of the other Facility
Documents are hereby ratified and confirmed in all respects, shall continue to apply with full force
and effect.
7. Execution and Delivery by Bondholder. The Bondholder shall not be bound by this
Agreement until (a) each of the Bondholder,the Trustee and Borrower has executed and delivered
this Agreement, and the Issuer has acknowledged and accepted this Agreement, (b) the Borrower
has performed all of the obligations of the Borrower under this Agreement to be performed
contemporaneously with the execution and delivery of this Agreement, and (c) the Guarantors
have executed and delivered to the Bondholder the Joinder attached to this Agreement.
8. Further Modification. Neither this Agreement nor any other Facility Document nor
any provision hereof or thereof may be modified, amended, changed, waived, discharged or .
terminated orally, but only by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought.
9. Waiver and Indemnification by the Borrower. As a material inducement for, and
in consideration of, the Bondholder's and Trustee's agreements herein and the Issuer accepting
and acknowledging this Agreement, the Borrower, by signing this Agreement, to the extent
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permitted by applicable law, hereby forever waives, releases, remises and discharges any and all
rights to assert any and all defenses to and setoffs, counterclaims (except compulsory
counterclaims), and claims of every kind against Bondholder, Trustee, the Issuer and their
respective agents, servants, employees, officers, directors and attorneys now existing or arising
hereafter on the basis of actions or events occurring on or prior to the date hereof, and agrees to
indemnify and hold harmless the Trustee, Bondholder and the Issuer and their respective agents,
servants, employees, officers, directors and attorneys with respect to claims of every kind now
existing or arising hereafter in connection with this Agreement. Each of the parties signing this
Agreement confirms that the foregoing waiver and release is informed and freely given. Borrower
hereby represents and warrants to the Bondholder that throughout the negotiations, preparation
and execution of this Agreement and the closing hereunder, Borrower has been represented by
legal counsel of its own choosing and that this Agreement was entered into by the free will of
Borrower and pursuant to arm's-length negotiations.
10. Governing Law. This Agreement is and will be deemed entered into in the
jurisdiction as set forth in the Note and will be governed by and construed in accordance with the
laws of such jurisdiction without regard to principles of conflicts of laws, and no defense given or
allowed by the laws of any state or country shall be interposed in any action or proceeding hereon
unless such defense is either given or allowed by the laws of such jurisdiction.
11. Jurisdiction and Venue. Borrower hereby submits, for itself and its property,to the
nonexclusive jurisdiction of any United States Federal or State court sitting in St. Lucie County,
Florida, and any appellate court in such jurisdiction, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment, and each of the
parties agrees that all claims in respect of any such action or proceeding may(and any such claims,
cross-claims or third party claims against Bondholder may only)be heard and determined in such
State or, to the extent permitted by law, in such Federal court. Borrower agrees that a final
judgment in any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that Bondholder may otherwise have to bring any action or
proceeding relating to this Agreement against Borrower or its properties in the courts of any
jurisdiction. Borrower waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the venue of any suit,action or proceeding arising
out of or relating to this Agreement in any court referred to in this Section. Borrower hereby
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court
12. Successors and Assigns. This Agreement is binding upon, and shall inure to the
benefit of, the parties hereto and their respective heirs, executors, administrators, legal
representatives, successors and assigns.
13. No Partnership or Course of Dealing. Nothing in this Agreement, or any Facility
Document is intended to or shall be deemed to create any rights or obligations of partnership,joint
venture, or similar association among the parties hereto. Bondholder has entered into this
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4876 5673 5792 y.2
Agreement on the express understanding with Borrower that in entering into this Agreement,
Bondholder is not establishing any course of dealing with the Borrower.
14. Severability. If any term, covenant, provision or condition of this Agreement, the
Note, the Financing Agreement, the Security Instrument or any of the other Facility Documents
shall be held to be invalid, illegal or unenforceable in any respect, this Agreement shall be
construed without such term, covenant, provision or condition.
15. Counterparts; Electronic Execution. This Agreement may be executed in
counterparts (and by different parties on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single contract. Delivery of an
executed counterpart of a signature page of this Agreement by emailed pdf,or any other electronic
means that reproduces an image of the actual executed signature page shall be effective as delivery
of a manually executed counterpart. The words "executed", "signed", "signature", "delivery" and
words of like import in this Agreement shall be deemed to include electronic signatures, each of
which shall be of the same legal effect,validity or enforceability as a manually executed signature,
physical delivery or the use of a paper-based recordkeeping system, as the case may be, and as
provided for in any applicable law, including laws based on the Uniform Electronic Transactions
Act.
16. Waiver of Special Damages. To the extent permitted by applicable law, the
Borrower shall not assert, and hereby waives, any claim against the Bondholder, on any
theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of,in connection with,or as a result of,this Agreement
or any agreement or instrument contemplated hereby, the transactions referenced herein,
the Loan, or the use of the proceeds thereof.
17. WAIVER OF TRIAL BY JURY. EACH PARTY HERETO HEREBY
WAIVES,TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW,ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FORGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTY HERETO HAD BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS PARAGRAPH.
18. Direction to Trustee; Approval of Bondholder. By their execution of this
Agreement, Issuer hereby directs the Trustee to execute this Agreement, and the Bondholder
represents that it is the Sole Owner and hereby consents to this Agreement for purposes of Sections
8.02 and 8.06 of the Indenture and approves execution of this Agreement by the Trustee and Issuer.
9
/1876 5673 5792,v.2
(Signature Pages Follow)
Doc#5105417.2-I
10
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
first above written.
BLUE MCNEIL ONE, LLC,
a Florida limited liability company
By: Blue McNeil One M, LLC,
a Florida Limited liability company, its
manager
By:
Shawn Wilson, Manager
[Signature Page to Second Modification Agreement]
THE BANK OF NEW YORK MELLON TRUST COMPANY,N.A.,
as Trustee
By:
Name:
Title:
[Signature Page to Second Modification Agreement]
JPMORGAN CHASE BANK,N.A.
By:
Tammy Haylock-Moore, Authorized Officer
[Signature Page to Second Modification Agreement]
ST. LUCIE COUNTY HOUSING FINANCE AUTHORITY
By:
Name:
Title:
[Signature Page to Second Modification Agreement]
JOINDER BY GUARANTOR
The undersigned, to the extent it is a signatory on the Guaranties (defined below) hereby
joins in this Agreement in order to induce St. Lucie County Housing Finance Authority,The Bank
of New York Mellon Trust Company, N.A., and JPMorgan Chase Bank, N.A. (the
"Beneficiaries")to agree to the modification of the Note and hereby:
(i) acknowledges the continuing validity of its Payment Guaranty dated as of
September 1, 2021 (the "Payment Guaranty"), its Carve-Out Guaranty dated as
of September 1, 2021 (the "Carve-Out Guaranty"), its Completion Guaranty
dated as of September 1, 2021 (the "Completion Guaranty"), its Absolute and
Unconditional Guaranty of Operating Deficits (Blue Sky Landing) dated as of
September 1, 2021 (the "Absolute and Unconditional Guaranty of Operating
Deficits (Blue Sky Landing)"), its Absolute and Unconditional Guaranty of
Completion(Blue Sky Landing)dated as of September 1,2021 (the"Absolute and
Unconditional Guaranty of Completion(Blue Sky Landing)"),its Fee Guaranty
and Environmental Indemnity Agreement dated September 1, 2021 (the "Fee
Guaranty and Environmental Indemnity Agreement"), and its Environmental
Indemnity Agreement (Blue Sky Landing/Multifamily Bonds) dated September 1,
2021 (the "Environmental Indemnity Agreement (Blue Sky
Landing/Multifamily Bonds)" and together with the Payment Guaranty, Carve-
Out Guaranty, Completion Guaranty, Absolute and Unconditional Guaranty of
Operating Deficits (Blue Sky Landing), Absolute and Unconditional Guaranty of
Completion (Blue Sky Landing), and Fee Guaranty and Environmental Indemnity
Agreement, collectively the "Guaranties") and represents, warrants and confirms
the non-existence of any offsets, defenses or counterclaims to their obligations
thereunder,and to the extent permitted by applicable law,waive their right to assert
any set-off, counterclaim or crossclaim of any nature whatsoever in any litigation
relating to the Agreement, the Note, the Financing Agreement, the other Facility
Documents, said Guaranties or otherwise with respect to the Loan (provided,
however that the foregoing shall not be deemed a waiver of the right of the
undersigned to assert any compulsory counterclaim maintained in a court of the
United States, or of the State of Florida if such counterclaim is compelled under
local law or rule of procedure, nor shall the foregoing be deemed a waiver of the
right of the undersigned to assert any claim which would constitute a defense,
setoff, counterclaim or crossclaim of any nature whatsoever against the
Beneficiaries in any separate action or proceeding);
(ii) reacknowledges and reaffirms all of the terms and obligations contained in said
Guaranties,which shall remain in full force and effect for all the obligations of Blue
McNeil One, LLC, now or hereafter owing to the Beneficiaries pursuant to the
terms and conditions of the Facility Documents as amended by the Agreement,
including without limitation, the obligations under the 2021 B Loan and
acknowledges, agrees, represents and warrants that no oral or other agreements,
understandings, representations or warranties exist with respect to said Guaranties
or with respect to the obligations of the undersigned thereunder, except those
specifically set forth in this Joinder;
(iii) represents, warrants and confirms that no material adverse change has occurred in
the financial status of the undersigned since September 1, 2021, that there are no
judgments against the undersigned in any of the courts of the United States and that
there is no litigation, active, pending or to the knowledge of the undersigned,
threatened,against the undersigned which would adversely affect the ability of each
of the undersigned to pay when due any amounts which may become payable in
respect of said guaranty;
(iv) this Joinder may be executed in counterparts (and by different parties on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. Delivery of an executed
counterpart of a signature page of this Joinder by emailed pdf, or any other
electronic means that reproduces an image of the actual executed signature page
shall be effective as delivery of a manually executed counterpart. The words
"executed", "signed", "signature", "delivery" and words of like import in this
Joinder shall be deemed to include electronic signatures, each of which shall be of
the same legal effect, validity or enforceability as a manually executed signature,
physical delivery or the use of a paper-based recordkeeping system,as the case may
be, and as provided for in any applicable law,including laws based on the Uniform
Electronic Transactions Act. The failure of any party listed below to execute,
acknowledge or join in this Joinder, or any counterpart hereof, shall not relieve the
other signatories from the obligations hereunder;
(v) acknowledges and agrees that it has entered into and delivered this Joinder of its
own free will,voluntarily and without coercion or duress of any kind, and has been
represented in connection herewith by counsel of its choice and is fully aware of
the t-iins contained in this Joinder; and
(vi) to the extent permitted by applicable law, irrevocably and unconditionally
waives any and all rights to trial by jury in any action, suit or counterclaim
arising in connection with, out of or otherwise relating to this Joinder, the
Agreement, the Guaranties, and every other Facility Document heretofore,
now or hereafter executed and/or delivered in connection therewith, the Loan
or in any way related to this transaction or otherwise.
[Signature Page Follows]
4876 5673 5792,v.2
IN WITNESS WHEREOF,each Guarantor has caused this Joinder to be executed and delivered.
CERULEAN HOLDINGS LLC,
a Florida limited liability company
By: Master Control, Inc.
a Florida corporation
its manager
By:
Mark Sembler,Vice President
BLUE MCNEIL ONE M, LLC,
a Florida limited liability company
By:
Shawn Wilson, Manager
BLUE MCNEIL ONE, LLC,
a Florida limited liability company
By: Blue McNeil One M, LLC,
a Florida Limited liability company, its
manager
By:
Shawn Wilson, Manager
WEEDON ENTERPRISES, LLC,
a Florida limited liability company
By:
James M. Chadwick, Manager
[Signatures Continue on the Following Page]
[Signature Page to Joinder by Guarantor]
BLUE BSL DEVELOPER, LLC,
a Florida limited liability company
By:
Shawn Wilson, Manager
BLUE SKY COMMUNITIES LLC,
a Florida limited liability company
By:
Shawn Wilson, Manager
SHAWN WILSON
JAMES M. HADWI K
C C
[Signature Page to Joinder by Guarantor]
EXHIBIT A
PROMISSORY NOTE
$800,000 ,2024
FOR VALUE RECEIVED,BLUE MCNEIL ONE,LLC,a Florida limited liability company
(the"Borrower"),promises to pay to ST.LUCIE COUNTY HOUSING FINANCE AUTHORITY,
a body corporate and politic organized and existing under the laws of the State of Florida the
"Issuer"; the Issuer and each subsequent transferee and/or owner of this Note whether taken by
endorsement or otherwise,being successively called the"Holder"),or order,at such place as may be
designated in writing by the Holder, the principal sum of Eight Hundred Thousand Dollars
($800,000),or so much as may be advanced as the 2021 B Loan pursuant to the Financing Agreement
and outstanding, which sum shall be payable in lawful money of the United States of America,
together with interest on the unpaid Principal Balance computed from the date of each Advance
until paid, calculated and paid in the manner set forth below:
1. Definitions. The following terms as used in this Note shall have the following
meanings:
"Advance"means a disbursement by Holder of any principal of the Loan.
"Adjusted Daily Simple SOFR"means,an interest rate per annum equal to(a)the
Daily Simple SOFR,plus(b) 0.10%.
"Adjusted Term SOFR"means, an interest rate per annum equal to (a) the Term
SOFR, plus (b) 0.10%.
"Applicable Margin" means (a) 1.89% with respect to Adjusted Term SOFR,
Adjusted Daily Simple SOFR or any SOFR Replacement, as applicable and minus 1.14% with
respect to the CB Floating Rate and (b) on and after a Determination of Taxability 2.40% with
respect to the Adjusted Term SOFR, Adjusted Daily Simple SOFR or any SOFR Replacement, as
applicable, and minus 0.63%with respect to the CB Floating Rate.
"Bond Purchase Agreement" means the Bond Purchase Agreement dated as of
September 1, 2021 by and among the Issuer, the Borrower and the Bondholder with respect to the
purchase and sale of the Bonds and advances of the proceeds of the Bonds, as the same may be
amended from time to time.
THIS NOTE AND THE MORTGAGE SECURING THIS NOTE ARISE OUT OF OR ARE GIVEN TO SECURE
A LOAN ISSUED IN CONNECTION WITH THE FINANCING OF HOUSING AND ARE EXEMPT FROM
DOCUMENTARY STAMP TAX AND INTANGIBLE TAX PURSUANT TO
SECTION 420.513,FLORIDA STATUES.
"Bondholder"means JPMorgan Chase Bank, N.A., a national banking association,
as the initial purchaser of the Bonds,together with its successors and assigns.
"Bonds" means the St. Lucie County Housing Finance Authority Multifamily
Mortgage Revenue Bonds, Series 2021 B (Blue Sky Landing) in the principal amount of Eight
Hundred Thousand Dollars ($800,000) as the same may be modified, amended or replaced from
time to time.
"Break Funding Premium"means the charge calculated under Section 6(a) of this
Note.
"Business Day"means any day(other than a Saturday or a Sunday)on which banks
are open for business in New York City or Chicago.
"CB Floating Rate" means the greater of(a) Prime Rate or (b) 2.50%. The CB
Floating Rate is a variable rate and any change in the CB Floating Rate due to any changes in the
Prime Rate shall be effective from and including the effective date of such change.
"Collateral"has the meaning given to such term in Section 10 of this Note.
"Conditions to Conversion"has the meaning given to such term in the Continuing
Covenant Agreement.
"Construction Interest Rate"means the interest rate under Section 2(a)of this Note.
"Construction Term" means the period beginning on the date of this Note and
ending (a)if the Conditions to Conversion have been satisfied,on the Conversion Date and(b)if the
Conditions to Conversion have not been satisfied,on the Construction Term Maturity Date.
"Construction Term Maturity Date"means June 15,2024.
"Continuing Covenant Agreement"means the Construction and Permanent Loan
Covenant Agreement dated as of September 1, 2021 entered into between the Bondholder and the
Borrower, as the same may be amended or modified from time to time.
"Conversion Date" means the date on which this Note converts from the
Construction Term to the Permanent Term as confirmed in writing by the Bondholder.
"Current Swap Rate" has the meaning given to such term in Section 6(b) of this
Note.
"Daily Simple SOFR"means,for any day(a"SOFR Rate Day"),a rate per annum
equal to SOFR for the day that is five (5) U.S. Government Securities Business Days prior to (a)
if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or
(b) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S.
-2 -
Government Securities Business Day immediately preceding such SOFR Rate Day, in each case,
as such SOFR is published by the SOFR Administrator on the SOFR Administrator's Website;
provided that if Daily Simple SOFR as so determined would be less than the Floor of 0.50%, such
rate shall be deemed to be 0.50% for purposes of this Note. Any change in Daily Simple SOFR
due to a change in SOFR shall be effective from and including the effective date of such change
in SOFR without notice to Borrower.
"Debt"means all principal,interest,additional interest and other sums which may or
shall become due to the Holder in accordance with the provisions of the Facility Documents.
"Debtor Relief Laws" means any applicable liquidation, conservatorship,
bankruptcy, moratorium, rearrangement, insolvency, fraudulent conveyance, reorganization, or
similar laws affecting the rights, remedies or recourse of creditors generally, including without
limitation the United States Bankruptcy Code and all amendments thereto, as are in effect from time
to time during the term of the Loan.
"Default" means any default or events of default described in Section 14- of this
Note.
"Default Rate"has the meaning given to such term in Section 2(c13)of this Note.
"Determination of Taxability"has the meaning given to such term in the Indenture.
"Facility Documents" means this Note, the Security Instrument, the Indenture, the
Financing Agreement, the Bond Purchase Agreement, the Continuing Covenant Agreement, the
Series 2021A Note and the Other Facility Documents, as the same may be modified, amended or
replaced from time to time.
"Federal Reserve Board"means the Board of Governors of the Federal Reserve
System of the United States of America.
"Financing Agreement" means a certain Financing Agreement dated as of
September 1, 2021 entered into between the Issuer, the Trustee and the Borrower pursuant to the
provisions of which the Loan shall be advanced, as the same may be modified, amended or replaced
from time to time.
"Floor"means the benchmark index floor, if any,provided in this Note initially (as
of the execution of this Note,the modification,amendment or renewal of this Note or otherwise)with
respect to Term SOFR,Daily Simple SOFR or any SOFR Replacement, as applicable.
"Governmental Authority" means the Government of the United States of
America, any other nation or any other political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive,legislative,judicial,taxing,regulatory or administrative powers or functions
of or pertaining to government.
- 3 -
"Indenture" means the Trust Indenture dated as of September 1, 2021 by and
between the Issuer and the Trustee,pursuant to which the Issuer is issuing the Bonds, as amended or
modified from time to time.
"Interest Adjustment Date" means the day in each calendar month commencing
after the Initial Advance which numerically corresponds to the date of the Initial Advance,
provided, however, that (a) if any Interest Adjustment Date would be on a day other than a
Business Day, such Interest Adjustment Date shall be the next succeeding Business Day unless
such next succeeding Business Day would fall in the next calendar month, in which case such
Interest Adjustment Date shall be the next preceding Business Day and (b) if, for any calendar
month, there is no day numerically corresponding to the date of the Initial Advance, the Interest
Adjustment Date for such calendar month shall be the last Business Day of such month.
"Interest Rate" means (a) prior to the occurrence of a SOFR Replacement Date,
Adjusted Term SOFR plus the Applicable Margin, or (b), upon the occurrence of a SOFR
Replacement Date(i) Adjusted Daily Simple SOFR plus the Applicable Margin or(ii) the SOFR
Replacement and the related SOFR Replacement Adjustment plus the Applicable Margin, as
applicable.
"Liabilities" means all liabilities and obligations now or hereafter owed by the
Borrower to the Holder in connection with the Loan,including principal,interest and fees contracted
with or acquired by the Holder,whether joint, several, direct, indirect, absolute, contingent, secured,
matured or unmatured.
"Loan"means the 2021B Loan made by the Issuer to the Borrower in the principal
amount of up to Eight Hundred Thousand Dollars($800,000)to be advanced in accordance with the
provisions of the Financing Agreement and the Continuing Covenant Agreement, which loan is
evidenced by this Note and which is secured by the Security Instrument and the Other Facility
Documents.
"Lockout Period"has the meaning given to such term in Section 5 of this Note.
"Note"means this Promissory Note, as may be modified, amended or replaced from
time to time.
"NYFRB"means the Federal Reserve Bank of New York.
"Original Period"has the meaning given to such term in Section 6(b)of this Note.
"Original Swap Rate" has the meaning given to such term in Section 6(b) of this
Note.
"Other Facility Documents" means all and any of the documents other than this
Note, the Security Instrument, the Indenture, the Financing Agreement, the Bond Purchase
Agreement or the Continuing Covenant Agreement now or later executed by the Borrower or others,
and by or in favor of the Holder,which wholly or partially secure or guarantee payment of this Note,
- 4 -
or which otherwise pertain to the Loan,as the same may be modified,amended or replaced from time
to time.
"Outside Conversion Date"means June 15,2024,as such date may be extended with
the written consent of the Bondholder.
"Payment Date"means the tenth(10th)day of each month.
"Permanent Fixed Rate" means (a) 3.92% per annum and (b) on and after a
Determination of Taxability 4.75%per annum.
"Permanent Loan" means the Permanent Loan Commitment Amount less any
required Resizing Payment. On the Conversion Date, $800,000 of the principal amount of the
Permanent Loan shall be evidenced by this Note, and the remainder of the principal amount of the
Permanent Loan shall be evidence by the Series 2021A Note.
"Permanent Loan Commitment Amount" means Three Million Seven Hundred
Fifty Thousand Dollars ($3,750,000).
"Permanent Term"means the term commencing on the Conversion Date and ending
on the Permanent Term Maturity Date.
"Permanent Term Maturity Date"means March 15,2039.
"Prepayment Premium"has the meaning given to such term in Section 7(a)of this
Note.
"Prime Rate"means the rate of interest last quoted by The Wall Street Journal as the
"Prime Rate" in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per
annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release
H.15 (519)(Selected Interest Rates)as the"bank prime loan"rate or,if such rate is no longer quoted
therein,any similar rate quoted therein(as determined by Bondholder on behalf of the Holder)or any
similar release by the Federal Reserve Board(as determined by Bondholder on behalf of the Holder).
Each change in the Prime Rate shall be effective from and including the date such change is publicly
announced as being effective or quoted as being effective.
"Principal Balance"means the outstanding principal balance of this Note from time
to time.
"Relevant Governmental Body"means the Federal Reserve Board, the NYFRB,
and/or the Term SOFR Administrator, or a committee officially endorsed or convened by the
Federal Reserve Board or the NYFRB, or any successor thereto.
"Remaining Period"has the meaning given to such term in Section 6(b)of this Note.
"Resizing Fee"has the meaning given to such term in Section 6(b)of this Note.
- 5 -
"Resizing Payment"has the meaning given to such term in the Continuing Covenant
Agreement.
"Security Instrument" means that certain Leasehold Mortgage, Security
Agreement, Assignment of Leases and Rents and Fixture Filing dated as of September 1, 2021
securing the principal amount of the Loan given by the Borrower to the Issuer to secure payment
of this Note, as modified by any notice of future advances provided in connection with the Bonds
dated as of February September---1,2024, and any and all modifications, amendments, extensions,
renewals,restatements, consolidations,replacements and increases thereof.
"Series 2021A Note" means the Promissory Note dated September 15, 2021,
delivered by Borrower to Issuer in connection with the issuance of the Issuer's$10,450,000 St.Lucie
County Housing Finance Authority Multifamily Mortgage Revenue Bonds, Series 2021A(Blue Sky
Landing),as modified by that certain Modification Agreement dated as of April 1,2023 and as the
same may be further modified, amended or replaced from time to time.
"Shortfall Amount" means the amount, if a positive number, that Three Million
Three Hundred Seventy-five Thousand Dollars ($3,375,000) will exceed the combined Principal
Balance hereof and the principal balance of the Series 2021A Note following the Resizing Payment.
"SOFR"means, with respect to any U.S. Government Securities Business Day, a
rate per annum equal to the secured overnight financing rate for such U.S. Government Securities
Business Day as published by the SOFR Administrator on the SOFR Administrator's Website.
"SOFR Administrator"means the NYFRB (or a successor administrator of the
secured overnight financing rate).
"SOFR Administrator's Website" means the NYFRB's website, currently at
http://www.newyorkfed.org, or any successor source for the secured overnight financing rate
identified as such by the SOFR Administrator from time to time.
"SOFR Cessation Event" means the occurrence of one or more of the following
events with respect to the Term SOFR Reference Rate or SOFR: (a) a public statement or
publication of information by or on behalf of the Term SOFR Administrator or the SOFR
Administrator, as applicable, announcing that such administrator has ceased or will cease to
provide the Term SOFR Reference Rate for all available tenors or SOFR, permanently or
indefinitely, with no successor administrator having been appointed to provide such rate at such
time;(b)a public statement or publication of information by the regulatory supervisor for the Term
SOFR Administrator, the Board of Governors of the Federal Reserve System, the NYFRB, the
Term SOFR Administrator, an insolvency official with jurisdiction over the Term SOFR
Administrator, a resolution authority with jurisdiction over the Term SOFR Administrator or a
court or an entity with similar insolvency or resolution authority over the Term SOFR
Administrator, in each case which states that the Term SOFR Administrator has ceased or will
cease to provide the Term SOFR Reference Rate for all available tenors permanently or
indefinitely, with no successor administrator having been appointed to provide such Term SOFR
- 6 -
Reference Rate at such time; or (c) a public statement or publication of information by the
regulatory supervisor for the Term SOFR Administrator announcing that the Term SOFR
Reference Rate for all available tenors are no longer,or as of a specified future date will no longer
be,representative.
"SOFR Rate Day" has the meaning assigned to it under the definition of Daily
Simple SOFR.
"SOFR Replacement"has the meaning assigned to it under Section 2(d)(ii)of this
Note.
"SOFR Replacement Adjustment" means with respect to the use and
implementation of a SOFR Replacement, the spread adjustment, or method for calculating or
determining such spread adjustment (which may be a positive or negative value or zero) that has
been selected by Bondholder giving due consideration to (a) any selection or recommendation of
a spread adjustment, or method for calculating or determining such spread adjustment, for the
replacement of Term SOFR or Daily Simple SOFR with the applicable SOFR Replacement by the
Relevant Governmental Body on the applicable SOFR Replacement Date or (b) any evolving or
then-prevailing market convention for determining a spread adjustment, or method for calculating
or determining such spread adjustment, for the replacement of Term SOFR or Daily Simple SOFR
with the applicable SOFR Replacement for dollar-denominated credit facilities.
"SOFR Replacement Conforming Changes"means, with respect to the use and
implementation of Daily Simple SOFR or a SOFR Replacement, any technical, administrative or
operational changes(including changes to the definition of"Business Day,"the definition of"U.S.
Government Securities Business Day," the definition of"Interest Adjustment Date," timing and
frequency of determining rates and making payments of interest, timing of borrowing requests or
prepayment, conversion or continuation notices, length of lookback periods, the applicability of
breakage provisions, and other technical, administrative or operational matters) that Bondholder
decides may be appropriate to reflect the adoption and implementation of such benchmark rate and
to permit the administration thereof by Bondholder in a manner substantially consistent with
market practice (or, if Bondholder decides that adoption of any portion of such market practice is
not administratively feasible or if Bondholder determines that no market practice for the
administration of such rate exists, in such other manner of administration as Bondholder decides
is reasonably necessary in connection with the administration of this Note and the other Facility
Documents).
"SOFR Replacement Date" means the earliest to occur of the following events
with respect to the Term SOFR Reference Rate or SOFR, as applicable:
(a) in the case of clause(a)or(b)of the definition of"SOFR Cessation Event,"
the later of(i)the date of the public statement or publication of information referenced
therein and (ii) the date on which the administrator of the Term SOFR Reference Rate or
SOFR (or the published component used in the calculation thereof) permanently or
indefinitely ceases to provide all available tenors of such rate(or such component thereof);
or
- 7 -
(b) in the case of clause (c) of the definition of"SOFR Cessation Event," the
first date on which the Term SOFR Reference Rate has been determined and announced
by the regulatory supervisor for the administrator of such rate to be no longer
representative;provided, that such non-representativeness will be determined by reference
to the most recent statement or publication referenced in such clause (c) and even if such
rate continues to be provided on such date.
"SOFR Unavailability Period"means the period(if any)(a)beginning at the time
that a SOFR Replacement Date has occurred if, at such time, no SOFR Replacement has been
established, and (b) ending at the time that a SOFR Replacement is established for all purposes
hereunder and under any Facility Document in accordance with such section.
"State"means the State of Florida.
"Term SOFR" means, for any day (such day, the "Term SOFR Determination
Day"), the Term SOFR Reference Rate published by the Term SOFR Administrator at
approximately 5:00 a.m. (Chicago time) on the date that is two U.S. Government Securities
Business Days prior to such Term SOFR Determination Day; provided that if Term SOFR as so
determined would be less than the Floor of 0.50%, such rate shall be deemed to be 0.50% for the
purposes of this Note. If by 5:00 pm (New York City time) on such Term SOFR Determination
Day, the applicable Term SOFR Reference Rate has not been published by the Term SOFR
Administrator and a SOFR Replacement Date with respect to the Term SOFR Reference Rate has
not occurred, then Term SOFR for such Term SOFR Determination Day will be the Term SOFR
Reference Rate as published on the first preceding U.S. Government Securities Business Day for
which such Term SOFR Reference Rate was published by the Term SOFR Administrator, so long
as such first preceding U.S.Government Securities Business Day is not more than five(5)Business
Days prior to such Term SOFR Determination Day.
"Term SOFR Administrator"has the meaning assigned to it under the definition
of Term SOFR Reference Rate.
"Term SOFR Determination Day" has the meaning assigned to it under the
definition of Term SOFR.
"Term SOFR Reference Rate" means, for any day and time, the "CME Term
SOFR Reference Rate"with a tenor comparable to one month, as administered by the CME Group
Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR
Reference Rate selected by Lender in its reasonable discretion, or any other entity that takes over
administration of such rate, the "Term SOFR Administrator") and available on its website,
currently at https://www.cmegroup.com/market-datalcme-group-benchmark-administration/term-
sofr.html, and as displayed on such day and at such time, or any appropriate screen page of any
information service that publishes such rate from time to time as selected by Bondholder in its
reasonable discretion.
- 8 -
"Trustee" means The Bank of New York Mellon Trust Company, N.A. a national
banking association.
"Treasury Rate"has the meaning given to such term in Section 6(a)of this Note.
"U.S. Dollar SOFR ICE Swap Rate(s)" has the meaning given to such term in
Section 6(b)of this Note.
"U.S. Government Securities Business Day" means any day except for (a) a
Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets
Association recommends that the fixed income departments of its members be closed for the entire
day for purposes of trading in United States government securities.
"Yield Maintenance Period" means the period of time commencing on the
Conversion Date and ending on March 15, 2036.
Any capitalized term not otherwise defined in this Note shall have the meaning ascribed to such
term in the Continuing Covenant Agreement.
2. Interest.
(a) Interest Rate during the Construction Term.
(i) Principal Balance; Subsequent Advances. During the Construction
Term the Principal Balance and any subsequent Advances made on an Interest Adjustment Date
shall bear interest at a per annum interest rate equal to Adjusted Term SOFR plus the Applicable
Margin. Any subsequent Advances made on any date other than an Interest Adjustment Date shall
bear interest at a per annum interest rate equal to Adjusted Term SOFR plus the Applicable Margin
applicable on the immediately preceding Interest Adjustment Date from the date of such Advance
through and including the date immediately prior to the next Interest Adjustment Date.
(ii) Monthly Reset of Interest Rate. Commencing on the Interest
Adjustment Date of the first calendar month after the Effective Date, and continuing thereafter on
each Interest Adjustment Date, the interest rate applicable to the then Principal Balance shall be
reset to the Interest Rate as then in effect. If a SOFR Replacement has not been identified on any
date other than Interest Adjustment Date,the new Interest Rate,as determined by reference of such
SOFR Replacement, will take effect on the next Interest Adjustment Date.
(b) Permanent Rate. During the Permanent Term interest shall accrue hereunder
at the Permanent Fixed Rate.
(c) Default Rate. To the extent permitted under applicable law, at the direction
of the Bondholder upon the occurrence of a Default, and after maturity,the Principal Balance will
bear interest,after and before judgment, at a rate per annum equal to three percent(3.0%)in excess
of the rate otherwise applicable to the Principal Balance or, at the direction of the Bondholder,
three percent(3.0%)in excess of the CB Floating Rate plus the Applicable Margin(as applicable,
"Default Rate').
- 9 -
(d) Computation of Interest.All interest hereunder will be computed on the basis
of a year of 360 days and will be payable for the actual number of days elapsed(including the first
day but excluding the last day). The applicable interest rate for any day will be determined by
Bondholder.
(e) Alternate Rate of Interest.
(i) Subject to clauses (ii), (iii), and (iv) of this Section 2(e), if (A)
Bondholder determines that adequate and reasonable means do not exist for ascertaining Adjusted
Term SOFR (including because the Tenn SOFR Reference Rate is not available or published on
a current basis); or (B) Adjusted Term SOFR, will not adequately and fairly reflect the cost to
Bondholder of making or maintaining the Loan,then Bondholder will give notice to Borrower and
Holder by electronic communication as provided in Section 8 as promptly as practicable and,until
Bondholder notifies Borrower and Holder that the circumstances giving rise to such notice no
longer exist,the Loan will bear interest at(x)the Adjusted Daily Simple SOFR plus the Applicable
Margin so long as Adjusted Daily Simple SOFR is not also subject to clauses (A) or(B) above, or
(y)the CB Floating Rate plus the Applicable Margin if Adjusted Daily Simple SOFR is subject to
clauses (A) or(B) above.
(ii) Notwithstanding anything to the contrary herein or in any other
Facility Document, if(A) a SOFR Cessation Event and the related SOFR Replacement Date have
occurred and only Adjusted Term SOFR is affected by such SOFR Cessation Event,then the Loan
will bear interest at Adjusted Daily Simple SOFR plus the Applicable Margin and Adjusted Daily
Simple SOFR will replace Adjusted Term SOFR for all purposes hereunder and under any Facility
Document without any amendment to, or further action or consent of any other party to,this Note
or any other Facility Document and (B) if a SOFR Cessation Event and the related SOFR
Replacement Date have occurred and both Adjusted Term SOFR and Adjusted Daily Simple
SOFR are affected by such SOFR Cessation Event,then Bondholder shall establish a replacement
benchmark index to the Term SOFR Reference Rate or SOFR as applicable that gives due
consideration to the then prevailing market convention for determining a rate of interest for
bilateral loans in the United States at such time (such replacement benchmark index, the "SOFR
Replacement"), the Loan will bear interest at such SOFR Replacement and the related SOFR
Replacement Adjustment plus the Applicable Margin, and Holder and Borrower shall enter into
an amendment to this Note to reflect such SOFR Replacement and such other related changes to
this Note as may be applicable (but for the avoidance of doubt, such related changes shall not
include an increase or reduction of the Applicable Margin); provided that, if such SOFR
Replacement as so determined would be less than the Floor of 0.50%, such SOFR Replacement
shall be deemed to be 0.50% for purposes of this Note. Upon the commencement of a SOFR
Unavailability Period and until a SOFR Replacement is determined in accordance with this clause
(ii)(B), the Loan will bear interest at the CB Floating Rate plus the Applicable Margin.
(iii) Notwithstanding anything to the contrary herein or in any other
Facility Document, and upon the establishment of a SOFR Replacement pursuant to clause(ii) of
this Section(e) Bondholder will have the right to make SOFR Replacement Conforming Changes
from time to time and, notwithstanding anything to the contrary herein or in any other Facility
Document, any amendments implementing such SOFR Replacement Conforming Changes will
- 10 -
become effective without any further action or consent of any other party to this Note or any other
Facility Document.
(iv) Bondholder will promptly notify Borrower and Holder of(A) any
occurrence of a SOFR Cessation Event, (B) the implementation of a SOFR Replacement in
accordance with the timing described in Section 2(a)(ii) of this Note, (C) the effectiveness of any
SOFR Replacement Conforming Changes,and(D)the commencement or conclusion of any SOFR
Unavailability Period. Any determination, decision or election that may be made by Bondholder
pursuant to this Section 2, including any determination with respect to a tenor, rate or adjustment
or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take
or refrain from taking any action or any selection, will be conclusive and binding absent manifest
error and may be made in its sole discretion and without consent from any other party to this Note
or any other Facility Document,except,in each case,as expressly required pursuant to this Section
2.
(f) Interest Rate; SOFR Replacement Notification. The Interest Rate on the
Loan may, at any time,be derived from an interest rate benchmark that may be discontinued or is,
or may in the future become, the subject of regulatory reform. Upon the occurrence of a SOFR
Cessation Event, Section 2 (e) provides the mechanism for determining an alternative rate of
interest. Bondholder does not warrant or accept any responsibility for, and shall not have any
liability with respect to, the administration, submission, performance or any other matter related
to any interest rate used in this Note, or with respect to any alternative or successor rate thereto, or
replacement rate thereof, including,without limitation,whether the composition or characteristics
of any such alternative, successor or replacement reference rate will be similar to, or produce the
same value or economic equivalence of,the existing interest rate being replaced or have the same
volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability.
Bondholder and its affiliates and/or other related entities may engage in transactions that affect the
calculation of any interest rate used in this Note or any alternative, successor or alternative rate
(including any SOFR Replacement) and/or any relevant adjustments thereto, in each case, in a
manner adverse to Borrower. Bondholder may select information sources or services in its
reasonable discretion to ascertain any interest rate used in this Note, any component thereof, or
rates referenced in the definition thereof,in each case pursuant to the terms of this Note,and neither
Bondholder nor Holder shall have any liability to the Borrower or any other person or entity for
damages of any kind, including direct or indirect, special, punitive, incidental or consequential
damages, costs, losses or expenses(whether in tort, contract or otherwise and whether at law or in
equity), for any error or calculation of any such rate(or component thereof)provided by any such
information source or service.
3. Payment and Repayment of Loan.
(a) Payments Generally.Borrower shall make each payment required to be made
by it under this Note prior to 11:00 a.m., Eastern Standard Time, on the date when due, in
immediately available funds, without setoff or counterclaim. Any amounts received after such
time on any date may, in the discretion of Holder , be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. If any payment under this
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Note shall be due on a day that is not a Business Day, the date for payment shall be extended to
the next succeeding Business Day, and,in the case of any payment accruing interest, interest shall
be payable for the period of such extension. All payments shall be made in U.S. dollars.
(b) Payment of Accrued Interest. Borrower hereby unconditionally promises to
pay to Holder accrued interest on the Principal Balance calculated through the last day of the prior
month, payable in arrears on each Payment Date commencing on 10, 2024 and
continuing on each Payment Date until the Principal Balance shall be paid in full; provided (i)
interest accrued pursuant to paragraph 2(b) shall be payable on demand, and (ii) in the event of
any repayment or prepayment of any principal of the Loan, accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or prepayment.
(c) Payments During Permanent Term. Borrower hereby unconditionally
promises to pay to Holder as follows:
(i) in the event the Conversion Date is on or before the 10th day of the
month, (x) interest shall be paid on the Conversion Date to the 10th day of that month, and (y)
commencing on the Payment Date following the month in which the Conversion Date occurs and
continuing on each Payment Date thereafter,the Borrower shall make constant monthly payments
of principal and interest in an amount required to amortize the unpaid Principal Balance of this
Note over a term of thirty-five(35)years at the Permanent Fixed Rate; and
(ii) in the event the Conversion Date is on a day after the 10th day of
the month,(x)interest shall be paid on the Conversion Date to the 10th day of the month following
the month in which the Conversion Date occurs, and (y) commencing on the Payment Date
following the first full month after the Conversion Date and continuing on each Payment Date
thereafter, the Borrower shall make constant monthly payments of principal and interest in an
amount required to amortize the unpaid Principal Balance of this Note over a term of thirty-five
(35)years at the Permanent Fixed Rate.
(d) Repayment at Maturity. Borrower hereby unconditionally promises to pay to
Holder the then entire Principal Balance and all unpaid accrued interest thereon and all other sums
due under this Note on the Maturity Date.
(e) Late Fee. If any payment required under this Note is not paid within ten(10)
days after such payment is due, then, at the direction of Bondholder, Borrower shall pay a late
charge equal to five percent (5.0%) of the amount of such payment, to compensate Holder for
administrative expenses and other costs of delinquent payments, except for the unpaid principal
amount of the Loan on the Maturity Date. This late charge may be assessed without notice, shall
be immediately due and payable and shall be in addition to all other rights and remedies available
to Holder.
(f) Application of Funds. Bondholder shall have the right to direct the
application of payments, repayments and proceeds of Collateral to the Liabilities in any order, in
its sole discretion. The amount of the Principal Balance as shown on the records of the Holder
shall be conclusive absent manifest error as to such amount.
- 12 -
(g) Statements. Bondholder may from time to time provide Borrower with
account statements or invoices with respect to any of the Debt, which if provided, will be solely
for Borrower's convenience(the"Statements"). Statements may contain estimates of the amounts
owed during the relevant billing period, whether of principal, interest, fees or other debts. If
Borrower pays the full amount indicated on a Statement on or before the due date indicated on
such Statement, Borrower shall not be in default of payment with respect to the billing period
indicated on such Statement; provided, acceptance by Holder of any payment that is less than the
total amount actually due at that time(including any past due amounts)shall not constitute a waiver
of Bondholder's or Holder's right to receive payment in full as provided by the terms of this Note
and the other Facility Documents.
4. JReservedl.
5. Prepayment During the Construction Term. During the Construction Term, no
prepayment of the Loan shall be made without the prior express written consent of the Bondholder
until such time as the principal balance of the Series 2021A Note together with the Principal
Balance hereunder exceeds the Permanent Loan Commitment Amount (the "Lockout Period").
Following the end of the Lockout Period, the Borrower shall have the right at any time and from
time to time during the remainder of the Construction Term to prepay all or any portion of the
combined Principal Balance of this Note and the princpal balance of the Series 2021A Note in
excess of the Permanent Loan Commitment Amount, subject to prior notice and in accordance
with this Section 5. The Borrower shall notify the Holder and Bondholder by electronic
communication as provided in Section 8 of any prepayment not later than 11:00 a.m. Eastern
Standard Time, three (3) Business Days before the date of prepayment. Each such notice shall
specify the prepayment date and the principal amount of the Loan to be prepaid. No amounts
prepaid may be readvanced or reborrowed.
6. Failure to Convert to the Permanent Term or Prepayment on the Conversion Date.
(a) In the event the Permanent Term does not commence for any reason or does
not commence on or before the Outside Conversion Date, the Borrower shall pay the Holder a
break funding charge(the"Break Funding Premium")within ten(10)days of the date of demand
equal to the greater of:
(i) one percent (1.0%) of the total amount of the Permanent Loan
Commitment Amount; or
(ii) the loss(if any) incurred by the Holder calculated by discounting to
present value, over a period equal to the number of months from the date of the calculation to the
Permanent Term Maturity Date, a series of constant monthly amounts, each amount equal to the
"Monthly Loss". The Monthly Loss shall be calculated by multiplying by one-twelfth (1/12)the
product of(A) the amount of the Permanent Loan Commitment Amount and (B) the result, if
positive, of(x) the Permanent Fixed Rate, minus (y) the annual yield to maturity (reflecting both
stated interest rate and discount)of United States Treasury obligations purchased at the time of the
calculation and maturing at the Permanent Term Maturity Date, or as close thereto as possible(the
"Treasury Rate"). The applicable discount rate for the present value calculation is the Treasury
- 13 -
Rate. The Bondholder's determination of the Treasury Rate on behalf of the Holder and the
amount of any break funding charge shall be conclusive, in the absence of manifest error.
(b) If on the Conversion Date, the Principal Balance hereof together with the
outstanding principal balance of the Series 2021A Note is not at least ninety percent(90%)of the
Permanent Loan Commitment Amount,including a prepayment required to meet the Debt Service
Coverage Ratio and/or the Total Debt Service Coverage Ratio requirements, the Borrower shall
pay Holder on the Conversion Date a premium (as liquidated damages and not as a penalty) (the
"Resizing Fee") equal to (i) the ratio of the Shortfall Amount to the amount of the Permanent
Loan Commitment Amount,multiplied by(ii)the sum of the present value of interest amounts for
each billing month falling in the Remaining Period (including any partial billing months on a pro
rata basis),plus(iii)all other amounts due under this Note.The interest amounts shall be calculated
by multiplying the amount of the Permanent Loan Commitment Amount which Bondholder
projects would be outstanding for such billing month for each interest payment period (without
regard to payment of the Shortfall Amount or any other prepayment) by the difference between
the Original Swap Rate minus the Current Swap Rate and then dividing by twelve. Present value
shall be calculated by using the Current Swap Rate. "Remaining Period"means the period from
and including the date of the Resizing Payment to the Permanent Term Maturity Date. "Current
Swap Rate"means the U.S. Dollar SOFR ICE Swap Rate for the Remaining Period as of the date
of the prepayment (or, if no rate is available for a period equal to the Remaining Period, a rate
interpolated between the U.S.Dollar SOFR ICE Swap Rates for terms that are immediately shorter
and immediately longer than the Remaining Period). "Original Swap Rate" means the U.S.
Dollar SOFR ICE Swap Rate as of the date of this Note for the Original Period (or, if no rate is
available for a period equal to the Original Period, a rate interpolated between the U.S. Dollar
SOFR ICE Swap Rates for terms that are immediately shorter and immediately longer than the
Original Period)as adjusted to account for Bondholder's funding costs and methods for calculating
or determining the Permanent Fixed Rate. "Original Period" means the period from the date of
this Note to the Permanent Term Maturity Date. "U.S. Dollar SOFR ICE Swap Rate(s)" for a
specified date and maturity means the most recently available rate as of that date for a U.S. Dollar
SOFR interest rates swap (annual payments of fixed rate versus compounded daily SOFR) of that
maturity as listed in USD Rates SOFR 1100 Report as administered by ICE Benchmark
Administration Limited (IBA) at or about 11:15 a.m., New York City, New York time, and
published by Bloomberg Professional Services or other information vendors acceptable to
Bondholder. If the U.S. Dollar SOFR ICE Swap Rate is not available, or if the most recently
available rate was published more than two Business Days prior to the date of the prepayment,
then the U.S. Dollar SOFR ICE Swap Rate shall be otherwise independently deteniiined by
Bondholder from an alternate, substantially similar independent source available to Bondholder or
shall be calculated by Bondholder by a substantially similar methodology. Notwithstanding the
foregoing computation, the Resizing Fee shall in no event be less than zero. The Borrower
acknowledges that Holder might not fund or hedge its fixed-rate loan portfolio or any prepayment
thereof, on a loan-by-loan basis at all times and agrees that the foregoing is a reasonable and
appropriate method of calculating Holder's liquidated damages for any such Resizing Payment
irrespective of whether any of the foregoing hedging transactions shall have in fact occurred or
occurred precisely as stated with respect to the Permanent Loan. All calculations and
determinations by Bondholder on behalf of Holder and the amount payable pursuant to the
preceding provisions or any element thereof, if made in accordance with its then standard
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procedure for so calculating or determining such amounts, shall be conclusive absent manifest
arithmetic error.
(c) The Borrower acknowledges that any statement made by the Bondholder on
behalf of the Holder setting forth the amount of the Break Funding Premium or Resizing Fee shall
be only binding upon the Holder if the statement is made in writing, that the amount of the Break
Funding Premium or Resizing Fee set forth in such statement is subject to change and is valid only
for the date of such statement.
7. Prepayment During the Permanent Term.
(a) During the Permanent Term the Borrower may, upon 30 days prior written
notice to the Holder and Bondholder, pay the full amount or any part of this Note; provided,
however,if prepayment of all or any portion of the principal of the Loan is otherwise made during
the Yield Maintenance Period, the Borrower shall concurrently pay a prepayment charge (the
"Prepayment Premium") equal to the greater of: 1.0% of the total amount of principal of the
Permanent Loan being prepaid; or the loss (if any) incurred by the Holder calculated by
discounting to present value, over a period equal to the number of months from the date of the
prepayment to the Permanent Term Maturity Date, a series of constant monthly amounts, each
such amount equal to the "Monthly Loss". The Monthly Loss shall be calculated by multiplying
by one-twelfth (1/12) the product of(A) the amount of the Permanent Loan prepaid and (B) the
result, if positive, of(x) the Permanent Fixed Rate, minus (y)the Bondholder's tax exempt factor
multiplied by the Treasury Rate. The applicable discount rate for the present value calculation is
the Treasury Rate. The Bondholder's determination of the Treasury Rate and the amount of any
prepayment charge on behalf of the Holder will be conclusive, in the absence of manifest error.
No partial prepayment of this Note shall change the date or amount of any subsequent monthly
payment required under the terms of this Note prior to payment in full of all amounts owing under
this Note unless otherwise agreed in writing by the Bondholder.
(b) Borrower expressly waives any right to prepay this Note except as herein
provided. If the maturity of this Note is accelerated for any reason, including, without limitation,
the occurrence of any Default, then any subsequent tender of payment of this Note, including any
redemption following foreclosure of the Security Instrument, shall constitute an evasion of the
restrictions on prepayment set forth herein and shall be deemed a voluntary prepayment.
Accordingly, the Holder may impose as a condition to accepting any such tender, and may bid at
any sheriffs or trustee's sale under the Security Instrument, and/or include in any complaint for
judicial foreclosure or any claim in bankruptcy, as part of the indebtedness evidenced by this Note
and secured by the Security Instrument,the Prepayment Premium that would have otherwise been
payable hereunder for prepayment of this Note occurring on the date of such acceleration. The
Prepayment Premium shall be payable with respect to any other prepayment made from any
collateral for this Note. Notwithstanding the foregoing, if a prepayment of this Note is made from
casualty or condemnation proceeds, the Prepayment Premium shall not be applicable and the
Borrower shall only be obligated to pay to Holder a fee equal to the Bondholder's internal breakage
fee, as calculated by the Bondholder.
(c) Acceptance by the Holder of any one or more prepayments without
concurrent payment of any applicable Prepayment Premium or other amount provided for above
- 15 -
will not constitute a waiver of Holder's right to require payment of any Prepayment Premium or
other amount provided for above.
(d) The Borrower acknowledges that any statement made by the Bondholder
setting forth the amount of the Prepayment Premium shall only be binding upon the Holder if the
statement is made in writing and that the amount of the Prepayment Premium set forth in such
statement is subject to change and is valid only for the date of such statement.
8. Electronic Notices. Holder, Bondholder or Borrower may, in its discretion, agree
to accept notices and other communications to it under this Note by electronic communications
pursuant to procedures approved by it; provided approval of such procedures may be limited to
particular notices or communications. Notices of prepayments under this Note may be made by
electronic communication (including email and internet or intranet websites) pursuant to
procedures approved by Bondholder. Unless Holder and Bondholder otherwise prescribes, (i)
notices and other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient(such as by the"return receipt
requested"function,as available,return e-mail or other written acknowledgement),and(ii)notices
or communications posted to an internet or intranet website shall be deemed received upon the
"receipt"by the intended recipient, at its e-mail address as described in clause (i), of notification
that such notice or communication is available and identifying the website address, provided, for
both clauses (i) and(ii) above, if such notice, email or other communication is not sent during the
normal business hours of the recipient, such notice or communication shall be deemed to have
been sent at the opening of business on the next Business Day.
The Borrower, Holder and Bondholder may change its address or email address
for notices and other communications under this Note by notice to the other parties. All notices
and other communications given to any party in accordance with the provisions of this Note shall
be deemed to have been given on the date of receipt.
9. Indemnity. Anything in the other Facility Documents to the contrary
notwithstanding,the Borrower shall indemnify and hold the Holder and Bondholder harmless and
defend the Holder and Bondholder at the Borrower's sole cost and expense against any loss or
liability, cost or expense(including, reasonable attorneys' fees and disbursements of the Holder's
and Bondholder's counsel, whether in-house staff, retained firms or otherwise), and all claims,
actions,procedures and suits arising out of or in connection with any of the following,except to the
extent that such loss,liability, cost or expense is found by a final non-appealable judgment of a court
of competent jurisdiction to be the direct result of the Holder's gross negligence or willful misconduct:
(a) any ongoing matters arising out of the Facility Documents or the transaction
contemplated hereby or thereby,including all costs of appraisal or reappraisal of all or any portion
of any collateral for the Debt or of the granting by the Holder, in its sole and absolute discretion,
of any lease non-disturbance agreements,
(b) any amendment to, or restructuring of, the Debt, or any of the Facility
Documents,
- 16 -
(c) any and all lawful action that may be taken by the Holder in connection with
the enforcement of the provisions of the Facility Documents,whether or not suit is filed in connection
with the same, or in connection with the Borrower, any Guarantor of all or any portion of the Debt
and/or any partner, joint venturer or shareholder thereof becoming a subject of a voluntary or
involuntary federal or state bankruptcy,insolvency or similar proceeding, and
(d) any liability to brokers, finders or similar persons and/or under any applicable
securities or blue sky laws.
All sums expended by the Holder and/or Bondholder on account of any of the foregoing shall be
reimbursable on demand,and until reimbursed by the Borrower shall be deemed additional principal
evidenced hereby and shall bear interest at the Default Rate. The obligations of the Borrower under
this Section shall,notwithstanding any exculpatory or other provisions of any nature in the Facility
Documents, constitute the personal recourse undertakings, obligations and liabilities of the
Borrower and shall be secured by the Security Instrument.
10. Secured Note. This Note is secured by the Security Instrument and the Other
Facility Documents and the collateral mortgaged, pledged, encumbered or assigned pursuant
thereto (the "Collateral"). The Borrower agrees to perform and comply with each of the terms,
covenants and provisions contained in the Facility Documents on the part of the Borrower to be
observed or performed and which are made part of this Note to the same extent and with the same
force and effect as if they were fully set forth herein. All sums which shall or may become payable
by the Borrower in accordance with the provisions of this Note shall under all circumstances be
deemed to constitute additional interest on, and shall be evidenced by this Note, shall be secured
by the Security Instrument and the Other Facility Documents and shall constitute part of the Debt.
11. Transfer. Upon the transfer of this Note,the Holder may deliver all the Collateral,
or any part thereof, to the transferee who shall thereupon become vested with all the rights in this
Note or under applicable law given to the Holder and the Holder shall after that forever be relieved
and fully discharged from any liability or responsibility in the matter; but the Holder shall retain
all rights given to it with respect to any Liabilities and such collateral not so transferred. The
Holder will provide the Borrower with notice of any such transfer.
12. Maximum Permissible Rate. This Note is subject to the express condition that at
no time shall the Borrower be obligated or be required to pay interest on the Principal Balance at
a rate which could subject the Holder to liability as a result of being in excess of the maximum
rate which the Borrower is permitted by law to contract or agree to pay. If by the terms of this
Note the Borrower is at any time required or obligated to pay interest on the Principal Balance at
a rate in excess of such maximum rate,then the rate of interest under this Note shall be deemed to
be immediately reduced to such maximum rate,interest payable under this Note shall be computed
at such maximum rate and any prior interest payments made in excess of such maximum rate shall
be applied and shall be deemed to have been payments made in reduction of the Principal Balance.
13. Set Off. If a Default shall have occurred and be continuing,the Holder is authorized
at any time and from time to time, to the full extent permitted by law, to set off and apply any
deposits (general or special, time or demand, provisional or final) at any time held and other
obligations at any time owing by the Holder to or for the credit or account of the Borrower against
- 17 -
any of the Liabilities,irrespective of whether or not Holder shall have made any demand under the
Facility Documents and although such obligations may be unmatured. The rights of the Holder
under this Section are in addition to other rights and remedies (including other rights of setoff)
which the Holder may have.
14. Default. It is hereby expressly agreed that the entire Debt shall become
immediately due and payable at the direction of the Bondholder in the event any portion of the
Debt is not paid within ten(10) days after the same is due and payable or on the happening of any
Default or any event by which, under the terms of the Facility Documents, after the expiration of
any applicable notice or grace period specifically set forth therein, the Debt may or shall become
due and payable and that all of the terms, covenants and provisions contained in the Security
Instrument, the Financing Agreement and the Other Facility Documents which are to be kept and
performed by the Borrower are hereby made part of this Note to the same extent with the same
force and effect as if they were fully set forth in this Note.
15. Authority. The Borrower(and the undersigned representative(s) of the Borrower,
if any)represents that the Borrower has full power, authority and legal right to execute and deliver
this Note and that this Note constitutes a valid and binding obligation of the Borrower.
16. Joint and Several Obligations. If the Borrower consists of more than one party, the
obligations and liabilities of each such party hereunder shall be joint and several.
17. Defined Terms. Whenever used, the singular number shall include the plural, the
plural the singular, and the words "Holder" and "Borrower" shall include their respective
successors and assigns, provided, however, that the Borrower shall not have the right, without
obtaining the prior written consent of the Holder, to assign or transfer its obligations under any of
the Facility Documents, in whole or in part, to any other person, party or entity.
18. Headings. The headings and captions of the numbered paragraphs of this Note are
for convenience of reference only and are not to be construed as defining or limiting the scope or
intent of this Note.
19. Enforceability. Each Facility Document executed by the Borrower constitutes a legal
and binding obligation of,and is valid and enforceable against,the Borrower,in accordance with the
terms of such Facility Document(subject to Debtor Relief Laws and general equitable principles)and
is not subject to any right of rescission, set-off, counterclaim or defense.
20. Waiver. The Borrower waives presentment, demand for payment, notice of
dishonor and any or all notices or demands in connection with the delivery, acceptance,
performance,default or enforcement of this Note(other than notice that the Holder has specifically
agreed to provide pursuant to the terms of the Facility Documents) and consents to any or all
delays, extensions of time,renewals, release of any party to any of the Facility Documents and of
any available security therefor, to any party to the Facility Documents or to the actual holder
thereof and any and all waivers or modifications that may be granted or consented to by the Holder
with regard to the time of payment or with respect to any other provisions of the Facility
Documents and agrees that no such action,delay or failure to act on the part of the Holder shall be
construed as a waiver by the Holder of, or otherwise affect, in whole or in part, its right to avail
- 18 -
itself of any remedy. No notice to or demand on the Borrower shall be deemed to be a waiver of
the obligation of the Borrower or of the right of the Holder to take further action without further
notice or demand as provided in any of the Facility Documents. If the Borrower is a partnership,
the agreements contained in this Note shall remain in force and applicable, notwithstanding any
changes in the individuals comprising the partnership, and the term "Borrower", as used herein,
shall include any alternate or successor partnerships, but any predecessor partnership and their
partners shall not thereby be released from any liability. (Nothing in the foregoing sentence shall
be construed as a consent to, or a waiver of, any prohibition or restriction on transfers of interests
in such partnership which may be set forth in the Facility Documents.)
21. Amendments. This Note may not be modified, amended, changed or terminated
except by an agreement in writing signed by the Borrower and the Holder. No waiver of any term,
covenant or provision of this Note shall be effective unless given in writing by the Holder and, if
so given by the Holder, shall only be effective in the specific instance in which given.
22. Governing Law. This Note is and shall be deemed entered into in the State and
shall be governed by and construed in accordance with the laws of the State without regard to
principles of conflicts of laws, and no defense given or allowed by the laws of any state or country
shall be interposed in any action or proceeding hereon unless such defense is either given or
allowed by the laws of the State.
23. Jurisdiction and Venue.
(a) Consent to Jurisdiction. Borrower hereby submits,for itself and its property,
to the nonexclusive jurisdiction of any United States Federal or State court sitting in St. Lucie
County, and any appellate court in such jurisdiction, in any action or proceeding arising out of or
relating to this Note, or for recognition or enforcement of any judgment, and each of the parties
agrees that all claims in respect of any such action or proceeding may be heard and determined in
such State or, to the extent permitted by law, in such Federal court. Borrower agrees that a final
judgment in any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.Nothing in this Note
shall affect any right that Holder may otherwise have to bring any action or proceeding relating to
this Note against Borrower or its properties in the courts of any jurisdiction.
(b) Waiver of Objection to Venue. Borrower waives, to the full extent it may
legally and effectively do so, any objection which it may now or hereafter have to the venue of
any suit, action or proceeding arising out of or relating to this Note in any court referred to in
Section 239(a). Borrower hereby waives, to the full extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.
(c) Service of Process. Borrower consents to service of process in the manner
provided for notices in the Financing Agreement. Nothing in this Note will affect the right of
Holder to serve process in any other manner permitted by law.
24. Recourse/Non-Recourse Provisions.
(a) Except as otherwise provided in this Section 24, the Holder agrees that,
commencing with the Conversion Date, neither the Borrower nor any of its members shall have
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any personal liability under the Facility Documents for the repayment of the Debt or for the
performance of other obligations of the Borrower thereunder, and the Holder's recourse for the
satisfaction of the Debt and the performance of such obligation shall be the Holder's exercise of
its rights and remedies against the Collateral under the Security Instrument and other Collateral
held by the Holder as security for the Debt.
(b) Notwithstanding the above limitations, the Holder shall have full recourse
against the Borrower for the full payment of(i) the amount of any rent or other income from the
Mortgaged Property that the Borrower has failed to apply first, to the payment of reasonable
operating expenses (other than property management fees that are not currently payable pursuant
to the terms of a Conditional Assignment of Management Contract or other agreement with Holder
executed in connection with the Loan)and then to the payment of amounts that are due and payable
under this Note, except that the Borrower will not be personally liable (x) to the extent that the
Borrower lacks the legal right to direct the disbursement of such sums because of bankruptcy,
receivership or similar judicial proceeding, or(y) with respect to rents and other income from the
Mortgaged Property that are distributed in any calendar year if the Borrower has paid all operating
expenses and amounts then due and payable under this Note for that calendar year; (ii) any
condemnation or insurance proceeds, or similar funds or payments attributable to the Mortgaged
Property, that under the terms of the Security Instrument, Financing Agreement or Other Facility
Documents should have been paid to the Holder but have not been so paid to the Holder; (iii) any
tenant security deposits, advances or prepaid rents, or similar sums that have been paid to the
Borrower or held for the account of the Borrower by any other person or entity in connection with
the operation of the Mortgaged Property and that have not either been applied or refunded in
accordance with the relevant lease or have been paid over to the Holder; (iv) the amount of any
loss suffered by the Holder as a result of fraud or misrepresentation by or on behalf of the Borrower
in connection with the Loan; (v)the amount of any loss suffered by the Holder as a result of waste
or gross mismanagement by or permitted by the Borrower; (vi)the amount of any loss suffered by
the Holder as a result of violations of any governmental statute,rule or regulation applicable to the
Mortgaged Property including and not by way of limitation any loss suffered by the Holder arising
directly or indirectly from the presence or release of any hazardous or toxic substance,material or
waste on or about the Mortgaged Property; (vii)the Debt in the event of the Borrower's acquisition
of any property or operation of any business not permitted by Section 3.03 of the Continuing
Covenant Agreement; (viii)the Debt in the event of any transfer of any interest in the Borrower or
the manager of the Borrower that is not a Permitted Transfer as defined in the Continuing Covenant
Agreement(ix)the Debt in the event the Ground Lease is terminated;and(x)reasonable attorney's
fees and other costs incurred by the Holder in collecting any of the foregoing.
(c) Nothing contained in this Section 24 shall (i) limit the right of the Holder to
name the Borrower as a party defendant in any action or suit for judicial foreclosure and sale under
the Security Instrument so long as no judgment in a nature of deficiency judgment shall be enforced
against the Borrower; (ii) be deemed to be a release or impairment in any part of the Debt
evidenced by this Note or the lien created by the Security Instrument or any other Collateral; or
(iii)limit or otherwise prejudice in anyway the rights of the Holder to enforce any of its rights and
other remedies under the Facility Documents or any guaranty of the Debt.
(d) The provisions of this Section 24 are personal to the Borrower and permitted
transferees of the Mortgaged Property under the Security Instrument only, and are not transferable
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or assignable to any other person or entity,and are inapplicable to any other successor or transferee
of the Borrower which is not a permitted transferee under the Financing Agreement, as vested or
beneficial owner of the Mortgaged Property, whether such other successor or transferee assumes
or takes title subject to the Security Instrument. As to any such other successor or transferee,this
Note shall be full recourse.
25. Waiver of Special Damages. To the extent permitted by applicable law, the
Borrower shall not assert, and hereby waives, any claim against the Holder,on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this Note or any
agreement or instrument contemplated hereby, the transactions, the Loan or the use of the
proceeds thereof.
26. WAIVER OF JURY TRIAL. THE BORROWER HEREBY
IRREVOCABLY WAIVES, TO THE FULL EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR RELATING TO
THIS NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). THE BORROWER
HEREBY(A) CERTIFIES THAT NO REPRESENTATIVE,AGENT OR ATTORNEY OF
THE HOLDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE
HOLDER WOULD NOT,IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE HOLDER
HAVE BEEN INDUCED TO ENTER INTO THE LOAN TRANSACTION BY, AMONG
OTHER THINGS, THE WAIVER AND CERTIFICATIONS IN THIS SECTION.
Doc#5105417.2
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IN WITNESS WHEREOF,the Borrower has duly executed this Note the day and year at the
beginning of the Note.
BLUE MCNEIL ONE, LLC
a Florida limited liability company
By: Blue McNeil One M, LLC
its manager
By:
Shawn Wilson, Manager
[Signature Page to Note]
ALLONGE
This Allonge is attached here and made a part of that certain Promissory Note made by
Blue McNeil One, LLC, a Florida limited liability company to St. Lucie County Housing Finance
Authority, a body corporate and politic organized and existing under the laws of the State of
Florida for purposes of annexing thereto the following endorsement:
Pay to the order of The Bank of New York Mellon Trust Company,N.A., as trustee under
the terms of that certain Trust Indenture dated as of September 1, 2021 without recourse.
ISSUER
ST. LUCIE COUNTY HOUSING FINANCE
AUTHORITY
By:
Name:
Title:
[Allonge to Promissory Note]