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Amended and Restated Leasehold Mortgage, Security Agreement and Fixture Filing
2cZ3-3zc37 This Instrument Was Prepared By: 2 2. 3- 3Z� Record and Return to: 38 Rafael A. Paz City Attorney Office of the City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 THIS IS A BALLOON MORTGAGE WHERE THE PRINCIPAL BALANCE DUE UPON MATURITY IS $1,003,969.00 NOTWITHSTANDING ACCRUED INTEREST, ONLY IF APPLICABLE, WITH ALL ADVANCEMENTS MADE BY THE MORTGAGEE UNDER THE TERMS OF THIS MORTGAGE. AMENDED AND RESTATED LEASEHOLD MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING THIS AMENDED AND RESTATED LEASEHOLD MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING (this "Mortgage") made and executed this day of , 2023, by VISTA BREEZE, LTD., a Florida limited partnership having its principal office located at 161 NW 6th Street, Suite 1020, Miami, FL 33136 (the "Mortgagor") to the CITY OF MIAMI BEACH, FLORIDA, a Florida municipal corporation (the "Mortgagee"), whose address is 1700 Convention Center Drive, Miami Beach, Florida 33139. WITNESSETH: WHEREAS, on September 21, 2023, Mortgagor made and executed in favor of Mortgagee that certain Promissory Note dated as of September 21, 2023, in the original principal amount of Five Hundred Thousand and 00/100 Dollars ($500,000.00) (the "Original Note") which Original Note was secured by that certain Leasehold Mortgage, Security Agreement and Fixture Filing from Mortgagor to Mortgagee recorded on September 27, 2023 in Official Records Book 33902, RECORDER'S NOTE: THIS AMENDED AND RESTATED LEASEHOLD MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING IS GIVEN TO SECURE THE FINANCING OF HOUSING UNDER PART V OF CHAPTER 420, FLORIDA STATUTES AND IS EXEMPT FROM TAXATION PURSUANT TO SECTION 420.513, FLORIDA STATUTES. Page 1 of 17 Page 1175 of the Public Records of Miami-Dade County, Florida (the "Original Mortgage"), which Mortgage encumbers the real property more particularly described therein (the ''Property"); WHEREAS, pursuant to Section 111.5 of the Original Mortgage, Mortgagee has agreed to make a future advance loan to Mortgagor in the original principal amount of Five Hundred Three Thousand Nine Hundred Sixty-Nine and 00/100 Dollars ($503,969.00) (the "Future Advance"); WHEREAS, contemporaneously herewith, the Original Note is being amended, restated, renewed and consolidated pursuant to that certain Amended, Restated, Renewal and Consolidated Promissory Note dated of even date herewith (the "Consolidated Note") in the aggregate principal amount of One Million Three Thousand Nine Hundred and Sixty-Nine and 00/100 Dollars ($1,003,969.00); WHEREAS, this Mortgage secures the indebtedness evidenced by the Consolidated Note; and WHEREAS, Mortgagor and Mortgagee desire hereby to amend, restate, replace and supersede the Original Mortgage pursuant to the terms of this Mortgage. That for valuable consideration, and also in consideration of the aggregate sum of money described in the Consolidated Note, Mortgagor does grant, bargain, sell, alien, remise, release, convey, and confirm unto the Mortgagee, a lien upon and security interest in the Mortgagor's leasehold interest in that certain parcel of real property located in Miami-Dade County, Florida, which is described in Exhibit "A" attached hereto and made a part hereof. Hereinafter the Mortgagor's leasehold interest in said real estate, buildings, improvements (including improvements to be made hereafter), and fixtures attached thereto, as herein below described and located on said real estate, and all easements, rights, rents, issues, proceeds and profits accruing and to accrue from the Premises, all of which are hereby included within the foregoing description and the habendum thereof are sometimes collectively referred to as the "Premises". TO HAVE AND TO HOLD the Premises and all parts, rights, members, and appurtenances thereof, to the use, benefit, and behalf of the Mortgagee, its successors and assigns forever, and the Mortgagor covenants that the Mortgagor is lawfully seized and possessed of a leasehold interest in the Premises pursuant to the Ground Lease (as defined on Exhibit "A" attached hereto), which is in good standing and in full force and effect, and has good right to convey the same, and that the Mortgagor will warrant and defend the leasehold title thereto against the claims of all persons whomsoever, except as hereinafter expressly provided. PROVIDED ALWAYS that if the Mortgagor shall pay unto the Mortgagee all sums required under the terms of the Consolidated Note, and shall comply with and abide by each and every one of the stipulations, agreements, conditions and covenants contained herein, then in such event this Mortgage and the estate hereby created shall cease and be null and void. Page 2ol 17 The Mortgagor covenants with the Mortgagee as follows: I. 1. Payment of Indebtedness. The Mortgagor will pay the Consolidated Note according to the terms thereof and all other sums secured hereby promptly as the same shall become due. 2. Taxes, Liens, and Other Charges. a. In the event of the passage of any state, federal, municipal, or other governmental law, order, rule or regulation, subsequent to the date hereof, in any manner changing or modifying the laws now in force governing the taxation of debts secured by mortgages or the manner of collecting taxes so as to affect adversely the Mortgagee, the Mortgagor will promptly pay any such tax; if the Mortgagor fails to make such prompt payment or if any such state, federal, municipal, or other governmental law, order, rule, or regulation prohibits the Mortgagor from making such payment or would penalize the Mortgagee from making such payment or would penalize the Mortgagee if the Mortgagor makes such payment, then the entire balance of the principal sum secured by this Mortgage shall, without notice, immediately become due and payable at the option of the Mortgagee. b. The Mortgagor will pay, before the same become delinquent, all taxes, liens, assessments, and charges of every character already levied or assessed or that may hereafter be levied or assessed upon or against the Premises and all utility charges, whether public or private; and upon demand will furnish the Mortgagee receipted bills evidencing such payment. c. The Mortgagor will not suffer any mechanic's, materialmen's, laborer's, statutory, or other lien which might or could be prior to or equal to the security interest and mortgage liens of this Mortgage to be created or to remain outstanding upon any part of the Premises other than (i) the lien of this Mortgage; (ii) the lien of a senior leasehold mortgage in the amount of $32,500,000.00 in favor of the Housing Finance Authority of Miami-Dade County, Florida (the "HFA"), as assigned to The Bank of New York Mellon Trust Company, N.A., as fiscal agent (the "Fiscal Agent" and together with the HFA, "Bond Lender"); (iii) the lien of a senior leasehold mortgage in the amount of $4,300,000.00 in favor of Florida Housing Finance Corporation, a public corporation and a public body corporate and politic created and existing under the laws of the State of Florida ("Florida Housing") as the Viability lender ("Viability Lender"); (iv) the lien of a senior leasehold mortgage in the amount of$3,000,000.00 in favor of Florida Housing as the SAIL lender ("SAIL Lender"); (v)the lien of a senior leasehold mortgage in the amount of$600,000.00 in favor of Florida Housing as the ELI lender("ELI Lender"); (vi) (the lien of a senior leasehold mortgage in the amount of$1,301,500.00 in favor of Florida Housing as the NHTF lender ("NHTF Lender"), (vii) the lien of a senior leasehold mortgage in the amount of $5,950,000.00 in a favor of Miami-Dade County, Florida as the Surtax lender ("Surtax Lender" and together with Bond Lender, Viability Lender, SAIL Lender, ELI Lender and NHTF Lender, collectively, the "Senior Lender"), as and to the extent set forth in each of the Subordination Agreements entered into by Mortgagor, Mortgagee and each Senior Lender of even date herewith and recorded contemporaneously herewith in the Public Records of Miami-Dade County, Florida (collectively, the "Subordination Agreements"). Page 3 of 17 3. Intentionally Deleted. 4. Insurance. The Mortgagor will keep all buildings and improvements now or hereafter on the Premises insured against loss or damage by fire, extended coverage, and other perils, in an amount not less than the replacement value, and agrees to deliver said policy or policies to the Mortgagee when issued with the receipts for the payment of the premium therefore; and said policy or policies shall be subject to the approval of Mortgagee, shall include a standard mortgage clause, and shall name Mortgagee as an additional loss payee and/or as an additional insured; and in the event any sum of money becomes payable under such policy or policies, the Mortgagee shall permit the Mortgagor to receive and use it, or any part thereof, for repair or restoration of the Premises, subject to terms reasonably acceptable to Mortgagee, without thereby waiving or impairing any equity, lien, or right under or by virtue of this Mortgage; and the Mortgagee if it deems necessary may place and pay for such insurance, or any part thereof, without losing, waiving, or affecting Mortgagee's option to foreclose for breach of this covenant, or any part thereof, or any right or option under this Mortgage, and every such payment shall bear interest from date thereof until paid at the Default Interest Rate, and all such payments with interest as aforesaid shall be secured by the lien hereof. In the event any loss or damage is suffered, Mortgagor shall notify the insurance carrier and Mortgagee of such loss or damage within seven (7) days after the happening thereof; the failure to give such notice shall constitute a default and the Mortgagee shall have the rights herein given for all defaults, and in such case, without waiving such default rights, Mortgagee shall be authorized to notify the insurance carrier and process any related claims. 5. Care of Premises. (a) The Mortgagor will keep the improvements now or hereafter erected on the Premises in good condition and repair, will not commit or suffer any waste and will not do or suffer to be done anything which will increase the risk of fire or other hazard to the Premises or any part thereof. (b) The Mortgagor will not remove or demolish nor alter the design or structural character of any building (now or hereafter erected), fixture, or chattel which are part of the security or other part of the Premises without the prior written consent of the Mortgagee. (c) If the Premises or any part thereof is damaged by fire or any other cause, the Mortgagor will give written notice of the same to the Mortgagee. (d) The Mortgagee or its representative is hereby authorized to enter upon and inspect the Premises at any time during normal business hours. (e). The Mortgagor will promptly comply with all present and future laws, ordinances, rules, and regulations of any governmental authority affecting the Premises or any part thereof. (f) If all or any part of the Premises shall be damaged by fire or other casualty, the Mortgagor will, upon request of the Mortgagee, promptly restore the Premises to the equivalent of its condition immediately prior to such damage, and if a part of the Premises shall be damaged through Pdgc 4 of 17 condemnation, the Mortgagor will, upon request of Mortgagee, promptly restore, repair, or alter the remaining part of the Premises in a manner reasonably satisfactory to the Mortgagee. 6. Further Assurances; Modifications. At any time, and from time to time, upon the reasonable request by the Mortgagee, the Mortgagor will make, execute, and deliver or cause to be made, executed, and delivered, to the Mortgagee, any and all other further instruments, certificates, and other documents as may, in the reasonable opinion of the Mortgagee, be necessary or desirable in order to effectuate, complete, perfect or continue and preserve (i) the obligations of the Mortgagor under the Consolidated Note, (ii) the security interest of this Mortgage, and (iii)the mortgage lien hereunder, provided that such further instruments, certificates and other documents shall not expand or increase the obligations of the Mortgagor under the Loan Documents (as defined herein). 7. Expenses. The Mortgagor will pay or reimburse the Mortgagee for all reasonable attorney's fees, costs, and expenses, of any action, legal proceeding, or dispute of any kind in which the Mortgagee is victorious, affecting the indebtedness secured hereby, this Mortgage, or the interest created herein, or the Premises, including, but not limited to, the foreclosure of this Mortgage, any condemnation action involving the Premises or any action to protect the security hereof; and any such amounts paid by the Mortgagee shall be secured by this Mortgage. 8. Estoppel Affidavits. The Mortgagor, upon ten (10) days prior written notice, shall furnish the Mortgagee with a written statement, duly acknowledged, setting forth the unpaid principal of, and interest on, the indebtedness secured hereby and whether or not any off- sets or defenses exist against such principal and interest. The Mortgagee shall provide a similar estoppel affidavit to Mortgagor, upon ten (10) days prior written notice to Mortgagee. 9. Performance by Mortgagee of Defaults by Mortgagor. If the Mortgagor shall default in the payment of any tax, lien, assessment, or charge levied or assessed against the Premises; in the payment of any utility charge, whether public or private; in the payment of any insurance premium; in the procurement of insurance coverage and the delivery of the insurance policies required hereunder; in the performance of any covenant, term, or condition of any leases affecting all or any part of the Premises; or in the performance or observance of any covenant, condition, or term of this Mortgage; then the Mortgagee, at its option, may perform or observe the same, and all payments made or costs incurred by the Mortgagee in connection therewith, shall be secured hereby and shall be, without demand, immediately repaid by the Mortgagor to the Mortgagee together with interest at the Default Interest Rate accruing from the date of such payment by Mortgagee. The Mortgagee is hereby empowered to enter and to authorize others to enter upon the Premises or any part thereof for the purpose of performing or observing any such defaulted covenant, condition, or term, without thereby becoming liable to the Mortgagor or any other person in possession holding under the Mortgagor. 10. Restrictive Covenants. The Funds (as defined in the HOME Agreement, as defined herein) have been funded through HOME Investment Partnership Program ("HOME") program funds, which will be used as follows: a portion of the Funds in the amount of$500,000.00 will be used solely for hard costs of construction of a new seawall along the waterfront portions of the Premises, as the initial phase of the development of one hundred and nineteen (119) studio apartment units of elderly affordable rental housing for Extremely- Pap:5 of 17 Low, Very-Low- and Low-Income persons, to be known as Vista Breeze (the "Project"), and for no other purpose (other than ancillary uses related to affordable housing); and a portion of the Funds in the amount of $503,969.00 will be used solely for hard costs of construction of the Project in accordance with the City Manager-approved budget, and for no other purpose. In consideration for these Funds, Mortgagor has executed various loan documents including this Mortgage, the Consolidated Note, a HOME Program Development Agreement dated as of September 21, 2023, as amended and restated of even date herewith (collectively, the "HOME Agreement"), and a Declaration of Restrictive Covenants dated as of September 21, 2023, as amended and restated of even date herewith and to be recorded in the Public Records of Miami-Dade County, Florida (collectively, the "Declaration"), which, among other provisions, subjects the Premises to certain recapture provisions, covenants, and restrictions("Covenants")for a period of thirty (30) years from the Project Completion Date, as defined herein (the "Affordability Period"), all of even date, as applicable, and all of which are, collectively, referred to herein as the "Loan Documents." The Loan Documents are subject to the rights of the Senior Lenders as expressly set forth in the Subordination Agreements. The "Project Completion Date" shall mean the date of issuance by the City of Miami Beach Building Department of a Final Certificate of Occupancy for the Project. 11. Condemnation. If all or any material part of the Premises shall be damaged or taken through condemnation (which term when used in this Mortgage shall include any damage or taking by any governmental authority, and any transfer by private sale in lieu thereof), either temporarily or permanently, the entire indebtedness secured hereby shall at the option of the Mortgagee, become immediately due and payable. The Mortgagee shall be entitled to all compensation awards, and other payments or relief therefore and is hereby authorized, at its option, to commence, appear in and prosecute, in its own or the Mortgagor's name, any action, or proceeding relating to any condemnation, and to settle or compromise any claim in connection therewith. All such compensation, awards, damages, claims, rights of action and proceeds and the right thereto are hereby assigned by the Mortgagor to the Mortgagee, who, after deducting there from all its expenses, including attorneys fees, may release any moneys so received by it to Mortgagor without affecting the lien of this Mortgage or may apply the same to the reduction of the sums secured hereby, and to any prepayment charge herein provided, and any balance of such moneys then remaining shall be paid to the Mortgagor. The Mortgagor agrees to execute such further assignments of any compensation, awards, damages, claims, rights of action, and proceeds as the Mortgagee may reasonably require. Notwithstanding the foregoing, Mortgagee shall allow any proceeds or other sums payable from a condemnation proceeding to be applied for restoration of the Premises, subject to such terms and conditions as are reasonably satisfactory to Mortgagee. 12. Hazardous Substances. As used in this Section: (a) "Hazardous Substances" are those substances defined as toxic or hazardous substances, pollutants, or wastes by Environmental Law and the following substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides or herbicides, volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials: (b) "Environmental Law" means federal laws and laws of the jurisdiction where the Premises is located that relate to health, safety or environmental protection; (c) "Environmental Cleanup" includes any response action, remedial action, or removal action, as defined in or contemplated by any Environmental Law, and (d) an "Environmental Condition" means a condition that can cause, contribute to, or otherwise trigger an Environmental Cleanup. Page 6 of 17 Mortgagor shall not cause or permit the presence, use, disposal, storage, or release of any Hazardous Substances, or threaten to release any Hazardous Substances, on or in the Premises. Mortgagor shall not do, nor allow anyone else to do, anything affecting the Premises (a) that is in violation of any Environmental Law, (b) which creates an Environmental Condition, or(c)which due to the presence, use or release of a Hazardous Substance, creates a condition that adversely affects the value of the Premises. The preceding two (2) sentences shall not apply to the presence, use or storage on the Premises of small quantities of Hazardous Substances that are generally recognized to be appropriate to normal residential uses and to maintenance of the Premises (including, but not limited to, hazardous substances in consumer products), which presence, use and storage complies with all applicable Environmental Laws. Mortgagor shall promptly give Mortgagee written notice of (a) any investigation, claim, demand, lawsuit or other action by any governmental or regulatory agency or private party involving the Premises and the Hazardous Substance or Environmental Law of which Mortgagor has actual knowledge, (b) any Environmental Condition, including but not limited to, any spilling, leaking, discharge, release or threat of release of any Hazardous Substance, and (c) any condition caused by the presence, use or release of a Hazardous Substance which adversely affects the value of the Premises. If Mortgagor learns, or is notified by any governmental or regulatory authority, or any private party, that any removal or other remediation of any Hazardous Substance affecting the Premises is necessary, Mortgagor shall promptly take all necessary remedial actions in accordance with Environmental Law. Nothing in this Mortgage shall create any obligation on Mortgagee for an Environmental Cleanup. II. 1. Default. A default shall have occurred hereunder if: (a) The Mortgagor shall fail to pay in full within fifteen (15) days from the date when due any installment of principal, interest, late charges, or any other payment required by the Consolidated Note, this Mortgage, or any other Loan Document; or (b) The Mortgagor shall fail to duly observe on time any covenant, condition or agreement of this Mortgage or of any other Loan Document or other instrument evidencing, securing, or executed in connection with the indebtedness secured hereby, and such failure remains uncured for a period of thirty(30)days after notice thereof shall have been given by the Mortgagee to the Mortgagor (or for an extended period not to exceed one hundred (120) days as may be approved in writing by Mortgagee, through the City Manager, in the City Manager's sole discretion, if the City Manager determines that such default stated in such notice can be corrected by Mortgagor, but not within such thirty (30) day period, and further provided that Mortgagor commences such correction within such initial thirty (30) day period and thereafter diligently pursues the same to completion within such approved extended period not to exceed one hundred twenty (120) days); or (c) Any warranties or representations made or agreed to be made in any of the Loan Documents shall be breached by the Mortgagor or information provided in connection with the application for the loan of the Funds shall prove to be false or Pup:7ol17 misleading in any material respect, or Mortgagor fails to provide material information. Material representations include, without limitation, representations concerning occupancy of the Premises by income eligible households as set forth and agreed to in the HOME Agreement; or (d) Any lien for labor or material or otherwise shall be filed against the Premises, and such lien is not canceled, removed, transferred, or bonded off within thirty (30) days; or (e) A levy shall be made under any process on, or a receiver be appointed for, the Premises or any other property of the Mortgagor; or {f) The Mortgagor shall file a voluntary petition in bankruptcy, or any other petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, or similar relief for the Mortgagor under any present or future federal, state, or other statute, law, or regulation relating to bankruptcy, insolvency, or other relief for debtor; or (g) The Mortgagor shall seek or consent to or acquiesce in the appointment of any trustee, receiver, or liquidator of the Mortgagor or of all or any part of the Premises or of any or all of the rents, revenues, issues, earnings, profits, or income thereof; or (h) The Mortgagor shall make any general assignment for the benefit of creditors; or (i) In any legal proceeding, the Mortgagor shall be adjudged to be insolvent or unable to pay the Mortgagor's debts as they become due; or (j) Any default under any indebtedness secured by any Permitted Senior Mortgage (as defined in the Declaration) or any other promissory note, mortgage, security agreement or restrictive covenant encumbering the Premises that occurs and continues beyond any applicable cure period, shall constitute a default under this Mortgage, which default under this Mortgage automatically will be deemed to have continued beyond any applicable cure period; or (k) An Event of Default occurs under the terms of the Loan Documents beyond any applicable notice and cure period; or (I) Any encumbrance, refinance, sale, lease (other than by residential leases in the ordinary course of business), transfer or otherwise disposing of any portion of the Premises without the prior written consent of the City Manager. Notwithstanding the foregoing, (i) Mortgagor may encumber the Premises pursuant to the Permitted Senior Mortgages to which this Mortgage is subordinate, and the Senior Lenders may exercise their rights under their respective Permitted Senior Mortgages, in each case, as and to the extent set forth in each of the Subordination Agreements and (ii) the Premises may be transferred to the Housing Authority of the City of Miami Beach ("HACMB") or any of the following entities (and no others) provided that such entities are at all times 100% wholly-owned by HACMB (or, in the case of HACMB — VB (as defined herein), wholly-owned by an entity that is wholly- owned by HACMB): Vista Breeze HACMB, Inc., a Florida nonprofit corporation ("VBHI"); Miami Beach Housing Initiatives, Inc., a Florida nonprofit corporation Page 8 of 17 ("MBHI"); or HACMB — Vista Breeze, LLC, a Florida limited liability company ("HACMB—VB") (each such entity 100% wholly-owned by HACMB (or, in the case of HACMB —VB, wholly-owned by MBHI), an "HACMB Affiliate" and, together, the "HACMB Affiliates"), in each case, without the written consent of the City Manager (each a "Permitted Transfer"); provided that as a condition to such transfer, Mortgagor shall assign to HACMB or the applicable HACMB Affiliate, and HACMB or the applicable HACMB Affiliate shall assume, all obligations of Mortgagor hereunder and HACMB or the applicable HACMB Affiliate shall become the Mortgagor hereunder as fully and completely as if HACMB or the applicable HACMB Affiliate had been the original Mortgagor hereunder, which assignment and assumption shall be made pursuant to a written agreement in form and substance reasonably acceptable to Mortgagee, which agreement shall be duly executed by Mortgagor and HACMB or the applicable HACMB Affiliate and recorded by Mortgagor, at Mortgagor's sole cost and expense (including without limitation any applicable documentary stamp and/or intangible taxes due in connection therewith), in the Public Records of Miami-Dade County contemporaneously with such transfer and a copy of such recorded agreement shall be promptly delivered by Mortgagor to Mortgagee. For the avoidance of doubt, notwithstanding anything to the contrary set forth in this Mortgage or any of the other Loan Documents, if at any time any of VBHI, MBHI and/or HACMB - VB ceases to be 100% wholly-owned by HACMB (or, in the case of HACMB — VB, wholly-owned by MBHI), then all such entities shall cease to be "HACMB Affiliates" for all purposes of this Mortgage and the other Loan Documents; or (m) Any change in the Controlling Interest in Mortgagor or its general partner without the prior written consent of the City Manager. A "Controlling Interest" shall mean any direct or indirect transfers or sales, that, when added to any prior changes in the ownership interests in such entity, exceed fifty-one percent (51%) of the total aggregate ownership interests in Mortgagor or its general partner, as applicable. Changes to limited partnership interests or non-managing limited liability company interests, as applicable, shall not require prior approval, and as such, shall also be considered a Permitted Transfer; however, Mortgagor shall provide the City with prior written notice of any such change in a majority of the limited partnership interests or non-managing limited liability company interests, as applicable, and any other Permitted Transfer hereunder. Notwithstanding the foregoing, a Controlling Interest may be transferred to HACMB or an HACMB Affiliate and shall be deemed a Permitted Transfer. Notwithstanding anything to the contrary contained herein or in the other Loan Documents, Mortgagee shall receive its Profit Recapture (as defined and described in the HOME Agreement and Declaration) contemporaneously with any sale or transfer of the Property or any direct or indirect ownership interests in the Mortgagor to any person or entity, but Mortgagee shall not receive or be entitled to receive any Profit Recapture in connection with any sale or transfer of the Property or any ownership interests in Mortgagor (i) to HACMB or an HACMB Affiliate or (ii) in connection with any foreclosure or deed in lieu of foreclosure by a Senior Lender under a Permitted Senior Mortgage or the exercise by a Senior Lender of any pledge or collateral assignment to such Senior Lender of partnership interests or other collateral. 2. Acceleration of Maturity. If a default shall have occurred hereunder beyond any applicable notice and cure period, then the whole unpaid principal sum of the Funds secured hereby, with interest accrued thereon, shall, at the option of the Mortgagee, become due and Pagc9ur17 payable without notice or demand, time being of the essence of this Mortgage and of the Consolidated Note secured hereby; and no omission on the part of the Mortgagee to exercise such option when entitled so to do shall be considered as a waiver of such right. 3. Right of Mortgagee to Enter and Take Possession. (a) If any default shall have occurred and be continuing beyond any applicable grace period, the Mortgagor, upon demand of the Mortgagee, shall forthwith surrender to the Mortgagee the actual possession of the Premises and if, and to the extent permitted by law, the Mortgagee may enter and take possession of the Premises and may exclude the Mortgagor and the Mortgagor's agents and employees wholly therefrom. (b) For the purpose of carrying out the provisions of this paragraph, the Mortgagor hereby constitutes and appoints the Mortgagee the true and lawful attorney in fact of the Mortgagor to do and perform, from time to time, any and all actions necessary and incidental to such purpose and does, by these presents, ratify and confirm any and all actions of said attorney in fact in the Premises. (c) Whenever all such defaults have been cured and satisfied, the Mortgagee shall surrender possession of the Premises to the Mortgagor, provided that the right of the Mortgagee to take possession, from time to time, pursuant to this subparagraph shall exist if any subsequent default shall occur and be continuing. 4. Appointment of a Receiver and Foreclosure. (a) If a default shall have occurred hereunder, then the whole indebtedness secured by this Mortgage, with all interest thereon, and all other amounts hereby secured shall, at the option of Mortgagee, become immediately due and payable, and may forthwith or at any time thereafter be collected by suit at law, foreclosure, or other proceeding upon this Mortgage or by any other proper, legal, or equitable procedure without declaration of such option and without notice. (b) Upon, or at any time after, the filing of a complaint to foreclose this Mortgage, the court in which such complaint is filed may appoint a receiver of the Premises. Such appointment may be made either before or after sale, without notice, without regard to the solvency or insolvency of Mortgagor at the time of application for such receiver and without regard to the then value of the Premises. Such receiver shall have power to collect the rents, issues, and profits of the Premises during the pendency of such foreclosure suit, and in case of a sale and a deficiency, during the full statutory period of redemption, if any, whether there be redemption or not, as well as during any further times when Mortgagor, except for the intervention of such receiver, would be entitled to collect such rents, issues, and profits, and all other powers which may be necessary or are usual in such cases for the protection, possession, control, management, and operation of the Premises during the whole of said period. (c) Mortgagor shall deliver to Mortgagee at any time on its request, upon 48 hours prior notice, all agreements for deed, contracts, leases, abstracts, title insurance policies, muniments of title, surveys and other papers relating to the Premises, and in case of foreclosure thereof and failure to redeem, the same shall be delivered Page 10 of 17 to and become the property of the person obtaining a deed to the Premises by reason of such foreclosure. 5. Discontinuance of Proceedings and Restoration of the Parties. In case the Mortgagee shall have proceeded to enforce any right or remedy under this Mortgage by receiver, entry, or otherwise, and such proceedings shall have been discontinued or abandoned for any reason or shall have been determined adverse to the Mortgagee, then and in every such case the Mortgagor and the Mortgagee shall be restored to their former positions and rights hereunder, and all rights, powers, and remedies of the Mortgagee shall continue as if no such proceeding had been taken. 6. Remedies Cumulative. No right, power, or remedy conferred upon or reserved by the Mortgagee by this Mortgage is intended to be exclusive of any other right, power, or remedy, but each and every such right, power, and remedy shall be cumulative and concurrent and shall be in addition to any other right, power, and remedy given hereunder or now or hereafter existing at law or in equity or by statute. III. 1. Joint and Several Liability; Successors and Assigns Included in Parties. Mortgagor covenants and agrees that Mortgagor's obligations and liability shall be joint and several. Any successor in interest of Mortgagor who assumes Mortgagor's obligations under this Mortgage in writing, and as approved by Mortgagee, shall obtain all of Mortgagor's rights and benefits under this Mortgage. Mortgagor shall not be released from Mortgagor's obligations and liability under this Mortgage unless Mortgagee agrees to such release in writing. Whenever in this Mortgage one of the parties hereto is named or referred to, the heirs, legal representatives, successors, and assigns of such parties shall be included and all covenants and agreements contained in this indenture by or on behalf of the Mortgagor and by or on behalf of the Mortgagee shall bind and inure to the benefit of their respective heirs, legal representatives, successors and assigns, whether so expressed or not. Provided, however, that the Mortgagor shall have no right to assign its obligations hereunder without the prior written consent of the Mortgagee. 2. Headings. The headings of the sections, paragraphs and subdivisions of this Mortgage are for the convenience of reference only, are not to be considered a part hereof and shall not limit or otherwise affect any of the terms hereof. 3. Invalid Provisions to Affect No Others. If fulfillment of any provision hereof or any transaction related hereto or to the Consolidated Note, at the time performance of such provisions shall be due, shall involve transcending the limit of validity prescribed by law, then ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity; and if any clause or provision herein contained operates or would prospectively operate to invalidate this Mortgage in whole or in part, then such clause or provision only shall be held for naught, as though not herein contained, and the remainder of this Mortgage shall remain operative and in full force and effect. Notwithstanding any provision contained herein, the total liability of Mortgagor for payment of interest, including service charges, penalties, or any other fees pursuant to this Agreement, shall not exceed the maximum amount of such interest permitted by applicable law to be charged, and if any payments by Mortgagor include interest in excess of the maximum allowable amount, then said excess shall be applied to the reduction of the unpaid Funds due pursuant hereto. PaicIIof17 4. Number and Gender. Whenever the singular or plural number, masculine or feminine or neuter gender is used herein, it shall equally include the other. 5. Future Advances. This Mortgage shall secure the existing indebtedness described herein and such future advances that may be made by Mortgagee, at its option, from time to time within twenty (20) years from the date of execution of this Mortgage, to the same extent as if such future advances were made on the date of execution of this Mortgage. The total amount of such secured indebtedness from Mortgagee to Mortgagor may decrease or increase from time to time, but the total unpaid aggregate balance secured by this Mortgage at any one time shall not exceed $1,500,000 in principal amount, plus interest thereon, and any disbursements made for the payment of taxes, levies, insurance, or other liens on the Premises, with interest on such disbursements. 6. No Merger of Fee and Leasehold Estates. So long as any portion of the Funds or other amounts secured by this Mortgage (including without limitation any future advances made hereunder) shall remain unpaid, the fee title to the Premises and the leasehold estate created therein pursuant to the Ground Lease shall not merge and shall always be kept separate and distinct, notwithstanding the union of such estates in Mortgagor, Mortgagee, the Housing Authority of the City of Miami Beach, or in any other person by purchase, operation of law or otherwise. 7. Delegated Authority. Notwithstanding any provision to the contrary in this Mortgage or in the other Loan Documents, nothing herein or in the other Loan Documents shall preclude the City Manager, in his or her reasonable discretion, from seeking direction from or electing to have the City Commission determine any matter arising out of or related to this Mortgage or the other Loan Documents, including, without limitation, any approval contemplated under this Mortgage or the other Loan Documents and/or any approval of any proposed amendment or modification to this Mortgage or any separate agreement relating to the Premises or otherwise referenced in this Mortgage or any other Loan Document. 8. No Novation. Neither the Consolidated Note nor this Mortgage is intended to, and neither shall be interpreted to, result in a novation or a loss of the existing lien priority of the Original Mortgage except as expressly set forth in the Subordination Agreements. Except as expressly set forth in the Subordination Agreements, it is the intent of the parties that there be no change in priority of the mortgage lien held by Mortgagee as a result of the execution of this Mortgage or the Consolidated Note. IV. 1 . Notice. Any notice or other communication required or permitted to be given hereunder shall be sufficient if in writing and delivered in person, transmitted by electronic means (excluding default notices), or sent by United States Certified Mail or reputable overnight courier(such as Federal Express), postage prepaid, to the parties being given such notice at the following addresses: Page 12 of 17 MORTGAGOR: VISTA BREEZE, LTD 161 NW 6th Street, Suite 1020 Miami, FL 33136 Attention: Ken Naylor Telephone: (305) 357-4700 Email: knaylorapcommunities.com With copies to: HOUSING AUTHORITY OF THE CITY OF MIAMI BEACH 200 Alton Road Miami Beach, FL 33139 Attention: Miguell Del Campillo, Executive Director and Fox Rothschild LLP BNY Mellon Center 500 Grant Street, Suite 2500 Pittsburgh, PA 15219 Attention: Michael H. Syme MORTGAGEE: CITY OF MIAMI BEACH 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: City Manager Telephone: 305-673-7000 Ext. 26486 Email: AlinaHudakmiamibeachfl.gov With a copy to: CITY OF MIAMI BEACH Office of Housing & Community Services 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: Director Telephone: 305-673-7491 Email: AlbaTarre(a�miamibeachfl.gov and Rafael A. Paz, City Attorney CITY OF MIAMI BEACH 1700 Convention Center Drive Miami Beach, Florida 33139 Default notices to a party must be provided by United States Certified Mail or reputable overnight courier (such as Federal Express), postage prepaid or by courier. Any party may change said address by giving the other parties hereto notice of such change of address. Notice given as hereinabove provided shall be deemed given on the date of its deposit in the United States Mail and, unless sooner received, shall be deemed received by the party to whom it is addressed on the third calendar day following the date on which said notice is deposited in the mail, or if courier system is used, on the date of delivery of the notice. Page 13 of 1? V. 1. Assignment of Rents and Leases. Mortgagor hereby transfers, assigns, and sets over unto Mortgagee all leases, if any, entered into by Mortgagor with respect to all or any part of the Premises, and all renewals, extensions, subleases, or assignments thereof, and all other written or oral occupancy agreements, by concession, license, or otherwise, together with all of the rents, income, receipts, revenues, issues, and profits arising therefrom. Except while an Event of Default exists, Mortgagor shall be entitled to all rents, income, receipts, revenues, issues and profits arising from the Premises as and when they become due and payable. Neither this assignment not Mortgagee's enforcement of the provisions of these assignments (including receipt of rents)will operate to subordinate the lien of this Mortgage to any of the rights of any tenant of all or any part of the Premises or subject Mortgagee to any liability to any such tenant for the performance of any obligations of Mortgagor under any such lease. Mortgagee shall have, in addition to all other rights and remedies hereunder, those rights of a mortgagee under Florida Statutes Section 697.07, as now or hereafter in effect. 2. Security Agreement. This instrument also creates a security interest in any and all equipment and furnishings as are considered or determined to be personal property or fixtures, together with all replacements, substitutions, additions, products, and proceeds thereof, in favor of the Mortgagee under the Florida Uniform Commercial Code to secure payment of principal, interest, and other amounts due Mortgagee now or hereafter secured hereby, and Mortgagee shall also have all the rights and remedies of a secured party under the Florida Uniform Commercial Code, and without limitation upon or in derogation of the rights and remedies created and accorded to the Mortgagee by this Mortgage pursuant to the common law or any other laws of the State of Florida or any other jurisdiction, it being understood that the rights and remedies of Mortgagee under the Florida Uniform Commercial Code shall be cumulative and in addition to all other rights and remedies of Mortgagee arising under the common law or any other laws of the State of Florida or any other jurisdiction. 3. Fixture Filing. This Mortgage shall be effective as a financing statement filed as a fixture filing with respect to all fixtures included within the Premises, which financing statement is made by Mortgagor, as debtor, in favor of Mortgagee, as secured party, and is to be filed for record in the Public Records of Miami-Dade County, Florida. This Mortgage shall also be effective as a financing statement with respect to any other portion of the Premises as to which a security interest may be perfected by the filing of a financing statement and may be filed as such in any appropriate filing or recording office. The respective mailing addresses of Mortgagor and Mortgagee are set forth in the preamble of this Mortgage. A carbon, photographic or other reproduction of this Mortgage or any other financing statement relating to this Mortgage shall be sufficient as a financing statement for any purposes referred to in this Section. 4. Choice of Law. This Mortgage is to be construed in all respects and enforced according to the laws of the State of Florida without regard to principles of conflicts of law. 5. Binding Effect. This Mortgage shall be binding upon and inure to the benefit of the Mortgagor and Mortgagee hereto, and their respective heirs, successors and assigns. Page 14 of 17 THIS IS A BALLOON MORTGAGE WHERE THE PRINCIPAL BALANCE DUE UPON MATURITY IS $1,003,969.00 NOTWITHSTANDING ACCRUED INTEREST, ONLY IF APPLICABLE, WITH ALL ADVANCEMENTS MADE BY THE MORTGAGEE UNDER THE TERMS OF THIS MORTGAGE. THIS MORTGAGE IS EXEMPT FROM NONRECURRING INTANGIBLE TAX PURSUANT TO SECTION 199.183, FLORIDA STATUTES. [Signatures appear on following pages] Page 15ot17 IN WITNESS WHEREOF, Mortgagor has caused this Amended and Restated Mortgage to be executed on the date first above written. WITNESSES: MORTGAGOR: VISTA BREEZE, LTD a Florida limited partnership By: APC Vista Breeze, LLC a Florida limited liability company its Managing General Partn By: K n eth Na Ior, Vi e- esident Print Na : „theca 00.rrinez- Print Name:./ea SG i STATE OF FLORIDA COUNTY OF MIAMI-DADE ) The foregoing Mortgage was acknowledged before me, by means of (y-physical presence or ( ) online notarization, this 21+41 day of )40.te_vy-lbe..r- , 2023, in the County and State aforesaid, by Kenneth Naylor, as Vice-President of APC Vista Breeze, LLC, a Florida limited liability company,the managing general partner of VISTA BREEZE, LTD., a Florida limited partnership, on behalf of said entity. He is personally known to me or has produced as identification. - Name:�ie�er a ar ,i, =Notarytate of Florida Notary Public rtinez State of Florida at Large ion1 My commission expires: `1 J,_ly� APPROVED AS TO FORM & LANGUAGE [Signature Page—City HOME Mortgage] & FOR EXECUTION Page 16 of 17 \I.-ea-go 23 Dot, EXHIBIT "A" (Legal Description) That leasehold estate created by that Second Amended and Restated Ground Lease, by and between Vista Breeze, Ltd., a Florida limited partnership, and the Housing Authority of The City of Miami Beach, a public body corporate and politic, as evidenced by that Amended and Restated Memorandum of Lease to be recorded over the following described lands: PARCEL 1: LOT 3, 4 and 5, Block 55, OF NORMANDY GOLF COURSE, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 44, AT PAGE 62, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA. PARCEL 2: LOTS 6, 7 and 8, BLOCK 56, NORMANDY GOLF COURSE SUBDIVISION, ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 44, PAGE 62, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA. 4890-6079-4248,v 14 Pagc 17 of 17 DOCUMENTARY STAMP TAXES IN THE AMOUNT OF $1,750.00 HAVE PREVIOUSLY BEEN PAID ON THAT CERTAIN LEASEHOLD MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING DATED SEPTEMBER 21, 2023, RECORDED SEPTEMBER 27, 2023, IN OFFICIAL RECORDS BOOK 33902 PAGE 1175 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA, WHICH LEASEHOLD MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING SECURED A PROMISSORY NOTE IN THE AMOUNT OF FIVE HUNDRED THOUSAND AND 00/100 DOLLARS($500,000.00) (THE "EXISTING INDEBTEDNESS"). NO ADDITIONAL TAXES ARE DUE IN CONNECTION WITH THIS AMENDED, RESTATED, RENEWAL AND CONSOLIDATED PROMISSORY NOTE (THIS "NOTE") OR THE AMENDED AND RESTATED LEASEHOLD MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING (THE "MORTGAGE") SECURING THE INDEBTEDNESS EVIDENCED BY THIS NOTE BECAUSE SUCH MORTGAGE IS GIVEN TO SECURE THE FINANCING OF HOUSING UNDER PART V OF CHAPTER 420, FLORIDA STATUTES AND IS EXEMPT FROM TAXATION PURSUANT TO SECTION 420.513, FLORIDA STATUTES. AMENDED, RESTATED, RENEWAL AND CONSOLIDATED PROMISSORY NOTE $1,003,969.00 December 15, 2023 Miami Beach, Florida FOR VALUE RECEIVED the undersigned, VISTA BREEZE, LTD., a Florida limited partnership, having its principal office at 161 NW 6th Street, Suite 1020, Miami, FL 33136 (hereinafter referred to as the "Maker"), promises to pay to the order of the CITY OF MIAMI BEACH, FLORIDA, a Florida municipal corporation (hereinafter referred to as the "Holder"), at 1700 Convention Center Drive, Miami Beach, Florida 33139, Attention: City Manager, or such other place as Holder may from time to time designate in writing, the principal sum of ONE MILLION THREE THOUSAND NINE HUNDRED SIXTY-NINE AND 00/100 DOLLARS ($1,003,969.00) (together with any additional amounts that may be advanced by Holder in connection herewith, the "Funds"), to be paid in lawful money of the United States of America in accordance with the terms of this Amended, Restated, Renewal and Consolidated Promissory Note (the "Note"). 1. THIS NOTE IS SECURED BY A MORTGAGE. This Note is secured by an Amended and Restated Leasehold Mortgage, Security Agreement and Fixture Filing of even date herewith from Maker in favor of Holder (the "Mortgage) encumbering the Maker's leasehold interest in certain real property located in Miami-Dade County, Florida, at 175 South Shore Drive and 280 S. Shore Drive, Miami Beach, Miami-Dade County, Florida (the "Premises"), which Mortgage amends, restates and supersedes a Leasehold Mortgage, Security Agreement and Fixture Filing (the "Original Mortgage") dated as of September 21, 2023 and recorded September 27, 2023 in Official Records Book 33902, Page 1 175 of the Public Records of Miami-Dade County, Florida, from the Maker in favor of Holder. The Funds have been funded through HOME Investment Partnership ("HOME") Program funds. A portion of the Funds in the amount of$500,000.00 will be used solely for hard costs of construction of a new seawall at the Premises, as part of the initial phase of the development of one hundred and nineteen (119) studio apartment units of senior rental housing, for Extremely-Low, Very-Low- and Low-Income persons, to be known as Vista Breeze (the "Project"), and a portion of the Funds in the amount of $503,989.00 will be used solely for hard costs of construction of the Project in accordance with the City Manager-approved budget, and for no other purpose. The Mortgage, this Note and all other agreements, instruments, and documents delivered in connection herewith and therewith, including the HOME Program Development Agreement, dated as of September 21, 2023, as amended and restated of even date herewith, as may be further amended from time Page 1 of 7 to time (collectively, the "HOME Program Development Agreement") and that certain Declaration of Restrictive Covenants dated as of September 21, 2023 and recorded on September 27, 2023 in Official Records Book 33902, Page 1195 of the Public Records of Miami-Dade County, Florida, as amended and restated of even date herewith and to be recorded in the Public Records of Miami-Dade County, Florida contemporaneously herewith, as may be further amended from time to time (collectively, the "Declaration"), which subjects the Premises to certain recapture provisions. covenants, and restrictions ("Covenants") for a period of thirty (30) years from the Project Completion Date, as defined herein (the "Affordability Period"), all dated as of September 21, 2023 or of even date herewith, as applicable, are collectively referred to herein as the "Loan Documents." The "Project Completion Date" shall mean the date of issuance by the City of Miami Beach Building Department of a Final Certificate of Occupancy for the Project. 2. INTEREST Interest on this Note shall be zero percent (0%) per annum; except that if Maker fails to pay this Note as required (at maturity, upon acceleration or otherwise)or otherwise defaults under the terms of the Loan Documents, after the expiration of any applicable cure periods therein, the loan evidenced by this Note shall bear interest at the rate prescribed by Section 55.03, Florida Statutes, as accrues ("Default Interest Rate"), effective retroactively (a)with respect to the portion of the Funds in the amount of $500,000.00, to September, 21, 2023 until paid to Holder and (b) with respect to the portion of the Funds in the amount of$503,969.00, to the date hereof until paid to Holder. 3. PAYMENTS This loan is being provided by Holder to Maker as a deferred payment loan and shall be advanced by Holder to Maker for eligible costs in such manner as provided for in the HOME Program Development Agreement. This Note shall mature upon the expiration of the Affordability Period ("Maturity Date"). So long as Maker is not in default of any of the provisions of this Note or the other Loan Documents, no interest or principal payments shall be due prior to the Maturity Date. Upon the earlier of(i) the Maturity Date, or(ii) an Event of Default under this Note, the total amount of the Funds provided to Maker by Holder shall be due and payable to Holder under this Note, together with accrued interest, if any, at the Default Interest Rate. Notwithstanding anything contained herein to the contrary, the entire principal balance and interest, if any, may be forgiven on the Maturity Date by Holder, in the sole and absolute discretion of the City Manager. Notwithstanding anything to the contrary herein, Holder shall have the right to declare the total unpaid balance hereof to be immediately due and payable, together with interest at the Default Interest Rate, under the following circumstances (each, an "Event of Default"): 1. upon the sale or transfer of any part of, or interest in, the Premises or the refinance or encumbrance of the Premises by the Maker without the City Manager's prior written consent during the Affordability Period, except as otherwise provided in the Declaration and/or the Mortgage; 2. In the event that Maker is not a natural person, and the Controlling Interest (as defined in the Mortgage) in Maker is sold or transferred without the prior written approval of the City Manager, except as otherwise provided in the Declaration and/or the Mortgage; 3. upon the occurrence of an event of default pursuant to any one of the Loan Documents (including the Covenants incorporated in the Declaration) now or hereafter evidencing, securing or guaranteeing payment of the indebtedness evidenced by this Note, after the expiration of any applicable cure period provided in the Loan Documents; 4. Upon Maker's failure to continuously operate all of the units in the Project as affordable rental units pursuant to the stated use and purpose of the Project, after the expiration of any applicable cure period provided in the Loan Documents; 5. Upon Maker's failure to provide Page 2 of 7 the City with proof of insurance, as required by the Loan Documents, within fifteen (15) days from a written request; 6. In the event that foreclosure proceedings are instituted against the Premises; or 7. Any willful misstatement of, or failure to disclose, a material fact by Maker. Exercise of this right shall be without notice to Maker, as notice of such exercise is expressly waived. Any payments made hereunder shall be applied first to unpaid costs of collection, servicing fees, and late charges, if any, then to accrued, deferred, and unpaid interest and the balance, if any, to the principal balance. 4. CHOICE OF LAW This Note has been executed and delivered in, and is to be governed by and construed under the laws of, the State of Florida, as amended, except as modified by the laws and regulations of the United States of America, and without regard to principles of conflicts of law. 5. ENFORCEMENT Time is of the essence. In the event that this Note is collected by law or through attorneys at law, or under their advice therefrom, Maker agrees, to pay all costs of collection, including reasonable attorneys' fees, whether or not suit is brought, and whether incurred in connection with collection, trial, appeal, bankruptcy or other creditors proceedings, or otherwise. Venue in connection with any litigation arising out of this Note shall be in Miami-Dade County, Florida. 6. NO WAIVER Acceptance of partial payments or payments marked "payment in full" or "in satisfaction" or words to similar effect shall not affect the duty of Maker to pay all obligations due under this Note, and shall not affect the right of Holder to pursue all remedies available to it under the Loan Documents. The remedies of Holder shall be cumulative and concurrent, and may be pursued singularly, successively, or together, at the sole discretion of Holder, and may be exercised as often as occasion therefore shall arise. No action or omission of Holder, including specifically any failure to exercise or forbearance in the exercise of any remedy, shall be deemed to be a waiver or release of the same, such waiver or release to be effective only to the extent specifically recited in a written document executed by Holder. A waiver or release with reference to any one event shall not be construed as continuing or as constituting a cause of dealing, nor shall it be construed as a bar to, or as a waiver or release of, any subsequent remedy as to a subsequent event. 7. NOTICE Any notice to be given or to be served upon the Maker or the Holder in connection with this Note, whether required or otherwise, shall be given in writing and delivered in person or sent by United States Certified Mail or reputable overnight courier (such as Federal Express). postage prepaid, to the parties being given such notice at the following addresses: Maker: Mr. Kenneth Naylor Vista Breeze, Ltd. 161 NW 6th Street, Suite 1020 Miami, Florida 33136 Page 3 of 7 With a copy to: Mr. Miguell Del Campillo, Executive Director Housing Authority of the City of Miami Beach 200 Alton Road Miami Beach, FL 33139 and: Fox Rothschild LLP BNY Mellon Center 500 Grant Street, Suite 2500 Pittsburgh, PA 15219 Attention: Michael H. Syme Holder: Ms. Alba Tarre, Department Director Office of Housing and Community Services Director c/o Office of Housing and Community Development City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 With a copy to: Alina T. Hudak, City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 and: Rafael A. Paz, City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Any party may change said address by giving the other parties hereto notice of such change of address. Notice given as hereinabove provided shall be deemed given on the date of its deposit in the United States Mail or with such reputable overnight courier, postage prepaid, and, unless sooner received, shall be deemed received by the party to whom it is addressed on the third calendar day following the date on which said notice is deposited in the mail, or if a courier system is used, on the date of delivery of the notice. 8. NUMBER AND GENDER Whenever the context so requires, the neuter gender includes the feminine and/or masculine, as the case may be, and the singular number includes the plural, and the plural number includes the singular. 9. BORROWER WAIVERS Maker hereby(a) expressly waives any valuation and appraisal, presentment, demand for payment, notice of dishonor, protest, notice of nonpayment or protest, all other forms of notice whatsoever, and diligence in collection; and (b) consents that Holder may, from time to time and without notice to Maker or demand, (i)extend, rearrange, renew, or postpone any or all payments, (ii) release, exchange, add to, or substitute all or any part of the collateral for this Note, and/or(iii) Page 4 of 7 release Maker, without in any way modifying, altering, releasing, affecting, or limiting their respective liability or the lien of any security instrument. 10. WAIVER OF JURY TRIAL BY EXECUTING THIS NOTE, MAKER KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHTS OR THE RIGHTS OF ITS HEIRS, ASSIGNS, SUCCESSORS, OR PERSONAL REPRESENTATIVES TO A TRIAL BY JURY, IF ANY, IN ANY ACTION, PROCEEDING, OR SUIT, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, AND WHETHER ASSERTED BY WAY OF COMPLAINT, ANSWER, CROSSCLAIM, COUNTERCLAIM, AFFIRMATIVE DEFENSE, OR OTHERWISE, BASED ON, ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS NOTE, ANY LOAN DOCUMENT OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR TO BE EXECUTED IN CONNECTION HEREWITH OR THEREWITH OR WITH RESPECT TO THE INDEBTEDNESS OR THE RENEWAL, MODIFICATION, OR EXTENSION OF ANY OF THE FOREGOING OR ANY FUTURE ADVANCE THEREUNDER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR HOLDER'S EXTENDING CREDIT TO A MAKER AND NO WAIVER OR LIMITATION OF HOLDER'S RIGHTS HEREUNDER SHALL BE EFFECTIVE, UNLESS IN WRITING AND MANUALLY SIGNED ON HOLDER'S BEHALF. Maker acknowledges that the above paragraph has been expressly bargained for by Holder as part of the transaction with Maker and that, but for Maker's agreement to such paragraph, Holder would not have loaned the Funds to the Maker pursuant to the terms of this Note. 11. RECOURSE AGAINST MAKER Holder shall have full recourse against Maker through completion of the Project, as evidenced from the Project securing the Certificate of Occupancy. Following completion of the Project, this Note shall become a nonrecourse obligation of Maker and neither Maker nor any other party shall have any personal liability for repayment of the Funds, except with respect to any willful misstatement of, or failure to disclose, a material fact by Maker. Recovery against Maker for fraud or misrepresentation is not limited to the proceeds of sale of the Premises, but may include personal judgment and execution thereon to the full extent authorized by law. 12. CONSOLIDATION This Note amends, restates, renews and supersedes that certain Promissory Note dated as of September 21, 2023 in the original principal amount of Five Hundred Thousand and 00/100 Dollars made by Maker in favor of Holder(the "Original Note") by increasing the original principal amount by Five Hundred Three Thousand Nine Hundred Sixty-Nine and 00/100 Dollars ($503,969.00), constituting a future advance under the Original Mortgage, and consolidating all such indebtedness into one debt in the amount of One Million Three Thousand Nine Hundred Sixty-Nine and 00/100 Dollars ($1,003,969.00)evidenced by this Note. For the avoidance of any doubt, One Million Three Thousand Nine Hundred Sixty-Nine and 00/100 Dollars ($1,003,969.00) represents the entire amount of Funds loaned to Maker by Holder to date and there are no other Funds owed by Maker to Holder in relation to the Project. The execution of this Note is not intended to and does not constitute a novation of the Original Note and is not intended to and shall not be interpreted to result in a novation or loss of the existing lien priority of the Original Mortgage, except as expressly set forth in the Subordination Agreements (as defined in the Mortgage) entered into by Maker and Holder with each of the Senior Lenders (as defined in the Page 5 of 7 Mortgage) of even date herewith and recorded contemporaneously with the Mortgage in the Public Records of Miami-Dade County, Florida. Hereinafter, all references to the Original Note in the Loan Documents shall refer to this Note. [Signature appears on the following page] Page 6 of 7 IN WITNESS WHEREOF, Maker has executed this Note on the day and year first above written. THIS PROMISSORY NOTE IS EXEMPT FROM NONRECURRING INTANGIBLE TAX PURSUANT TO SECTION 199.183, FLORIDA STATUTES. MAKER: VISTA BREEZE, LTD. a Florida limited partnership By: APC Vista Breeze, LLC, a Florida limited liability company, its Managing General Partn r By: Kenneth Naylor, ice/President STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) The foregoing Promissory Note was acknowledged before me, by means of physical presence or_online notarization, this z"I today of ht.ern ber , 2023, by Kenneth Naylor, as Vice-President of APC Vista Breeze, LLC, a Florida limited liability company, the managing general partner of VISTA BREEZE, LTD., a Florida limited partnership on behalf of the partnership. He/she is personally known to me or has produced as identification. • NameRe _rt. El Notary Public, State of Florida at Large tary Public State of Florida My commission expires: l d t}-J ZCp ebeca Martinez My Commission HH 213601 Exp. 1/4/2026 APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION City Attorney d( r Dote [Signature Page—City HOME Promissory Note) Page 7of7 This Instrument Was Prepared By: Record and Return to: Rafael A. Paz City Attorney Office of the City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 THIS IS A BALLOON MORTGAGE WHERE THE PRINCIPAL BALANCE DUE UPON MATURITY IS $1,003,969.00 NOTWITHSTANDING ACCRUED INTEREST, ONLY IF APPLICABLE, WITH ALL ADVANCEMENTS MADE BY THE MORTGAGEE UNDER THE TERMS OF THIS MORTGAGE. AMENDED AND RESTATED LEASEHOLD MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING THIS AMENDED AND RESTATED LEASEHOLD MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING (this "Mortgage") made and executed this day of , 2023, by VISTA BREEZE, LTD., a Florida limited partnership having its principal office located at 161 NW 6th Street, Suite 1020, Miami, FL 33136 (the "Mortgagor") to the CITY OF MIAMI BEACH, FLORIDA, a Florida municipal corporation (the "Mortgagee"), whose address is 1700 Convention Center Drive, Miami Beach, Florida 33139. WITNESSETH: WHEREAS, on September 21, 2023, Mortgagor made and executed in favor of Mortgagee that certain Promissory Note dated as of September 21, 2023, in the original principal amount of Five Hundred Thousand and 00/100 Dollars ($500,000.00) (the "Original Note") which Original Note was secured by that certain Leasehold Mortgage, Security Agreement and Fixture Filing from Mortgagor to Mortgagee recorded on September 27, 2023 in Official Records Book 33902, RECORDER'S NOTE: THIS AMENDED AND RESTATED LEASEHOLD MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING IS GIVEN TO SECURE THE FINANCING OF HOUSING UNDER PART V OF CHAPTER 420, FLORIDA STATUTES AND IS EXEMPT FROM TAXATION PURSUANT TO SECTION 420.513, FLORIDA STATUTES. Page 1 of 17 Page 1175 of the Public Records of Miami-Dade County, Florida (the "Original Mortgage"), which Mortgage encumbers the real property more particularly described therein (the "Property"); WHEREAS, pursuant to Section 111.5 of the Original Mortgage, Mortgagee has agreed to make a future advance loan to Mortgagor in the original principal amount of Five Hundred Three Thousand Nine Hundred Sixty-Nine and 00/100 Dollars ($503,969.00) (the "Future Advance"); WHEREAS, contemporaneously herewith, the Original Note is being amended, restated, renewed and consolidated pursuant to that certain Amended, Restated, Renewal and Consolidated Promissory Note dated of even date herewith (the "Consolidated Note") in the aggregate principal amount of One Million Three Thousand Nine Hundred and Sixty-Nine and 00/100 Dollars ($1,003,969.00); WHEREAS, this Mortgage secures the indebtedness evidenced by the Consolidated Note; and WHEREAS, Mortgagor and Mortgagee desire hereby to amend, restate, replace and supersede the Original Mortgage pursuant to the terms of this Mortgage. That for valuable consideration, and also in consideration of the aggregate sum of money described in the Consolidated Note, Mortgagor does grant, bargain, sell, alien, remise, release, convey, and confirm unto the Mortgagee, a lien upon and security interest in the Mortgagor's leasehold interest in that certain parcel of real property located in Miami-Dade County, Florida, which is described in Exhibit "A" attached hereto and made a part hereof. Hereinafter the Mortgagor's leasehold interest in said real estate, buildings, improvements (including improvements to be made hereafter), and fixtures attached thereto, as herein below described and located on said real estate, and all easements, rights, rents, issues, proceeds and profits accruing and to accrue from the Premises, all of which are hereby included within the foregoing description and the habendum thereof are sometimes collectively referred to as the "Premises". TO HAVE AND TO HOLD the Premises and all parts, rights, members, and appurtenances thereof, to the use, benefit, and behalf of the Mortgagee, its successors and assigns forever, and the Mortgagor covenants that the Mortgagor is lawfully seized and possessed of a leasehold interest in the Premises pursuant to the Ground Lease (as defined on Exhibit "A" attached hereto), which is in good standing and in full force and effect, and has good right to convey the same, and that the Mortgagor will warrant and defend the leasehold title thereto against the claims of all persons whomsoever, except as hereinafter expressly provided. PROVIDED ALWAYS that if the Mortgagor shall pay unto the Mortgagee all sums required under the terms of the Consolidated Note, and shall comply with and abide by each and every one of the stipulations, agreements, conditions and covenants contained herein, then in such event this Mortgage and the estate hereby created shall cease and be null and void. Page 2 of 17 The Mortgagor covenants with the Mortgagee as follows: I. 1. Payment of Indebtedness. The Mortgagor will pay the Consolidated Note according to the terms thereof and all other sums secured hereby promptly as the same shall become due. 2. Taxes, Liens, and Other Charges. a. In the event of the passage of any state, federal, municipal, or other governmental law, order, rule or regulation, subsequent to the date hereof, in any manner changing or modifying the laws now in force governing the taxation of debts secured by mortgages or the manner of collecting taxes so as to affect adversely the Mortgagee, the Mortgagor will promptly pay any such tax; if the Mortgagor fails to make such prompt payment or if any such state, federal, municipal, or other governmental law, order, rule, or regulation prohibits the Mortgagor from making such payment or would penalize the Mortgagee from making such payment or would penalize the Mortgagee if the Mortgagor makes such payment, then the entire balance of the principal sum secured by this Mortgage shall, without notice, immediately become due and payable at the option of the Mortgagee. b. The Mortgagor will pay, before the same become delinquent, all taxes, liens, assessments, and charges of every character already levied or assessed or that may hereafter be levied or assessed upon or against the Premises and all utility charges, whether public or private; and upon demand will furnish the Mortgagee receipted bills evidencing such payment. c. The Mortgagor will not suffer any mechanic's, materialmen's, laborer's, statutory, or other lien which might or could be prior to or equal to the security interest and mortgage liens of this Mortgage to be created or to remain outstanding upon any part of the Premises other than (i) the lien of this Mortgage; (ii) the lien of a senior leasehold mortgage in the amount of $32,500,000.00 in favor of the Housing Finance Authority of Miami-Dade County, Florida (the "HFA"), as assigned to The Bank of New York Mellon Trust Company, N.A., as fiscal agent (the "Fiscal Agent" and together with the HFA, "Bond Lender"); (iii) the lien of a senior leasehold mortgage in the amount of $4,300,000.00 in favor of Florida Housing Finance Corporation, a public corporation and a public body corporate and politic created and existing under the laws of the State of Florida ("Florida Housing") as the Viability lender ("Viability Lender"); (iv) the lien of a senior leasehold mortgage in the amount of$3,000,000.00 in favor of Florida Housing as the SAIL lender("SAIL Lender"); (v) the lien of a senior leasehold mortgage in the amount of$600,000.00 in favor of Florida Housing as the ELI lender("ELI Lender"); (vi)(the lien of a senior leasehold mortgage in the amount of$1,301,500.00 in favor of Florida Housing as the NHTF lender ("NHTF Lender"), (vii) the lien of a senior leasehold mortgage in the amount of $5,950,000.00 in a favor of Miami-Dade County, Florida as the Surtax lender ("Surtax Lender" and together with Bond Lender, Viability Lender, SAIL Lender, ELI Lender and NHTF Lender, collectively, the "Senior Lender"), as and to the extent set forth in each of the Subordination Agreements entered into by Mortgagor, Mortgagee and each Senior Lender of even date herewith and recorded contemporaneously herewith in the Public Records of Miami-Dade County, Florida (collectively, the "Subordination Agreements"). Page 3of17 3. Intentionally Deleted. 4. Insurance. The Mortgagor will keep all buildings and improvements now or hereafter on the Premises insured against loss or damage by fire, extended coverage, and other perils, in an amount not less than the replacement value, and agrees to deliver said policy or policies to the Mortgagee when issued with the receipts for the payment of the premium therefore; and said policy or policies shall be subject to the approval of Mortgagee, shall include a standard mortgage clause, and shall name Mortgagee as an additional loss payee and/or as an additional insured; and in the event any sum of money becomes payable under such policy or policies, the Mortgagee shall permit the Mortgagor to receive and use it, or any part thereof, for repair or restoration of the Premises, subject to terms reasonably acceptable to Mortgagee, without thereby waiving or impairing any equity, lien, or right under or by virtue of this Mortgage; and the Mortgagee if it deems necessary may place and pay for such insurance, or any part thereof, without losing, waiving, or affecting Mortgagee's option to foreclose for breach of this covenant, or any part thereof, or any right or option under this Mortgage, and every such payment shall bear interest from date thereof until paid at the Default Interest Rate, and all such payments with interest as aforesaid shall be secured by the lien hereof. In the event any loss or damage is suffered, Mortgagor shall notify the insurance carrier and Mortgagee of such loss or damage within seven (7) days after the happening thereof; the failure to give such notice shall constitute a default and the Mortgagee shall have the rights herein given for all defaults, and in such case, without waiving such default rights, Mortgagee shall be authorized to notify the insurance carrier and process any related claims. 5. Care of Premises. (a) The Mortgagor will keep the improvements now or hereafter erected on the Premises in good condition and repair, will not commit or suffer any waste and will not do or suffer to be done anything which will increase the risk of fire or other hazard to the Premises or any part thereof. (b) The Mortgagor will not remove or demolish nor alter the design or structural character of any building (now or hereafter erected), fixture, or chattel which are part of the security or other part of the Premises without the prior written consent of the Mortgagee. (c) If the Premises or any part thereof is damaged by fire or any other cause, the Mortgagor will give written notice of the same to the Mortgagee. (d) The Mortgagee or its representative is hereby authorized to enter upon and inspect the Premises at any time during normal business hours. (e). The Mortgagor will promptly comply with all present and future laws, ordinances, rules, and regulations of any governmental authority affecting the Premises or any part thereof. (f) If all or any part of the Premises shall be damaged by fire or other casualty, the Mortgagor will, upon request of the Mortgagee, promptly restore the Premises to the equivalent of its condition immediately prior to such damage, and if a part of the Premises shall be damaged through Page 4 of 17 condemnation, the Mortgagor will, upon request of Mortgagee, promptly restore, repair, or alter the remaining part of the Premises in a manner reasonably satisfactory to the Mortgagee. 6. Further Assurances; Modifications. At any time, and from time to time, upon the reasonable request by the Mortgagee, the Mortgagor will make, execute, and deliver or cause to be made, executed, and delivered, to the Mortgagee, any and all other further instruments, certificates, and other documents as may, in the reasonable opinion of the Mortgagee, be necessary or desirable in order to effectuate, complete, perfect or continue and preserve (i) the obligations of the Mortgagor under the Consolidated Note, (ii) the security interest of this Mortgage, and (iii)the mortgage lien hereunder, provided that such further instruments, certificates and other documents shall not expand or increase the obligations of the Mortgagor under the Loan Documents (as defined herein). 7. Expenses. The Mortgagor will pay or reimburse the Mortgagee for all reasonable attorney's fees, costs, and expenses, of any action, legal proceeding, or dispute of any kind in which the Mortgagee is victorious, affecting the indebtedness secured hereby, this Mortgage, or the interest created herein, or the Premises, including, but not limited to, the foreclosure of this Mortgage, any condemnation action involving the Premises or any action to protect the security hereof; and any such amounts paid by the Mortgagee shall be secured by this Mortgage. 8. Estoppel Affidavits. The Mortgagor, upon ten (10) days prior written notice, shall furnish the Mortgagee with a written statement, duly acknowledged, setting forth the unpaid principal of, and interest on, the indebtedness secured hereby and whether or not any off- sets or defenses exist against such principal and interest. The Mortgagee shall provide a similar estoppel affidavit to Mortgagor, upon ten (10) days prior written notice to Mortgagee. 9. Performance by Mortgagee of Defaults by Mortgagor. If the Mortgagor shall default in the payment of any tax, lien, assessment, or charge levied or assessed against the Premises; in the payment of any utility charge, whether public or private; in the payment of any insurance premium; in the procurement of insurance coverage and the delivery of the insurance policies required hereunder; in the performance of any covenant, term, or condition of any leases affecting all or any part of the Premises; or in the performance or observance of any covenant, condition, or term of this Mortgage; then the Mortgagee. at its option, may perform or observe the same, and all payments made or costs incurred by the Mortgagee in connection therewith, shall be secured hereby and shall be, without demand, immediately repaid by the Mortgagor to the Mortgagee together with interest at the Default Interest Rate accruing from the date of such payment by Mortgagee. The Mortgagee is hereby empowered to enter and to authorize others to enter upon the Premises or any part thereof for the purpose of performing or observing any such defaulted covenant, condition, or term, without thereby becoming liable to the Mortgagor or any other person in possession holding under the Mortgagor. 10. Restrictive Covenants. The Funds (as defined in the HOME Agreement, as defined herein) have been funded through HOME Investment Partnership Program ("HOME") program funds, which will be used as follows: a portion of the Funds in the amount of$500,000.00 will be used solely for hard costs of construction of a new seawall along the waterfront portions of the Premises, as the initial phase of the development of one hundred and nineteen (119) studio apartment units of elderly affordable rental housing for Extremely- Page 5 of 17 Low, Very-Low- and Low-Income persons, to be known as Vista Breeze (the "Project"), and for no other purpose (other than ancillary uses related to affordable housing); and a portion of the Funds in the amount of $503,969.00 will be used solely for hard costs of construction of the Project in accordance with the City Manager-approved budget, and for no other purpose. In consideration for these Funds, Mortgagor has executed various loan documents including this Mortgage, the Consolidated Note, a HOME Program Development Agreement dated as of September 21, 2023, as amended and restated of even date herewith(collectively, the"HOME Agreement"), and a Declaration of Restrictive Covenants dated as of September 21, 2023, as amended and restated of even date herewith and to be recorded in the Public Records of Miami-Dade County, Florida (collectively, the "Declaration"), which, among other provisions, subjects the Premises to certain recapture provisions, covenants, and restrictions("Covenants")for a period of thirty (30)years from the Project Completion Date, as defined herein (the"Affordability Period"), all of even date, as applicable, and all of which are, collectively, referred to herein as the "Loan Documents." The Loan Documents are subject to the rights of the Senior Lenders as expressly set forth in the Subordination Agreements. The "Project Completion Date" shall mean the date of issuance by the City of Miami Beach Building Department of a Final Certificate of Occupancy for the Project. 11. Condemnation. If all or any material part of the Premises shall be damaged or taken through condemnation (which term when used in this Mortgage shall include any damage or taking by any governmental authority, and any transfer by private sale in lieu thereof), either temporarily or permanently, the entire indebtedness secured hereby shall at the option of the Mortgagee, become immediately due and payable. The Mortgagee shall be entitled to all compensation awards, and other payments or relief therefore and is hereby authorized, at its option, to commence, appear in and prosecute, in its own or the Mortgagor's name, any action, or proceeding relating to any condemnation, and to settle or compromise any claim in connection therewith. All such compensation, awards, damages, claims, rights of action and proceeds and the right thereto are hereby assigned by the Mortgagor to the Mortgagee, who, after deducting there from all its expenses, including attorney's fees, may release any moneys so received by it to Mortgagor without affecting the lien of this Mortgage or may apply the same to the reduction of the sums secured hereby, and to any prepayment charge herein provided, and any balance of such moneys then remaining shall be paid to the Mortgagor. The Mortgagor agrees to execute such further assignments of any compensation, awards, damages, claims, rights of action, and proceeds as the Mortgagee may reasonably require. Notwithstanding the foregoing, Mortgagee shall allow any proceeds or other sums payable from a condemnation proceeding to be applied for restoration of the Premises, subject to such terms and conditions as are reasonably satisfactory to Mortgagee. 12. Hazardous Substances. As used in this Section: (a) "Hazardous Substances" are those substances defined as toxic or hazardous substances, pollutants, or wastes by Environmental Law and the following substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides or herbicides, volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials: (b)"Environmental Law" means federal laws and laws of the jurisdiction where the Premises is located that relate to health, safety or environmental protection; (c) "Environmental Cleanup" includes any response action, remedial action, or removal action, as defined in or contemplated by any Environmental Law, and (d) an "Environmental Condition" means a condition that can cause, contribute to, or otherwise trigger an Environmental Cleanup. Page 6 of 17 Mortgagor shall not cause or permit the presence, use, disposal, storage, or release of any Hazardous Substances, or threaten to release any Hazardous Substances, on or in the Premises. Mortgagor shall not do, nor allow anyone else to do, anything affecting the Premises (a) that is in violation of any Environmental Law, (b) which creates an Environmental Condition, or(c)which due to the presence, use or release of a Hazardous Substance, creates a condition that adversely affects the value of the Premises. The preceding two (2) sentences shall not apply to the presence, use or storage on the Premises of small quantities of Hazardous Substances that are generally recognized to be appropriate to normal residential uses and to maintenance of the Premises (including, but not limited to, hazardous substances in consumer products), which presence, use and storage complies with all applicable Environmental Laws. Mortgagor shall promptly give Mortgagee written notice of (a) any investigation, claim, demand, lawsuit or other action by any governmental or regulatory agency or private party involving the Premises and the Hazardous Substance or Environmental Law of which Mortgagor has actual knowledge, (b) any Environmental Condition, including but not limited to, any spilling, leaking, discharge, release or threat of release of any Hazardous Substance, and (c) any condition caused by the presence, use or release of a Hazardous Substance which adversely affects the value of the Premises. If Mortgagor learns, or is notified by any governmental or regulatory authority, or any private party, that any removal or other remediation of any Hazardous Substance affecting the Premises is necessary, Mortgagor shall promptly take all necessary remedial actions in accordance with Environmental Law. Nothing in this Mortgage shall create any obligation on Mortgagee for an Environmental Cleanup. II. 1. Default. A default shall have occurred hereunder if: (a) The Mortgagor shall fail to pay in full within fifteen (15) days from the date when due any installment of principal, interest, late charges, or any other payment required by the Consolidated Note, this Mortgage, or any other Loan Document; or (b) The Mortgagor shall fail to duly observe on time any covenant, condition or agreement of this Mortgage or of any other Loan Document or other instrument evidencing, securing, or executed in connection with the indebtedness secured hereby, and such failure remains uncured for a period of thirty(30)days after notice thereof shall have been given by the Mortgagee to the Mortgagor (or for an extended period not to exceed one hundred (120) days as may be approved in writing by Mortgagee, through the City Manager, in the City Manager's sole discretion, if the City Manager determines that such default stated in such notice can be corrected by Mortgagor, but not within such thirty (30) day period, and further provided that Mortgagor commences such correction within such initial thirty (30) day period and thereafter diligently pursues the same to completion within such approved extended period not to exceed one hundred twenty (120) days); or (c) Any warranties or representations made or agreed to be made in any of the Loan Documents shall be breached by the Mortgagor or information provided in connection with the application for the loan of the Funds shall prove to be false or Page 7 of 17 misleading in any material respect, or Mortgagor fails to provide material information. Material representations include, without limitation, representations concerning occupancy of the Premises by income eligible households as set forth and agreed to in the HOME Agreement; or (d) Any lien for labor or material or otherwise shall be filed against the Premises, and such lien is not canceled, removed, transferred, or bonded off within thirty (30) days; or (e) A levy shall be made under any process on, or a receiver be appointed for, the Premises or any other property of the Mortgagor; or (f) The Mortgagor shall file a voluntary petition in bankruptcy, or any other petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, or similar relief for the Mortgagor under any present or future federal, state, or other statute, law, or regulation relating to bankruptcy, insolvency, or other relief for debtor; or (g) The Mortgagor shall seek or consent to or acquiesce in the appointment of any trustee, receiver, or liquidator of the Mortgagor or of all or any part of the Premises or of any or all of the rents, revenues, issues, earnings, profits, or income thereof; or (h) The Mortgagor shall make any general assignment for the benefit of creditors; or (I) In any legal proceeding, the Mortgagor shall be adjudged to be insolvent or unable to pay the Mortgagor's debts as they become due; or (j) Any default under any indebtedness secured by any Permitted Senior Mortgage (as defined in the Declaration) or any other promissory note, mortgage, security agreement or restrictive covenant encumbering the Premises that occurs and continues beyond any applicable cure period, shall constitute a default under this Mortgage, which default under this Mortgage automatically will be deemed to have continued beyond any applicable cure period; or (k) An Event of Default occurs under the terms of the Loan Documents beyond any applicable notice and cure period; or (I) Any encumbrance, refinance, sale, lease (other than by residential leases in the ordinary course of business), transfer or otherwise disposing of any portion of the Premises without the prior written consent of the City Manager. Notwithstanding the foregoing, (i) Mortgagor may encumber the Premises pursuant to the Permitted Senior Mortgages to which this Mortgage is subordinate, and the Senior Lenders may exercise their rights under their respective Permitted Senior Mortgages, in each case, as and to the extent set forth in each of the Subordination Agreements and (ii) the Premises may be transferred to the Housing Authority of the City of Miami Beach ("HACMB") or any of the following entities (and no others) provided that such entities are at all times 100% wholly-owned by HACMB (or, in the case of HACMB — VB (as defined herein), wholly-owned by an entity that is wholly- owned by HACMB): Vista Breeze HACMB, Inc., a Florida nonprofit corporation ("VBHI"); Miami Beach Housing Initiatives, Inc., a Florida nonprofit corporation Page 8 of 17 ("MBHI"); or HACMB — Vista Breeze, LLC, a Florida limited liability company ("HACMB—VB") (each such entity 100% wholly-owned by HACMB (or, in the case of HACMB — VB, wholly-owned by MBHI), an "HACMB Affiliate" and, together, the "HACMB Affiliates"), in each case, without the written consent of the City Manager (each a "Permitted Transfer"); provided that as a condition to such transfer, Mortgagor shall assign to HACMB or the applicable HACMB Affiliate, and HACMB or the applicable HACMB Affiliate shall assume, all obligations of Mortgagor hereunder and HACMB or the applicable HACMB Affiliate shall become the Mortgagor hereunder as fully and completely as if HACMB or the applicable HACMB Affiliate had been the original Mortgagor hereunder, which assignment and assumption shall be made pursuant to a written agreement in form and substance reasonably acceptable to Mortgagee, which agreement shall be duly executed by Mortgagor and HACMB or the applicable HACMB Affiliate and recorded by Mortgagor, at Mortgagor's sole cost and expense (including without limitation any applicable documentary stamp and/or intangible taxes due in connection therewith), in the Public Records of Miami-Dade County contemporaneously with such transfer and a copy of such recorded agreement shall be promptly delivered by Mortgagor to Mortgagee. For the avoidance of doubt, notwithstanding anything to the contrary set forth in this Mortgage or any of the other Loan Documents, if at any time any of VBHI, MBHI and/or HACMB - VB ceases to be 100% wholly-owned by HACMB (or, in the case of HACMB — VB, wholly-owned by MBHI), then all such entities shall cease to be "HACMB Affiliates" for all purposes of this Mortgage and the other Loan Documents; or (m) Any change in the Controlling Interest in Mortgagor or its general partner without the prior written consent of the City Manager. A "Controlling Interest" shall mean any direct or indirect transfers or sales, that, when added to any prior changes in the ownership interests in such entity, exceed fifty-one percent (51%) of the total aggregate ownership interests in Mortgagor or its general partner, as applicable. Changes to limited partnership interests or non-managing limited liability company interests, as applicable, shall not require prior approval, and as such, shall also be considered a Permitted Transfer; however, Mortgagor shall provide the City with prior written notice of any such change in a majority of the limited partnership interests or non-managing limited liability company interests, as applicable, and any other Permitted Transfer hereunder. Notwithstanding the foregoing, a Controlling Interest may be transferred to HACMB or an HACMB Affiliate and shall be deemed a Permitted Transfer. Notwithstanding anything to the contrary contained herein or in the other Loan Documents, Mortgagee shall receive its Profit Recapture (as defined and described in the HOME Agreement and Declaration) contemporaneously with any sale or transfer of the Property or any direct or indirect ownership interests in the Mortgagor to any person or entity, but Mortgagee shall not receive or be entitled to receive any Profit Recapture in connection with any sale or transfer of the Property or any ownership interests in Mortgagor (i) to HACMB or an HACMB Affiliate or (ii) in connection with any foreclosure or deed in lieu of foreclosure by a Senior Lender under a Permitted Senior Mortgage or the exercise by a Senior Lender of any pledge or collateral assignment to such Senior Lender of partnership interests or other collateral. 2. Acceleration of Maturity. If a default shall have occurred hereunder beyond any applicable notice and cure period, then the whole unpaid principal sum of the Funds secured hereby, with interest accrued thereon, shall, at the option of the Mortgagee, become due and Page 9or17 payable without notice or demand, time being of the essence of this Mortgage and of the Consolidated Note secured hereby; and no omission on the part of the Mortgagee to exercise such option when entitled so to do shall be considered as a waiver of such right. 3. Right of Mortgagee to Enter and Take Possession. (a) If any default shall have occurred and be continuing beyond any applicable grace period, the Mortgagor, upon demand of the Mortgagee, shall forthwith surrender to the Mortgagee the actual possession of the Premises and if, and to the extent permitted by law, the Mortgagee may enter and take possession of the Premises and may exclude the Mortgagor and the Mortgagor's agents and employees wholly therefrom. (b) For the purpose of carrying out the provisions of this paragraph, the Mortgagor hereby constitutes and appoints the Mortgagee the true and lawful attorney in fact of the Mortgagor to do and perform, from time to time, any and all actions necessary and incidental to such purpose and does, by these presents, ratify and confirm any and all actions of said attorney in fact in the Premises. (c) Whenever all such defaults have been cured and satisfied, the Mortgagee shall surrender possession of the Premises to the Mortgagor, provided that the right of the Mortgagee to take possession, from time to time, pursuant to this subparagraph shall exist if any subsequent default shall occur and be continuing. 4. Appointment of a Receiver and Foreclosure. (a) If a default shall have occurred hereunder, then the whole indebtedness secured by this Mortgage, with all interest thereon, and all other amounts hereby secured shall, at the option of Mortgagee, become immediately due and payable, and may forthwith or at any time thereafter be collected by suit at law, foreclosure, or other proceeding upon this Mortgage or by any other proper, legal, or equitable procedure without declaration of such option and without notice. (b) Upon, or at any time after, the filing of a complaint to foreclose this Mortgage, the court in which such complaint is filed may appoint a receiver of the Premises. Such appointment may be made either before or after sale, without notice, without regard to the solvency or insolvency of Mortgagor at the time of application for such receiver and without regard to the then value of the Premises. Such receiver shall have power to collect the rents, issues, and profits of the Premises during the pendency of such foreclosure suit, and in case of a sale and a deficiency, during the full statutory period of redemption, if any, whether there be redemption or not, as well as during any further times when Mortgagor, except for the intervention of such receiver, would be entitled to collect such rents, issues, and profits, and all other powers which may be necessary or are usual in such cases for the protection, possession, control, management, and operation of the Premises during the whole of said period. (c) Mortgagor shall deliver to Mortgagee at any time on its request, upon 48 hours prior notice, all agreements for deed, contracts, leases, abstracts, title insurance policies, muniments of title, surveys and other papers relating to the Premises, and in case of foreclosure thereof and failure to redeem, the same shall be delivered Page 10 of 17 to and become the property of the person obtaining a deed to the Premises by reason of such foreclosure. 5. Discontinuance of Proceedings and Restoration of the Parties. In case the Mortgagee shall have proceeded to enforce any right or remedy under this Mortgage by receiver, entry, or otherwise, and such proceedings shall have been discontinued or abandoned for any reason or shall have been determined adverse to the Mortgagee, then and in every such case the Mortgagor and the Mortgagee shall be restored to their former positions and rights hereunder, and all rights, powers, and remedies of the Mortgagee shall continue as if no such proceeding had been taken. 6. Remedies Cumulative. No right, power, or remedy conferred upon or reserved by the Mortgagee by this Mortgage is intended to be exclusive of any other right, power, or remedy, but each and every such right, power, and remedy shall be cumulative and concurrent and shall be in addition to any other right, power, and remedy given hereunder or now or hereafter existing at law or in equity or by statute. III. 1. Joint and Several Liability; Successors and Assigns Included in Parties. Mortgagor covenants and agrees that Mortgagor's obligations and liability shall be joint and several. Any successor in interest of Mortgagor who assumes Mortgagor's obligations under this Mortgage in writing, and as approved by Mortgagee, shall obtain all of Mortgagor's rights and benefits under this Mortgage. Mortgagor shall not be released from Mortgagor's obligations and liability under this Mortgage unless Mortgagee agrees to such release in writing. Whenever in this Mortgage one of the parties hereto is named or referred to, the heirs, legal representatives, successors, and assigns of such parties shall be included and all covenants and agreements contained in this indenture by or on behalf of the Mortgagor and by or on behalf of the Mortgagee shall bind and inure to the benefit of their respective heirs, legal representatives, successors and assigns, whether so expressed or not. Provided, however, that the Mortgagor shall have no right to assign its obligations hereunder without the prior written consent of the Mortgagee. 2. Headings. The headings of the sections, paragraphs and subdivisions of this Mortgage are for the convenience of reference only, are not to be considered a part hereof and shall not limit or otherwise affect any of the terms hereof. 3. Invalid Provisions to Affect No Others. If fulfillment of any provision hereof or any transaction related hereto or to the Consolidated Note, at the time performance of such provisions shall be due, shall involve transcending the limit of validity prescribed by law, then ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity; and if any clause or provision herein contained operates or would prospectively operate to invalidate this Mortgage in whole or in part, then such clause or provision only shall be held for naught, as though not herein contained, and the remainder of this Mortgage shall remain operative and in full force and effect. Notwithstanding any provision contained herein, the total liability of Mortgagor for payment of interest, including service charges, penalties, or any other fees pursuant to this Agreement, shall not exceed the maximum amount of such interest permitted by applicable law to be charged, and if any payments by Mortgagor include interest in excess of the maximum allowable amount, then said excess shall be applied to the reduction of the unpaid Funds due pursuant hereto. Pap: 11of17 4. Number and Gender. Whenever the singular or plural number, masculine or feminine or neuter gender is used herein, it shall equally include the other. 5. Future Advances. This Mortgage shall secure the existing indebtedness described herein and such future advances that may be made by Mortgagee, at its option, from time to time within twenty (20) years from the date of execution of this Mortgage, to the same extent as if such future advances were made on the date of execution of this Mortgage. The total amount of such secured indebtedness from Mortgagee to Mortgagor may decrease or increase from time to time, but the total unpaid aggregate balance secured by this Mortgage at any one time shall not exceed $1,500,000 in principal amount, plus interest thereon, and any disbursements made for the payment of taxes, levies, insurance, or other liens on the Premises, with interest on such disbursements. 6. No Merger of Fee and Leasehold Estates. So long as any portion of the Funds or other amounts secured by this Mortgage (including without limitation any future advances made hereunder) shall remain unpaid, the fee title to the Premises and the leasehold estate created therein pursuant to the Ground Lease shall not merge and shall always be kept separate and distinct, notwithstanding the union of such estates in Mortgagor, Mortgagee, the Housing Authority of the City of Miami Beach, or in any other person by purchase, operation of law or otherwise. 7. Delegated Authority. Notwithstanding any provision to the contrary in this Mortgage or in the other Loan Documents, nothing herein or in the other Loan Documents shall preclude the City Manager, in his or her reasonable discretion, from seeking direction from or electing to have the City Commission determine any matter arising out of or related to this Mortgage or the other Loan Documents, including, without limitation, any approval contemplated under this Mortgage or the other Loan Documents and/or any approval of any proposed amendment or modification to this Mortgage or any separate agreement relating to the Premises or otherwise referenced in this Mortgage or any other Loan Document. 8. No Novation. Neither the Consolidated Note nor this Mortgage is intended to, and neither shall be interpreted to, result in a novation or a loss of the existing lien priority of the Original Mortgage except as expressly set forth in the Subordination Agreements. Except as expressly set forth in the Subordination Agreements, it is the intent of the parties that there be no change in priority of the mortgage lien held by Mortgagee as a result of the execution of this Mortgage or the Consolidated Note. IV. 1. Notice. Any notice or other communication required or permitted to be given hereunder shall be sufficient if in writing and delivered in person, transmitted by electronic means (excluding default notices), or sent by United States Certified Mail or reputable overnight courier(such as Federal Express), postage prepaid, to the parties being given such notice at the following addresses: Page 12 of 17 MORTGAGOR: VISTA BREEZE, LTD 161 NW 6th Street, Suite 1020 Miami, FL 33136 Attention: Ken Naylor Telephone: (305) 357-4700 Email: knaylor©apcommunities.com With copies to: HOUSING AUTHORITY OF THE CITY OF MIAMI BEACH 200 Alton Road Miami Beach, FL 33139 Attention: Miguell Del Campillo, Executive Director and Fox Rothschild LLP BNY Mellon Center 500 Grant Street, Suite 2500 Pittsburgh, PA 15219 Attention: Michael H. Syme MORTGAGEE: CITY OF MIAMI BEACH 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: City Manager Telephone: 305-673-7000 Ext. 26486 Email: AlinaHudak(a�miamibeachfl.gov With a copy to: CITY OF MIAMI BEACH Office of Housing & Community Services 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: Director Telephone: 305-673-7491 Email: AlbaTarremiamibeachfl.qov and Rafael A. Paz, City Attorney CITY OF MIAMI BEACH 1700 Convention Center Drive Miami Beach, Florida 33139 Default notices to a party must be provided by United States Certified Mail or reputable overnight courier (such as Federal Express), postage prepaid or by courier. Any party may change said address by giving the other parties hereto notice of such change of address. Notice given as hereinabove provided shall be deemed given on the date of its deposit in the United States Mail and, unless sooner received, shall be deemed received by the party to whom it is addressed on the third calendar day following the date on which said notice is deposited in the mail, or if courier system is used, on the date of delivery of the notice. Page 13 of 17 V. 1. Assignment of Rents and Leases. Mortgagor hereby transfers, assigns, and sets over unto Mortgagee all leases, if any, entered into by Mortgagor with respect to all or any part of the Premises, and all renewals, extensions, subleases, or assignments thereof, and all other written or oral occupancy agreements, by concession, license, or otherwise, together with all of the rents, income, receipts, revenues, issues, and profits arising therefrom. Except while an Event of Default exists, Mortgagor shall be entitled to all rents, income, receipts, revenues, issues and profits arising from the Premises as and when they become due and payable. Neither this assignment not Mortgagee's enforcement of the provisions of these assignments (including receipt of rents) will operate to subordinate the lien of this Mortgage to any of the rights of any tenant of all or any part of the Premises or subject Mortgagee to any liability to any such tenant for the performance of any obligations of Mortgagor under any such lease. Mortgagee shall have, in addition to all other rights and remedies hereunder, those rights of a mortgagee under Florida Statutes Section 697.07, as now or hereafter in effect. 2. Security Agreement. This instrument also creates a security interest in any and all equipment and furnishings as are considered or determined to be personal property or fixtures, together with all replacements, substitutions, additions, products, and proceeds thereof, in favor of the Mortgagee under the Florida Uniform Commercial Code to secure payment of principal, interest, and other amounts due Mortgagee now or hereafter secured hereby, and Mortgagee shall also have all the rights and remedies of a secured party under the Florida Uniform Commercial Code, and without limitation upon or in derogation of the rights and remedies created and accorded to the Mortgagee by this Mortgage pursuant to the common law or any other laws of the State of Florida or any other jurisdiction, it being understood that the rights and remedies of Mortgagee under the Florida Uniform Commercial Code shall be cumulative and in addition to all other rights and remedies of Mortgagee arising under the common law or any other laws of the State of Florida or any other jurisdiction. 3. Fixture Filing. This Mortgage shall be effective as a financing statement filed as a fixture filing with respect to all fixtures included within the Premises, which financing statement is made by Mortgagor, as debtor, in favor of Mortgagee, as secured party, and is to be filed for record in the Public Records of Miami-Dade County, Florida. This Mortgage shall also be effective as a financing statement with respect to any other portion of the Premises as to which a security interest may be perfected by the filing of a financing statement and may be filed as such in any appropriate filing or recording office. The respective mailing addresses of Mortgagor and Mortgagee are set forth in the preamble of this Mortgage. A carbon, photographic or other reproduction of this Mortgage or any other financing statement relating to this Mortgage shall be sufficient as a financing statement for any purposes referred to in this Section. 4. Choice of Law. This Mortgage is to be construed in all respects and enforced according to the laws of the State of Florida without regard to principles of conflicts of law. 5. Binding Effect. This Mortgage shall be binding upon and inure to the benefit of the Mortgagor and Mortgagee hereto, and their respective heirs, successors and assigns. Page 14 of 17 THIS IS A BALLOON MORTGAGE WHERE THE PRINCIPAL BALANCE DUE UPON MATURITY IS $1,003,969.00 NOTWITHSTANDING ACCRUED INTEREST, ONLY IF APPLICABLE, WITH ALL ADVANCEMENTS MADE BY THE MORTGAGEE UNDER THE TERMS OF THIS MORTGAGE. THIS MORTGAGE IS EXEMPT FROM NONRECURRING INTANGIBLE TAX PURSUANT TO SECTION 199.183, FLORIDA STATUTES. [Signatures appear on following pages] Page 150117 IN WITNESS WHEREOF, Mortgagor has caused this Amended and Restated Mortgage to be executed on the date first above written. WITNESSES: MORTGAGOR: VISTA BREEZE, LTD a Florida limited partnership By: APC Vista Breeze, LLC a Florida limited liability company its Managing General Partn By: K n eth Na lor, Vi e- esident Print Na : ‘.Pbflti airrin2z Print Name:Aiee e SC,,ch STATE OF FLORIDA COUNTY OF MIAMI-DADE ) The foregoing Mortgage was acknowledged before me, by means of (y-¢hysical presence or ( ) online notarization, this 211+i1, day of 11overviber , 2023, in the County and State aforesaid, by Kenneth Naylor, as Vice-President of APC Vista Breeze, LLC, a Florida limited liability company, the managing general partner of VISTA BREEZE, LTD., a Florida limited partnership, on behalf of said entity. He is personally known to me or has produced as identification. •C...4-4C2 Name: RI:her Cw Mccr cif Notary Public State of Florida Notary Public Rebeca Martinez State of Florida at Large ,,'++ My Commission lti E"p"Z,tiaszo2s My commission expires: r 14_1zip APPROVED AS TO FORM & LANGUAGE [Signature Page—City HOME Mortgage] & FOR EXECUTION Page 16 of 17 rtbr City A torn,y Dat:? EXHIBIT "A" (Legal Description) That leasehold estate created by that Second Amended and Restated Ground Lease, by and between Vista Breeze, Ltd., a Florida limited partnership, and the Housing Authority of The City of Miami Beach, a public body corporate and politic, as evidenced by that Amended and Restated Memorandum of Lease to be recorded over the following described lands: PARCEL 1: LOT 3, 4 and 5, Block 55, OF NORMANDY GOLF COURSE, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 44, AT PAGE 62, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA. PARCEL 2: LOTS 6, 7 and 8, BLOCK 56, NORMANDY GOLF COURSE SUBDIVISION, ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 44, PAGE 62, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA. 4890-6079-4248,v. 14 Page 17 of 17 DOCUMENTARY STAMP TAXES IN THE AMOUNT OF $1,750.00 HAVE PREVIOUSLY BEEN PAID ON THAT CERTAIN LEASEHOLD MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING DATED SEPTEMBER 21, 2023, RECORDED SEPTEMBER 27, 2023, IN OFFICIAL RECORDS BOOK 33902 PAGE 1175 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA, WHICH LEASEHOLD MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING SECURED A PROMISSORY NOTE IN THE AMOUNT OF FIVE HUNDRED THOUSAND AND 00/100 DOLLARS ($500,000.00) (THE "EXISTING INDEBTEDNESS"). NO ADDITIONAL TAXES ARE DUE IN CONNECTION WITH THIS AMENDED, RESTATED, RENEWAL AND CONSOLIDATED PROMISSORY NOTE (THIS "NOTE") OR THE AMENDED AND RESTATED LEASEHOLD MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING (THE "MORTGAGE") SECURING THE INDEBTEDNESS EVIDENCED BY THIS NOTE BECAUSE SUCH MORTGAGE IS GIVEN TO SECURE THE FINANCING OF HOUSING UNDER PART V OF CHAPTER 420, FLORIDA STATUTES AND IS EXEMPT FROM TAXATION PURSUANT TO SECTION 420.513, FLORIDA STATUTES. AMENDED, RESTATED, RENEWAL AND CONSOLIDATED PROMISSORY NOTE $1,003,969.00 December 15, 2023 Miami Beach, Florida FOR VALUE RECEIVED the undersigned, VISTA BREEZE, LTD., a Florida limited partnership, having its principal office at 161 NW 6th Street, Suite 1020, Miami, FL 33136 (hereinafter referred to as the "Maker"), promises to pay to the order of the CITY OF MIAMI BEACH, FLORIDA, a Florida municipal corporation (hereinafter referred to as the "Holder"), at 1700 Convention Center Drive, Miami Beach, Florida 33139, Attention: City Manager, or such other place as Holder may from time to time designate in writing, the principal sum of ONE MILLION THREE THOUSAND NINE HUNDRED SIXTY-NINE AND 00/100 DOLLARS ($1,003,969.00) (together with any additional amounts that may be advanced by Holder in connection herewith, the "Funds"), to be paid in lawful money of the United States of America in accordance with the terms of this Amended, Restated, Renewal and Consolidated Promissory Note (the "Note"). 1. THIS NOTE IS SECURED BY A MORTGAGE. This Note is secured by an Amended and Restated Leasehold Mortgage, Security Agreement and Fixture Filing of even date herewith from Maker in favor of Holder(the "Mortgage) encumbering the Maker's leasehold interest in certain real property located in Miami-Dade County, Florida, at 175 South Shore Drive and 280 S. Shore Drive, Miami Beach, Miami-Dade County, Florida (the "Premises"), which Mortgage amends, restates and supersedes a Leasehold Mortgage, Security Agreement and Fixture Filing (the "Original Mortgage") dated as of September 21, 2023 and recorded September 27, 2023 in Official Records Book 33902, Page 1 175 of the Public Records of Miami-Dade County, Florida, from the Maker in favor of Holder. The Funds have been funded through HOME Investment Partnership ("HOME") Program funds. A portion of the Funds in the amount of$500,000.00 will be used solely for hard costs of construction of a new seawall at the Premises, as part of the initial phase of the development of one hundred and nineteen (119) studio apartment units of senior rental housing, for Extremely-Low, Very-Low- and Low-Income persons, to be known as Vista Breeze (the "Project"), and a portion of the Funds in the amount of $503,989.00 will be used solely for hard costs of construction of the Project in accordance with the City Manager-approved budget, and for no other purpose. The Mortgage, this Note and all other agreements, instruments, and documents delivered in connection herewith and therewith, including the HOME Program Development Agreement, dated as of September 21, 2023, as amended and restated of even date herewith, as may be further amended from time Page 1 of 7 to time (collectively, the "HOME Program Development Agreement") and that certain Declaration of Restrictive Covenants dated as of September 21, 2023 and recorded on September 27, 2023 in Official Records Book 33902, Page 1195 of the Public Records of Miami-Dade County, Florida, as amended and restated of even date herewith and to be recorded in the Public Records of Miami-Dade County, Florida contemporaneously herewith, as may be further amended from time to time (collectively, the "Declaration"), which subjects the Premises to certain recapture provisions, covenants, and restrictions ("Covenants") for a period of thirty (30) years from the Project Completion Date, as defined herein (the "Affordability Period"), all dated as of September 21, 2023 or of even date herewith, as applicable, are collectively referred to herein as the "Loan Documents." The "Project Completion Date" shall mean the date of issuance by the City of Miami Beach Building Department of a Final Certificate of Occupancy for the Project. 2. INTEREST Interest on this Note shall be zero percent (0%) per annum; except that if Maker fails to pay this Note as required (at maturity, upon acceleration or otherwise)or otherwise defaults under the terms of the Loan Documents, after the expiration of any applicable cure periods therein, the loan evidenced by this Note shall bear interest at the rate prescribed by Section 55.03, Florida Statutes, as accrues ("Default Interest Rate"), effective retroactively(a)with respect to the portion of the Funds in the amount of $500,000.00, to September, 21, 2023 until paid to Holder and (b) with respect to the portion of the Funds in the amount of$503,969.00, to the date hereof until paid to Holder. 3. PAYMENTS This loan is being provided by Holder to Maker as a deferred payment loan and shall be advanced by Holder to Maker for eligible costs in such manner as provided for in the HOME Program Development Agreement. This Note shall mature upon the expiration of the Affordability Period ("Maturity Date"). So long as Maker is not in default of any of the provisions of this Note or the other Loan Documents, no interest or principal payments shall be due prior to the Maturity Date. Upon the earlier of(i) the Maturity Date, or (ii) an Event of Default under this Note, the total amount of the Funds provided to Maker by Holder shall be due and payable to Holder under this Note, together with accrued interest, if any, at the Default Interest Rate. Notwithstanding anything contained herein to the contrary, the entire principal balance and interest, if any, may be forgiven on the Maturity Date by Holder, in the sole and absolute discretion of the City Manager. Notwithstanding anything to the contrary herein, Holder shall have the right to declare the total unpaid balance hereof to be immediately due and payable, together with interest at the Default Interest Rate, under the following circumstances (each, an "Event of Default"): 1. upon the sale or transfer of any part of, or interest in, the Premises or the refinance or encumbrance of the Premises by the Maker without the City Manager's prior written consent during the Affordability Period, except as otherwise provided in the Declaration and/or the Mortgage; 2. In the event that Maker is not a natural person, and the Controlling Interest (as defined in the Mortgage) in Maker is sold or transferred without the prior written approval of the City Manager, except as otherwise provided in the Declaration and/or the Mortgage; 3. upon the occurrence of an event of default pursuant to any one of the Loan Documents (including the Covenants incorporated in the Declaration) now or hereafter evidencing, securing or guaranteeing payment of the indebtedness evidenced by this Note, after the expiration of any applicable cure period provided in the Loan Documents; 4. Upon Maker's failure to continuously operate all of the units in the Project as affordable rental units pursuant to the stated use and purpose of the Project, after the expiration of any applicable cure period provided in the Loan Documents; 5. Upon Maker's failure to provide Page 2 of 7 the City with proof of insurance, as required by the Loan Documents, within fifteen (15) days from a written request; 6. In the event that foreclosure proceedings are instituted against the Premises; or 7. Any willful misstatement of, or failure to disclose, a material fact by Maker. Exercise of this right shall be without notice to Maker, as notice of such exercise is expressly waived. Any payments made hereunder shall be applied first to unpaid costs of collection, servicing fees, and late charges, if any, then to accrued, deferred, and unpaid interest and the balance, if any, to the principal balance. 4. CHOICE OF LAW This Note has been executed and delivered in, and is to be governed by and construed under the laws of, the State of Florida, as amended, except as modified by the laws and regulations of the United States of America, and without regard to principles of conflicts of law. 5. ENFORCEMENT Time is of the essence. In the event that this Note is collected by law or through attorneys at law, or under their advice therefrom, Maker agrees, to pay all costs of collection, including reasonable attorneys' fees, whether or not suit is brought, and whether incurred in connection with collection, trial, appeal, bankruptcy or other creditors proceedings, or otherwise. Venue in connection with any litigation arising out of this Note shall be in Miami-Dade County, Florida. 6. NO WAIVER Acceptance of partial payments or payments marked "payment in full" or "in satisfaction" or words to similar effect shall not affect the duty of Maker to pay all obligations due under this Note, and shall not affect the right of Holder to pursue all remedies available to it under the Loan Documents. The remedies of Holder shall be cumulative and concurrent, and may be pursued singularly, successively, or together, at the sole discretion of Holder, and may be exercised as often as occasion therefore shall arise. No action or omission of Holder, including specifically any failure to exercise or forbearance in the exercise of any remedy, shall be deemed to be a waiver or release of the same, such waiver or release to be effective only to the extent specifically recited in a written document executed by Holder. A waiver or release with reference to any one event shall not be construed as continuing or as constituting a cause of dealing, nor shall it be construed as a bar to, or as a waiver or release of, any subsequent remedy as to a subsequent event. 7. NOTICE Any notice to be given or to be served upon the Maker or the Holder in connection with this Note, whether required or otherwise, shall be given in writing and delivered in person or sent by United States Certified Mail or reputable overnight courier (such as Federal Express), postage prepaid, to the parties being given such notice at the following addresses: Maker: Mr. Kenneth Naylor Vista Breeze, Ltd. 161 NW 6th Street, Suite 1020 Miami, Florida 33136 Page 3 of 7 With a copy to: Mr. Miguell Del Campillo, Executive Director Housing Authority of the City of Miami Beach 200 Alton Road Miami Beach, FL 33139 and: Fox Rothschild LLP BNY Mellon Center 500 Grant Street, Suite 2500 Pittsburgh, PA 15219 Attention: Michael H. Syme Holder: Ms. Alba Tarre, Department Director Office of Housing and Community Services Director c/o Office of Housing and Community Development City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 With a copy to: Alina T. Hudak, City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 and: Rafael A. Paz, City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Any party may change said address by giving the other parties hereto notice of such change of address. Notice given as hereinabove provided shall be deemed given on the date of its deposit in the United States Mail or with such reputable overnight courier, postage prepaid, and, unless sooner received, shall be deemed received by the party to whom it is addressed on the third calendar day following the date on which said notice is deposited in the mail, or if a courier system is used, on the date of delivery of the notice. 8. NUMBER AND GENDER Whenever the context so requires, the neuter gender includes the feminine and/or masculine, as the case may be, and the singular number includes the plural, and the plural number includes the singular. 9. BORROWER WAIVERS Maker hereby(a) expressly waives any valuation and appraisal, presentment, demand for payment, notice of dishonor, protest, notice of nonpayment or protest, all other forms of notice whatsoever, and diligence in collection; and (b) consents that Holder may, from time to time and without notice to Maker or demand, (i) extend, rearrange, renew, or postpone any or all payments, (ii) release, exchange, add to, or substitute all or any part of the collateral for this Note, and/or(iii) Page 4 of 7 release Maker, without in any way modifying, altering, releasing, affecting, or limiting their respective liability or the lien of any security instrument. 10. WAIVER OF JURY TRIAL BY EXECUTING THIS NOTE, MAKER KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHTS OR THE RIGHTS OF ITS HEIRS, ASSIGNS, SUCCESSORS, OR PERSONAL REPRESENTATIVES TO A TRIAL BY JURY, IF ANY. IN ANY ACTION, PROCEEDING, OR SUIT, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, AND WHETHER ASSERTED BY WAY OF COMPLAINT, ANSWER, CROSSCLAIM, COUNTERCLAIM, AFFIRMATIVE DEFENSE, OR OTHERWISE, BASED ON, ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS NOTE, ANY LOAN DOCUMENT OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR TO BE EXECUTED IN CONNECTION HEREWITH OR THEREWITH OR WITH RESPECT TO THE INDEBTEDNESS OR THE RENEWAL, MODIFICATION, OR EXTENSION OF ANY OF THE FOREGOING OR ANY FUTURE ADVANCE THEREUNDER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR HOLDER'S EXTENDING CREDIT TO A MAKER AND NO WAIVER OR LIMITATION OF HOLDER'S RIGHTS HEREUNDER SHALL BE EFFECTIVE, UNLESS IN WRITING AND MANUALLY SIGNED ON HOLDER'S BEHALF. Maker acknowledges that the above paragraph has been expressly bargained for by Holder as part of the transaction with Maker and that, but for Maker's agreement to such paragraph, Holder would not have loaned the Funds to the Maker pursuant to the terms of this Note. 11. RECOURSE AGAINST MAKER Holder shall have full recourse against Maker through completion of the Project, as evidenced from the Project securing the Certificate of Occupancy. Following completion of the Project, this Note shall become a nonrecourse obligation of Maker and neither Maker nor any other party shall have any personal liability for repayment of the Funds, except with respect to any willful misstatement of, or failure to disclose, a material fact by Maker. Recovery against Maker for fraud or misrepresentation is not limited to the proceeds of sale of the Premises, but may include personal judgment and execution thereon to the full extent authorized by law. 12. CONSOLIDATION This Note amends, restates, renews and supersedes that certain Promissory Note dated as of September 21, 2023 in the original principal amount of Five Hundred Thousand and 00/100 Dollars made by Maker in favor of Holder(the "Original Note") by increasing the original principal amount by Five Hundred Three Thousand Nine Hundred Sixty-Nine and 00/100 Dollars ($503,969.00), constituting a future advance under the Original Mortgage, and consolidating all such indebtedness into one debt in the amount of One Million Three Thousand Nine Hundred Sixty-Nine and 00/100 Dollars ($1,003,969.00)evidenced by this Note. For the avoidance of any doubt, One Million Three Thousand Nine Hundred Sixty-Nine and 00/100 Dollars ($1,003,969.00) represents the entire amount of Funds loaned to Maker by Holder to date and there are no other Funds owed by Maker to Holder in relation to the Project. The execution of this Note is not intended to and does not constitute a novation of the Original Note and is not intended to and shall not be interpreted to result in a novation or loss of the existing lien priority of the Original Mortgage, except as expressly set forth in the Subordination Agreements (as defined in the Mortgage) entered into by Maker and Holder with each of the Senior Lenders (as defined in the Page 5 of 7 Mortgage) of even date herewith and recorded contemporaneously with the Mortgage in the Public Records of Miami-Dade County, Florida. Hereinafter, all references to the Original Note in the Loan Documents shall refer to this Note. [Signature appears on the following page] Page 6 of 7 IN WITNESS WHEREOF, Maker has executed this Note on the day and year first above written. THIS PROMISSORY NOTE IS EXEMPT FROM NONRECURRING INTANGIBLE TAX PURSUANT TO SECTION 199.183, FLORIDA STATUTES. MAKER: VISTA BREEZE, LTD. a Florida limited partnership By: APC Vista Breeze, LLC, a Florida limited liability company, its Managing General Partn r l By: 1I—� nrieth Naylor. VicerPresident STATE OF FLORIDA COUNTY OF MIAMI-DADE ) The foregoing Promissory Note was acknowledged before me, by means of physical presence or_online notarization, this 2-1 INiay of Klovernber , 2023, by Kenneth Naylor, as Vice-President of APC Vista Breeze, LLC, a Florida limited liability company, the managing general partner of VISTA BREEZE, LTD., a Florida limited partnership on behalf of the partnership. He/she is personally known to me or has produced as identification. s' • NameRr,ec c. a r • • z L Notary Public, State of Florida at Large Notary Public State of Florida My commission expires: 1 )41-J 2(.p Rebeca Martinez / MyHH Commi2136ssion01 Exp. 1/4/2026 APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION •rey. City Attorney ih Dateopr [Signature Page—City HOME Promissory Note] Page 7 of 7