63. Leasehold Mortgage and Security AgreementTHIS INSTRUMENT PREPARED
BY AND RETURN TO:
Maria V. Currais, Esq.
Weiss Serota Helfman Cole & Bierman, P.L.
2800 Ponce de Leon Blvd., Suite 1200
Coral Gables, Florida 33134
3-2-11 �)ST7�,S-J 0
OR BY 34013 Pas 2628-2657 (30P9s)
RECORDED 12/10/2023-1 14433QI.)
,1JAH FERNO-IDEZ-BARQU114
C'I...E:RK OF ITIE COOT & ( OViF:`1'ROLl..1: R
rli[ ihil--DADE CO►JNI'Yr FL.
ABOVE SPACE RESERVED FOR
RECORDING PURPOSES ONLY
THIS IS A BALLOON MORTGAGE AND THE FINAL PRINCIPAL PAYMENT OR THE
PRINCIPAL BALANCE DUE UPON MATURITYIS$4,300,000, TOGETHER WITH
ACCRUED INTEREST, IF ANY, AND ALL ADVANCEMENTS MADE BY THE
MORTGAGEE UNDER THE TERMS OF THIS MORTGAGE, SUBJECT TO THE
CONDITIONS SET FORTH HEREIN
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
(VISTA BREEZE / CONSTRUCTION INFLATION RESPONSE
VIABILITY FUNDING / RFA 2023-211 / 2023-260V)
THIS LEASEHOLD MORTGAGE AND SECURITY AGREEMENT (this "Mortgage") is
made as of December 15, 2023, by VISTA BREEZE, LTD., a Florida limited partnership ("Mortgagor" or
"Borrower"), in favor of FLORIDA HOUSING FINANCE CORPORATION, a public corporation and a
public body corporate and politic duly created and existing under the laws of the State of Florida
("Mortgagee" or "Florida Housing") (which term as used in every instance shall include the Mortgagee's
successors and assigns).
WITNESSETH:
That for valuable considerations, and also in consideration of the aggregate sum of money described
in that certain Promissory Note, dated of even date herewith, from the Mortgagor to the order of the
Mortgagee (the "Note"), evidencing a loan of Construction Inflation Response Viability Funding
("Viability") Program funds under the Florida Housing Finance Corporation Request for Applications
2023-211, in effect as of May 1, 2023 ("RFA"), and the State Apartment Incentive Loan ("SAIL") Program,
Section 420.5087, Fla. Stat., and governed by the rules of Florida Housing, as codified at Chapter 67-48,
Fla. Admin. Code, in effect as of July 6, 2022, and Chapter 67-53, Fla. Admin. Code, in effect as of August
20, 2009 (collectively, including the RFA, the "Rule"), in the original principal amount of FOUR MILLION
THREE HUNDRED THOUSAND AND NO/100 DOLLARS ($4,300,000) (the "Loan"), the receipt and
THIS MORTGAGE AND THE NOTE SECURED HEREBY ARISE OUT OF OR ARE GIVEN TO SECURE
THE REPAYMENT OF A LOAN ISSUED IN CONNECTION WITH THE FINANCING OF HOUSING
AND ARE EXEMPT FROM DOCUMENTARY STAMP TAX AND INTANGIBLE TAX
PURSUANT TO SECTION 420.513(1), FLORIDA STATUTES.
q u 3
Q1c)
sufficiency of which are hereby acknowledged, the Mortgagor does hereby irrevocably mortgage, pledge,
transfer, grant, bargain, sell, alien, remise, release, convey and confirm unto the Mortgagee, a lien upon and
security interest in and to all of Mortgagor's right, title and interest in the following (all of which is
hereinafter collectively referred to as the "Development" or the "Mortgaged Property").
Mortgagor's leasehold interest in that certain real property located in Miami -Dade County, Florida,
which is described on Exhibit "A" attached hereto and made a part hereof (the "Land"), buildings, amenities,
improvements (including improvements to be made hereafter), all of Mortgagor's rights and interest in the
personal property, fixtures, equipment, furniture, furnishings, chattels, inventory, building supplies and
materials, appliances and appurtenances and any general intangibles, chattel paper, instruments, contract
rights, accounts and business records now owned or hereafter acquired by the Mortgagor and the products
and proceeds thereof, now possessed by, located on or hereinafter erected or located on the Land.
TOGETHER with a lien on all of Mortgagor's gas and electrical fixtures, heaters, space heaters,
engines and machinery, boilers, ranges, elevators and motors, bathtubs, sinks, water closets, basins, pipes,
faucets and other air conditioning, plumbing and heating fixtures, drapes, mirrors, mantles, refrigerating
plants, dishwashers and appurtenances, and all building material and equipment now or hereafter delivered
to the Development and intended to be installed therein; such other goods, furnishings, equipment now or
hereafter delivered to the Development and intended to be installed therein; such other furniture, fixtures,
goods, equipment, chattels and personal property (including but not limited to machinery, equipment,
utilities, fire detection and prevention systems, security and access control systems, appliances, light
fixtures, awnings, pictures, screens, blinds, shelves, curtains and rods, mirrors, cabinets, paneling, rugs,
floor and wall coverings, fences, trees and plants, swimming pools and exercise equipment) as are usually
furnished by landlords in the letting of all or any portion of the Development of the character currently
owned by Mortgagor (or as hereafter improved) and all renewals or replacements thereof or articles in
substitution thereof and all of the estate, right, title and interest of the Mortgagor in and to all property of
any nature whatsoever, now or hereafter situated on the Development or intended to be used in connection
with the operation thereof, all of which shall be deemed to be fixtures and an accession to the freehold and
a part of the realty as between the parties hereto and all persons claiming by, through or under them and
shall be deemed to be a portion of the security for the indebtedness herein mentioned and secured by this
Mortgage.
TOGETHER with a lien on all and singular the rights, interests and appurtenances whatsoever, in
any way, now or hereinafter, belonging, relating or appertaining to any of the Development herein above
mentioned or which hereafter shall in any way belong, relate or be appurtenant thereto, whether now owned
or hereafter acquired by the Mortgagor including but not limited to all of Mortgagor's sewer capacity rights;
all current and future rights, including air rights, development rights, zoning rights and other similar rights
or interests, easements, tenements, rights -of -way, streets, alleys and roads which may have been or may in
the future be vacated; all proceeds paid or to be paid by any insurer of the Land, improvements, fixtures,
personalty or any part of the Mortgaged Property, whether or not Mortgagor obtained the insurance pursuant
to Mortgagee's requirement; all awards, tax rebates, payments and other compensation made or to be made
by any municipal, state or federal authority with respect to the Land, the Improvements, the fixtures, the
personalty or any other part of the Mortgaged Property, including any awards or settlements resulting from
condemnation proceedings or the total or partial taking of the Land, the Improvements, the fixtures, the
personalty or any other part of the Mortgaged Property under the power of eminent domain or otherwise
and including any conveyance in lieu thereof; all contracts, options and other agreements for the sale of the
Land, the Improvements, the fixtures, the personalty or any other part of the Mortgaged Property entered
into by the Mortgagor now or in the future, including cash or securities deposited to secure performance by
parties of their obligations; all proceeds from the conversion, voluntary or involuntary, of any of the above
into cash or liquidated claims, and the right to collect such proceeds; and Mortgagor's rights under contracts,
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options, leases, permits, licenses and all other documents and payments affecting the Development, and all
rents, profits, issues and revenues of the Development from time to time accruing, whether under leases or
tenancies now existing or hereafter created, including the Assignment of Leases, Rents and Contract Rights,
dated of even date herewith (the "Assignment of Leases and Rents"), by the Mortgagor to the Mortgagee,
reserving only the right to the Mortgagor to collect the same so long as the Mortgagor is not in default
hereunder (subject to the qualification set forth in the Assignment of Leases and Rents) and so long as the
same are not subjected to garnishment, levy, attachment or lien. In addition, the Mortgagor hereby assigns,
transfers and conveys to Mortgagee, its successors and assigns, all of the Mortgagor's right, title and interest
in, to and under all leases (other than the Ground Lease) now or hereafter leasing or affecting the
Development or any part hereof (subject to the qualifications set forth in the Assignment of Leases and
Rents).
TO HAVE AND TO HOLD the Development and all hereditaments, easements, rights, tenements
and appurtenances thereof, to the use, benefit and behalf of the Mortgagee, its successors and assigns, as to
Mortgagor's leasehold interest forever, and the Mortgagor covenants that the Mortgagor is lawfully seized
and possessed of a leasehold interest in the Development and has good right to convey the same, that the
same are unencumbered excepting taxes accruing subsequent to 2023, and the exceptions set forth in the
Mortgagee's title insurance policy given in connection herewith and specifically approved by Mortgagee,
and that the Mortgagor will warrant and defend the 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 Note, which Note has a maturity date of June 15, 2044, unless such maturity is
accelerated as set forth in the Note and shall comply with and abide by each and every one of the
stipulations, agreements, conditions and covenants of the Loan Documents (as such term is defined in
subparagraph 2.2(b) hereof), then in such event this Mortgage and the estate hereby created shall cease and
be null and void.
Certain capitalized terms used herein and not otherwise defined herein shall have the definitions
ascribed to them in the Construction Loan Agreement (the "Construction Loan Agreement"), dated of even
date herewith, by and among Mortgagor, Mortgagee and AMERINATO, LLC, a Minnesota limited liability
company authorized to transact business in the State of Florida (the "Servicer").
The Mortgagor covenants and agrees with the Mortgagee as follows:
ARTICLE I
1.1 PUment of Indebtedness. Mortgagor will pay the Note according to the tenor thereof and
all other sums secured hereby promptly as the same shall become due.
1.2 Monthly Deposits. To further secure the payment of the taxes and assessments hereinafter
referred to and the premiums for the insurance hereinafter referred to, unless Mortgagor makes such
deposits to the First Mortgagee, or other senior mortgage holder pursuant to its mortgage loan documents
the Mortgagor will deposit with the Mortgagee or the Servicer on the first day of each and every month a
sum which, in the reasonable estimation of the Mortgagee, shall be equal to one -twelfth of the annual taxes,
assessments and insurance premiums; said deposits to be held by the Mortgagee, or by the Servicer on its
behalf, free of interest, and free of any liens or claims on the part of creditors of the Mortgagor (other than
Permitted Encumbrances) and as part of the security of the Mortgagee, and to be used by the Mortgagee to
pay current taxes and assessments and insurance premiums on the Development as the same accrue and are
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payable. Said deposits shall not be, nor be deemed to be, trust funds but may be commingled with the
general funds of the Mortgagee. If said deposits are insufficient to pay the taxes and assessments and
insurance premiums in full as the same become payable, the Mortgagor will, after receipt of written notice
from Mortgagee, deposit with the Mortgagee such additional sum or sums as may be required in order for
the Mortgagee to pay such taxes and assessments and insurance premiums in full. Upon any Event of
Default hereunder or under the Note or any of the other Loan Documents that remains uncured after any
applicable notice or cure period, the Mortgagee may, at its option, apply any money in the fund resulting
from said deposits to the payment of the indebtedness secured hereby in such manner as it may elect in its
sole discretion.
1.3 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 (but should not preclude a
tax protest as described in Section 1.3(b) below); 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 for making such payment or would
penalize the Mortgagee if the Mortgagor makes such payment, then the entire outstanding balance of the
principal sum secured by this Mortgage and all interest accrued thereon shall, without notice, immediately
become due and payable at the option of the Mortgagee.
(b) The Mortgagor will pay (except where Mortgagee pays as set forth in Section 1.2 above)
or cause to be paid, 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
Development and all utility charges, whether public or private; and upon demand will furnish the Mortgagee
receipted bills evidencing such payment. Mortgagor shall have the right, before any delinquency occurs,
to contest or object to the amount or validity of any such taxes, liens, assessments and charges, by
appropriate legal proceedings, provided that Mortgagor, in good faith, is diligently contesting the amount
or validity of same; and further provided that, if not already posted by Mortgagor pursuant to the Loan
Documents, Mortgagor shall post with an approved third party cash in an amount estimated by the Servicer
or Mortgagee to be adequate to cover the payment of such taxes, liens, assessments and charges, together
with interest, costs and penalties and a reasonable additional sum to cover possible interest, costs and
penalties; and, if the amount of such escrow is insufficient to pay any amount adjudged by a court of
competent jurisdiction (or other entity with jurisdiction over the matter) to be due, with all interest, costs
and penalties thereon, Mortgagor shall pay such deficiency no later than the date such judgment becomes
final.
(c) The Mortgagor will not suffer any mechanic's, materialmen's, laborer's, statutory or other
lien, except for the lien of the First Mortgage, which might or could be prior to or equal to the security
interest and mortgage lien of this Mortgage to be created or to remain outstanding upon any part of the
Development, exclusive of any Permitted Encumbrances (as herein defined) or a lien which is bonded or
insured against to Mortgagee's satisfaction. The Mortgagor may provide payment and performance bonds,
acceptable to the Mortgagee, to cover prospective lien claims.
1.4 Insurance. The Mortgagor will keep and maintain the Development insured against loss or
damage by fire, general liability insurance, all-risk insurance, extended coverage and other perils, as
provided in the Construction Loan Agreement, the Rule and the Florida Housing Finance Corporation
Insurance Guide dated August 30, 2016, as amended from time to time (the "Florida Housing Insurance
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Guide"). Such policy or policies of insurance shall have affixed thereto a clause substantially similar to the
standard New York Mortgagee Clause, making all loss or losses under such policy or policies payable to
the Mortgagee as its interest may appear (subject to the rights of the First Mortgagee), and to deliver
certificates of insurance to the Mortgagee, naming the Mortgagee as an additional insured, when issued
with the receipts for the payment of the premium therefor; and in the event any sum of money becomes
payable under such policy or policies, provided Mortgagor is not in default hereunder, Mortgagor shall
have the right to use such proceeds to restore or rebuild the Development and the Mortgagee shall have the
right to review the construction budget for the rebuilding or restoration of the Development. If the amount
of the insurance proceeds exceeds the amount necessary to complete such restoration or rebuilding
Mortgagee shall have the option (subject to the rights of the First Mortgagee) to receive and apply the
excess proceeds on account of the indebtedness secured hereby without thereby waiving or impairing any
equity, lien or right under or by virtue of this Mortgage.
In the event that the Mortgagor fails to comply with the requirements of this Section 1.4, then
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 (as said term is defined in the Note), and all such payments with interest as
aforesaid shall be secured by the lien hereof. In the event any loss or damage greater than Fifteen Thousand
Dollars ($15,000) is suffered, Mortgagor shall notify Mortgagee of such loss or damage within two (2)
business days after the happening thereof; the failure to give such notice shall constitute an Event of Default
and the Mortgagee shall have the rights herein given for all Events of Default.
Notwithstanding the foregoing, the following provisions apply during the term of the Loan.
Mortgagor shall, at all times, comply with the Florida Housing Insurance Guide. For so long as the Loan
is not in the first lien priority position (i.e., there are one or more loans senior to the loan), the Mortgagor
shall comply with all insurance requirements of the First Mortgagee, for minimum amounts, types of
coverage, cancellation clauses, deductibles, insurance carrier ratings and terms. During the term of this
Mortgage, Mortgagor shall comply with such insurance requirements of the First Mortgagee, and such
policy or policies of insurance shall include Mortgagee as an additional insured, making all loss or losses
under such policy or policies payable to the Mortgagee as its interest may appear (subject to the rights of
the First Mortgagee). The Mortgagor shall notify Mortgagee and the Servicer, at least sixty (60) days prior
to the date when the Loan is anticipated to become the first lien mortgage, and provide evidence that all
insurance policies satisfy (or will satisfy on the date the Loan becomes the first lien on the Development),
all of the requirements of Mortgagee.
1.5 Care of Development.
(a) The Mortgagor will keep the improvements and fixtures now or hereafter erected on the
Land in good and safe 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 Development 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 is part of the Development without the
prior written consent of the Mortgagee, except in accordance with the Plans and Specifications (as defined
in the Construction Loan Agreement).
(c) If the Development or any part thereof is damaged by fire or any other cause, the Mortgagor
will give immediate written notice of the same to the Mortgagee.
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(d) The Mortgagee or its representative is hereby authorized to enter upon and inspect the
Development during normal business hours upon reasonable notice under the circumstances.
(e) The Mortgagor will promptly comply with all present and future laws, ordinances, rules
and regulations of any governmental authority affecting the Development or any part thereof.
(f) To the extent that the net available insurance proceeds and/or the net available
condemnation proceeds are made available to the Mortgagor for such purposes, if all or any part of the
Development shall be damaged by fire or other casualty, the Mortgagor will, subject to the rights of the
First Mortgagee, upon request of the Mortgagee, promptly restore the Development to the equivalent of its
condition immediately prior to such damage, and if a part of the Development shall be damaged through
condemnation, the Mortgagor will, upon request of Mortgagee, promptly restore, repair or alter the
remaining part of the Development in a manner reasonably satisfactory to the Mortgagee.
1.6 Further Assurances, Modifications. At any time, and from time to time, upon request by
the Mortgagee, the Mortgagor will, at Mortgagor's sole cost and expense, 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 opinion of the Mortgagee, be reasonably necessary or
desirable in order to effectuate, complete, or perfect or to continue and preserve (i) the obligations of the
Mortgagor under the Loan Documents, (ii) the security interests of this Mortgage, and/or (iii) the mortgage
lien created hereby. Furthermore, Mortgagor agrees to cooperate, adjust, initial, re -execute and re -deliver
any and all Loan Documents if deemed necessary or desirable in the reasonable discretion of Mortgagee to
effectuate the provisions hereof. Upon any failure by the Mortgagor so to do, the Mortgagee may make,
execute and record any and all such instruments, certificates and documents for and in the name of the
Mortgagor and the Mortgagor hereby irrevocably appoints the Mortgagee the agent and the attorney in fact
of the Mortgagor so to do.
1.7 Leases Affecting the Development. The Mortgagor shall perform all covenants to be
performed by the landlord under any and all residential leases now or hereafter in effect on the Development
or any part thereof, which residential lease or leases shall be consistent with the terms of the Extended Low -
Income Housing Agreement and/or Land Use Restriction Agreement (if applicable) recorded for the
Development, made by and between the Mortgagor and the Mortgagee. Upon request, the Mortgagor will
furnish the Mortgagee signed copies of all residential leases on the Development or any part thereof
promptly after their execution. Upon request of the Mortgagee, the Mortgagor shall, by written instrument
in form and substance reasonably satisfactory to the Mortgagee, assign to the Mortgagee, subject to the
rights of the First Mortgagee, the landlord's interest in each and every lease hereafter entered into by the
Mortgagor leasing all or any part of the Development. The terms "lease" and "leases" as used in this Section
1.7 shall include all tenancies, but shall not include the Ground Lease.
Except for leases related to the operation of the Development or as otherwise consented to in
advance by Mortgagee, all residential leases shall be written on the standard form of leases which shall
have been approved by Mortgagee. No material changes may be made to the Mortgagee -approved standard
leases without the prior written consent of Mortgagee. In addition, all renewals of leases and all proposed
leases shall provide for terms (other than rental rates) comparable to existing local market terms and shall
be arms -length transactions with bona fide, independent third -party tenants. All leases shall provide that
they are subordinate to this Mortgage and that the lessee agrees to attorn to Mortgagee.
1.8 Expenses. In addition to the expenses described in subparagraph 2.6(b) hereof, the
Mortgagor will pay or reimburse the Mortgagee for all reasonable legal fees, costs and expenses, including
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those incurred in connection with appellate proceedings, incurred by the Mortgagee in any proceedings
involving the estate of a decedent or an insolvent, or in any action, legal proceeding or dispute of any kind
in which the Mortgagee is a plaintiff or defendant, affecting the indebtedness secured hereby, this Mortgage
or the interest created herein, or the Development, including but not limited to the foreclosure of this
Mortgage, any condemnation action involving the Development or any action to protect the security hereof;
and any such amounts paid by the Mortgagee shall be secured by this Mortgage.
1.9 Estoppel Affidavits. The Mortgagee, upon ten (10) days' prior written notice from the
Mortgagor, shall furnish the Mortgagor 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 Mortgagor shall provide a similar estoppel affidavit, upon ten
(10) days' prior written notice from the Mortgagee.
1.10 Subrogation. The Mortgagee shall be subrogated to the claims and liens of all parties
whose claims or liens are discharged or paid with the proceeds of the indebtedness secured hereby.
1.11 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 Development by allowing
any such tax, lien, assessment or charge to become delinquent; 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 Development; or in the performance or observance
of any covenant, condition or term of the First Mortgage, the Subordinate Mortgage or this Mortgage; then
the Mortgagee, at its option, subject to the rights of the First Mortgagee 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, upon demand, immediately repaid by the Mortgagor to the Mortgagee with interest thereon at
the lesser of (i) eighteen percent (18%) per annum or (ii) the maximum rate provided by law. The
Mortgagee shall be the sole judge of the legality, validity and priority of any such tax, lien, assessment,
charge, claim, premium and obligation, of the necessity for any such actions and of the amount necessary
to be paid in satisfaction thereof. The Mortgagee is hereby empowered to enter and to authorize others to
enter upon the Development 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.
1.12 Condemnation. If all or any part of the Development 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, subject to the rights of the First Mortgagee, at the option of
the Mortgagee become immediately due and payable unless Mortgagor utilizes the condemnation award
for the restoration or rebuilding of the Development, in which case Mortgagee shall have the right to review
the construction budget for the rebuilding or restoration and if the amount of the award exceeds the amount
necessary to complete such restoration or rebuilding, but subject to the rights of the First Mortgagee,
Mortgagee shall have the right to receive and apply any such excess to the indebtedness secured hereby.
Subject to the rights of the First Mortgagee, the Mortgagee shall be entitled to all compensation awards and
other payments or relief therefor 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. Provided, however, so long as no Event of
Default exists beyond any applicable cure period under any of the Loan Documents as hereunder defined,
or no event has occurred which with the passage of time or the giving of notice would constitute an Event
of Default under the Loan Documents as hereunder defined, the Mortgagor shall have the right, using
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counsel reasonably acceptable to the Mortgagee, to prosecute all actions relating to any such condemnation
action or claim. Subject to the rights of the First Mortgagee, 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 therefrom all its reasonable expenses, including reasonable legal fees,
costs and expenses, may release any moneys so received by it without affecting the lien of this Mortgage
or may apply the same in such manner as the Mortgagee shall determine, 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
compensations, awards, damages, claims, rights of action and proceeds as the Mortgagee may require.
1.13 Hazardous Waste Storage. The Mortgagor covenants with the Mortgagee that while the
Development has been leased by Mortgagor, the Development has not been used and will not be used in
whole or in part for the storage of hazardous waste, hazardous substances, petroleum products or other
materials or substances regulated under applicable federal, state or local statues, other than in accordance
with all applicable governmental requirements.
ARTICLE II
2.1 Due on Sale or Further Encumbrance Clause. In determining whether or not to make the
Loan secured hereby, Mortgagee examined the creditworthiness of Mortgagor, found it acceptable and
relied and continues to rely upon same as the means of repayment of the Note. Mortgagee also evaluated
the background and experience of Mortgagor in owning and operating property such as the Development,
found it acceptable and relied and continues to rely upon same as the means of maintaining the value of the
Development which constitutes Mortgagee's security for the Note. Mortgagor is a business or entity well -
experienced in borrowing money and owning and operating property such as the Development, was ably
represented by a licensed attorney at law in the negotiation and documentation of the Loan secured hereby
and bargained at arm's length and without duress of any kind for all of the terms and conditions of the Loan
secured hereby, including this provision. Mortgagor recognizes that any junior financing placed upon the
Development (a) may divert funds which would otherwise be used to pay the Note; (b) may result in
acceleration and foreclosure by any such junior encumbrancer which would force Mortgagee to take
measures and incur expenses to protect its security; (c) may detract from the value of the Development
should Mortgagee come into possession thereof with the intention of selling same; and (d) could impair
Mortgagee's right to accept an assignment or deed in lieu of foreclosure, as a foreclosure by Mortgagee
would be necessary to clear the title to the Development.
In accordance with the foregoing and for the purposes of (i) protecting Mortgagee's security both
of repayment by Mortgagor and of value of the Development; (ii) giving Mortgagee the full benefit of its
bargain and contract with Mortgagor; and (iii) keeping the Development free of subordinate financing liens
(other than those set forth in Fidelity National Title Insurance Company's Commitment Order No.
11389795, dated September 18, 2023, as may have been revised), Mortgagor agrees that if this paragraph
be deemed a restraint on alienation, that it is a reasonable one and that any sale, conveyance, assignment,
further encumbrance or other transfer of title to the Development or any interest therein (whether voluntarily
or by operation of law) in contravention of the Loan Documents without the Mortgagee's prior written
consent, which may be withheld for any reason, shall be an Event of Default hereunder. This provision
shall not apply to the First Mortgage, the Subordinate Mortgage, the deferred developer fee, or any
unsecured partner loan made in accordance with Mortgagor's Amended and Restated Agreement of Limited
Partnership, as may be amended from time to time (the "Partnership Agreement"), to which Mortgagee
hereby consents. For the purpose of, and without limiting the generality of, the preceding sentence, the
occurrence at any time (from and after the date hereof) of any of the following events shall be deemed to
be an unpermitted transfer of title to the Development and therefore an Event of Default hereunder:
Leasehold Mortgage and Security Agt 8
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(a) Any sale, conveyance, assignment, or other transfer of interest or the grant of a security
interest in all or any part of the Mortgagor's interest in the Development without the prior written consent
of Mortgagee, other than a superior mortgage and as provided in Section 15(b) of the Construction Loan
Agreement or a condemnation, which shall be subject to the provisions of Section 1.12 above.
(b) Any use of the Development for new or additional financing, including future advances on
existing loans or additional loans from existing lenders, without the prior written consent of Mortgagee.
(c) Any voluntary or involuntary sale, transfer, conveyance or pledge by Mortgagor (by
operation of law or otherwise) of any direct or indirect interest in Mortgagor, that fails to comply with the
sale, transfer, or other conveyance of interest in the Mortgagor requirements set forth in the Construction
Loan Agreement, except for transfers permitted under the Construction Loan Agreement and herein.
Any consent by the Mortgagee, or any waiver of an Event of Default, under this Section shall not
constitute a consent to, or waiver of any right, remedy or power of the Mortgagee upon a subsequent Event
of Default under this Section. Notwithstanding the foregoing, a pledge of partnership interests (pursuant
to the Partnership Agreement) which is subordinate to this Mortgage, shall not constitute a violation of this
Section 2.1.
2.2 Default. An Event of Default shall have occurred hereunder if:
(a) The Mortgagor shall fail to pay in full within fifteen (15) days from the date due any
installment of principal, interest, late charges, escrow deposits, compliance fees and loan servicing fees as
required by the Note, this Mortgage or any of the other Loan Documents; or
(b) The Mortgagor shall fail to duly observe on time any other covenant, condition or
agreement of the Note, this Mortgage, or of any other instrument evidencing, securing or executed in
connection with the indebtedness secured hereby, including but not limited to, the Construction Loan
Agreement, the Assignment of Leases and Rents, that certain Collateral Assignment of Construction
Contract and Permits dated of even date herewith (the "Collateral Assignment") from the Mortgagor to the
Mortgagee, that certain Environmental Indemnity Agreement dated of even date herewith (the
"Environmental Indemnity") by and among the Mortgagor, APC VISTA BREEZE, LLC, a Florida limited
liability company, VISTA BREEZE HACMB, INC., a Florida not -for -profit corporation, HOWARD D.
COHEN, individually, HOWARD D. COHEN REVOCABLE TRUST UNDER AGREEMENT DATED
4/6/1993, ATLANTIC PACIFIC COMMUNITIES, LLC, a Delaware limited liability company, APC
VISTA BREEZE DEVELOPMENT, LLC, a Florida limited liability company, and HACMB
DEVELOPMENT, LLC, a Florida limited liability company (all sometimes collectively called the "Loan
Documents"), and such failure remains uncured for a period of thirty (30) days after written notice thereof
shall have been given by the Mortgagee to the Mortgagor (or for an extended period approved by Mortgagee
if such default stated in such notice can be corrected, but not within such thirty (30) day period, and if the
Mortgagor commences such correction within such thirty (30) day period and thereafter diligently pursues
the same to completion within such extended period); 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 shall prove to be false or misleading in any material
respect; or
Leasehold Mortgage and Security Agt 9
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(d) Any lien for labor or material or otherwise shall be filed against the Development, and such
lien is not canceled, removed, transferred, or bonded off within the later of sixty (60) days of the filing
thereof or ten (10) days after Mortgagor's receipt of notice thereof; or
(e) Any suit shall be filed against the Mortgagor which (and which is not dismissed with
prejudice within sixty (60) days after its filing), in the reasonable judgment of the Mortgagee, could
substantially impair the ability of the Mortgagor to perform each and every one of its obligations under and
by virtue of the Loan Documents, including foreclosure of the First Mortgage and/or the Subordinate
Mortgage; or
(f) A levy shall be made under any process on, or a receiver shall be appointed for, the
Development or any other property of the Mortgagor which, in the reasonable judgment of the Mortgagee,
could cause substantial interference with the timely completion of the improvements being constructed on
the Land or impair the value of the collateral encumbered hereby and which is not canceled, removed or
transferred within sixty (60) days of the filing or appointment thereof, or
(g) The Mortgagor shall file a voluntary petition in bankruptcy, or any other petition or answer
in a proceeding or acquiesces 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 without the prior written consent of Mortgagee;
or
(h) 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 Development or of any or all of the rents,
revenues, issues, earnings, profits or income thereof without the prior written consent of Mortgagee; or
(i) The Mortgagor shall make any general assignment for the benefit of creditors without the
prior written consent of Mortgagee; or
0) 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
(k) The Mortgagor shall do, or shall omit to do, any act, or any event shall occur, as a result of
which any obligation of the Mortgagor, not arising hereunder, may be declared immediately due and
payable by the holder thereof if, after expiration of any applicable cure period, in the reasonable judgment
of the Mortgagee, such acceleration could cause substantial interference with the timely completion of the
improvements being constructed on the Land or impair the value of the collateral encumbered hereby; or
(1) An Event of Default occurs under the terms of any of the other Loan Documents, the First
Mortgage Loan documents, or the Subordinate Mortgage Loan documents or any related documents or any
interim construction loan which is not cured within the applicable cure period, if any; or
(m) The Mortgagor shall fail to provide to the Mortgagee and its Servicer, by 151 calendar days
following the Mortgagor's fiscal year end of each year during the term of the Note, a certification required
pursuant to the Note detailing the information needed to determine the annual payment due on the Loan
evidenced by the Note; or
(n) The Mortgagee shall reasonably suspect the occurrence of any one or more of the above
said defaults and the Mortgagor, upon the request of the Mortgagee, shall fail to provide evidence
Leasehold Mortgage and Security Agt 10
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Viability Funding / RFA 2023-211 / 2023-260V)
reasonably satisfactory to the Mortgagee that such default has not in fact occurred or that Mortgagor is
diligently attempting to cure such default; or
(o) Any violation of the terms and conditions described in the Rule occurs, and which is not
cured after written notice and the passage of the cure period specified in subsection 2.2(b) above; or
(p) A violation of any of the provisions of the Rule shall be an Event of Default hereunder.
The Mortgagee shall give Mortgagor written notice of such Rule violation and Mortgagor shall have thirty
(30) days to cure such violation.
For the purposes of this Section, the term "Mortgagor" shall be construed to include any general
partner of the Mortgagor.
2.3 Viability Program Special Conditions.
(a) If the Development is sold and the buyer does not meet the criteria for assumption of the
Loan evidenced by the Note, the Loan (principal and any outstanding interest) and other amounts payable
by Mortgagor shall be repaid from the proceeds of the sale in the following order of priority:
(1) the First Mortgage debt service and First Mortgage fees;
(2) Loan servicing fees due under the Viability Program;
(3) intentionally omitted:
(4) Unpaid principal balance of the Note;
(5) Any Note Interest due on the Loan (as defined in the Note);
(6) Expenses of the sale of the Development;
(7) If there will be insufficient funds available from the proposed sale of the
Development to satisfy paragraphs 2.3(a)(1)-(6) above, the Loan shall not be satisfied until
Mortgagee has received:
(i) An appraisal prepared by an appraiser selected by Mortgagee or
Mortgagee's credit underwriter indicating that the purchase price for the
Development is reasonable and consistent with existing market
conditions;
(ii) A certification from the Mortgagor that the purchase price reported is the
actual price paid for the Development, as supported by a copy of the final
executed purchase and sale agreement, and that no other consideration
passed between the parties, as supported by a draft and final closing
statement, and that the Development Cash Flow reported to Mortgagee
during the term of the Loan was true and accurate;
(iii) A certification from the Mortgagor that there are no Development funds
available to repay the Loan, including any interest due, and the
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Mortgagor knows of no source from which funds could or would be
forthcoming to pay the Loan; and
(iv) A certification from the Mortgagor detailing the information needed to
determine the final billing for Loan interest. Such certification shall
require submission of financial statements and other documents that may
be required by Mortgagee and the Servicer.
(b) Notwithstanding the provisions of Section 2.1 above, the Note as to both principal and
interest shall be assumable upon the sale or transfer of the Development if the following conditions, as
well as all other conditions and requirements set forth in the Rule, are met:
(1) The proposed owner of the Development meets all specific applicant identity
criteria which were required as conditions of the original Loan;
(2) The proposed owner of the Development agrees to maintain all set asides and
other requirements of the Loan for the period originally specified or longer, and agrees to assume
the Mortgagor's obligations under the Loan Documents; and
(3) The proposed owner and release of Mortgagor receives a favorable
recommendation from the Mortgagee's credit underwriter and approval by the Board of Directors
of the Mortgagee.
In the event the above -stated conditions are not met, the Loan as to both principal and interest, as
well as all other obligations due or accrued under the Loan Documents, shall be due in full upon the sale
or transfer of the Development unless the consent of Mortgagee shall have been obtained or the transfer is
otherwise permitted under the Loan Documents.
(c) Any sale, conveyance, assignment or other transfer of interest or the grant of a security
interest in all or any part of the title to the Development other than a superior mortgage, the Subordinate
Mortgage, and other Permitted Encumbrances, or as otherwise provided in the Loan Documents shall be
subject to Mortgagee's prior written approval.
(d) Mortgagee may renegotiate and extend the Loan in order to extend or retain the
availability of housing for the target population. Such renegotiations shall be based upon:
(1) Performance of the Mortgagor during the Loan term;
(2) Availability of similar housing stock for the target population in the area;
(3) Documentation and certification by the Mortgagor that funds are not available to
repay the Note upon maturity;
(4) A plan for the repayment of the Loan at the new maturity date;
(5) Assurance that the security interest of Mortgagee will not be jeopardized by the
new term(s); and
(6) Industry standard terms which may include amortizing the Loan, requiring
regularly scheduled payments of principal and interest.
Leasehold Mortgage and Security Agt 12
(Vista Breeze / Construction Inflation Response
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(e) Mortgagee shall approve requests for Loan refinancing only if Development Cash Flow (as
defined in the Rule), is improved, the Development's economic viability is maintained, the security interest
of Mortgagee is not adversely affected, and Mortgagee's credit underwriter provides a positive
recommendation.
(f) Mortgagee shall deny requests for Loan refinancing which require extension of the Loan
term or otherwise adversely affect the security interest of Mortgagee, unless the criteria outlined in Section
2.3(e) above are met, Mortgagee's credit underwriter recommends that the approval of such a request is
crucial to the economic survival of the Development, or unless Mortgagee determines that public policy
will be better served by the extension as a result of Mortgagor agreeing to further extend the set -aside period
or provide additional amenities or resident programs suitable for the resident population. Further,
Mortgagee shall limit any approved extension to a minimum term which makes the Development feasible
and which does not exceed an industry standard term.
(g) Mortgagee shall deny requests to increase the amount of any superior mortgage unless the
criteria outlined in Chapter 67-48.010(15), Fla. Admin. Code and the RFA, are met, the original combined
loan to value ratio for the superior mortgage and the Mortgage is maintained or improved, and a
proportionate amount of the increase in the superior mortgage is used to reduce the outstanding Loan
balance.
(h) The indebtedness secured hereby shall be serviced by the Mortgagee or by the Servicer.
(i) The discrimination prohibition of Section 420.516, Fla. Stat., shall apply to the Loan
secured hereby.
0) Rent controls shall not be allowed except as required by the Extended Low -Income
Housing Agreement and the Land Use Restriction Agreement (if applicable) made by and between the
Mortgagor and the Mortgagee and in conjunction with the issuance of tax exempt bonds or federal low
income housing tax credits.
(k) If Development Cash Flow is under -reported and such report causes a deferral of interest,
such under -reporting shall constitute an event of default on the Loan.
(1) The proceeds of the Loan shall only be used for new construction or substantial
rehabilitation which creates or improves affordable, safe and sanitary rental housing units.
2.4 Acceleration of Maturity. If an Event of Default shall have occurred hereunder, and which
has not been cured with any grace or curative period, then the whole unpaid principal sum of the
indebtedness secured hereby with interest accrued thereon shall, at the option of the Mortgagee, become
due and payable without notice or demand, except as otherwise provided herein, time being of the essence
of this Mortgage and of the 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.
2.5 Right of Mortgagee to Enter and Take Possession. Subject to the rights of the First
Mortgagee, Mortgagee shall have the following remedies:
(a) If an Event of Default shall have occurred and be continuing beyond any applicable cure
period, the Mortgagor, upon demand of the Mortgagee, shall forthwith surrender to the Mortgagee the actual
possession of the Development and, to the extent permitted by law, the Mortgagee may enter and take
Leasehold Mortgage and Security Agt 13
(Vista Breeze / Construction Inflation Response
Viability Funding / RFA 2023-211 / 2023-260V)
possession of the Development and may exclude the Mortgagor and the Mortgagor's agents and employees
wholly therefrom. In the event Mortgagee exercises its right pursuant to this subparagraph (a), Mortgagee
shall be deemed to be acting as agent of Mortgagor and not as owner of the Development.
(b) For the purpose of carrying out the provisions of this Section, 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 attorney in fact in the Development.
(c) Whenever all such Events of Default have been cured within any applicable cure period,
the Mortgagee shall surrender possession of the Development to the Mortgagor, provided that the right of
the Mortgagee to take possession, from time to time, pursuant to subparagraph 2.5(a) shall exist if any
subsequent Event of Default shall occur and be continuing beyond the expiration of any applicable cure
period.
2.6 Appointment of a Receiver and Foreclosure.
(a) If an Event of Default shall have occurred hereunder and is continuing beyond any
applicable cure period, then the whole debt 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 of or other proceeding upon this
Mortgage or by any other proper, legal or equitable procedure without declaration of such option and
without notice.
(b) In any suit to foreclose the lien hereof, there shall be allowed and included as additional
indebtedness in the decree for sale all expenditures and expenses which may be paid or reasonably incurred
by or on behalf of the Mortgagee for legal fees and costs, appraisers' fees, outlays for documentary and
expert evidence, stenographers' charges, publication costs and costs (which may be estimated as to items to
be expended after entry of the decree) of procuring all such abstracts of title, title searches and examinations,
title insurance policies, and similar data and assurances with respect to title as Mortgagee may deem to be
reasonably necessary either to prosecute such suit or to evidence to bidders at any sale which may be had
pursuant to such decree the true condition of the title to or the value of the Development. All expenditures
and expenses of the nature in this Section mentioned shall become so much additional debt secured hereby
and shall be immediately due and payable with interest thereon at the maximum rate provided by law, when
paid or incurred by Mortgagee in connection with (i) any proceeding, including foreclosure, probate and
bankruptcy proceedings, to which it shall be a party, either as plaintiff, claimant, or defendant, by reason
of this Mortgage, or any indebtedness hereby secured, (ii) preparations for the commencement of any suit
for the foreclosure hereof after accrual of such right to foreclose whether or not actually commenced, or
(iii) preparations for the defense of any threatened suit or proceeding which might affect the Development
or the security hereof, whether or not actually commenced.
(c) 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 for the Development. 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 Development. Such receiver
shall have power to collect the rents, issues and profits of the Development 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
Leasehold Mortgage and Security Agt 14
(Vista Breeze / Construction Inflation Response
Viability Funding / RFA 2023-211 / 2023-260V)
powers which may be necessary or are usual in such cases for the protection, possession, control,
management and operation of the Development during the whole of said period.
(d) If an Event of Default shall have occurred hereunder, Mortgagor shall deliver to Mortgagee
at any time at its request, all agreements for deed, contracts, leases, abstracts, title insurance policies,
muniments of title, surveys and other papers relating to the Development, and in case of foreclosure thereof
and failure to redeem, the same shall be delivered to and become the property of the person obtaining a
certificate of title to the Development by reason of such foreclosure.
2.7 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.
2.8 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.
ARTICLE III
3.1 Successors and Assigns Included in Parties. 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.
3.2 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.
3.3 Invalid Provisions to Affect No Others. If fulfillment of any provision hereof or any
transaction related hereto or to the 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 Section 1.11, subparagraph 2.6(b) or otherwise 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 principal
amount due pursuant hereto.
3.4 Number and Gender. Whenever the singular or plural number, masculine or feminine or
neuter gender is used herein, it shall equally include the other.
Leasehold Mortgage and Security Agt 15
(Vista Breeze / Construction Inflation Response
Viability Funding / RFA 2023-211 / 2023-260V)
ARTICLE IV
4.1 Notice. All notices and other communications to be made or permitted to be made
hereunder shall be in writing and shall be delivered to the addresses shown below or to such other addresses
that the parties may provide to one another in accordance herewith. Such notices and other communications
shall be given by any of the following means: (a) personal service; or (b) national express air courier,
provided such courier maintains written verification of actual delivery. Any notice or other communication
given by the means described in subsection (a) or (b) above shall be deemed effective upon the date of
receipt or the date of refusal to accept delivery by the party to whom such notice or other communication
has been sent.
Florida Housing: Florida Housing Finance Corporation
227 North Bronough Street, Suite 5000
Tallahassee, Florida 32301-1329
Attention: Executive Director
Telephone: (850) 488-4197
with a copy to: Weiss Scrota Helfman Cole & Bierman, P.L.
2800 Ponce de Leon Blvd, Suite 1200
Coral Gables, Florida 33134
Attention: Maria V. Currais, Esq.
Telephone: (305) 854-0800
Email: mcurrais@wsh-law.com
Mortgagor: Vista Breeze, Ltd.
3 Miami Central
161 NW 6th Street, Suite 1020
Miami, Florida 33136
Attention: Kenneth Naylor
Telephone: (305) 357-4700
Email: kna, for e,apcompanies.com
with a copy to: Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
150 W. Flagler Street, Suite 2200
Miami, Florida 33130
Attention: Brian McDonough, Esq.
Telephone: (305) 789-3350
Email: BMcDonough@stearnsweaver.com
with a copy to: Klein Hornig LLP
1325 G Street NW, Suite 770
Washington, District of Columbia 20005
Attention: Chris Hornig, Esq.
Telephone: (202) 926-3402
Email: CHomig@kleinhomig.com
Co -General Partner: Vista Breeze HACMB, Inc.
200 Alton Road
Miami Beach, Florida 33139
Leasehold Mortgage and Security Agt 16
(Vista Breeze / Construction Inflation Response
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Attention: Miguell Del Campillo
Telephone: (305) 532-6401
Email: miguellkhacmb.org
with a copy to: Fox Rothschild LLP
BNY Mellon Center
500 Grant Street, Suite 2500
Pittsburgh, Pennsylvania 15219
Attention: Alec Stone, Esq.
Telephone: (412) 391-2523
Email: aistone@foxrothschild.com
Servicer: AmeriNat®
5130 Sunforest Drive, Suite 150
Tampa, Florida 33634
Attention: Mark Fredericks
Telephone: (866) 269-1777
Email: mfredericks@amerinatts.com
Any party may change said address by giving the other parties hereto written notice of such change of
address in accordance with the foregoing provisions. Notwithstanding the foregoing, to be effective
hereunder notices from the Mortgagee only need to be given to the Mortgagor in the manner specified
above.
ARTICLE V
5.1 Future Advances. It is agreed that this Mortgage shall also secure such future or additional
advances as may be made by the Mortgagee at its option to the Mortgagor, or its successor in title, for any
purpose permitted under this Mortgage, provided that all those advances are to be made within twenty (20)
years from the date of this Mortgage, or within such lesser period of time as may be provided hereafter by
law as a prerequisite for the sufficiency of actual notice or record notice of the optional future or additional
advances as against the rights of creditors or subsequent purchasers for valuable consideration. The total
amount of indebtedness secured by this Mortgage may decrease or increase from time to time, but the total
unpaid balance so secured at any one time shall not exceed twice the principal amount of the Note, plus
interest, and any disbursements made for the payment of taxes, levies or insurance on the Development
with interest on those disbursements. If, pursuant to Section 697.04, Fla. Stat., Mortgagor files a notice
specifying the dollar limit beyond which future advances made pursuant to this Mortgage will not be
secured by this Mortgage, then Mortgagor shall, within one (1) day of filing such notice, notify Mortgagee
and its counsel by certified mail pursuant to Section 4.1 of this Mortgage. In addition, such a filing shall
constitute an Event of Default hereunder.
5.2 Lien Priority. The lien priority of this Mortgage shall not be affected by any changes in
the Note including, but not limited to, an increase in the interest rate charged pursuant to the Note. Any
parties acquiring an interest in the Development subsequent to the date this Mortgage is recorded shall
acquire such interest in the Development with notice that Mortgagee may increase the interest rate charged
pursuant to the Note or otherwise modify the Note and the Note, as modified, and the Mortgage shall remain
superior to the interest of any party in the Development acquired subsequent to the date this Mortgage is
recorded.
Leasehold Mortgage and Security Agt 17
(Vista Breeze / Construction Inflation Response
Viability Funding / RFA 2023-211 / 2023-260V)
5.3 Assignment of Leases and Rents. As further security for payment of principal, interest and
other amounts due Mortgagee now or hereafter secured hereby, Mortgagor hereby transfers, assigns and
sets over unto Mortgagee all leases (other than the Ground Lease), if any, now or hereafter entered into by
Mortgagor with respect to all or any part of the Development, 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.
This Mortgage and Mortgagee's rights hereunder shall be subject and subordinate to the rights of the First
Mortgagee. Mortgagee shall have, in addition to all other rights and remedies hereunder, those rights of a
mortgagee under Section 697.07, Fla. Stat., as now or hereafter in effect. Until the occurrence of an Event
of Default, Mortgagor may exercise its rights with respect to the leases and rents assigned hereunder.
5.4 Security Agreement. This instrument also creates a security interest in the Development
and any and all equipment and furnishings as are considered or determined to be personal property or
fixtures, together with all replacements, substitutions, additions, appurtenances, products or proceeds
thereof, whether acquired now or in the future, and all products and cash and non -cash proceeds thereof, in
favor of the Mortgagee under the Florida Uniform Commercial Code (the "UCC Collateral") 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.
The Mortgagor hereby authorizes the Mortgagee to file financing statements, continuation
statements and financing statement amendments reciting this Mortgage to be a security agreement affecting
all of the UCC Collateral pursuant to the Florida Uniform Commercial Code, in such form as Mortgagee
may require to perfect or continue the perfection of this security interest, and Mortgagor agrees, if
Mortgagee so requests, to execute and deliver to Mortgagee such financing statements, continuation
statements and amendments. Mortgagor shall pay all filing costs and all costs and expenses of any record
searches for financing statements that Mortgagee may require. Without the prior written consent of
Mortgagee, Mortgagor shall not create or permit to exist any other lien or security interest in any of the
UCC Collateral, other than the Permitted Encumbrances. If an Event of Default has occurred and is
continuing, Mortgagee shall have the remedies of a secured party under the Uniform Commercial Code, in
addition to all remedies provided by this instrument or existing under applicable law. In exercising any
remedies, Mortgagee may exercise its remedies against the UCC Collateral separately or together, and in
any order, without in any way affecting the availability of Mortgagee's other remedies. This instrument
constitutes a financing statement with respect to any part of the Mortgaged Property which is or may
become a fixture.
Mortgagor represents and warrants that VISTA BREEZE, LTD., a Florida limited partnership, is
the correct legal name of the Mortgagor and that the Mortgagor is duly organized, validly existing and in
good standing under the laws of the State of Florida. Mortgagor agrees to promptly notify the Mortgagee
of any change in the name, address, organization or structure of the Mortgagor at least sixty (60) days prior
to any such change and Mortgagor will promptly execute any financing statements or other instruments
reasonably deemed necessary by Mortgagee to prevent any filed financing statement from becoming
misleading or losing their perfected status as a result of such change.
Mortgagor shall provide to Mortgagee an opinion of counsel in the event of any change in the State
within which the organization is located or any change in the name of the Mortgagor. Such opinion shall
Leasehold Mortgage and Security Agt 18
(Vista Breeze / Construction Inflation Response
Viability Funding / RFA 2023-21 I / 2023-260V)
state in essence that Mortgagee's lien continues to be perfected and that all required filings are accurate and
complete under the current filing requirements in the relevant jurisdiction for this financing.
5.5 Limitation of Liability. Except as set forth in the next paragraph of this Section, but
otherwise notwithstanding anything to the contrary in this Mortgage, the Note, or any other Loan
Document, the Mortgagee expressly agrees that the liability of Mortgagor shall be strictly and absolutely
limited to the property encumbered by the Mortgage, namely, the Development (including, but not limited
to, the leases, rents, profits and issues thereof) and any other collateral now or hereafter securing the Loan.
If an Event of Default shall occur, the Mortgagee shall not and may not seek any judgment for a deficiency
or for the payment of principal or interest of the indebtedness secured hereby, against the Mortgagor
Managing General Partner of the Mortgagor (in its capacity as Managing General Partner) in any action to
foreclose, to exercise a power of sale, to confirm any foreclosure or sale under power of sale, or to exercise
any other rights of power under or by reason of the Loan Documents evidencing or securing the obligations
of the Mortgagor with respect to the Loan except to the extent required in order to proceed with judicial
proceedings to foreclose this Mortgage or any other Loan Document or except for a judgment or decree of
specific performance of agreements and covenants under the Loan Documents, other than Mortgagee Loan
payment covenants. In the event any suit is brought on the Loan Documents, or concerning the Loan or
any amount secured by the Mortgage or other Loan Documents as part of judicial proceedings to foreclose
the Mortgage and/or any other security interest granted to the Mortgagee, or to confirm any foreclosure or
sale pursuant to power of sale thereunder, any judgment obtained in such suit shall constitute a lien on and
will be and can be enforced only against, the property encumbered by the Mortgage and the other Loan
Documents, and the leases, rents, profits and issues thereof and not against any other asset of the Mortgagor
or any administrative limited partner or general partner of the Mortgagor, and the terms of such judgment
shall expressly so provide.
Notwithstanding anything herein to the contrary in this Agreement, the Mortgagor and Managing
General Partner shall be personally liable for,and the Mortgagee shall have the right to seek a judgment
for, money damages (including a deficiency judgment) to enforce or collect any or all of the following:
(1) the fees of the Mortgagee, the Servicer and their extraordinary costs and expenses,
including but not limited to reasonable legal fees and out-of-pocket costs and expenses of the
Mortgagee's counsel incurred in connection with the interpretation or enforcement of this
Agreement, the Mortgage, the Note, or any other Loan Documents;
(2) indemnification provisions in favor of the Mortgagee set forth in the Loan
Documents (but excluding any indemnity provisions which would result in the payment of principal
and/or interest under the Loan);
(3) liability under any guaranty entered into with the Mortgagee;
(4) the leases, rents, profits and issues of the Development following any payment
default (without regard to the expiration of any cure period, if any) to the extent misapplied;
(5) liability for intentional waste, destruction or damage to the Development or any
part thereof;
(6) tenant security deposits, to the extent not properly accounted for, or prepaid rent,
to the extent misapplied;
Leasehold Mortgage and Security Agt 19
(Vista Breeze / Construction Inflation Response
Viability Funding / RFA 2023-211 / 2023-260V)
(7) liability and indemnification under the Environmental Indemnity, including, but
not limited to, liability and indemnification obligations for removal or cleanup of environmental
hazards (including the removal of lead based paint and asbestos which is a condition precedent to
funding) on the Development;
(8) all condemnation awards and payments in lieu thereof and/or insurance proceeds
received by Mortgagor which are not applied to the reasonable costs of the restoration of the
Development or to the obligations of Mortgagor under the First Mortgage, the Subordinate
Mortgage, or under the Loan Documents;
(9) the cost to restore the Development as a result of a casualty if the net available
insurance proceeds are allowed to be applied to restoration, to the extent that the costs of such
restoration is not reimbursed by insurance; and
(10) any liability, damage, cost or expense incurred by Mortgagee and/or the Servicer
as a result of any fraud, material misrepresentation or bad faith by Mortgagor.
All of the foregoing obligations shall bear interest at a rate equal to the lesser of (i) the maximum
rate of interest permitted under applicable law or (ii) eighteen percent (18%) per annum, from the due date
thereof (or, in the case of liability and indemnification for removal or cleanup of environmental hazards,
from the date demand for payment thereof is made) until the date paid in full. No provision of any Loan
Document shall be deemed to waive, amend or modify the recourse obligations set forth herein unless such
provision expressly references this Section.
5.6 Other Provisions. Notwithstanding any other provision of this Mortgage to the contrary
and subject in all respects to the prior rights of the First Mortgagee, all insurance proceeds recovered by the
Mortgagor or Mortgagee on account of damage or destruction to the Development and all proceeds of any
condemnation award recovered by the Mortgagor or Mortgagee for any building or equipment taken or
damaged, less the reasonable cost, if any, to the Mortgagor or Mortgagee of such recovery and of paying
out such proceeds (including reasonable legal fees and costs allocable to inspecting the work and the Plans
and Specifications therefor), shall, upon the written request of the Mortgagor, be applied by the Mortgagee
to the payment of the cost of repairing, restoring or rebuilding the Development so damaged or destroyed
or of the portion or portions of the Development not so taken (hereinafter referred to as the "Work") and
shall be paid out from time to time to the Mortgagor as the work progresses, but subject to the following
conditions:
(a) If the work is structural or if the cost of the Work estimated by the Mortgagor shall exceed
One Hundred Thousand Dollars ($100,000), as verified by an architect or engineer, and before the
Mortgagor commences any work, other than temporary work to protect property or prevent interference
with business, the Mortgagee shall have approved the Plans and Specifications (as defined in the
Construction Loan Agreement) for the work to be submitted by the Mortgagor, which approval shall not be
unreasonably withheld or delayed, it being nevertheless understood that to the extent feasible said Plans
and Specifications shall provide for such work that, upon completion thereof, the improvements shall be at
least equal in value and general utility to the improvements which were on the Development prior to the
damage, or destruction or taking;
(b) Each request for payment shall be made on ten (10) days' prior notice to both the Mortgagee
and the Servicer and shall be accompanied by a certificate to be made by an architect or engineer appointed
by the Mortgagee stating (i) that all of the work completed has been done in compliance with the approved
Plans and Specifications, (ii) that the sum requested is justly required to reimburse the Mortgagor for
Leasehold Mortgage and Security Agt 20
(Vista Breeze / Construction Inflation Response
Viability Funding / RFA 2023-211 / 2023-260V)
payments by the Mortgagor to, or is justly due to, the contractor, subcontractors, materialmen, laborers,
engineers, architects or other persons rendering services or materials for the work (giving a brief description
of such services and materials), and that when added to all sums previously paid out by the Mortgagee does
not exceed the value of the work done to the date of such certificate, and (iii) that the amount of such
proceeds remaining in the hands of the Mortgagee will be sufficient on completion of the work to pay for
the same in full (giving in such reasonable detail as the Mortgagee may require an estimate of the cost of
such completion);
(c) Each request shall be accompanied by waivers of lien reasonably satisfactory to the
Mortgagee covering the immediately preceding draw period for which payment or reimbursement has been
provided and by a search prepared by a title company or licensed abstractor or by other evidence satisfactory
to the Mortgagee, that there has not been filed with respect to the Development any mechanics' or other lien
or instrument for the retention of title in respect of any part of the work not discharged of record;
(d) There shall be no default existing on the part of the Mortgagor under this Mortgage or the
Note or any other instrument securing the same after expiration of any applicable cure period; and
(e) The request for any payment after the work has been completed shall be accompanied by
a copy of any certificate or certificates required by law to render occupancy of the Development legal.
Upon the completion of the work and payment in full therefor, or upon any failure on the part of
the Mortgagor promptly to commence or continue to work, at any time upon request by the Mortgagor, the
Mortgagee will apply the amount of any such proceeds then or thereafter in the hands of the Mortgagee to
the payment of any indebtedness secured by this Mortgage, provided, however, that nothing herein
contained shall prevent the Mortgagee from applying at any time the whole or any part of such proceeds to
the curing of any default under this Mortgage or the Note.
5.7 Choice of Law. This Mortgage is to be construed in all respects and enforced according to
the laws of the State of Florida.
5.8 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.
5.9 Permitted Encumbrances. Notwithstanding any other provision herein, all rights, title,
interests, covenants and agreements herein are subject to the rights, title, priority, interests, covenants and
agreements of each lienor set forth in the schedule of Permitted Encumbrances including, but not limited
to, those attached hereto as Exhibit "B" and made a part hereof together with those approved by Florida
Housing, including without limitation, the conversion of the First Mortgage Loan to permanent loan status
in accordance with the First Mortgage Loan documents, and an Extended Low -Income Housing Agreement
(if applicable) as an encumbrance on the Development, (collectively, referred to as the "Permitted
Encumbrances").
5.10 Sole Discretion of Mortgagee. Wherever pursuant to this Mortgage (a) Mortgagee
exercises any right given to it to approve or disapprove, (b) any arrangement or term is to be satisfactory to
Mortgagee, or (c) any other decision or determination is to be made by Mortgagee, the decision of
Mortgagee to approve or disapprove, all decisions that arrangements or terms are satisfactory or not
satisfactory and all other decisions and determinations made by Mortgagee, shall be in the sole and absolute
discretion of Mortgagee and shall be final and conclusive, except as may be otherwise expressly and
specifically provided herein.
Leasehold Mortgage and Security Agt 21
(Vista Breeze / Construction Inflation Response
Viability Funding / RFA 2023-211 / 2023-260V)
5.11 Waiver of Jury Trial. MORTGAGOR WAIVES ITS RIGHT TO A TRIAL BY JURY IN
ANY ACTION, WHETHER ARISING IN CONTRACT OR TORT, BY STATUTE OR OTHERWISE,
IN ANY WAY RELATED TO THIS LOAN. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
MORTGAGEE'S EXTENDING CREDIT TO MORTGAGOR AND NO WAIVER OR LIMITATION OF
MORTGAGEE'S RIGHTS UNDER THIS PARAGRAPH SHALL BE EFFECTIVE UNLESS IN
WRITING AND MANUALLY SIGNED ON MORTGAGEE'S BEHALF.
5.12 Cure Rights of Partners. Notwithstanding anything to the contrary contained herein or any
other Loan Document, Mortgagee agrees that any cure of any default made or tendered by the Managing
General Partner, the Co -General Partner, the Investor Limited Partner or Special Limited Partner shall be
deemed to be a cure by Mortgagor and shall be accepted or rejected on the same basis as if made or tendered
by Mortgagor.
5.13 Subordination Agreement. Notwithstanding anything to the contrary contained herein, so
long as the Governmental Lender Note is outstanding, or any portion of the note evidencing the First
Mortgage Loan is unpaid, Mortgagee's rights to declare a default, accelerate the indebtedness secured by
the Note, this Mortgage and the other Loan Documents, commence a foreclosure of this Mortgage, or pursue
any other right or remedy under the Note, this Mortgage or the other Loan Documents, are subject to the
Subordination Agreement.
[SIGNATURE PAGE TO FOLLOW]
Leasehold Mortgage and Security Agt 22
(Vista Breeze / Construction Inflation Response
Viability Funding / RFA 2023-211 / 2023-260V)
SIGNATURE PAGE FOR
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
(VISTA BREEZE / CONSTRUCTION INFLATION RESPONSE
VIABILITY FUNDING / RFA 2023-211 / 2023-260V)
THIS IS A BALLOON MORTGAGE AND THE FINAL PRINCIPAL PAYMENT OR THE
PRINCIPAL BALANCE DUE UPON MATURITY IS $4,300,000, TOGETHER WITH
ACCRUED INTEREST, IF ANY, AND ALL ADVANCEMENTS MADE BY THE
MORTGAGEE UNDER THE TERMS OF THIS MORTGAGE.
IN WITNESS WHEREOF, this Mortgage has been duly executed as of the date first set forth
above.
WITNESSES:
STATE OF FLORIDA )
COUNTY OF M i cN✓i .i�.,dp )
MORTGAGOR:
VISTA BREEZE, LTD., a Florida limited partnership
By: APC Vista Breeze, LLC, a Fl rida 1' ited liability
company, its managing,gegeral,p, er
M
President
Address: 3 Miami Central
161 NW 6th Street, Suite 1020
Miami, FL 33136
The foregoing instrument was acknowledged before me by means of !:---Physical presence or
online notarization this 2-( '" day of Noy rr nbey- 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 limited partnership. Who is
_ 1,/personally known to me or has produced a as
identification.
[SEAL]
Notary Public State of Florida
Rebeca Martinez
My CHHo21mmission3601
111
Exp. 1/4/2026
C'—� .
Notary Public
Print Name: Re-6e.cct - o►� -r-, naz
Commission Expires: l L4- z �o
Commission Expires: 14 H 2% 3k-oo 1
S-1
EXHIBIT "A"
LEGAL DESCRIPTION
(VISTA BREEZE / CONSTRUCTION INFLATION RESPONSE
VIABILITY FUNDING / RFA 2023-211 / 2023-260V)
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:
PARCELI:
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
EXH A
Leasehold Mortgage and Security Agr.
(Vista Breeze / Construction Inflation Response
Viability Funding / RFA 2023-211 / 2023-260V)
EXHIBIT "B"
PERMITTED EXCEPTIONS
(VISTA BREEZE / CONSTRUCTION INFLATION RESPONSE
VIABILITY FUNDING / RFA 2023-211 / 2023-260V)
1. Taxes and assessments for the year 2024 and subsequent years, which are not yet due and payable.
2. Restrictions, dedications, conditions, reservations, easements and other matters shown on the plat of
NORMANDY GOLF COURSE SUBDIVISION, as recorded in Plat Book 44, Page(s) 62.
3. Terms, conditions and covenants contained in that Order before the Historic Preservation Board of the
City of Miami Beach recorded July 13, 2022, in Official Records Book 33287, Page 4767. (As to Lots
6, 7, and 8, Blk 56)
4. Terms, conditions and covenants contained in that Order before the Historic Preservation Board of the
City of Miami Beach recorded July 13, 2022, in Official Records Book 33287, Page 4800. (As to Lots
3, 4, and 5, Blk 55)
5. Declaration of Restrictive Covenants in Lieu of Unity of Title recorded April 4, 2023, in Official
Records Book 33649, Page 2944. (As to Lots 3, 4, and 5, Blk 55)
6. Declaration of Restrictive Covenants in Lieu of Unity of Title recorded April 17, 2023, in Official
Records Book 33668, Page 2142. (As to Lots 6, 7, and 8, Blk 56)
7. Declaration of Restrictive Covenants in Lieu of Unity of Title recorded April 26, 2023, in Official
Records Book 33681, Page 2327. (As to Lots 6, 7, and 8, Blk 56)
8. Declaration of Restrictive Covenants by and between Visa Breeze, Ltd., Housing Authority of the City
of Miami Beach, and the City of Miami Beach, Florida, recorded September 27, 2023, in Official
Records Book 33902, Page 1195, as amended and restated by that certain Amended and Restated
Declaration of Restrictive Covenants recorded simultaneously herewith
9. The following matters disclosed by survey prepared by Delta Mapping and Surveying, Inc., dated
October 23, 2023, under Drawing No. 23-0275:
a. Metal fence encroaches over the east boundary line of Lot 5, Block 55;
b. Seawall and wood dock encroach over the south boundary line of Lots 4 and 5 of Block 55;
and
c. Wood fence encroaches over the west boundary line of Lot 3, Block 55.
10. The following matters disclosed by survey prepared by Delta Mapping and Surveying, Inc., dated
October 23, 2023, under Drawing No. 23-0270:
a. Overhead wire and guy anchor encroach over the south boundary line of Lot 7, Block 56.
11. Terms and conditions of the Second Amended and Restated Ground Lease by and between Vista
Breeze, Ltd., a Florida limited partnership, and Housing Authority of The City of Miami Beach, a public
body corporate and politic, as evidenced by that Amended and Restated Memorandum of Lease
recorded simultaneously herewith.
Leasehold Mortgage and Security Agr.
(VISTA BREEZE / Construction Inflation Response
Viability Funding / RFA 2023-211 / 2023-260V)
KH 1108661.2
12. Land Use Restriction Agreement by and between Vista Breeze, Ltd., a Florida limited partnership,
Housing Finance Authority of Miami -Dade County and The Bank of New York Mellon Trust
Company, N.A. (BOND), recorded simultaneously herewith.
13. Leasehold Mortgage, Assignment of Rents, Security Agreement and Fixture Filing from Vista Breeze,
Ltd., a Florida limited partnership to Housing Finance Authority of Miami -Dade County (BOND), in
the amount of $30,350,000.00 recorded simultaneously herewith; as assigned to The
Bank of New York Mellon Trust Company, N.A. pursuant to Assignment of Mortgage recorded
simultaneously herewith.
14. UCC-1 Financing Statement naming Vista Breeze, Ltd., a Florida limited partnership, as debtor, and
Housing Finance Authority of Miami -Dade County, as assignor secured party and The Bank of New
York Mellon Trust Company, N.A., as assignee secured party (BOND), recorded simultaneously
herewith.
NOTE: All recording references in this form shall refer to the public records of Miami -Dade County,
Florida, unless otherwise noted.
EXH —B2
Leasehold Mortgage and Security Agr.
(VISTA BREEZE / Construction Inflation Response
Viability Funding / RFA 2023-211 / 2023-260V)
CONSENT OF OWNER
OF FEE TITLE TO LEASEHOLD MORTGAGE
AND SECURITY AGREEMENT
(VISTA BREEZE / CONSTRUCTION INFLATION RESPONSE
VIABILITY FUNDING / RFA 2023-211 / 2023-260V)
THIS CONSENT OF OWNER OF FEE TITLE TO LEASEHOLD MORTGAGE AND
SECURITY AGREEMENT ("Consent") is made, executed and delivered as of December 15, 2023, by the
HOUSING AUTHORITY OF THE CITY OF MIAMI BEACH, a public body corporate and politic
established pursuant to Chapter 421 of the Florida Statutes (the "Owner").
WITNESSETH:
WHEREAS, VISTA BREEZE, LTD., a Florida limited partnership ("Borrower"), has executed
and delivered to FLORIDA HOUSING FINANCE CORPORATION, a public corporation and a public
body corporate and politic duly created and existing under the laws of the State of Florida ("Florida
Housing"), a Leasehold Mortgage and Security Agreement of even date herewith (the "Mortgage")
encumbering Borrower's leasehold interest in the Land (as described below) as security for a loan in the
original principal amount of $4,300,000 being made by Florida Housing to the Borrower (the "Loan"); and
WHEREAS, Owner is the owner of the fee simple title to the parcels of the Land as described on
Exhibit "A" hereto; and
WHEREAS, the Owner has leased the parcels to the Borrower pursuant to that certain Second
Amended and Restated Ground Lease dated December 15, 2023 (the "Ground Lease"); and
WHEREAS, as a condition precedent to Florida Housing making the Loan secured by the Mortgage
to the Borrower, Florida Housing has required that the Owner consent to the delivery of the Mortgage for
the purpose of subjecting the leasehold interest title to the Land to the lien of the Mortgage; and
WHEREAS, the Owner shall receive substantial benefits from Florida Housing making the Loan
to Borrower, including the construction of improvements on the Land with the proceeds of such Loan, and
the Owner has agreed to consent to the Mortgage.
NOW, THEREFORE, for and in consideration of $10.00 and other good and valuable consideration
paid by Borrower to the Owner, the Owner does hereby covenant and agree as follows:
1. The foregoing recitals are hereby ratified and confirmed by the Owner as being true and
correct, and said recitals are hereby incorporated into the body of this Consent by this reference.
2. Any capitalized term used in this Consent and which is not defined in this Consent shall
have the meaning ascribed thereto in the Mortgage.
3. The Owner does hereby consent to the delivery of the Mortgage and subjecting the
leasehold interest title to the Land to the lien of the Mortgage.
4. The Owner shall not have any personal or individual liability whatsoever with respect to
the Mortgage, or any obligations, amounts or indebtedness evidenced or secured thereby or arising
1
Consent of Owner of Fee Title in Mortgage & Security Agreement
(VISTA BREEZE / CONSTRUCTION INFLATION RESPONSE
VIABILITY FUNDING / RFA 2023-211 / 2023-260V)
thereunder, and Florida Housing's sole and exclusive recourse against the Owner shall be to foreclose upon
the Borrower's leasehold interest in and to the Land.
5. In the event of the occurrence of any Event of Default by Borrower under the Mortgage,
Florida Housing shall provide notice thereof to the Owner concurrently with notice to Borrower and shall
accept a cure of such default by the Owner, provided that such cure shall occur within the cure period, if
any, provided for in the Mortgage for the Borrower to cure such default. Owner acknowledges and agrees
that (i) it has executed and delivered this Consent to consent to a Leasehold Mortgage to secure the
obligations of Borrower to Florida Housing under the Mortgage, and (ii) upon the occurrence of an Event
of Default under the Mortgage, Florida Housing shall be entitled to pursue all of its rights and remedies
under the Mortgage, including, without limitation, the commencement of an action to foreclose the
Mortgage the Borrower's leasehold interest in the Land.
[SIGNATURE PAGE TO FOLLOW]
2
Consent of Owner of Fee Title in Mortgage & Security Agreement
(VISTA BREEZE / CONSTRUCTION INFLATION RESPONSE
VIABILITY FUNDING / RFA 2023-211 / 2023-260V)
SIGNATURE PAGE TO CONSENT OF OWNER
OF FEE TITLE TO LEASEHOLD MORTGAGE
AND SECURITY AGREEMENT
(VISTA BREEZE / CONSTRUCTION INFLATION RESPONSE
VIABILITY FUNDING / RFA 2023-211 / 2023-260V)
TM
IN WITNESS WHEREOF, the Owner has executed and delivered this Consent as of the 14� of
rr b 2023.
OWNER:
HOUSI UTHORITY OF THE CITY OF
MIA I BEAC , a public body corporate and politic
estab 'shed pursu nt to Chapter 421,, Florida Statutes
L-02
Miguell Del Campillo, Acutive Director
Address: 200 Alton Road
Miami Beach, FL 33139
STATE OF FLORIDA )
COUNTY OF J�/I/,¢ / )
The foregoing instrumeryt was acknowledged before me b means of -V physical presence or online
notarization this %� day o ,023, by Miguell Del Campillo as Executive
Director of HOUSING AUTHORITY OF THE CITY OF MIAMI BEACH, a public body corporate
and politic established pursuant to Chapter 421, Florida Statutes, on behalf of the authority. Who is
Y personally known to me or has produced a as
identifica`tioT n.
[ SEAL] 7/--/Zi�-,
Notary Public -
Pr
int Name: Z
owN
ROBERTODIAZ Commission Expires:
°*• * MY COMMISSION # HH 313355 Commission No.:
EXPIRES: October 30, 2026
S-1
LAST AGE
EXHIBIT "A"
LEGAL DESCRIPTION
(VISTA BREEZE / CONSTRUCTION INFLATION RESPONSE
VIABILITY FUNDING / RFA 2023-211 / 2023-260V)
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.
A-1
Consent of Owner of Fee Title in Mortgage & Security Agreement
(VISTA BREEZE / CONSTRUCTION INFLATION RESPONSE
VIABILITY FUNDING / RFA 2023-211 / 2023-260V)