SUBORDINATION AGREEMENT51
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (this "Agreement") is entered into this 9th
day of April, 2010 by and between (i) JPMorgan Chase Bank, N.A., a national banking
association (the "Senior Mortgagee"), and (ii) the City of Clearwater, a municipal corporation
in the State of Florida (the "Subordinate Mortgagee").
RECITALS
A. Pine Berry Senior Limited Partnership (the "Borrower") is the owner of certain land
located in Pinellas County, Florida, described in Exhibit A hereto (the "Land"). The
Land is to be irn ed with an affordable senior housing project (the "Improvements").
ii K"I, CW1 DW.60
B. The Senior Mortgagee has made or is making a loan to the Borrower in the original
principal amount of [$ , 1500,889-00]. The loan is or will be secured by a Mortgage dated
April 9, 2010 (the "Senior Mortgage") encumbering the Land and Improvements and
other "Mortgaged Property" (as defined in the Senior Mortgage).
C. The Subordinate Mortgagee has made or is making a loan to the Borrower in the original
principal amount of [$545,000.00]. The loan is or will be secured by a mortgage dated
April q, 2010 (the "Subordinate Mortgage") encumbering the Land and
Improvements.
D. The Senior Mortgage is intended to be recorded in the records of Pinellas County, Florida
(the "Recording Offices"). The Subordinate Mortgage is intended to be recorded in the
Recording Offices following the recording of the Senior Mortgage.
E. The execution and delivery of this Agreement is a condition of Senior Mortgagee's
making of the Senior Mortgage loan.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. The following terms, when used in this Agreement (including,
as appropriate, when used in the above recitals), shall have the following meanings.
(a) The terms "Condemnation", "Impositions", "Leases", "Rents", "Restoration"
and "Transfer", as well as any term used in this Agreement and not otherwise
defined in this Agreement, shall have the meanings given to those terms in the
Senior Mortgage.
(b) "Bankruptcy Proceeding" means any bankruptcy, reorganization, insolvency,
composition, restructuring, dissolution, liquidation, receivership, assignment for
SUBORDINATION AGREEMENT (1/2000) Page 1
the benefit of creditors, or custodianship action or proceeding under any federal or
state law with respect to the Borrower, any guarantor of any of the Senior
Indebtedness, any of their respective properties, or any of their respective
partners, members, officers, directors, or shareholders.
(c) "Borrower" means all persons or entities identified as "Borrower" in the first
paragraph of this Agreement, together with their successors and assigns, and any
other person or entity who acquires title to the Land and Improvements after the
date of this Agreement; provided that the term `Borrower" shall not include the
Senior Mortgagee in the event that the Senior Mortgagee may acquire title to the
Land and Improvements.
(d) "Casualty" means the occurrence of damage to or loss of any of the Mortgaged
Property by fire or other casualty.
(e) "Enforcement Action" means the acceleration of all or any part of the
Subordinate Indebtedness, the advertising of or commencement of any foreclosure
or trustee's sale proceedings, the exercise of any power of sale, the acceptance of
a deed or assignment in lieu of foreclosure or sale, the collecting of Rents, the
obtaining of or seeking of the appointment of a receiver, the seeking of default
interest, the taking of possession or control of any of the Mortgaged Property, the
commencement of any suit or other legal, administrative, or arbitration
proceeding based upon the Subordinate Note or any other of the Subordinate Loan
Documents, the exercising of any banker's lien or rights of set-off or recoupment,
or the taking of any other enforcement action against the Borrower, any other
party liable for any of the Subordinate Indebtedness or obligated under any of the
Subordinate Loan Documents, or the Mortgaged Property.
(f) "Enforcement Action Notice" means a written notice from the Subordinate
Mortgagee to the Senior Mortgagee, given following a Subordinate Mortgage
Default and the expiration of any notice or cure periods provided for such
Subordinate Mortgage Default in the Subordinate Loan Documents, setting forth
in reasonable detail the Enforcement Action proposed to be taken by the
Subordinate Mortgagee.
(g) "Loss Proceeds" means all monies received or to be received under any
insurance policy, from any condemning authority, or from any other source, as a
result or any Condemnation or Casualty.
(h) "Senior Indebtedness" means the "Debt" as defined in the Senior Mortgage.
(i) "Senior Loan Documents" means the "Loan Documents" as defined in the
Senior Mortgage.
SUBORDINATION AGREEMENT (1/2000) Page 2
(j) "Senior Mortgage Default" means any act, failure to act, event, condition, or
occurrence which constitutes, or which with the giving of notice or the passage of
time, or both, would constitute, an "Event of Default" as defined in the Senior
Mortgage.
(k) "Senior Mortgagee" means the "Mortgagee" as defined in the Senior Mortgage.
When any other person or entity becomes the legal holder of the "Note" (as
defined in the Senior Mortgage), such other person or entity automatically shall
become the Senior Mortgagee.
(1) "Subordinate Indebtedness" means all sums evidenced or secured or guaranteed
by, or otherwise due and payable to a Subordinate Mortgagee pursuant to, the
Subordinate Loan Documents.
(m) "Subordinate Loan Documents" means the Subordinate Mortgage, the
promissory note or other evidence of the Subordinate Indebtedness referred to in a
Subordinate Mortgage and any replacement thereof (the "Subordinate Note"),
and all other documents at any time evidencing, securing, guaranteeing, or
otherwise delivered in connection with the Subordinate Indebtedness, as the same
may be amended from time to time.
(n) "Subordinate Mortgage Default" means any act, failure to act, event, condition,
or occurrence which allows (but for any contrary provision of this Agreement), or
which with the giving of notice or the passage of time, or both, would allow (but
for any contrary provision of this Agreement), any Subordinate Mortgagee to take
an Enforcement Action.
(o) "Subordinate Mortgagee" means the person or entity named as such in the first
paragraph of this Agreement and any other person or entity who becomes the
legal holder of a Subordinate Note after the date of this Agreement.
2. SUBORDINATION OF SUBORDINATE INDEBTEDNESS.
(a) The Subordinate Indebtedness is and shall at all times continue to be subject and
subordinate in right of payment to the prior payment in full of the Senior
Indebtedness.
(b) Until the occurrence of a Senior Mortgage Default, the Subordinate Mortgagee
shall be entitled to retain for its own account all payments made on account of the
principal of and interest on the Subordinate Indebtedness in accordance with the
requirements of the Subordinate Loan Documents; provided no such payment is
made more than ten (10) days in advance of the due date thereof. However,
immediately upon the Subordinate Mortgagee's receipt of notice or actual
knowledge of a Senior Mortgage Default, the Subordinate Mortgagee will not
accept any payments on account of the Subordinate Indebtedness, and the
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SUBORDINATION AGREEMENT (1/2000) Page 3
provisions of Section 2(c) of this Agreement shall apply. The Subordinate
Mortgagee acknowledges that a Subordinate Mortgage Default constitutes a
Senior Mortgage Default. Accordingly, upon the occurrence of a Subordinate
Mortgage Default, the Subordinate Mortgagee shall be deemed to have actual
knowledge of a Senior Mortgage Default.
(c) If (i) the Subordinate Mortgagee receives any payment, property, or asset of any
kind or in any form on account of the Subordinate Indebtedness (including,
without limitation, any proceeds from any Enforcement Action) after a Senior
Mortgage Default of which the Subordinate Mortgagee has actual knowledge or
has been given notice, or (ii) the Subordinate Mortgagee receives, voluntarily or
involuntarily, by operation of law or otherwise, any payment, property, or asset in
or in connection with any Bankruptcy Proceeding. The Subordinate Mortgagee
will promptly remit, in kind and properly endorsed as necessary, all such
payments, properties, and assets to the Senior Mortgagee. The Senior Mortgagee
shall apply any payment, asset, or property so received from the Subordinate
Mortgagee to the Senior Indebtedness in such order, amount (with respect to any
asset or property other than immediately available finds), and manner as the
Senior Mortgagee shall determine in its sole and absolute discretion.
(d) Without limiting the complete subordination of the Subordinate Indebtedness to
the payment in full of the Senior Indebtedness, in any Bankruptcy Proceeding,
upon any payment or distribution (whether in cash, property, securities, or
otherwise) to creditors (i) the Senior Indebtedness shall first be paid in full in cash
before the Subordinate Mortgagee shall be entitled to receive any payment or
other distribution on account of or in respect of the Subordinate Indebtedness, and
(ii) until all of the Senior Indebtedness is paid in full in cash, any payment or
distribution to which the Subordinate Mortgagee would be entitled but for this
Agreement (whether in cash, property, or other assets) shall be made to the Senior
Mortgagee.
(e) The subordination of the Subordinate Indebtedness shall continue in the event that
any payment under the Senior Loan Documents (whether by or on behalf of the
Borrower, as proceeds of security or enforcement of any right of set-off or
otherwise) is for any reason repaid or returned to the Borrower or its insolvent
estate, or avoided, set aside or required to be paid to the Borrower, a trustee,
receiver or other similar party under any bankruptcy, insolvency, receivership or
similar law. In such event, the Senior Indebtedness or part thereof originally
intended to be satisfied shall be deemed to be reinstated and outstanding to the
extent of any repayment, return, or other action, as if such payment on account of
the Senior Indebtedness had not been made.
SUBORDINATION AGREEMENT (1/2000) Page 4
3. SUBORDINATION OF SUBORDINATE LOAN DOCUMENTS.
(a) The Subordinate Mortgage and each of the other Subordinate Loan Documents
are, and shall at all times remain, subject and subordinate in all respects to the
liens, terms, covenants, conditions, operations, and effects of the Senior Mortgage
and each of the other Senior Loan Documents.
(b) The subordination of the Subordinate Loan Documents and of the Subordinate
Indebtedness shall apply and continue notwithstanding (i) the actual date and time
of execution, delivery, recording, filing or perfection of the Senior Mortgage and
other Senior Loan Documents and of the Subordinate Mortgage and other
Subordinate Loan Documents, and (ii) the availability of any collateral to the
Senior Mortgagee, including the availability of any collateral other than the
Mortgaged Property.
(c) By reason of, and without in any way limiting, the full subordination of the
Subordinate Indebtedness and the Subordinate Loan Documents provided for in
this Agreement, all rights and claims of the Subordinate Mortgagee under the
Subordinate Mortgage or under the Subordinate Loan Documents in or to the
Mortgaged Property or any portion thereof, the proceeds thereof, the Leases
thereof, the Rents, issues and profits therefrom, and the Loss Proceeds payable
with respect thereto, are expressly subject and subordinate in all respects to the
rights and claims of the Senior Mortgagee under the Senior Loan Documents in
and to the Mortgaged Property or any portion thereof, the proceeds thereof, the
Leases thereof, the Rents, issues and profits therefrom, and the Loss Proceeds
payable with respect thereto.
(d) If the Subordinate Mortgagee, by indemnification, subrogation or otherwise shall
acquire any lien, estate, right or other interest in any of the Mortgaged Property,
that lien, estate, right or other interest shall be fully subject and subordinate to the
receipt by the Senior Mortgagee of payment in full of the Senior Indebtedness,
and to the Senior Loan Documents, to the same extent as the Subordinate
Indebtedness and the Subordinate Loan Documents are subordinate pursuant to
this Agreement.
(e) In confirmation, and not as a condition, of the subordination of the Subordinate
Indebtedness and the Subordinate Loan Documents provided for in this
Agreement, the Subordinate Lender shall place on or attach to the Subordinate
Note a substantial equivalent of the following notice, and shall provide the Senior
Mortgagee with a copy of the Subordinate Note showing such notice:
"The right of the holder of this promissory note to payment of any of the
indebtedness evidenced by this promissory note is and shall at all times be
subordinate to the right of the holder of that certain Note dated April 9, 2010 from
the maker of this promissory note to the order of JPMorgan Chase Bank, N.A.
SUBORDINATION AGREEMENT (1/2000)
Page 5
(the "Senior Note"), to payment in full of the indebtedness evidenced by the
Senior Note. The foregoing subordination is pursuant to a Subordination
Agreement dated between and the holder on the date of the Subordination
Agreement of this promissory note."
4. ADDITIONAL REPRESENTATIONS AND COVENANTS.
(a) Subordinate Mortgagee represents and warrants that (i) the Subordinate
Mortgagee is now the owner and holder of such Subordinate Loan Documents;
(ii) such Subordinate Loan Documents are now in full force and effect; (c) such
Subordinate Loan Documents have not been modified or amended; (iv) no
Subordinate Mortgage Default has occurred thereunder; (v) no scheduled monthly
payments under the Subordinate Note have been or will be prepaid; and (vi) none
of the rights of the Subordinate Mortgagee under any of such Subordinate Loan
Documents are subject to the rights of any third parties, by way of subrogation,
indemnification or otherwise.
(b) Without the prior written consent of the Senior Mortgagee in each instance, the
Subordinate Mortgagee shall not (i) amend, modify, waive, extend, renew or
replace any provision of any of the Subordinate Loan Documents, or (ii) pledge,
assign, transfer, convey, or sell any interest in the Subordinate Indebtedness or
any of the Subordinate Loan Documents; or (iii) accept any payment on account
of the Subordinate Indebtedness other than a regularly scheduled payment of
interest or principal and interest made not earlier than ten (10) days prior to the
due date thereof, or as expressly authorized in Section 4(i); or (iv) take any action
which has the effect of increasing the Subordinate Indebtedness, or (v) take any
action concerning environmental matters affecting the Mortgaged Property.
(c) The Subordinate Mortgagee shall deliver to the Senior Mortgagee a copy of each
notice received or delivered by the Subordinate Mortgagee pursuant to the
Subordinate Loan Documents or in connection with the Subordinate Indebtedness,
simultaneously with the Subordinate Mortgagee's delivery or receipt of such
notice. The Senior Mortgagee shall deliver to the Subordinate Mortgagee a copy
of each notice of a Senior Mortgage Default delivered by the Senior Mortgagee,
simultaneously with the Senior Mortgagee's delivery of such notice. Neither
giving nor failing to give a notice to the Senior Mortgagee or Subordinate
Mortgagee pursuant to this Section 4(c) shall affect the validity of any notice
given by the Senior Mortgagee or Subordinate Mortgagee to the Borrower, as
between the Borrower and such of the Senior Mortgagee or the Subordinate
Mortgagee as provided the notice to the Borrower.
(d) Without the prior written consent of the Senior Mortgagee in each instance, the
Subordinate Mortgagee will not commence, or join with any other creditor in
commencing, any Bankruptcy Proceeding. In the event of a Bankruptcy
Proceeding, the Subordinate Mortgagee shall not vote affirmatively in favor of
SUBORDINATION AGREEMENT (1/2000)
Page 6
any plan of reorganization or liquidation unless the Senior Mortgagee has also
voted affirmatively in favor of such plan. In the event of any Bankruptcy
Proceeding, the Subordinate Mortgagee shall not contest the continued accrual of
interest on the Senior Indebtedness, in accordance with and at the rates specified
in the Senior Loan Documents, both for periods before and for periods after the
commencement of such Bankruptcy Proceedings.
(e) Whenever the Subordinate Loan Documents give the Subordinate Mortgagee
approval or consent rights with respect to any matter, and a right of approval or
consent with regard to the same or substantially the same matter is also granted to
the Senior Mortgagee pursuant to the Senior Loan Documents or otherwise, the
Senior Mortgagee's approval or consent or failure to approve or consent, as the
case may be, shall be binding on the Subordinate Mortgagee. None of the other
provisions of this Section 4 are intended to be in any way in limitation of the
provisions of this Section 4(e).
(f) All requirements pertaining to insurance under the Subordinate Loan Documents
(including requirements relating to amounts and types of coverages, deductibles
and special endorsements) shall be deemed satisfied if the Borrower complies
with the insurance requirements under the Senior Loan Documents. All original
policies of insurance required pursuant to the Senior Loan Documents shall be
held by the Senior Mortgagee. Nothing in this Section 4(f) shall preclude the
Subordinate Mortgagee from requiring that it be named as a mortgagee and loss
payee, as its interest may appear, under all policies of property damage insurance
maintained by the Borrower with respect to the Mortgaged Property, provided
such action does not affect the priority of payment of Proceeds, or that the
Subordinate Mortgagee be named as an additional insured under all policies of
liability insurance maintained by the Borrower with respect to the Mortgaged
Property.
(g) In the event of a Condemnation or a Casualty, the following provisions shall
apply:
(i) the rights of the Subordinate Mortgagee (under the Subordinate Loan
Documents or otherwise) to participate in any proceeding or action
relating to a Condemnation or a Casualty, or to participate or join in any
settlement of, or to adjust, any claims resulting from a Condemnation or a
Casualty, shall be and remain subordinate in all respects to the Senior
Mortgagee's rights under the Senior Loan Documents with respect thereto,
and the Subordinate Mortgagee shall be bound by any settlement or
adjustment of a claim resulting from a Condemnation or a Casualty made
by the Senior Mortgagee;
(ii) all Loss Proceeds shall be applied either to payment of the costs and
expenses of Restoration or to payment on account of the Senior
SUBORDINATION AGREEMENT (1/2000) Page 7
Indebtedness, as and in the manner determined by the Senior Mortgagee in
its sole discretion;
(iii) in the event the Senior Mortgagee applies or releases Loss Proceeds for
the purposes of Restoration of the Mortgaged Property, the Subordinate
Mortgagee shall release for such purpose all of its right, title and interest,
if any, in and to such Loss Proceeds. If the Senior Mortgagee holds Loss
Proceeds, or monitors the disbursement thereof, the Subordinate
Mortgagee shall not do so. Nothing contained in this Agreement shall be
deemed to require the Senior Mortgagee to act for or on behalf of the
Subordinate Mortgagee in connection with any Restoration or to hold or
monitor any Loss Proceeds in trust for or otherwise on behalf of the
Subordinate Mortgagee, and all or any Loss Proceeds may be commingled
with any finds of the Senior Mortgagee; and
(iv) if the Senior Mortgagee elects to apply Loss Proceeds to payment on
account of the Senior Indebtedness, and if the application of such Loss
Proceeds results in the payment in full of the entire Senior Indebtedness,
any remaining Loss Proceeds held by the Senior Mortgagee shall be paid
to the Subordinate Mortgagee unless another parry has asserted a claim to
the remaining Loss Proceeds.
(h) The Subordinate Mortgagee shall enter into recognition and non-disturbance
agreements with any tenants under commercial or retail Leases to whom the
Senior Mortgagee has granted recognition and non-disturbance, on the same terms
and conditions given by the Senior Mortgagee.
(i) Except as provided in this Section 4(i), and regardless of any contrary provision in
the Subordinate Loan Documents, the Subordinate Mortgagee shall not collect
payments for the purpose of escrowing for any cost or expense related to the
Mortgaged Property or for any portion of the Subordinate Indebtedness. However,
if the Senior Mortgagee is not collecting escrow payments for one or more
Impositions, the Subordinate Mortgagee may collect escrow payments for such
Impositions; provided that all payments so collected by the Subordinate
Mortgagee shall be held in trust by the Subordinate Mortgagee to be applied only
to the payment of such Impositions.
(j) Within ten (10) days after request by the Senior Mortgagee, the Subordinate
Mortgagee shall furnish the Senior Mortgagee with a statement, duly
acknowledged and certified setting forth the then-current amount and terms of the
Subordinate Indebtedness, that there exists no default under the Subordinate Loan
Documents (or describing any default that does exist), and such other information
with respect to the Subordinate Indebtedness as the Senior Mortgagee may
request.
SUBORDINATION AGREEMENT (1/2000) Page 8
(k) The Senior Mortgagee may waive, postpone, extend, reduce or otherwise modify
any provisions of the Senior Loan Documents without the necessity of obtaining
the consent of or providing notice to the Subordinate Mortgagee, and without
affecting any of the provisions of this Agreement. Notwithstanding the foregoing,
Senior Mortgagee may not modify any provisions of the Senior Loan Documents
that increases the Senior Indebtedness, except for increases in the Senior
Indebtedness that results from advances made by Senior Mortgagee to protect the
security or lien priority of Senior Mortgagee under the Senior Loan Documents or
to cure defaults under the Subordinate Loan Documents.
5. DEFAULT UNDER LOAN DOCUMENTS.
(a) The Senior Mortgagee shall have the right to cure any Subordinate Mortgage
Default until ninety (90) days following the Senior Mortgagee's receipt of an
Enforcement Action Notice given by the Subordinate Mortgagee as a
consequence of the Subordinate Mortgage Default. The Senior Mortgagee shall
not have any obligation whatsoever to cure any Subordinate Mortgage Default.
The Senior Mortgagee shall not be subrogated to the rights of the Subordinate
Mortgagee under the Subordinate Loan Documents by reason of the Senior
Mortgagee having cured any Subordinate Mortgage Default. However, the
Subordinate Mortgagee acknowledges that all amounts advanced or expended by
the Senior Mortgagee to cure a Subordinate Mortgage Default shall be added to
and become a part of the Senior Indebtedness under Section 12 of the Senior
Mortgage.
(b) The Subordinate Mortgagee shall have the right, but shall not have any obligation,
to cure any Senior Mortgage Default during such period of time, if any, as the
Borrower is permitted by the terms of the Senior Loan Documents to cure such
Senior Mortgage Default. The Subordinate Mortgagee shall not be subrogated to
the rights of the Senior Mortgagee under the Senior Loan Documents by reason of
the Subordinate Mortgagee having cured any Senior Mortgage Default. However,
the Senior Mortgagee acknowledges that, to the extent so provided in the
Subordinate Loan Documents, amounts advanced or expended by the Subordinate
Mortgagee to cure a Senior Mortgage Default may be added to and become a part
of the Subordinate Indebtedness.
(c) The Subordinate Mortgagee will not commence any Enforcement Action until
after the expiration of a period of ninety (90) days after the Subordinate
Mortgagee has given the Senior Mortgagee an Enforcement Action Notice with
respect to such Enforcement Action. Any Enforcement Action shall be subject to
the provisions of this Agreement.
(d) The Senior Mortgagee may pursue all rights and remedies available to it under the
Senior Loan Documents, at law, or in equity, regardless of any Enforcement
Action Notice or Enforcement Action by the Subordinate Mortgagee. No action or
SUBORDINATION AGREEMENT (1/2000) Page 9
failure to act on the part of the Senior Mortgagee in the event of a Subordinate
Mortgage Default or commencement of an Enforcement Action shall constitute a
waiver on the part of the Senior Mortgagee of any provision of the Senior Loan
Documents or this Agreement.
(e) In the event that the Enforcement Action taken by the Subordinate Mortgagee is
the appointment of a receiver for any of the Mortgaged Property, all of the rents,
issues, profits and proceeds collected by the receiver shall be paid and applied by
the receiver solely to and for the benefit of the Senior Mortgagee until the Senior
Indebtedness shall have been paid in full.
(f) The Subordinate Mortgagee hereby expressly consents to and authorizes the
release by the Senior Mortgagee of all or any portion of the Mortgaged Property
from the lien, operation, and effect of the Senior Loan Documents. The
Subordinate Mortgagee hereby waives to the fullest extent permitted by law, all
equitable or other rights it may have (i) in connection with any release of any
portion of the Mortgaged Property, (ii) to require the separate sales of any portion
of the Mortgaged Property or to require the Senior Mortgagee to exhaust its
remedies against any portion of the Mortgaged Property or any combination of
portions of the Mortgaged Property or any other collateral for the Senior
Indebtedness, or (iii) to require the Senior Mortgagee to proceed against the
Borrower, any other party that may be liable for any of the Senior Indebtedness
(including any general partner of the Borrower if the Borrower is a partnership),
any portion of the Mortgaged Property or combination of portions of the
Mortgaged Property or any other collateral, before proceeding against all or such
portions or combination of portions of the Mortgaged Property as the Senior
Mortgagee determines. The Subordinate Mortgagee hereby expressly consents to
and authorizes, at the option of the Senior Mortgagee, the sale, either separately or
together, of all or any portion of the Mortgaged Property. The Subordinate
Mortgagee acknowledges that without notice to the Subordinate Mortgagee and
without affecting any of the provisions of this Agreement, the Senior Mortgagee
may (i) extend the time for or waive any payment or performance under the
Senior Loan Documents, (ii) modify or amend in any respect any provision of the
Senior Loan Documents, and (iii) modify, exchange, surrender, release and
otherwise deal with any additional collateral for the Senior Indebtedness.
(g) If any party other than the Borrower (including the Senior Mortgagee) acquires
title to any of the Mortgaged Property pursuant to a foreclosure of, or trustee's
sale or other exercise of any power of sale under, the Senior Mortgage conducted
in accordance with applicable law, the lien, operation, and effect of the
Subordinate Mortgage and other Subordinate Loan Documents automatically shall
terminate with respect to such Mortgaged Property, except as prohibited by
applicable law.
SUBORDINATION AGREEMENT (1/2000) Page 10
6. MISCELLANEOUS PROVISIONS
(a) In the event of any conflict or inconsistency between the terms of the Subordinate
Loan Documents and the terms of this Agreement, the terms of this Agreement
shall control.
(b) This Agreement shall be binding upon and shall inure to the benefit of the
respective legal successors and assigns of the parties hereto.
(c) This Agreement does not constitute an approval by the Senior Mortgagee of the
terms of the Subordinate Loan Documents.
(d) Each notice, request, demand, consent, approval or other communication
(collectively, "notices", and singly, a "notice") which is required or permitted to
be given pursuant to this Agreement shall be in writing and shall be deemed to
have been duly and sufficiently given if (i) personally delivered with proof of
delivery thereof (any notice so delivered shall be deemed to have been received at
the time so delivered), or (ii) sent by a national overnight courier service (such as
FedEx) designating earliest available delivery (any notice so delivered shall be
deemed to have been received on the next business day following receipt by the
courier), or (c) sent by United States registered or certified mail, return receipt
requested, postage prepaid, at a post office regularly maintained by the United
States Postal Service (any notice so sent shall be deemed to have been received on
the date of delivery as confirmed by the return receipt), addressed to the
respective parties as follows:
(i) Notices intended for the Senior Mortgagee shall be addressed to:
JPMorgan Chase Bank, N.A.
Community Development Banking
10420 Highland Manor Drive, Bldg. 2
Tampa, Florida 33610-9128
Attention: Tammy Haylock-Moore, Vice President
With a copy to:
JPMorgan Chase Bank, N.A.
Legal Department
245 Park Avenue, NYI-Q657
New York, New York 10167
Attention: Michael R. Zients, Executive Director and
Assistant General Counsel
SUBORDINATION AGREEMENT (1/2000) Page 11
(ii) Notices intended for the Subordinate Mortgagee shall be addressed to:
If to the City:
City of Clearwater
P.O. Box 4748
Clearwater, Florida 34231
Attention: Terry Malcolm-Smith
Any party, by notice given pursuant to this Section, may change the person or
persons and/or address or addresses, or designate an additional person or persons
or an additional address or addresses, for its notices, but notice of a change of
address shall only be effective upon receipt. Neither party shall refuse or reject
delivery of any notice given in accordance with this Section.
(e) Nothing herein or in any of the Senior Loan Documents or Subordinate Loan
Documents shall be deemed to constitute the Senior Mortgagee as a joint venturer
or partner of the Subordinate Mortgagee.
(f) Upon notice from the Senior Mortgagee from time to time, the Subordinate
Mortgagee shall execute and deliver such additional Instruments and documents,
and shall take such actions, as are required by the Senior Mortgagee in order to
further evidence or effectuate the provisions and intent of this Agreement.
(g) This Agreement shall be governed by the laws of the State in which the Land is
located.
(h) If any one or more of the provisions contained in this Agreement, or any
application thereof, shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained herein,
and any other application thereof, shall not in any way be affected or impaired
thereby.
(i) The term of this Agreement shall commence on the date hereof and shall continue
until the earliest to occur of the following events: (1) the payment of all of the
Senior Indebtedness; provided that this Agreement shall be reinstated in the event
any payment on account of the Senior Indebtedness is avoided, set aside,
rescinded or repaid by the Senior Mortgagee as described in Section 2(e) hereof,
(ii) the payment of all of the Subordinate Indebtedness other than by reason of
payments which the Subordinate Mortgagee is obligated to remit to the Senior
Mortgagee pursuant to this Agreement, (iii) the acquisition by the Senior
Mortgagee or by a third party purchaser, of title to the Land and Improvements
pursuant to a foreclosure of, or trustee's sale or other exercise of a power of sale
under, the Senior Mortgage; or (iv) without limiting the provisions of Section
SUBORDINATION AGREEMENT (1/2000) Page 12
5(d), the acquisition by the Subordinate Mortgagee, with the prior written consent
of the Senior Mortgagee, of title to the Land and Improvements subject to the
Senior Mortgage pursuant to a foreclosure, or a deed in lieu of foreclosure, of (or
the exercise of a power of sale contained in) the Subordinate Mortgage.
(j) No failure or delay on the part of any party hereto in exercising any right, power
or remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy hereunder.
(k) Each party hereto acknowledges that in the event any party fails to comply with
its obligations hereunder, the other parties shall have all rights available at law
and in equity, including the right to obtain specific performance of the obligations
of such defaulting party and injunctive relief.
(1) No party other than the Senior Mortgagee and the Subordinate Mortgagee shall
have any rights under, or be deemed a beneficiary of any of the provisions of, this
Agreement.
(m) No amendment, supplement, modification, waiver or termination of this
Agreement shall be effective against any party unless such amendment,
supplement, modification, waiver or termination is contained in a writing signed
by such party.
(n) This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one and the
same instrument.
(o) [The parties hereby acknowledge and agree that the Subordinate Lender's loan
has been funded by certain federal program monies and that such are governed by
certain federal program requirements and regulations, nothing contained herein
shall be deemed to be a violation of any federal law requirements or regulations
and if there is a conflict between such requirements and regulations and this
Agreement, such requirements and regulations shall control.]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day
and year first above written.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
SUBORDINATION AGREEMENT (1/2000) Page 13
SENIOR MORTGAGEE:
JPMORGAN CHASE BANK, N.A.
By:
STATE OF )
SS:
COUNTY OF )
Tammy Haylock-Moore
Vice President
On the _ day of April in the year 2010, before me, the undersigned, personally
appeared Tammy Haylock-Moore as Vice President of JPMorgan Chase Bank, N.A., a national
banking association, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument and
acknowledged to me that she executed the same in her capacity, and that by her signature on the
instrument, the individual, or the entity upon behalf of which the individual acted, executed the
instrument.
Notary Public
SUBORDINATION AGREEMENT (1/2000)
Page 14
SUBORDINATE MORTGAGEE:
CITY OF CLEARWATER
By:
See attached (Page 15A)
Name:
Title:
STATE OF )
SS:
COUNTY OF )
On the _ day of in the year 2010, before me, the
undersigned, personally appeared , personally known to me
or proved to me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he/she executed the same in
his/her capacity, and that by his/her signature on the instrument, the individual, or the person
upon behalf of which the individual acted, executed the instrument.
Notary Public
SUBORDINATION AGREEMENT (1/2000) Page 15
Countersigned:
CITY OF CLEARWATER, FLORIDA
By:
Frank V. Hibbard William B. Horne II
Mayor City Manager
Approved as to form:
L ura Mahony
Assistant City Attorney
STATE OF FLORIDA )
COUNTY OF PINELLAS )
Attest:
The foregoing instrument was acknowledged before me this pfd day of
20?, by FRANK V. HIBBARD, Mayor of the City of Clearwater, who is
p onally known to me.
ys / DIANE E MANNI
Print/Type Name: G. ?-(??? -•: :' MY cQMMISSION # DD9520'
EXPIRES March 06, 201.6
NotaN Public
• ! (407 398 0'
153 FIa1WNolary$ervlonCOm
.
STATE OF FLORIDA )
COUNTY OF PINELLAS )
T ; foregoing instrument was acknowledged before me this 15
day of
20 10 , by WILLIAM B. HORNE II, City Manager of the City of Clearwater,
who i personally known to me.
Print/Type Name: Sa-
Notary Public
SANDRA HARitIGER
MY C0MM1SSI0N # DD 3 291
exr??s:,? 04,
F.',ta.n' pl?mum psyac. Ca.
nl yp-Nol'jzy
SUBORDINATION AGREEMENT (1/2000) Page 15A
EXHIBIT A
Legal Description
PARCEL I
A PARCEL OF LAND IN THE NORTHEAST 1/4 OF THE NORTHWEST 1/4 OF SECTION 23,
TOWNSHIP 29 SOUTH, RANGE 15 EAST, PINELLAS COUNTY, FLORIDA:
AND
A PORTION OF LOTS 4, 5, AND 6, FORREST HILL ESTATES, UNIT 5, AS RECORDED IN PLAT
BOOK 58, PAGE 34, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA.
ALL MORE PARTICULARLY DESCRIBED AS FOLLOWS:
FROM THE NORTHWEST CORNER OF SECTION 23, TOWNSHIP 29 SOUTH, RANGE 15 EAST,
PINELLAS COUNTY, FLORIDA, AS A POINT OF REFERENCE; THENCE S. 89°03'13" E., ALONG
THE NORTH LINE OF SAID SECTION 23, 1,374.07 FEET TO THE EASTERLY RIGHT OF WAY
LINE OF HIGHLAND AVENUE; THENCE ALONG SAID RIGHT OF WAY LINE S. 00°02'03" E.,
315.05 FEET TO THE NORTHWEST CORNER OF LOT 6, FORREST HILL ESTATES, UNIT 5, AS
RECORDED IN PLAT BOOK 58, PAGE 34, OF THE PUBLIC RECORDS OF PINELLAS COUNTY,
FLORIDA, SAID POINT ALSO BEING THE POINT OF BEGINNING; THENCE S. 89°03'13" E.,
ALONG THE NORTH LINE OF SAID POINT, 627.78 FEET; THENCE S. 00°10'16" E., 220.49 FEET
TO A POINT ON THE NORTH LINE OF KALMIA CONDOMINIUM NO. 5, AS RECORDED IN
O.R. BOOK 3403, PAGE 879, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA;
THENCE ALONG THE BOUNDARY OF SAID PLAT BY THE FOLLOWING THREE CALLS:
1. S. 89°49'44" W., 45.00 FEET;
2. S. 00004'33" E., 160.03 FEET;
3. S. 86°45'04" W., 101.15 FEET;
THENCE N. 10005'56" W., 183.81 FEET; THENCE N. 00°26'59" E., 50.02 FEET; THENCE
5.89055'26" W., 450.64 FEET TO A POINT ON AFOREMENTIONED EASTERLY RIGHT OF WAY
LINE OF HIGHLAND AVENUE; THENCE N. 00°02'03" W., ALONG SAID LINE, 166.47 FEET TO
THE POINT OF BEGINNING.
NOTE: SAID LANDS MAY ALSO BE DESCRIBED AS:
DESCRIPTION. (FIRST PARCEL)
A PARCEL OF LAND IN THE NORTHEAST 1/4 OF THE NORTHWEST 1/4 OF SECTION 23,
TOWNSHIP 29 SOUTH, RANGE 15 EAST, PINELLAS COUNTY, FLORIDA:
AND
A PORTION OF LOT 6, FORREST HILL ESTATES, UNIT 5, AS RECORDED IN PLAT BOOK 58,
PAGE 34, PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA.
ALL MORE PARTICULARLY DESCRIBED AS FOLLOWS:
SUBORDINATION AGREEMENT (1/2000) Page A 1
FROM THE NORTHWEST CORNER OF SECTION 23, TOWNSHIP 29 SOUTH, RANGE 15 EAST,
PINELLAS COUNTY, FLORIDA, AS A POINT OF REFERENCE; THENCE S. 89°03'13" E., ALONG
THE NORTH LINE OF SAID SECTION 23, 1374.07 FEET TO THE EASTERLY RIGHT-OF-WAY
LINE OF HIGHLAND AVENUE; THENCE ALONG SAID RIGHT-OF-WAY LINE, S. 00°02'03" E.,
315.05 FEET TO THE NORTHWEST CORNER OF LOT 6, FORREST HILL ESTATES, UNIT 5, AS
RECORDED IN PLAT BOOK 58, PAGE 34, OF THE PUBLIC RECORDS OF PINELLAS COUNTY,
FLORIDA, SAID POINT ALSO BEING THE POINT OF BEGINNING; THENCE S. 89°03'13" E.,
ALONG THE NORTH LINE OF SAID LOT 6,452.27 FEET;
THENCE S. 00°26'59" W., 158.58 FEET; THENCE S. 89°55'26" W., 450.64 FEET TO A POINT ON
AFOREMENTIONED EASTERLY RIGHT-OF-WAY LINE OF HIGHLAND AVENUE; THENCE N.
00°02'03" W., ALONG SAID RIGHT-OF-WAY LINE 166.47 FEET TO THE POINT OF BEGINNING.
DESCRIPTION CONTINUED: (SECOND PARCEL)
A PARCEL OF LAND IN THE NORTHEAST 1/4 OF THE NORTHWEST 1/4 OF SECTION 23,
TOWNSHIP 29 SOUTH, RANGE 15 EAST, PINELLAS COUNTY, FLORIDA:
AND
A PORTION OF LOT 6, FORREST HILL ESTATES, UNIT 5, AS RECORDED IN PLAT BOOK 58,
PAGE 34, PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA.
ALL MORE PARTICULARLY DESCRIBED AS FOLLOWS:
FROM THE NORTHWEST CORNER OF SECTION 23, TOWNSHIP 29 SOUTH, RANGE 15 EAST,
PINELLAS COUNTY, FLORIDA, AS A POINT OF REFERENCE; THENCE S. 89°03'13" E., ALONG
THE NORTH LINE OF SAID SECTION 23, 1374.07 FEET TO THE EASTERLY RIGHT-OF-WAY
LINE OF HIGHLAND AVENUE; THENCE ALONG SAID RIGHT-OF-WAY LINE, S 00°02'03" E,
315.05 FEET TO THE NORTHWEST CORNER OF LOT 6, FORREST HILL ESTATES, UNIT 5, AS
RECORDED IN PLAT BOOK 58, PAGE 34, PUBLIC RECORDS OF PINELLAS COUNTY,
FLORIDA, THENCE S. 89003'13" E., ALONG THE NORTH LINE OF SAID LOT 6,452.27 FEET TO
THE POINT OF BEGINNING; FROM SAID POINT OF BEGINNING CONTINUE S. 89°03'13" E.,
175.51 FEET; THENCE S. 00°10'16" E., 220.49 FEET TO A POINT ON THE NORTH LINE OF
KALMIA CONDOMINIUM NO. 5, AS RECORDED IN O.R. BOOK 3403, PAGE 879, OF THE
PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA; THENCE ALONG THE BOUNDARY OF
SAID PLAT THE FOLLOWING THREE CALLS;
1. S. 89049'44" W., 45.00 FEET;
2. S. 00004'33" E., 160.03 FEET;
3. S. 86°45'04" W., 101.15 FEET:
THENCE N. 10005'56" W., 183.81 FEET; THENCE N. 00°26'59" E., 208.50 FEET TO THE POINT OF
BEGINNING.
PARCEL 2
THE NORTH 260 FEET OF VACATED SKYVIEW AVENUE ADJACENT TO WEST LINE OF
LOTS 54 AND 69 OF FIRST ADDITION TO GATES KNOLL SUBDIVISION AND ADJACENT TO
WEST R/W LINE OF TUSCOLA ROAD, LYING AND BEING IN PINELLAS COUNTY, FLORIDA.
SUBORDINATION AGREEMENT (1/2000) Page A - 2