70. Leasehold Mortgage and Security AgreementTHIS INSTRUMENT PREPARED
BY AND RETURN TO:
Weiss Serota Hellman Cole & Bierman, P.L.
Attn: Maria V Currais, Esq
2800 Ponce de Leon Blvd, Suite 1200
Coral Gables, FL 33134
3z� I 1.-7
OR SK 34013 Pss 2847-2579 (33P9s)
RECOROE0 12/ 1 S/ 2023 1 ;. -' 3:3 N '20
AIAN r Ef`HAlaDE1:--P.AROUTN
CLERK Of 'THE (:OUR'( & COI1f''1'ROLI...ER
M:I:AM1--DADE C1A1*TYv FL.
ABOVE SPACE RESERVED FOR
RECORDING PURPOSES ONLY
THIS IS A BALLOON MORTGAGE AND THE FINAL PRINCIPAL PAYMENT OR THE
PRINCIPAL BALANCE DUE UPON MATURITY IS $1,301,500, 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 / NHTF / RFA 2021-205 / 2022-1598N)
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"), for the benefit 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
("Florida Housing" or "Mortgagee") (which term as used in every instance shall include the Mortgagee's
successors and assigns).
RECITALS:
A. Except as otherwise specified herein, capitalized terms used but not defined shall have the
meanings ascribed thereto in that certain Construction Loan Agreement of even date herewith (the
"Construction Loan Agreement") among Florida Housing, the Mortgagor and AMERINATO, LLC, a
Minnesota limited liability company authorized to transact business in the State of Florida (the "Servicer").
B. Florida Housing has been created and organized pursuant to and in accordance with the
provisions of the Florida Housing Finance Corporation Act, Chapter 420, Part V, Fla. Stat., as amended
(the "Act"), for the purpose, among others, of financing the costs of residential developments that will
provide decent, safe and sanitary housing for persons or families of very low, low, moderate or middle
income in the State of Florida (the "State").
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 420.5130). FLORIDA STATUTES.
1 /33
-9A
C. The State has been designated by the United States Department of Housing and Urban
Development ("HUD") as a participating jurisdiction for the receipt and use of funds as provided by the
National Housing Trust Fund Program governed by Title I of the Housing and Economic Recovery Act of
2008, Section 1131 (Public Law 110-289); 12 U.S.C. Section 4501 et seq., and.24 C.F.R. Part 93 (the
"NHTF Program").
D. Florida Housing has been designated by the State as the allocating authority for NHTF
Program funds.
E. The Mortgagor has applied to Florida Housing and Florida Housing has agreed, under
certain conditions, to approve and administer a loan of NHTF Program funds under the Florida Housing
Finance Corporation Request for Applications 2021-205, in effect as of August 17, 2021 ("RFA"), and the
rules of Florida Housing Finance Corporation, as codified at Chapter 67-48, Fla. Admin. Code, in effect as
of May 18, 2021, 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 ONE MILLION THREE HUNDRED
ONE THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($1,301,500) (the "Loan") for the
construction, acquisition and permanent financing of a 119-unit development known as VISTA BREEZE
located on property in Miami -Dade County, Florida (the "County") more particularly described in Exhibit
"A" attached hereto and incorporated herein by this reference (the "Land"). The Borrower's leasehold
interest in the Land, the Improvements, the fixtures and personal property and other amenities now or
hereafter located on the Land are referred to collectively hereafter as the "Development."
F. Under the terms of the Construction Loan Agreement executed simultaneously herewith,
the Mortgagor has agreed that the Development shall comply with the requirements specified therein, herein
and in the Land Use Restriction Agreement (defined below) with respect to the NHTF Units and the rent
levels applicable thereto.
G. As evidence of the Loan, the Mortgagor has executed and delivered to Florida Housing
that certain Promissory Note in the principal amount of $1,301,500, dated the date hereof, payable to the
order of Florida Housing (the "Note"), and the Construction Loan Agreement to provide for the proper
disbursement of the Loan. The terms of the Note and the Construction Loan Agreement are incorporated
herein by this reference.
H. As security for the payments required to be made by the Mortgagor to Florida Housing
under the Construction Loan Agreement, the Note and related Loan Documents, the Mortgagor has agreed
to grant Florida Housing a mortgage and security interest in the Premises (herein defined) and the
Development, all as more fully set forth in this Mortgage.
NOW, THEREFORE, in consideration of the premises, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Mortgagor does hereby
irrevocably mortgage, pledge, transfer, grant, bargain, sell, alien, remise, release, convey and confirm unto
Florida Housing and its successors and assigns, the Premises and all of the Land and the improvements
thereon;
TOGETHER WITH any and all buildings, landscaping and other improvements now or hereafter
erected in or on the Land, including, without limitation, the fixtures, attachments, appliances, equipment,
machinery, and other articles attached to said buildings and improvements, (collectively, the
"Improvements"), all of which shall be deemed and construed to be a part of the realty;
TOGETHER WITH any and all personal property owned by the Mortgagor, located on the
Premises and necessary to the use or operation thereof (collectively, the "Personal Property");
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TOGETHER WITH any and all interests, estates or other claims, both in law and in equity, which
the Mortgagor now has or may hereafter acquire in the Land, the Personal Property and the Improvements
(all of the foregoing are sometimes collectively referred to herein as the "Premises");
TOGETHER WITH any and all easements, rights -of -way and rights now owned or hereafter
acquired by the Mortgagor used in connection with the Land or the Improvements, or a means of access to
either or both, including, without limiting the generality of the foregoing, all rights to the nonexclusive use
of common drive entries, and all tenements, hereditaments and appurtenances thereof and thereto, and all
water and water rights and shares of stock evidencing the same;
TOGETHER WITH any and all right, title and interest now owned or hereafter acquired by the
Mortgagor in and to all options to purchase or lease the Land or Premises or any portion thereof or interest
therein;
TOGETHER WITH any and all oil and gas and other mineral rights in or pertaining to the Land,
if any, and all royalty, leasehold and other rights of the Mortgagor pertaining thereto;
TOGETHER WITH any and all rents, issues, profits, royalties, income and other benefits derived
from the Premises (collectively, the "Rents"), subject to the right, power and authority hereinafter given to
the Mortgagor to collect and apply such Rents;
TOGETHER WITH any and all leasehold estates, right, title and interest of the Mortgagor in and
to all residential leases or subleases (other than the Ground Lease) covering the Premises, (the "Leases") or
any portion thereof or interest therein now or hereafter existing or entered into, and all right, title and interest
of the Mortgagor thereunder including, without limitation, all cash or security deposits, advance rentals,
and deposits or payments of a similar nature (collectively referred to herein, together with all prepaid Rents
and security deposits under all Leases as 'Deposits");
TOGETHER WITH any and all right, title and interest now owned or hereafter acquired by the
Mortgagor in and to any land lying within the right-of-way of any street, open or proposed, adjoining the
Land, and any and all sidewalks, alleys and strips and gores of land adjacent to or used in connection with
the Land or the Premises; and
TOGETHER WITH any and all of the estate, interest, right, title, other claim or demand, both in
law and in equity including claims or demands with respect to the proceeds of insurance in effect with
respect thereto, which the Mortgagor now has or may hereafter acquire in the Premises, and any and all
awards made for the taking by eminent domain, or by any proceeding or purchase in lieu thereof, of the
whole or any part of the Premises including, without limitation, any award resulting from a change of grade
of streets and any award for severance damages (collectively, "Proceeds") (all of the aforesaid property and
the interests hereby conveyed being hereinafter collectively referred to as the "Estate").
FOR THE PURPOSE OF SECURING:
(a) payment and performance of each and every obligation, covenant and agreement of the
Mortgagor contained in the Note, the Construction Loan Agreement, this Mortgage, the Land Use
Restriction Agreement, the Environmental Indemnity Agreement in favor of Florida Housing (the
"Environmental Indemnity"), the Completion and Operating Deficit Guaranty, the Continuing, Absolute
and Unconditional Guaranty of Recourse Obligations (collectively, the "Guarantees"), including any
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amendments or supplements thereto or hereto, any extension or renewal thereof or hereof, or any
replacement therefor or hereof, including, without limitation:
(i) payment of all amounts required to be paid by the Mortgagor under the
Construction Loan Agreement, the Note and the Loan Documents; and
(ii) payment of all other sums agreed to be paid by the Mortgagor hereunder;
(b) performance of every obligation, covenant and agreement of the Mortgagor contained
herein;
(c) payment of all other sums which may hereafter be loaned to the Mortgagor, or its
successors or assigns, by Florida Housing, its successors or assigns, pursuant to the Construction Loan
Agreement, the Note or this Mortgage; and
(d) payment of all sums that may become due and payable to or for the benefit of Florida
Housing pursuant to the terms of this Mortgage.
The obligations contained in paragraphs (a) through (d) above are referred to herein as "Secured
Obligations."
This Mortgage and any and all other mortgages, security agreements, guarantees and/or other
instruments given to evidence or further secure the payment or performance of any obligation secured
hereby and the Mortgagor's obligations under the foregoing documents (including the Environmental
Indemnity and the Guarantees) are sometimes hereinafter collectively referred to as the "Loan Documents."
TO PROTECT THE PREMISES AND THE SECURITY GRANTED BY THIS
MORTGAGE, THE MORTGAGOR HEREBY COVENANTS AND AGREES AS FOLLOWS:
ARTICLE I
COVENANTS AND AGREEMENTS
1.01. Payment of Secured Obligations.
The Mortgagor shall pay when due all of its obligations with respect to the Secured Obligations as
provided herein, subject to the limited recourse provisions of the Loan Documents.
1.02. Maintenance, Repair, Alterations.
(a) The Mortgagor: (i) shall maintain, keep and preserve the Estate in good condition and
repair, ordinary wear and tear excepted; (ii) subject to the rights of any existing or future tenants or of the
Mortgagor pursuant to existing or future leases, shall not remove, demolish or substantially alter any of the
Improvements (other than (1) repairs in the ordinary course of business which serve to preserve or increase
the value of the Premises and (2) alterations that are required by law), in whole or in part, without the prior
written consent of Florida Housing, which consent shall not be unreasonably withheld so long as the
security hereof and the value of the Estate shall not be materially impaired thereby; (iii) shall complete
promptly following commencement of construction and in a good and workmanlike manner any of the
Improvements which may be now or hereafter constructed on the Premises and restore (unless expressly
provided to the contrary in any other Loan Document) in like manner any of the Improvements which may
be damaged or destroyed thereon from any cause whatsoever, and pay when due or transfer to bond (with
prior approval of Florida Housing) all claims for labor performed and materials furnished therefor, subject
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to the rights of any existing or future tenants or of the Mortgagor pursuant to existing or future leases; (iv)
shall comply with all laws, ordinances, rules, regulations, covenants, conditions and restrictions now or
hereafter affecting the Estate or any part thereof or requiring any alteration or improvement to be made
thereon or thereto provided, however, that the Mortgagor shall have the right to contest any of the foregoing
by appropriate legal proceedings; (v) shall not commit, suffer or permit any act to be done in, upon or to
the Estate or any part thereof in violation of any law, ordinance, rule, regulation or order; (vi) shall not
commit or permit any waste or deterioration of the Estate; (vii) shall keep and maintain grounds, sidewalks,
roads, parking and landscape areas within the Estate in good and neat order and repair; (viii) subject to the
rights of tenants under existing or future leases, shall not cause or permit any fixture or any article of
Personal Property to be removed from the Premises without the prior written consent of Florida Housing
(which consent shall not be unreasonably withheld) unless the same shall have been replaced in the ordinary
course of business by substantially equivalent property.
(b) The Mortgagor hereby agrees that Florida Housing may at its own expense, upon
reasonable notice delivered to the Mortgagor and subject to the rights of tenants under the Leases, conduct
from time to time and at any reasonable time during normal business hours, through representatives of its
own choice, on -site inspections and observations of (i) the maintenance and repair of the Estate, including
a review of all maintenance and repair programs and practices and all reports and records, including the
records of expenditures, relating thereto, and (ii) such other facilities, practices and records of the
Mortgagor relating or appropriate in order to monitor the Mortgagor's compliance with the provisions of
this Section 1.02.
1.03. Required Insurance.
(a) 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 Insurance Guide dated August 30, 2016,
as amended from time to time. 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, 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 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.
(b) In the event that the Mortgagor fails to comply with the requirements of this Section 1.03,
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
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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 Florida Housing as a named 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 Florida Housing 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 Florida Housing. Mortgagor acknowledges and agrees that Lender's insurance
requirements may change from time to time throughout the term of the Loan.
1.04. Delivery of Policies, Payment of Premiums.
The Mortgagor shall furnish Florida Housing and the Servicer with a certificate of insurance for
each policy of insurance required under Section 1.03 hereof setting forth the coverage, the limits of the
liability, the deductibles, if any, the name of the carrier, the policy number, and the period of coverage,
which certificates shall have been executed by authorized officials of the companies issuing such insurance,
or by agents or attorneys -in -fact authorized to issue said certificates (in which event each such certificate
shall be accompanied by a notarized affidavit, corporation agreement or power of attorney evidencing the
authority of the signatory to issue such certificate on behalf of the insurer named therein). The Mortgagor
may provide any of the required insurance through blanket policies carried by the Mortgagor, by another
entity on behalf of the Mortgagor, or an affiliate of the Mortgagor, and covering more than one location,
provided such insurance meets the criteria set forth herein. (For the purposes of this section, "affiliate"
shall mean an entity that directly or indirectly, through one or more intermediaries, controls, is controlled
by, or is under common control with the entity in question. For the purposes of this definition, the term
"control" means the ownership of more than fifty percent (50%) of the beneficial interest or the voting
power of the appropriate entity.) At least thirty (30) days prior to the expiration of each required policy,
the Mortgagor shall cause to be delivered to Florida Housing evidence of the payment of premium and the
renewal or replacement of such policy continuing insurance. All such policies shall contain a provision
that, notwithstanding any contrary agreement between the Mortgagor and the insurance company, such
policies will not be canceled, allowed to lapse without renewal, surrendered or materially amended (which
term shall include any reduction in the scope or limits of coverage) without at least thirty (30) days' prior
written notice to Florida Housing. If the Mortgagor fails to provide, maintain, keep in force or deliver to
Florida Housing the policies of insurance required by this Mortgage or by any of the Loan Documents,
Florida Housing may (but shall have no obligation to), upon the giving of prior notice to the Mortgagor of
its election to do so, pursuant to Section 4.04 hereof, procure such insurance, or single interest insurance
for such risks concerning Florida Housing's interests, and the Mortgagor will pay all premiums therefor
upon demand by Florida Housing; and until such payment is made by the Mortgagor, the amount of all such
premiums shall be secured by this Mortgage.
1.05. Casualties, Eminent Domain.
The Mortgagor shall give prompt written notice thereof to Florida Housing upon (i) the happening
of any casualty to, or in connection with, the Estate which materially damages the Estate, or any part thereof,
whether or not covered by insurance, and (ii) receipt by the Mortgagor of any notice of any proceedings
under eminent domain with respect to the Estate, or any part thereof, and shall deliver to Florida Housing
copies of every paper served in any such proceedings under eminent domain. So long as an Event of Default
under the Loan Documents does not then exist and is not then continuing and subject to the rights of the
Senior Mortgagees, in the event of any such casualty or condemnation, the insurance proceeds or
condemnation awards received therefrom shall be disbursed by Florida Housing to the Mortgagor to restore
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the Premises, pursuant to the provisions of the Construction Loan Agreement. Subject to the rights of the
Senior Mortgagees, if the Premises shall be sold at foreclosure of this Mortgage, Florida Housing shall have
the right to receive out of said awards or proceeds the amount of any sums due to Florida Housing and
secured by this Mortgage and other Loan Documents, plus all reasonable counsel fees, costs and
disbursements incurred by Florida Housing in the collection of such awards or proceeds.
1.06. Taxes and Impositions.
(a) The Mortgagor shall pay, or cause to be paid prior to delinquency, all real property taxes
and assessments, general and special, and all other taxes and assessments of any kind or nature whatsoever
including, without limitation, non -governmental levies or assessment such as maintenance charges, levies
or charges resulting from covenants, conditions and restrictions affecting the Estate, which are assessed or
imposed upon the Estate, or upon the Mortgagor as lessee or owner operator of the Estate, or become due
and payable, and which create, may create or appear to create a lien upon the Estate, or any part thereof, or
upon any Personal Property, equipment or other facility used in the operation or maintenance thereof (all
of the above hereinafter referred to, collectively, as "Impositions"); provided, however, that if, by law, any
such Imposition is payable, or may at the option of the taxpayer be paid, in installments, the Mortgagor
may pay the same or cause it to be paid, together with any accrued interest on the unpaid balance of such
Imposition, in installments as the same become due and before any fine, penalty, interest or cost may be
added thereto for the nonpayment of any such installment and interest.
(b) If at any time after the date hereof there shall be assessed or imposed (i) a tax or assessment
on the Estate in lieu of or in addition to the Impositions payable by the Mortgagor pursuant to Section
1.06(a) hereof, or (ii) a license, fee, tax, charge, excise, levy or assessment imposed on Florida Housing by
reason of its interest in, and measured by or based in whole (or in part) upon the amounts payable under, or
the payment of which is a condition to the enforceability of, the Note, this Mortgage and any other Loan
Document (including, without limitation, any and all stamp taxes and other taxes required to be paid hereon
or thereon) all (or said part of) such licenses, fees, taxes charges, excises, levies or assessments, along with
any late charges or penalties associated therewith, shall be deemed to be included within the term
"Impositions" as defined in Section 1.06(a) hereof, and the Mortgagor shall pay and discharge the same as
herein provided with respect to payment of Impositions.
(c) Subject to the provisions of Section 1.06(d) hereof and upon request by Florida Housing,
the Mortgagor shall deliver to Florida Housing within thirty (30) days after the date upon which any such
Imposition is due and payable by the Mortgagor copies of official receipts of the appropriate taxing
authority, or other proof reasonably satisfactory to Florida Housing, evidencing the payment thereof.
(d) The Mortgagor shall have the right before any delinquency occurs to contest or object to
the amount or validity of any such Imposition by appropriate legal proceedings, provided that the Mortgagor
in good faith, is diligently contesting the amount or validity of such Imposition, and further provided that
the Mortgagor shall post with the taxing authority, the Senior Mortgagees or Florida Housing (but not more
than one of them) cash or a bond in an amount equal to one hundred twenty-five percent (125%) of the
disputed amount, but this shall not be deemed or construed in any way as relieving, modifying or extending
the Mortgagor's covenant to pay any such Imposition at the time and in the manner provided herein, unless
the Mortgagor has given written notice to Florida Housing of the Mortgagor's intent to so contest or object
to an Imposition, and unless (i) the Mortgagor shall demonstrate to Florida Housing's reasonable
satisfaction that the legal proceedings shall conclusively operate to prevent the sale of the Estate, or any
part thereof, to satisfy such Imposition prior to final determination of such proceedings; or (ii) the
Mortgagor shall demonstrate to Florida Housing's reasonable satisfaction that the Mortgagor has provided
a good and sufficient undertaking as may be required or permitted by law to accomplish a stay of any such
sale; or (iii) the Mortgagor demonstrates to Florida Housing's reasonable satisfaction that any such sale
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shall not occur until after the conclusion of the contest and that the Mortgagor will then have the ability to
pay such Imposition and that the making of such payment will prevent such sale.
(e) The Mortgagor shall not suffer, permit or initiate the joint assessment of any real and
personal property which may constitute all or a portion of the Estate or suffer, permit or initiate any other
procedure whereby the lien of the real property taxes and the lien of the personal property taxes shall be
assessed, levied or charged to the Estate as a single lien.
1.07. Utilities.
The Mortgagor shall pay or shall cause to be paid when due all utility charges which are incurred
for the benefit of the Estate or which may become a charge or lien against the Estate for gas, electricity,
water or sewer services furnished to the Estate and all other assessments or charges of a similar nature,
whether public or private, affecting or related to the Estate or any portion thereof, whether or not such taxes,
assessments or charges are or may become liens thereon.
1.08. Defense of Actions and Costs.
The Mortgagor, at no cost or expense to Florida Housing, shall appear in and defend any action or
proceeding purporting to affect the security hereof, the other Loan Documents, any additional or other
security for the obligations secured hereby, the interest of Florida Housing, or the rights, powers or duties
of Florida Housing hereunder. If Florida Housing is made a parry thereto or to any other action or
proceeding, of whatever kind or nature, concerning this Mortgage, the Loan Documents, the Estate or any
part thereof or interest therein, or the occupancy thereof, the Mortgagor shall indemnify, defend and hold
Florida Housing, its directors, officers, members, officials, employees and agents, harmless from all
liability, damage, cost and expense incurred by Florida Housing, its directors, officers, members, officials,
employees and agents, by reason of said action or proceeding (including, without limitation, the reasonable
legal fees of Florida Housing, its directors, officers, members, officials, employees and agents, and other
reasonable expenses incurred by Florida Housing, its directors, officers, members, officials, employees and
agents, as a result of such action or proceeding), whether or not such action or proceeding is prosecuted to
judgment or decision. Upon demand therefor by Florida Housing, the Mortgagor shall pay thereto an
amount equal to the Mortgagor's liability to such person under this Section 1.08, and until paid, such sums
shall be secured hereby.
1.09. Actions by Florida Housine to Preserve Estate.
If the Mortgagor commits or suffers an Event of Default to occur under any of the Loan Documents,
Florida Housing, in its own discretion and without obligation so to do, may take such actions in such manner
and to such extent as Florida Housing may deem reasonably necessary to protect the security hereof, without
releasing the Mortgagor from any obligation. In connection therewith (without limiting Florida Housing's
general and other powers, whether conferred herein, in another Loan Document or by law), Florida Housing
shall have and is hereby given the right, but not the obligation: (i) to enter upon and take possession of the
Estate; (ii) subject to the terms and provisions of existing and future leases, to make additions, alterations,
repairs and improvements to the Estate which Florida Housing may consider necessary or proper to keep
the Estate in good condition and repair; (iii) to appear and participate in any action or proceeding affecting
or which may affect the security hereof or the rights or powers of Florida Housing; (iv) to pay, purchase,
contest or compromise any encumbrance, claim, charge, lien or debt which in the reasonable judgment of
Florida Housing may affect or appears to affect the security of this Mortgage or to be prior or superior
hereto; and (v) in exercising such powers, to pay necessary reasonable expenses, including employment of
counsel or other necessary or desirable consultants. The Mortgagor shall, immediately upon demand
therefor by Florida Housing, pay to Florida Housing an amount equal to all reasonable costs and expenses
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incurred by it in connection with the exercise by Florida Housing of the foregoing rights, including, without
limitation, costs of evidence of title, court costs, appraisals, surveys and receiver's, trustee's and reasonable
legal fees, costs and expenses, whether or not an action is actually commenced in connection therewith, and
until paid, said sums shall be secured hereby.
1.10. Survival of Warranties.
All representations, warranties and covenants of the Mortgagor contained in any Loan Document
shall survive the execution and delivery hereof and shall remain continuing obligations, warranties and
representations during any time when any portion of the obligations secured hereby remain outstanding.
All representations, warranties and covenants of the Mortgagor contained in any other document shall not
survive the execution and delivery hereof.
1.11. Additional Securitv.
No other security now existing, or hereafter taken, to secure the obligations secured hereby nor the
liability of any maker, surety, guarantor or endorser with respect to such obligations, or any of them, shall
be impaired or affected by the execution of this Mortgage; and all additional security shall be taken,
considered and held as cumulative. The taking of additional security, execution of partial releases of the
security, or any extension of the time of payment of the indebtedness secured hereby shall not diminish the
force, effect or lien of this Mortgage and shall not affect or impair the liability of any maker, surety,
guarantor or endorser for the payment of said indebtedness. In the event Florida Housing at any time holds
additional security for any of the obligations secured hereby, it may enforce the sale thereof or otherwise
realize upon the same, at its option, either before, concurrently or after a sale is made hereunder.
1.12. Inspections.
Upon reasonable notice delivered to the Mortgagor and subject to the rights of tenants under valid
and binding leases, Florida Housing and its agents, representatives or workers are authorized to enter at any
reasonable time upon or in any part of the Estate for the purpose of inspecting the same and for the purpose
of performing any of the acts it is authorized to perform hereunder or under the terms of any of the Loan
Documents.
1.13. Liens.
The Mortgagor shall pay and promptly discharge when due, at the Mortgagor's cost and expense,
all liens, encumbrances and charges upon the Estate, or any part thereof or interest therein, other than (i)
the Senior Mortgages and any financing statements filed in connection therewith, (ii) this Mortgage, the
Land Use Restriction Agreement by and between the Mortgagor and Florida Housing and recorded in the
Public Records of the County (the "Public Records") simultaneously with this Mortgage and any financing
statements filed in connection therewith, (iii) the Extended Use Agreement (as defined below), and (iv) any
other liens or encumbrances set forth on Exhibit "B" attached hereto and made a part hereof by this reference
or otherwise agreed to in writing (all of the foregoing encumbrances being hereinafter collectively referred
to as the "Permitted Encumbrances"); provided that the existence of any mechanic's, laborer's,
materialman's, supplier's or vendor's lien or right thereto shall not constitute a violation of this Section 1.13
if payment is not yet due under the contract which is the foundation thereof and if such contract does not
postpone payment for more than forty-five (45) days after the performance thereof or such lien is promptly
released, discharged or transferred to bond or evidence reasonably satisfactory to Florida Housing is
provided to Florida Housing that such lien will be contested and paid on final determination. The Mortgagor
shall have the right to contest in good faith the validity of any such lien, encumbrance or charge, provided
the Mortgagor shall diligently proceed to cause such lien, encumbrance or charge to be removed and
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discharged or transferred to bond. If the Mortgagor shall fail either to remove and discharge or transfer to
bond any such lien, encumbrance or charge, then, in addition to any other right or remedy of Florida
Housing, Florida Housing may, upon providing the Mortgagor with notice in accordance with Section 4.04
hereof, but shall not be obligated to, discharge the same, without inquiring into the validity of such lien,
encumbrance or charge nor into the existence of any defense or offset thereto, either by paying the amount
claimed to be due, or by procuring the discharge of such lien, encumbrance or charge by depositing in a
court a bond or the amount claimed or otherwise giving security for such claim, or in such manner as is or
may be prescribed by law. The Mortgagor shall, upon demand therefor by Florida Housing, pay to Florida
Housing an amount equal to all reasonable costs and expenses incurred by Florida Housing in connection
with the exercise by Florida Housing of the foregoing right to discharge any such lien, encumbrance or
charge, and such amount shall be deemed to be approved by Florida Housing and, until paid, such sums
shall be secured hereby.
Florida Housing agrees that the lien of this Mortgage shall be subordinate to any extended low-
income housing commitment (as such term is defined in Section 42(h)(6)(B) of the Internal Revenue Code)
(the "Extended Use Agreement") recorded against the Estate; provided that such Extended Use Agreement,
by its terms, must terminate upon foreclosure under this Mortgage or upon a transfer of the Estate by
instrument in lieu of foreclosure, subject to and in accordance with Section 42(h)(6)(E) of the Internal
Revenue Code.
1.14. Florida Housings Powers.
Without affecting the liability of any other person liable for the payment of any Secured Obligation,
and without affecting the lien or charge of this Mortgage upon any portion of the Estate not then or
theretofore released as security for the full amount of all unpaid Secured Obligations, Florida Housing may,
from time to time and without notice (i) release any person so liable, (ii) extend the maturity or alter any of
the terms of any such Secured Obligation, to the extent and in the manner permitted under the Loan
Documents, (iii) grant other indulgences, (iv) release or reconvey, or cause to be released or reconveyed at
any time any parcel, portion or all of the Estate, (v) take or release any other or additional security for any
Secured Obligation herein mentioned, or (vi) make compositions or other arrangements with debtors in
relation thereto. By accepting payment or performance of any obligation secured by this Mortgage after
the payment or performance thereof is due or after the filing of a notice of default, Florida Housing shall
not have thereby waived its right to require prompt payment or performance, when due, of all other Secured
Obligations, or to declare a default for failure so to pay or perform, or to proceed with a foreclosure or other
remedies under any notice of default theretofore given by Florida Housing, or with respect to any unpaid
balance of the indebtedness secured hereby. The acceptance by Florida Housing of any sum in an amount
less than the sum then due shall not constitute a waiver of the obligation of the Mortgagor to pay the entire
sum then due. The Mortgagor's failure to pay the entire sum then due shall continue to be a default,
notwithstanding the acceptance of partial payment, and until the entire sum then due shall have been paid,
Florida Housing shall at all times be entitled to declare a default and to exercise all the remedies herein
conferred. No delay or omission of Florida Housing in the exercise of any right or power hereunder shall
impair such right or power or any other right or power nor shall the same be construed to be a waiver of
any default or any acquiescence therein.
1.15. Sale, Transfer or Refinancing of Development.
(a) The Loan as to both principal and interest shall be assumable upon the sale, transfer or
refinancing of the Development, subject to the following conditions:
(1) The proposed transferee meets all specific applicant identity criteria (as specified
in the Rule) which were required as conditions of the original Loan;
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(2) The proposed transferee 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;
(3) The proposed transferee agrees to pay all (i) Loan servicing fees for the remaining
term of the Loan or until the Loan is paid in full, and (ii) compliance monitoring fees through the
end of the Affordability Period; and
(4) The proposed transferee and its application receives a favorable recommendation
from Florida Housing's credit underwriter and approval by the Board of Directors of Florida
Housing.
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,
transfer or refinancing of the Development unless the consent of Florida Housing shall have been obtained
or the transfer is otherwise permitted under the Loan Documents.
(b) 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) shall be repaid from the
proceeds of the sale. If there will be insufficient funds available from the proposed sale of the Development,
the Loan shall not be satisfied until Florida Housing has received:
(i) An appraisal prepared by an appraiser selected by Florida Housing or Florida
Housing'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 income
reported to Florida Housing 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 Mortgagor knows of no
source from which funds could or would be forthcoming to pay the Loan; and
(iv) The buyer will pay an amount equal to the present value of the annual compliance
monitoring fee, as computed by Florida Housing and the Servicer, multiplied by
the number of years for which the Development will have a set -aside for Very
Low -Income (as defined in the Rule) persons or households beyond the repayment
date. The present value discount rate shall be two percent (2%) per annum. Such
amount shall be reduced by the amount of any compliance monitoring fees
collected by Florida Housing for the Development, provided:
(1) The compliance monitoring fee covers some or all of the period following
the anticipated NHTF Loan repayment date; and
(2) The Development has substantially equivalent set -asides for Very Low -
Income persons or households mandated through another program of
Florida Housing for which the compliance monitoring fee was collected.
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(c) Florida Housing 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:
(i) Performance of the Mortgagor during the Loan term;
(ii) Availability of similar housing stock for the target population in the area;
(iii) Documentation and certification by the Mortgagor that funds are not available to
repay the Note upon maturity;
(iv) A plan for the repayment of the Loan at the new maturity date;
(v) Assurance that the security interest of Florida Housing will not be jeopardized by
the new term(s); and
(vi) Industry standard terms which may include amortizing loans requiring regularly
scheduled payments of principal and interest.
(d) Subject to the Rule, Florida Housing shall approve requests for Loan refinancing only if
Development cash flow is improved, the Development's economic viability is maintained, the security
interest of Florida Housing is not adversely affected, and Florida Housing's credit underwriter provides a
positive recommendation. Lender acknowledges that the First Mortgage Loan matures prior to the maturity
of the Loan and is expected to be refinanced subject to the consent of Florida Housing subject to the Rule.
(e) Florida Housing shall deny requests for Loan refinancing which require extension of the
Loan term or otherwise adversely affect the security interest of Florida Housing, unless the criteria outlined
in Section 1.15(d) above are met, Florida Housing's credit underwriter recommends that the approval of
such a request is crucial to the economic survival of the Development, or unless Florida Housing 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, Florida Housing shall limit any approved extension to a minimum term which makes
the Development feasible and which does not exceed an industry standard term.
(f) Subject to the Rule, Florida Housing shall deny requests to increase the amount of any
superior mortgage unless the criteria outlined in Section 1.15(d) above 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.
(g) The Mortgagor shall not refinance, increase the principal amount, or alter any terms or
conditions of any mortgage superior or inferior to the NHTF Mortgage, without prior approval of Florida
Housing's Board of Directors and in compliance with the Rule. However, Mortgagor may reduce the
interest rate on any superior or inferior mortgage loan without permission of Florida Housing's Board of
Directors, provided that no other terms of the loan are changed. Florida Housing must be notified of any
such change.
(h) [Reserved]
(i) Notwithstanding anything to the contrary herein: (i) Florida Housing has approved the
admission of the Investor Limited Partner as the Investor Limited Partner of the Mortgagor, and (ii) Florida
Housing's consent is not required for the Investor Limited Partner to transfer its interest in the Mortgagor
to an affiliate of the Investor Limited Partner, provided that Investor Limited Partner (a) provides written
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notice to Florida Housing of such transfer, and (b) prior to payment in full of its equity contributions,
certifies to Florida Housing that the new holder of the Investor Limited Partner's interest in the Mortgagor
assumes the obligations of the Investor Limited Partner to fund its equity contributions to Mortgagor.
0) Notwithstanding the foregoing, Florida Housing agrees that no prior approvals are required
for (i) the exercise by the Investor Limited Partner or its affiliates of their rights to remove the general
partner or the administrative limited partner and to designate an affiliate of the Investor Limited Partner as
the substitute general partner of the Mortgagor pursuant to a default under the terms of Mortgagor's
Partnership Agreement, provided that Florida Housing is given prior written notice of (a) such default, and
(b) the exercise of the removal and appointment right set forth in Mortgagor's Partnership Agreement.
(k) Florida Housing will not unreasonably withhold, delay or condition a request by the
Mortgagor for Florida Housing's consent to an internal reorganization of the ownership structure of the
Mortgagor, or any of the partners, members or stockholders of the Mortgagor.
1.16. Payment of Future Advances.
It is agreed that this Mortgage shall also secure such future or additional advances as may be made
by Florida Housing, 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 Premises with interest on
such disbursements. If, pursuant to Section 697.04, Fla. Stat., the 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 the Mortgagor shall, within one (1) day of filing such notice, notify Florida Housing and
their counsel by certified mail pursuant to the terms of this Mortgage. In addition, such a filing shall
constitute an Event of Default hereunder.
1.17. Monthly Deposits.
At any time after completion of construction of the Development, Florida Housing may, in order
to further secure the payment of the taxes and assessments hereinafter referred to and the premiums for the
insurance hereinafter referred to, require the Mortgagor to deposit with Florida Housing, the Senior
Mortgagees or the Servicer, on the first day of each and every month a sum which, in the reasonable
estimation of Florida Housing, shall be equal to one -twelfth of the annual taxes, assessments and insurance
premiums; said deposits to be held by Florida Housing or the Servicer on its behalf, free of interest, and
free of any liens or claims on the part of creditors of the Mortgagor and as part of the security of Florida
Housing, and to be used by Florida Housing to pay current taxes and assessments and insurance premiums
on the Premises as the same accrue and are payable. Said deposits shall not be, nor be deemed to be, trust
funds but may be commingled with the general funds of Florida Housing. If said deposits are insufficient
to pay the taxes and assessments and insurance premiums in full as the same become payable, the Mortgagor
will deposit with the Senior Mortgagees, Florida Housing or the Servicer such additional sum or sums as
may be required in order for Florida Housing to pay such taxes and assessments and insurance premiums
in full. Upon any default hereunder that remains uncured after any applicable cure period or under the Note
or any of the other Loan Documents, Florida Housing 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.
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1.18. NHTF Special Conditions.
(a) The Loan and any other indebtedness secured hereby shall be serviced by the Servicer or
by another lending institution selected by Florida Housing.
(b) The nondiscrimination provision of Section 420.516, Fla. Stat., shall apply to the Loan
secured hereby.
(c) The proceeds of the Loan secured hereby shall only be used for acquisition (if applicable),
new construction or moderate or substantial rehabilitation which creates affordable, safe and sanitary rental
housing units pursuant to the provisions of the Act and the Rule.
(d) The Mortgagor shall annually certify the gross income of all persons occupying units set
aside pursuant to the NHTF Program. All persons or households qualified under the provisions of the
NHTF Program to occupy set -aside units may continue to qualify if the gross income of said persons or
households at the time of annual recertification meets the requirements established in 24 CFR Section
93.302. Should the annual recertification result in temporary noncompliance with income occupancy
requirements, each and every unit that is comparable in terms of size, features, and number of bedrooms
which becomes available must be rented to a person or household qualifying under the provisions of Section
24 C.F.R. Part 93 until the noncompliance is corrected.
(e) The Mortgagor shall comply at all times with the requirements of 24 C.F.R. Part 93,
inclusive, and all other applicable statutes, rules and regulations of the State and HUD.
(f) The Mortgagor shall comply with and provide all compliance and financial monitoring and
reporting required by the Land Use Restriction Agreement and all other Loan Documents,
1.19. Prior Encumbrances.
(a) Without limiting the generality of any other provision hereof, the Mortgagor hereby
covenants and agrees:
(i) to promptly observe and perform all of the covenants and conditions contained in
any mortgage and any lease, encumbering all or any part of the Premises which is superior to the
lien hereof (each is a "Prior Encumbrance") and which are required to be observed or performed
thereunder and to do all things necessary to preserve and keep unimpaired its rights thereunder;
(ii) to promptly notify Florida Housing in writing of any monetary default or of any
other material default under the Prior Encumbrances, and, to the extent the Mortgagor has actual
knowledge thereof, of any other default in the performance of the observance of any of the terms,
covenants or conditions on part of the Mortgagor to be performed or observed under such Prior
Encumbrances. The Mortgagor shall promptly cause a copy of each notice given by the holder of
any of the Prior Encumbrances to the Mortgagor to be delivered to Florida Housing, regardless of
the nature of such notice.
(b) In the event the Mortgagor fails to make any payment required under such Prior
Encumbrance or to do any act set forth in the preceding subsection herein provided (subject to any
applicable notices and cure periods), then Florida Housing may, but without obligation so to do, and without
notice to or demand upon the Mortgagor, and without releasing the Mortgagor from any obligation hereof,
make or do the same in such manner and to such extent as Florida Housing may deem necessary to protect
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its interest under this Mortgage. Florida Housing's rights hereunder shall specifically include, but without
limitation thereof, the right to pay any and all payments of interest and principal, insurance premiums, taxes
and assessments and other sums due or to become due under such Prior Encumbrances; subject, however,
to the right of the Mortgagor to contest any such taxes or assessments, in good faith, and the delivery to
Florida Housing of such assurances or security as Florida Housing may reasonable require.
(c) In the event the Mortgagor fails to perform any of the terms, covenants and conditions
required to be performed or observed by the Mortgagor under such Prior Encumbrance, then Florida
Housing may (subject to the cure rights permitted hereunder), but without obligation so to do, and without
notice or demand upon the Mortgagor and without relieving the Mortgagor from any obligation hereof, take
any action Florida Housing deems necessary or desirable to prevent or cure any such default by the
Mortgagor. Upon receipt by Florida Housing from the Mortgagor of any written notice of default by the
Mortgagor under such Prior Encumbrance, Florida Housing may rely thereon and take any action it deems
necessary to cure such default even though the existence of such default or the nature thereof may be
questioned or denied by the Mortgagor or by any parry on behalf of the Mortgagor. The Mortgagor hereby
expressly grants to Florida Housing, and agrees that Florida Housing shall have the absolute and immediate
right to (1) enter upon the Development or any part thereof to such extent and as often as Florida Housing
in its reasonable discretion deems necessary for any such purpose, and (2) pay expenses, employ counsel
and pay its reasonable legal fees. All reasonable costs, fees, charges and expenses so incurred or paid by
Florida Housing, together with interest thereon, at the default rate (set forth in the Note) from the date
incurred until paid by the Mortgagor, shall become indebtedness secured by the lien of this Mortgage.
(d) The Mortgagor agrees that it will not surrender any of its rights under such Prior
Encumbrances and will not, without the prior written consent of Florida Housing, consent to any
modification, change or any alteration or amendment of such Prior Encumbrance or of the obligations
secured thereby, either orally or in writing, and no release or forbearance of any of the Mortgagor's
obligations under such Prior Encumbrance whether pursuant to such Prior Encumbrance or otherwise, shall
release the Mortgagor from any of its obligations under this Mortgage.
(e) The occurrence of any default by the Mortgagor or any event of default under any Prior
Encumbrance to which this Mortgage may be subject, which default or event of default is not cured within
the time period provided therefore by such Prior Encumbrance, shall constitute a default under this
Mortgage.
(f) The Mortgagor hereby irrevocably designates Florida Housing its agent and attorney -in -
fact to perform or observe on behalf of the Mortgagor any covenant or condition which the Mortgagor, or
any other person on behalf of the Mortgagor, fails to perform or observe under the Prior Encumbrances
within any applicable grace period, and following the Mortgagor's receipt of any required notices, specified
in such Prior Encumbrance. Any advances made by Florida Housing in connection with any action
authorized by any provision contained herein shall be repaid by the Mortgagor on demand, with interest,
and the amount so advanced with interest thereon at the rate of default rate (as set forth in the Note), shall
be a lien upon the Premises and shall be secured by this Mortgage. The performance or observance of such
covenant or condition by Florida Housing shall not prevent the Mortgagor's failure so to perform or observe
from constituting a default. In performing or observing any such covenant or condition, Florida Housing
shall have the right to enter upon the Premises. Upon receipt by Florida Housing from the holder of any
Prior Encumbrance of any notice of default under such Prior Encumbrance, Florida Housing may rely
thereon and take any action permitted by any provision contained herein to remedy such default,
notwithstanding that the existence of such default or the nature thereof may be questioned or denied by the
Mortgagor.
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(g) The Mortgagor will not do anything, or permit or suffer anything to be done or left undone,
which would increase or result in any increase in the indebtedness or other sums secured by a Prior
Encumbrance.
(h) Nothing herein shall constitute consent by Florida Housing to any Prior Encumbrance
except as to the Senior Mortgages and the Permitted Encumbrances.
ARTICLE II
SUBORDINATE MORTGAGE
This Mortgage is subordinate to the lien of the Senior Mortgages, the proceeds of which shall be
used, along with the proceeds of the Loan, to acquire and construct the Improvements, including all
approved Construction Costs.
ARTICLE III
REMEDIES UPON DEFAULT
3.01. Events of Default.
Any of the following events shall be deemed to be an event of default after the expiration of any
applicable grace or cure periods ('Event of Default") hereunder:
(a) the occurrence of an Event of Default (as that term is defined in any of the Loan
Documents) under any of the Loan Documents; or
(b) a default in the payment, within fifteen (15) days of the date when due, of any sum
under the Note, the Construction Loan Agreement or otherwise secured hereby; or
(c) to the extent not included within the events described in clause (a) or (b) of this
Section 3.01, a breach of or default under any term, covenant, agreement, condition, provision,
representation or warranty of the Mortgagor contained herein or in any of the Loan Documents
which is not cured within thirty (30) days following receipt by the Mortgagor of written notice from
Florida Housing describing such breach or default (or for an extended period approved by Florida
Housing 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); provided,
however, that with respect to nonmonetary Events of Default, Florida Housing shall give written
notice to Mortgagor, who shall have thirty (30) days to cure (which time may be extended by
Florida Housing, in its sole discretion); or
(d) the Mortgagor shall violate any of the requirements of the Rule and such violation
shall not be cured in the time periods provided by the Rule; or
(e) the Mortgagor shall fail to comply with all requirements of the Loan Documents.
3.02. Acceleration Upon Default; Additional Remedies.
Upon the occurrence of an Event of Default, Florida Housing, without further notice to or demand
upon the Mortgagor or any other party having an interest in the Premises, and without regard to the value
of the Premises held as security for the Secured Obligations or the solvency of any person liable for the
performance of such obligations, may, at its option, do any or all of the following:
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(a) apply for and obtain the appointment of a receiver of the Premises and the rents
and profits thereof without objection or opposition thereto by the Mortgagor; such receiver shall be
appointed with or without notice and without regard to the adequacy of any security held for the
payment of the Secured Obligations or the solvency of any person or persons liable for the payment
of such amounts; such receiver may also be granted such extended powers, duties and authority as
would be necessary or useful in the management and operation of the Premises, including, without
limitation, the power to enter into, modify, terminate and enforce leases; pay taxes and other
operating expenses, employ property managers; make payments of the Secured Obligations as the
same become due; and to expend reasonable sums in repair and maintenance of the Premises;
(b) pay any sums in any form or manner deemed expedient by Florida Housing to
protect the security hereunder or to cure any Event of Default; make any payment hereby authorized
to be made according to any bill, statement or estimate furnished or procured from the appropriate
public officer or the party claiming payment without inquiry into the accuracy or validity thereof
(the receipt of any such public officer or party in the hands of Florida Housing shall be conclusive
evidence of the validity and amount of items so paid), in which event the amounts so paid shall be
secured hereby and be immediately due and payable to Florida Housing; and Florida Housing shall
be subrogated to any such encumbrance, lien, claim or demand, and to all rights and securities for
the payment thereof, paid or discharged with the principal sum secured hereby or by Florida
Housing under the provisions hereof, and any such subrogation rights shall be additional and
cumulative security to this Mortgage;
(c) declare all indebtedness and obligations secured hereby to be immediately due,
payable and collectible without any presentment, demand, protest or notice of any kind and
regardless of the maturity date of the Secured Obligations and, in that event, the entire Secured
Obligations shall become immediately due and payable and collectible, and thereupon Florida
Housing may foreclose this Mortgage pursuant to applicable law;
(d) subject to the rights of the Senior Mortgagees, enter and take possession of the
Premises and lease the same and receive all the rents, issues and profits thereof which are due,
overdue or which thereafter become due, and to apply the same, after payment of all necessary
charges and expenses, in reduction of the Secured Obligations, and said rents, issues and profits
are, in such event, hereby assigned to Florida Housing as further security for the payment of the
Secured Obligations. The Mortgagor or any other then owner or lessee of the Premises, if it is the
occupant of the Premises or any part thereof, shall in such event, immediately surrender possession
of the Premises so occupied to the then holder of this Mortgage, and if such occupant is permitted
to remain in possession, the occupant shall, on demand, pay monthly in advance to the holder of
this Mortgage a reasonable rental for the space so occupied and, if in default hereof, such occupant
may be dispossessed by summary proceedings. This section shall be effective either with or
without any action of foreclosure, and with or without any application for a receiver of said rents,
issues and profits; and
(e) exercise all other rights and remedies provided herein, in any Loan Document or
other document or agreement now or hereafter securing all or any portion of the obligations secured
hereby, or provided by law.
3.03. Application of Funds After Default.
Except as otherwise herein provided or otherwise required by the NHTF Program, upon the
occurrence of an Event of Default hereunder, Florida Housing may, at any time without any further notice,
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apply any or all sums or amounts received and held by Florida Housing to pay insurance premiums,
Impositions, or either of them, or rents or income of the Estate, or insurance or condemnation proceeds, and
all other sums or amounts received by Florida Housing from or on account of the Mortgagor or the Estate,
or otherwise, upon any indebtedness or obligation of the Mortgagor secured hereby, in such manner and
order as Florida Housing may elect, notwithstanding that said indebtedness or the performance of said
obligation may not yet be due; provided, however, that Florida Housing shall promptly thereafter provide
to the Mortgagor a detailed accounting with respect to all such applications of funds. The receipt, use or
application of any such sum or amount shall not be construed to affect the maturity of any indebtedness
secured by this Mortgage, or any of the rights or powers of Florida Housing under the terms of the Loan
Documents, or any of the obligations of the Mortgagor or any guarantor under the Loan Documents; or to
cure or waive any default or notice of default under any of the Loan Documents; or to invalidate any act of
Florida Housing.
3.04. Costs of Enforcement.
If any Event of Default occurs, Florida Housing may employ an attorney or attorneys to protect its
rights hereunder. The Mortgagor promises to pay to Florida Housing, on demand, the reasonable legal fees
and expenses of such attorneys and all other reasonable costs of enforcing the obligations secured hereby,
including, without limitation, recording fees, the expense of a foreclosure sale, receivers' fees and expenses,
and all other reasonable expenses, of whatever kind or nature, incurred by Florida Housing and each of
them, in connection with the enforcement of the obligations secured hereby, whether or not such
enforcement includes the filing of a lawsuit. Until paid, such sums shall be secured hereby.
3.05. Remedies Not Exclusive.
Subject to the provisions of Section 3.07 hereof, Florida Housing shall be entitled to enforce
payment and performance of any indebtedness or obligation secured hereby and to exercise all rights and
powers under this Mortgage or under any Loan Document or other agreement or any law now or hereafter
in force, notwithstanding that some or all of the said indebtedness and obligations secured hereby may now
or hereafter be otherwise secured, whether by guaranty, mortgage, deed of trust, pledge, lien, assignment
or otherwise. Neither the acceptance of this Mortgage nor its enforcement, whether by court action or
pursuant to the power of sale or other powers herein contained, shall prejudice or in any manner affect
Florida Housing's right to realize upon or enforce any other security now or hereafter held by Florida
Housing in such order and manner as it may in its absolute discretion determine. No remedy herein
conferred upon or reserved to Florida Housing is intended to be exclusive of any other remedy herein or by
law provided or permitted, but each shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity or by statute. Every power or remedy given
by any of the Loan Documents to Florida Housing or to which Florida Housing may be otherwise entitled
may be exercised, concurrently or independently, from time to time and as often as may be deemed
expedient by Florida Housing, and Florida Housing may pursue inconsistent remedies.
3.06. Notice of Default.
Florida Housing shall cause a copy of any notice of default and a copy of any notice of foreclosure
hereunder to be mailed to the Mortgagor, with a copy to the Senior Mortgagees and the Investor Limited
Partner, at the addresses specified in Section 4.04 hereof.
3.07. Limited Recourse Obligations.
Except as set forth in the next paragraph of this Section, but otherwise notwithstanding anything to
the contrary in this Mortgage or the Note, Florida Housing expressly agrees that the liability of the
Leasehold Mortgage and Security Agt 18
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
Mortgagor shall be strictly and absolutely limited to the property encumbered by this Mortgage, namely,
the Estate (including, but not limited to, the leases, rents profits and issues thereof) and any other collateral
now or hereafter securing the Loan, except as provided below. If an Event of Default shall occur, Florida
Housing shall not and may not seek any judgment for a deficiency against the Mortgagor 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 this Mortgage or any other Loan Document evidencing or
securing the obligations of the Mortgagor under this Mortgage, or on this Mortgage or with respect to the
Loan, provided nothing herein shall prohibit judicial proceedings to foreclose this Mortgage or any other
Loan Document or to obtain a judgment or decree of specific performance of agreements and covenants
under the Loan Documents (or the exercise of any remedy available under the Land Use Restriction
Agreement, excluded from the limitations of this Section 3.07 by the first sentence hereof), other than the
Loan payment covenants. In the event any suit is brought on the Loan Documents, or concerning the Loan
or any amount secured by this Mortgage or other Loan Document as part of judicial proceedings to foreclose
this Mortgage and/or any other security interest granted to Florida Housing, 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 this 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 partner or member, as applicable, of the Mortgagor, and the terms of such judgment shall expressly
so provide.
Notwithstanding anything herein to the contrary in this Mortgage, the Mortgagor shall be
personally liable for, and Florida Housing 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 Florida Housing, the Servicer and their extraordinary costs and
expenses, including but not limited to reasonable legal fees and out-of-pocket costs and expenses
of Florida Housing's counsel incurred in connection with the interpretation or enforcement of this
Mortgage, the Note, the Land Use Restriction Agreement or other Loan Documents (except in an
action to foreclose this Mortgage, other than in any action to enforce Florida Housing's rights under
this Section 3.07);
(2) indemnification provisions in favor of Florida Housing 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 or indemnity entered into with Florida Housing;
(4) the leases, rents, profits and issues of the Premises 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 Premises or any part
thereof;
(6) tenant security deposits, to the extent not properly accounted for, or prepaid rent,
to the extent misapplied;
(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 Premises; and
Leasehold Mortgage and Security Agt 19
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
(8) all obligations under the Land Use Restriction Agreement (excluding any
obligations therein relating to the payment of principal and/or interest under the Note), all of which
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 3.07.
ARTICLE IV
MISCELLANEOUS COVENANTS AND AGREEMENTS
4.01. Amendments.
This instrument cannot be waived, changed, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of any waiver, change discharge or
termination is sought. A copy of said instrument shall be sent by said party to all other parties in the manner
specified in Section 4.04 hereof.
4.02. Statements by the Mortgagor.
The Mortgagor shall, within ten (10) days after its receipt of demand therefor from Florida Housing,
deliver to Florida Housing a written statement setting forth the amounts then unpaid and secured by this
Mortgage and stating whether any offset or defense exists against payment of such amounts.
4.03. Florida Housing Statements.
For any statement or accounting requested by the Mortgagor or any other entitled person pursuant
to applicable law, or any other document or instrument furnished to the Mortgagor by Florida Housing,
Florida Housing may charge Florida Housing's customary charges therefor.
4.04. Notices.
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.
Mortgagee: 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 Helfinan Cole & Bierman, P.L.
2800 Ponce de Leon Blvd, Suite 1200
Coral Gables, Florida 33134
Attention: Maria V. Currais, Esq.
Leasehold Mortgage and Security Agt 20
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
Telephone: (305) 854-0800
Email: mcurraisgwsh-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: knaylor(cr�,apcompanies.com
with a copy to: Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
1.50 W. Flagler Street, Suite 2200
Miami, Florida 33130
Attention: Brian McDonough, Esq.
Telephone: (305) 789-3350
Email: BMcDonoughgstearnsweaver.com
with a copy to: Klein Hornig LLP
1325 G Street NW, Suite 770
Washington, District of Columbia 20005
Attention: Chris Hornig
Telephone: (202) 926-3402
Email: CHornig@kleinhornig.com
Co -General Partner: Vista Breeze 1 ACMB, Inc.
200 Alton Road
Miami Beach, Florida 33139
Attention: Miguell Del Campillo
Telephone: (305) 532-6401
Email: miguell ,hacmb.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: mfredericksgamerinatls.com
Any party may change said address by giving the other parties hereto 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. Notwithstanding the foregoing, notice by email shall be ineffective as notice under this Mortgage.
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4.05. Captions.
The captions or headings at the beginning of articles, sections and subsections hereof are for the
convenience of the parties, are not a part of this Mortgage, and shall not be used in construing it.
4.06. Invalidity of Certain Provisions.
Every provision of this Mortgage is intended to be severable. In the event any term or provision
hereof is declared to be illegal, invalid or unenforceable for any reason whatsoever by a court of competent
jurisdiction, such illegality, invalidity of unenforceability shall not affect the balance of the terms and
provisions hereof, which terms and provisions shall remain binding and enforceable. If the lien of this
Mortgage is invalid or unenforceable as to any part of the debt, or if the lien is invalid or unenforceable as
to any part of the Estate, the unsecured or partially secured portion of the debt shall be completely paid
prior to the payment of the remaining and secured or partially secured portion of the debt, and all payments
made on the debt, whether voluntary or under foreclosure or other enforcement action or procedure, shall
be considered to have been first paid on and applied to the full payment of that portion of the debt which is
not secured or fully secured by the lien of this Mortgage.
4.07. No Merger of Lease.
Upon the foreclosure of the lien created by this Mortgage on the Estate pursuant to the provisions
hereof, any lease or sublease then existing and affecting all or any portion of the Estate shall not be
destroyed or terminated by application of the law of merger or as a matter of law or as a result of such
foreclosure unless Florida Housing or any purchaser at such foreclosure sale shall so elect. No act by or on
behalf of Florida Housing or any such purchaser shall constitute a termination of any lease or sublease
unless Florida Housing or such purchaser shall give written notice of such termination to such tenant or
subtenant. If both the lessor's and lessee's estate under any lease or any portion thereof which constitutes a
part of the Estate shall at any time become vested in one owner, this Mortgage and the lien created hereby
shall not be destroyed or terminated by application of the doctrine of merger unless Florida Housing so
elects as evidenced by recording a written declaration so stating, and, unless and until Florida Housing so
elects, Florida Housing shall continue to have and enjoy all of the rights and privileges granted to it
hereunder as to the separate estates.
Florida.
4.08. Governing Law.
This Mortgage shall be governed by and construed in accordance with the laws of the State of
4.09. Interpretation.
In this Mortgage the singular shall include the plural and the masculine shall include the feminine
and neuter and vice versa, if the context so requires; and the word "person" shall include corporation,
partnership or other form of association.
4.10. Corrections.
The parties shall, upon the reasonable request of Florida Housing or the Mortgagor, as applicable,
correct any defect, error or omission which may be discovered in the contents hereof or in the execution or
acknowledgment hereof, and shall execute, acknowledge and deliver such further instruments and do such
further acts as may be necessary or as may be reasonably requested by Florida Housing or the Mortgagor,
as applicable, to carry out more effectively the purposes hereof, including, but not limited to, subjecting to
Leasehold Mortgage and Security Agt 22
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
the lien and security interest hereby created any of the Mortgagor's properties, rights or interest covered or
intended to be covered hereby, or perfecting and maintaining such lien and security interest.
4.11. Further Assurances.
The Mortgagor and Florida Housing agree to do or to cause to be done such further acts and things
and to execute and deliver or to cause to be executed and delivered such additional assignments, agreements,
powers and instruments, as any of them may reasonably require or deem advisable to keep valid and
effective the charges and lien hereof, to carry into effect the purposes of this Mortgage or to better assure
and confirm unto any of them their rights, powers and remedies hereunder and, upon request by any party,
shall supply evidence of fulfillment of each of the covenants herein contained concerning which a request
for such evidence has been made.
4.12. Successors and Assigns.
This Mortgage applies to, inures to the benefit of and binds the Mortgagor and the heirs, legatees,
devisees, administrators, personal representatives, executors and the successors and assigns thereof, and
Florida Housing. As used herein, the term "Florida Housing" shall mean, collectively, Florida Housing,
and its successors in interest or assigns from time to time, whether or not named as Florida Housing herein
and the term "Mortgagor" shall mean the Mortgagor named herein and the successors -in -interest, if any, of
said named Mortgagor in and to the Estate or any part thereof, as permitted by this Mortgage. If there be
more than one Mortgagor hereunder, their obligations shall be joint and several.
4.13. Priori .
This Mortgage is intended to have and retain priority over all other liens and encumbrances upon
the Estate, excepting only: (i) the Senior Mortgages; (ii) such other impositions as at the date hereof have,
or by law gain, priority over the lien created hereby; (iii) covenants, conditions, restrictions, easements, and
rights of way which are of record or are disclosed of record and which affect the Estate on the date hereof;
and (iv) Leases, liens, encumbrances, and any other matters as to which Florida Housing hereafter expressly
subordinates the lien of this Mortgage by written instrument in recordable form. Under no circumstance
shall Florida Housing be obligated or required to subordinate the lien hereof to any Lease, lien,
encumbrance, covenant or other matter affecting the Estate or any portion thereof. Florida Housing may,
however, at Florida Housing's option, exercisable in its sole and absolute discretion, subordinate the lien of
this Mortgage, in whole or in part, to any or all Leases, liens, encumbrances or other matters affecting all
or any portion of the Estate by executing and recording in the Public Records, a unilateral declaration of
such subordination specifying the Lease, lien, encumbrance or other matter or matters to which this
Mortgage shall thereafter be subordinate.
4.14. 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, 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
Leasehold Mortgage and Security Agt 23
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
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 Development which is or may become a
Fixture.
Mortgagor represents and warrants that Blue St. Franics, 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 location
of organization or any change in the name of the Mortgagor. Such opinion shall 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.
4.15. Nonforeign Entity.
Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code") provides that a
transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person. To inform
Florida Housing that the withholding of tax will not be required in the event of the disposition of the
Premises or Improvements pursuant to the terms of this Mortgage, the Mortgagor hereby certifies, under
penalty of perjury, that:
(a) The Mortgagor is not a foreign corporation, foreign partnership, foreign trust or foreign
estate, as those terms are defined in the Code and the regulations promulgated thereunder; and
(b) The Mortgagor's federal tax identification number is 88-0735503; and
(c) The Mortgagor's chief executive office and principal place of business is 3 Miami Central,
161 NW 6th Street, Suite 1020, Miami, Florida 33136.
It is understood that Florida Housing may disclose the contents of this certification to the Internal
Revenue Service and that any false statement contained herein could be punished by fine, imprisonment or
both. The Mortgagor covenants and agrees to execute such further certificates, which shall be signed under
Leasehold Mortgage and Security Agt 24
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
penalty of perjury, as Florida Housing shall reasonably require. The covenants set forth herein shall survive
the foreclosure of the lien of this Mortgage or acceptance of a deed in lieu thereof.
4.16. Cooperation and Approvals by Florida Housing.
Upon the written request by the Mortgagor from time to time throughout the term of this Mortgage,
Florida Housing shall execute such documents, petitions, applications, authorizations, permits, grants of
easement, dedications and maps as may be customary or necessary for lienholders to execute in order for
the Mortgagor to satisfy requirements of any governmental agency and those required by public utilities, in
each case, for the orderly development of the Premises. The Mortgagor shall reimburse Florida Housing
or pay directly at the request and direction of Florida Housing, all reasonable administration costs and legal
fees and expenses actually incurred by Florida Housing in complying with the Mortgagor's request under
this Section 4.16.
4.17. Waiver of Jury Trial.
BY ITS ACCEPTANCE HEREOF, THE MORTGAGOR (AND ANY PARTNERS OR
MEMBERS OF THE MORTGAGOR, AS APPLICABLE) AGREES THAT NEITHER THE
MORTGAGOR NOR ANY PARTNER, MEMBER, ASSIGNEE, SUCCESSOR, HEIR, OR LEGAL
REPRESENTATIVE OF THE MORTGAGOR (ALL OF WHOM ARE HEREINAFTER REFERRED TO
AS THE "PARTIES") SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING,
COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEDURE BASED UPON OR ARISING OUT
OF THIS MORTGAGE OR ANY INSTRUMENT EVIDENCING, SECURING, OR RELATING TO
THE INDEBTEDNESS AND OTHER OBLIGATIONS EVIDENCED HEREBY, ANY RELATED
AGREEMENT OR INSTRUMENT, ANY OTHER COLLATERAL FOR THE INDEBTEDNESS
EVIDENCED HEREBY OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG THE
PARTIES, OR ANY OF THEM, NONE OF THE PARTIES WILL SEEK TO CONSOLIDATE ANY
SUCH ACTION, IN WHICH A JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN
WHICH A JURY TRIAL HAS NOT BEEN WAIVED. FLORIDA HOUSING HAS IN NO WAY
AGREED WITH OR REPRESENTED TO ANY OF THE PARTIES THAT THE PROVISIONS OF THIS
PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
4.18. Use of Proceeds.
THE MORTGAGOR ACKNOWLEDGES THAT IT IS ENGAGED PRIMARILY IN
COMMERCIAL PURSUITS AND THAT PROCEEDS OF THE NOTE AND THIS MORTGAGE ARE
TO BE UTILIZED IN THE MORTGAGOR'S BUSINESS ACTIVITIES AND WILL NOT BE UTILIZED
FOR CONSUMER PURPOSES.
4.19. Cure Rights of Partners. Notwithstanding anything to the contrary contained herein or
any other Loan Document, Florida Housing 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.
4.20 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 ofthis Mortgage, or pursue
any other right or remedy under the Note, this Mortgage or the other Loan Documents, are subject to the
Subordination Agreement.
Leasehold Mortgage and Security Agt 25
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
SIGNATURE PAGE FOR
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
(VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN)
THIS IS A BALLOON MORTGAGE AND THE FINAL PRINCIPAL PAYMENT OR THE PRINCIPAL
BALANCE DUE UPONMATURITYIS $1,301,500, TOGETHER WITHACCRUED INTEREST, IFANY,
AND ALL ADVANCEMENTS MADE BY THE MORTGAGEE UNDER THE TERMS OF THIS MORTGAGE,
SUBJECT TO THE CONDITIONS SET FORTH HEREIN.
IN WITNESS WHEREOF, this Mortgage has been duly executed as of the date first set forth
above.
WITNESSES:
'11//�
Print: Marlene Sanchez
STATE OF FLORD)A )
COUNTY OF lami-Dau' )
MORTGAGOR:
VISTA BREEZE, LTD., a Florida limited partnership
By: APC Vista Breeze, LLC, a Flori limited liability
company, its managing gen pqt e '�_
M.
lor,
Address: 3 Miami Central
161 NW 6th Street, Suite 1020
Miami, FL 33136
The foregoing instrument w�s acknowledged bef re me by means of ✓ physical presence or
online notarization this � day of 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
personally known to me or has produced a as
identification.
[SEAL]
Notary'15ublic Marlene Sa Z
Print Name:
Commission Expires:
,votary Put iic St
>_to c' = c.
a� Commission„ -in 415Cc3
0 04` My Comm. Expires Oct -9. 21,17.7
Bonded through Natiora; Notary •1ssr
S-1
EXHIBIT "A"
LEGAL DESCRIPTION
(VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN)
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
A-1
Leasehold Mortgage and Security Agt
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
EXHIBIT "B"
PERMITTED ENCUMBRANCES
(VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN)
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.
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
EXH B-1
Leasehold Mortgage and Security Agt
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
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.
15. Leasehold Mortgage and Security Agreement from Vista Breeze, Ltd., a Florida limited partnership to
Florida Housing Finance Corporation (VIABILITY), in the amount of $4,300,000.00, recorded
simultaneously herewith, as subordinated by that certain Subordination and Intercreditor
Agreement (FHFC-HFA/MDC) by and between Bank of America, N.A. and Florida Housing Finance
Corporation and consented to by Vista Breeze, Ltd., a Florida limited partnership and The Bank of New
York Mellon Trust Company, N.A., a national banking association recorded simultaneously herewith.
16. Assignment of Leases, Rents and Contract Rights from Vista Breeze, Ltd., a Florida limited partnership
to Florida Housing Finance Corporation (VIABILITY), recorded simultaneously herewith.
17. UCC-1 Financing Statement (VIABILITY) naming Vista Breeze, Ltd., a Florida limited partnership,
as debtor, and Florida Housing Finance Corporation, as secured party, recorded simultaneously
herewith.
18. Land Use Restriction Agreement by and between Vista Breeze, Ltd., a Florida limited partnership, and
Florida Housing Finance Corporation (SAIL/ELI), recorded simultaneously herewith.
19. Leasehold Mortgage and Security Agreement from Vista Breeze, Ltd., a Florida limited partnership to
Florida Housing Finance Corporation (SAIL), in the amount of $3,000,000.00, recorded simultaneously
herewith, as subordinated by that certain Subordination and Intercreditor
Agreement (FHFC-HFA/MDC) by and between Bank of America, N.A. and Florida Housing Finance
Corporation and consented to by Vista Breeze, Ltd., a Florida limited partnership and The Bank of New
York Mellon Trust Company, N.A., a national banking association recorded simultaneously herewith.
20. Assignment of Leases, Rents and Contract Rights from Vista Breeze, Ltd., a Florida limited partnership
to Florida Housing Finance Corporation (SAIL), recorded simultaneously herewith.
21. UCC-1 Financing Statement (SAIL) naming Vista Breeze, Ltd., a Florida limited partnership, as debtor,
and Florida Housing Finance Corporation, as secured party, recorded simultaneously herewith.
22. Leasehold Mortgage and Security Agreement from Vista Breeze, Ltd., a Florida limited partnership to
Florida Housing Finance Corporation (ELI), in the amount of $600,000.00, recorded simultaneously
herewith, as subordinated by that certain Subordination and Intercreditor
Agreement (FHFC-HFA/MDC) by and between Bank of America, N.A. and Florida Housing Finance
Corporation and consented to by Vista Breeze, Ltd., a Florida limited partnership and The Bank of New
York Mellon Trust Company, N.A., a national banking association recorded simultaneously herewith.
23. Assignment of Leases, Rents and Contract Rights from Vista Breeze, Ltd., a Florida limited partnership
to Florida Housing Finance Corporation (ELI), recorded simultaneously herewith.
24. UCC-1 Financing Statement (ELI) naming Vista Breeze, Ltd., a Florida limited partnership, as debtor,
and Florida Housing Finance Corporation, as secured party, recorded simultaneously herewith.
25. Land Use Restriction Agreement by and between Vista Breeze, Ltd., a Florida limited partnership, and
Florida Housing Finance Corporation (NHTF), recorded simultaneously herewith.
NOTE: All recording references in this form shall refer to the public records of Miami -Dade County,
Florida, unless otherwise noted.
B-2
Mortgage and Security Agt
VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN
CONSENT OF OWNER
OF FEE TITLE TO LEASEHOLD MORTGAGE
AND SECURITY AGREEMENT
(VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN)
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 $1,301,500 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
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.
1
Consent of Owner of Fee Title in Mortgage & Security Agreement
(VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN)
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 /NHTF / RFA 2021-205 / 2022-159SN)
SIGNATURE PAGE TO CONSENT OF OWNER
OF FEE TITLE TO LEASEHOLD MORTGAGE
AND SECURITY AGREEMENT
(VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN)
IN WITNESS WHEREOF, the Owner has executed and delivered this Consent as of the 1 S1"
of jam✓ , 2023.
WITNESSES:
-#jH��
Print:
NVIA"
�; -
T,,
STATE OF FLORIDA
COUNTY OF/A )
/�%/- ��fy�� )
OWNER:
HOU G 7\pORITY OF THE CITY OF
MIA I BEublic body corporate and politic
establis o Chapter 1, Florida Statutes
By:
Miguell Del Campillo, Expcu 've Director
Address: 200 Alton Road
Miami Beach, FL 33139
The foregoing instrument was acknowledged before me by means of X physical presence or online
notarization this // 771 day of , 2023, 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 _
T personally known to me or has produced a as
identification.
[SEAL]
ROBERTO DIAZ
*: * MY COMMISSION # HH 313355
EXPIRES: October30, 2026
•.y OP F� .•
Notary Public '
Print Name: 2-
Commission Expires: 0 2
Commission No.:T'/3�
S-1
LiAST PAGE
EXHIBIT "A"
LEGAL DESCRIPTION
(VISTA BREEZE / NHTF / RFA 2021-205 / 2022-159SN)
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.
A-1
Consent of Owner of Fee Title in Mortgage & Security Agreement
(VISTA BREEZE / NHTF / RFA 202I-205 / 2022-159SN)