74. Open-End Leasehold Mortgage and Security AgreementThis instrument prepared by:
Michael H. Syme, Esq.
Fox Rothschild LLP
BNY Mellon Center
500 Grant Street, Suite 2500
Pittsburgh, PA 15219
3ZI� 3��5SSc'�
OR BK 34013 Pss 3057-300 (13P9s)
RECORDED 12/1.8/202:3 :14.33::20
1JAN FE:RNANDEZ-E?ARCNJIN
CLERK OF THE COUR'r g C:0(�F`'TROLLER
MIAMI--DARE COUNTYr FL.
OPEN-END LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
(securing Promissory Note to Housing Authority of the City of Miami Beach)
THIS MORTGAGE SECURES FUTURE ADVANCES UP TO A MAXIMUM PRINCIPAL
AMOUNT OF $8,800,000
PLUS ACCRUED INTEREST AND OTHER INDEBTEDNESS
NOTE TO RECORDER: THIS MORTGAGE SECURES THE PAYMENT OF AN OBLIGATION
ISSUED IN CONNECTION WITH THE FINANCING OF HOUSING UNDER SECTION 420 OF
THE FLORIDA STATUTES AND IS THEREFORE EXEMPT FROM THE IMPOSITION OF
DOCUMENTARY STAMP AND INTANGIBLES TAXES PURSUANT TO THE PROVISIONS
OF SECTION 420.513(1) OF THE FLORIDA STATUTES
MADE as of the 15th day of December, 2023.
BETWEEN
VISTA BREEZE, LTD., a Florida limited partnership, with offices at 161 NW 61h Street, Suite
1020, Miami, FL 33136 (the "Mortgagor").
AND
THE HOUSING AUTHORITY OF THE CITY OF MIAMI BEACH, a public body corporate and
politic, with offices at 200 Alton Road, Miami Beach, FL 33139 (the "Mortgagee").
WHEREAS, pursuant to a certain Note Covenant Agreement of even date herewith between
Mortgagor and Mortgagee (the "Agreement"), Mortgagor has executed and delivered to Mortgagee that
certain Promissory Note (the "Note") dated the date hereof, evidencing a total debt to Mortgagee in the
principal amount of Eight Million Eight Hundred Thousand and 00/100 Dollars ($8,800,000.00) (the
"Obligation"), of lawful money of the United States of America, together with interest and costs as
provided in the Note, payable in the manner and at the times therein set forth, and containing certain other
terms and conditions, all of which are specifically incorporated herein by reference.
NOW, THEREFORE, in consideration of the Obligation as evidenced by the Note and as security
for the payment of the same and interest as aforesaid, together with all sums payable hereunder or under
the terms of the Note, and intending to be legally bound hereby, Mortgagor does hereby give, grant, bargain,
I I 1112152.v4
-';'/ �3►3
sell, warrant, alienate, demise, release, convey, assign, transfer, mortgage, hypothecate, deposit, pledge, set
over and confirm unto Mortgagee and does agree that Mortgagee shall have a security interest in the
following described property and all substitutions for and replacements, reversions, and remainders of such
property (collectively the "Mortgaged Property") now owned or held or hereafter acquired, to wit;
(a) Mortgagor's ground leasehold estate in all those certain lots or parcels of ground
situate in the City of Miami Beach, Miami -Dade County, Florida, as more particularly described in
Exhibit A attached hereto and made part hereof (the "Premises"), together with all of the easements, rights
of way, privileges, liberties, hereditaments, gores, streets, alleys, passages, ways, waters, watercourses,
rights and appurtenances thereunto belonging or appertaining and all of the estate, right, title, interest, claim,
or demand whatsoever of Mortgagor therein and as they may relate to the Mortgaged Property, either in
law or in equity, in possession or expectancy;
(b) All buildings, structures, additions, and improvements of every kind and
description now or hereafter erected on the Premises (collectively the "Improvements");
(c) All fixtures, fittings, appliances, apparatus, equipment, machinery, chattels,
building materials and articles of personal property and replacements and proceeds thereof, and additions
thereto, now or at any time hereafter affixed to or attached to or placed upon or used in any way in
connection with the complete and comfortable use, enjoyment, or occupancy for operation and maintenance
of the Premises, excepting any personal property or fixture owned by any tenant occupying the Premises
and used by such tenant in the conduct of its business in the space occupied by it to the extent the same
does not become the property of the landlord under the lease with such tenant or pursuant to applicable law
(collectively the "Chattels");
(d) All leases of the Premises, Improvements, and Chattels, or any part thereof, now
or hereafter entered into, including cash or securities deposited thereunder to secure performance by the
tenants of their obligations thereunder and including further the right to receive and collect the rents
thereunder (collectively the "Leases");
(e) All revenues, incomes, rents, issues, and profits of any of the Premises,
Improvements, Chattels, or Leases (collectively the "Rents");
(f) All permits, licenses, approvals, franchises, management agreements, privileges,
plans, specifications, covenants, agreements (including agreements for the rehabilitation or reconstruction
of the Mortgaged Property) now or hereafter belonging or appertaining to the Premises and Improvements
(the "Permits and Approvals"); and
(g) All proceeds of the conversion, voluntary or involuntary, of any of the Premises,
Improvements, or Chattels into cash or liquidated claims, including proceeds of insurance and
condemnation awards.
UNDER AND SUBJECT to a lien of that certain Construction Leasehold Mortgage with Absolute
Assignment of Leases and Rents, Security Agreement and Fixture Filing (Construction Loan) dated as of
the date hereof from Mortgagor to Housing Finance Authority of Miami -Dade County, Florida, a public
body corporate and politic organized and existing under the laws of the State of Florida (the
"Governmental Lender") and assigned by Governmental Lender to The Bank of New York Mellon Trust
Company, N.A., a national banking association, as fiscal agent (the "Fiscal Agent"), for the benefit of Bank
of America, N.A. (the "Original Funding Lender"), securing a debt (the "Funding Loan" or "Senior
Construction Loan") in the original principal amount of $32,500,000 (the "Senior Construction
Mortgage"). The Mortgagor, Original Funding Lender and Citibank, N.A ("Permanent Funding
2
Lender", and together with the Original Funding Lender, during such time as the Permanent Loan remains
outstanding, the "Senior Lender") entered into that certain Forward Purchase Agreement, dated as of
December 15, 2023 (the "Forward Purchase Agreement"), pursuant to which Permanent Funding Lender
agreed to acquire Original Funding Lender's interests in the Funding Loan following conversion of the
Senior Construction Loan to its permanent phase (the "Permanent Loan" and, together with the Senior
Construction Loan, during such time as the Permanent Loan remains outstanding, the "Senior Loan ", and
together with the Original Funding Lender, during such time as the Permanent Loan remains outstanding,
the "Senior Lender"), such Permanent Loan being secured by that certain first priority Amended and
Restated Multifamily Leasehold Mortgage, Assignment of Rents, Security Agreement And Fixture Filing
(Florida) by the Owner in favor of Governmental Lender and assigned by Governmental Lender to Fiscal
Agent for the benefit of Permanent Funding Lender to secure the Permanent Loan (the "Senior Permanent
Mortgage" and, together with the Senior Construction Mortgage, during such time as the Permanent Loan
remains outstanding, the "Senior Mortgage").
AND FOR the purposes hereof, Mortgagor covenants to execute, acknowledge, and deliver from
time to time such instruments and documents as may be necessary or desirable to confirm unto Mortgagee,
its successors and assigns, the aforesaid Mortgaged Property, now owned or hereafter acquired by
Mortgagor.
TO HAVE AND TO HOLD the same unto Mortgagee, its successors and assigns, FOREVER.
PROVIDED, that if Mortgagor shall pay to Mortgagee the aforesaid debt or principal sum and all
other sums payable by Mortgagor to Mortgagee hereunder and under the terms of the Note, together with
interest thereon, and shall well and truly keep and perform each of the other covenants, conditions, and
agreements hereinafter set forth, then this Mortgage and the estate hereby granted and conveyed shall
become void.
THIS MORTGAGE is executed and delivered subject to the following covenants, conditions and
agreements:
1. Representations and Warranties. Mortgagor represents and warrants to Mortgagee that
Mortgagor has a good and marketable leasehold estate in the Mortgaged Property and has all right, title,
and interest in all other property constituting a part of the Mortgaged Property free and clear of all liens and
encumbrances except as may otherwise be set forth on Exhibit B. Mortgagor shall preserve such title as it
warrants herein and the validity and priority of the lien hereof and shall forever warrant and defend the
same to Mortgagee against the claims of all persons.
2. Future Obligations. The Note secured hereby shall evidence and this Mortgage shall cover
and be security for any future obligations that may be made by Mortgagor to Mortgagee at any time or
times hereafter in connection with the Mortgaged Property and intended by Mortgagor and Mortgagee to
be so evidenced and secured, and such obligations shall be added to the principal debt, and collected as part
of said principal debt.
3. Payment of Debt. Mortgagor shall pay the debt evidenced by the Note at the time and in
the manner provided in the Note. All the covenants, conditions, and agreements contained in the Note, the
Agreement, and documents executed in conjunction therewith evidencing and/or securing the Obligation
(collectively the "Authority Documents") are hereby made a part of this Mortgage to the same extent and
with the same force as if fully set forth herein.
4. Taxes, Rents. From time to time until said debt and interest are fully paid, Mortgagor shall:
(a) pay and discharge, prior to delinquency, all taxes, payments in lieu of taxes, assessments, sewer, and
water rents, and all other charges and claims assessed or levied from time to time by any lawful authority
upon any part of the Mortgaged Property and which shall or might have priority in lien or payment to the
debt secured hereby, except that no such charge needs to be paid for so long as its validity or amount shall
be contested in good faith by appropriate proceedings duly prosecuted and Mortgagor shall have set up
upon Mortgagor's books such reserves with respect thereto as shall be dictated by sound accounting
practices; and (b) pay and discharge all mechanics' liens which may be filed against the Mortgaged Property
and which shall or might have priority in lien or payment to the debt secured hereby.
5. Waste. Mortgagor shall abstain from and shall not permit the commission of waste in or
about the Mortgaged Property. Mortgagor shall not remove or demolish, or alter the structural character
of, any building erected at any time on the Mortgaged Property, without the prior written consent of
Mortgagee. Mortgagor shall not permit the Mortgaged Property to become vacant, deserted, or unguarded.
6. Maintenance. Mortgagor shall maintain the Mortgaged Property in good condition and
repair, making all repairs of every nature. Mortgagee shall have the right to enter upon the Mortgaged
Property at any reasonable hour on reasonable prior notice for the purpose of inspecting the order, condition,
and repair of the Mortgaged Property. Mortgagee acknowledges that it may not enter any unit on the
Premises occupied by a tenant without first obtaining the consent of such tenant if such consent is required.
7. Mortgagee's Rights to Protect Its Interest. In the event Mortgagor neglects or refuses to
pay the charges in Section 4, or fails to maintain the Mortgaged Property as aforesaid, or fails to complete
rehabilitation in accordance with the Agreement, Mortgagee may do so, after not less than ten (10) days
prior written notice to Mortgagor of its intent to do so, and add the cost thereof to the principal debt secured
hereby, and collect the same as part of said principal debt.
8. No Other Financing or Liens. Mortgagor covenants and agrees not to create or permit to
accrue upon all or any part of the Mortgaged Property, any debt, lien, or charge which would be prior to or
on a parity with the lien of this Mortgage, except for the Senior Mortgage and any other matters set forth
on Exhibit B.
9. SecurityAgreement. This Mortgage is a Security Agreement as defined in the Uniform
Commercial Code of Florida. Mortgagor shall execute, deliver, file, and refile any financing statements or
other security agreements Mortgagee may require from time to time to confirm the lien of this Mortgage
with respect to the Mortgaged Property and shall pay all costs of filing. Without limiting the foregoing,
Mortgagor hereby irrevocably appoints Mortgagee attorney -in -fact for Mortgagor to execute, deliver, and
file such instruments for and on behalf of Mortgagor. Notwithstanding the filing of a financing statement
covering any of the Mortgaged Property in the records normally pertaining to personal property, all of the
Mortgaged Property, for all purposes and in proceedings, legal or equitable, shall be regarded, at
Mortgagee's option (to the extent permitted by law), as part of the real estate whether or not any such item
is physically attached to the real estate or Improvements. The mention in any such financing statement of
any of the Mortgaged Property shall never be construed as in any way altering any of the rights of
Mortgagee or adversely affecting the priority of the lien granted hereby, but such mention in the financing
statement is hereby declared to be for the protection of Mortgagee in the event any court shall at any time
hold that notice of Mortgagee's priority of interest, to be effective against any third party, including the
federal government and any authority or agency thereof, must be filed in the Uniform Commercial Code
records.
10. Hazardous Substances. "Hazardous Substances" means substances, chemicals, materials,
or elements that are defined as "hazardous" or "toxic" or otherwise regulated by any and all federal, state,
or local laws or regulations pertaining to the protection of land, water, air, or the environment whether now
or in the future enacted (the "Environmental Laws"). The term "Hazardous Substances" shall also include,
M
without limitation, any substance, chemical, material, or element (i) defined as a "hazardous substance"
under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 USC §§
9601 et seq.), as amended by the Superfund Amendment and Reauthorization Act of 1986, and as further
amended from time to time and regulations promulgated thereunder; (ii) defined as a "regulated substance"
within the meaning of Subtitle I of the Resource Conservation and Recovery Act (42 USC § 6991-6991 i),
as amended from time to time and regulations promulgated thereunder; (iii) designated as "hazardous
substances" pursuant to Section 311 of the Clean Water Act (33 USC § 1321), or listed pursuant to Section
307 of the Clean Water Act (33 USC § 1317); (iv) which is petroleum, petroleum products or derivatives
or constituents thereof; (v) which is asbestos or asbestos -containing materials; (vi) the presence of which
requires notification, investigation, or remediation under any Environmental Laws; (vii) which is urea
formaldehyde foam insulation or urea formaldehyde foam insulation -containing materials; (viii) which is
lead -based paint or lead -based paint -containing materials, including, without limitation, any lead -
contaminated soils; (ix) which are polychlorinated biphenyls or polychlorinated biphenyl -containing
materials; or (x) which is radon or radon -containing or producing materials.
Mortgagor warrants and represents that (a) no Hazardous Substances will be introduced to or on
the Mortgaged Property other than in connection with the maintenance and operation of the Mortgaged
Property, in such amounts as may legally be used in compliance with Environmental Laws and
(b) Mortgagor has not been identified in any litigation, administrative proceedings, or investigation as a
responsible party for any liability under the above referenced laws. Mortgagor (i) covenants that other than
in connection with the maintenance and operation of the Mortgaged Property, in such amounts as may
legally be used in compliance with Environmental Laws, Mortgagor will not use, generate, treat, store,
dispose of, or otherwise introduce any Hazardous Substances into or on the Mortgaged Property and will
not cause, suffer, allow, or permit anyone else to do so, in violation of any applicable statute, law, ordinance,
rule, or regulation, and (ii) hereby indemnifies and agrees to hold Mortgagee harmless from and against all
loss, liability, damage, expense, and costs arising out of Mortgagor's breach of the representations and
covenants of this Section, including any such loss, liability, damage, expense, or cost suffered by Mortgagee
and arising following the occurrence of any Event of Default hereunder (defined below) and Mortgagee's
exercise of any remedy provided herein. The foregoing indemnification shall survive foreclosure or
satisfaction of this Mortgage, the acceptance by Mortgagee of a deed (or lease) in lieu of foreclosures or
the conveyance of the Mortgaged Property to Mortgagee, its successors or assigns pursuant to a judicial
sale in execution of any judgment obtained on the Note but shall not apply to any Hazardous Substances
first introduced onto the Mortgaged Property after the date of such foreclosure or conveyance. Mortgagee
represents that it has disclosed to Mortgagor all information of which it has actual knowledge with respect
to the presence of Hazardous Substances on the Mortgaged Property or compliance with laws and
regulations governing Hazardous Substances.
11. Condemnation or Casualty.
(a) Insurance. During the term of this Mortgage, Mortgagor will, at its sole
expense, maintain and keep insurance on the Mortgaged Property of the types and in the amounts set forth
in the Second Amended and Restated Ground Lease entered into on or about the date hereof between
Mortgagor and Mortgagee (the "Ground Lease").
(b) Restoration. If the Mortgaged Property shall be damaged or destroyed, in
whole or in part by fire, earthquake, act of God, or other casualty, Mortgagor shall give prompt notice
thereof to Mortgagee. The net amount of all insurance proceeds received by Mortgagee with respect to
such damage or destruction, after deduction of the reasonable costs and expenses incurred by Mortgagee in
collecting the same (the "Net Proceeds") shall be disbursed by Mortgagee in accordance with the terms
and conditions set forth in the Ground Lease.
(c) Condemnation. Mortgagor shall promptly give Mortgagee notice of the actual or
threatened commencement of any condemnation or eminent domain proceeding against any portion of the
Mortgaged Property and shall deliver to Mortgagee copies of any and all papers served in connection with
such proceedings. Notwithstanding any taking by any public or quasi -public authority through eminent
domain or otherwise, including but not limited to any transfer made in lieu of or in anticipation of the
exercise of such taking, Mortgagor shall continue to pay principal and accrued interest at the time and in
the manner provided for its payment in the Note and in this Mortgage and the debt shall not be reduced
until any award or payment therefor shall have been actually received and applied by Mortgagee, after the
deduction of expenses of collection, to the reduction or discharge of the Obligation. Mortgagee shall apply
any such award or payment in accordance with the Ground Lease. If the Mortgaged Property is sold,
through foreclosure or otherwise, prior to the receipt by Mortgagee of such award or payment, Mortgagee
shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered,
or denied, to receive said award or payment, or a portion thereof sufficient to pay the Obligation.
(d) Notwithstanding anything in this Section 11 to the contrary, this Section 11 is
subject to the terms and provisions of the Senior Mortgage and the Ground Lease.
12. Default. An event of default ("Event of Default") shall occur upon the expiration of any
applicable cure period, after the occurrence of any one or more of the following events:
(a) Mortgagor executes an assignment or pledge of the Rents or the Leases other than
in favor of the holders of the Senior Mortgages and Mortgagee or accepts any prepayment of an installment
of any Rents in excess of one month prior to the due date of such installment. All Leases shall be on forms
approved by Mortgagee.
(b) Mortgagor sells, conveys, leases, or otherwise transfers any interest in the
Mortgaged Property (whether voluntarily or by operation of law), or agrees to do so, without Mortgagee's
prior written consent other than utility easements as may be reasonably necessary for the operation of the
Mortgaged Property. Any default under this paragraph shall cause an immediate acceleration of the
indebtedness secured by the Note without any demand by Mortgagee. For the purpose of, and without
limiting the generality of the foregoing, the occurrence at any time of any of the following events, without
Mortgagee's prior written consent, shall be deemed to be an unpermitted transfer of title to the Mortgaged
Property and therefore shall result in acceleration: (i) any sale, conveyance, assignment, or other transfer
of (including installment land sale contracts), or the grant of a security interest in, all or any part of the legal
and/or equitable title to the Mortgaged Property; (ii) any lease of all or any portion of the Mortgaged
Property other than leases to residents of the apartment units to be rehabilitated on the Mortgaged Premises;
or (iii) any sale, conveyance, assignment, or other transfer of, or the grant of a security interest in, any
interest as a managing member, general partner, or controlling stockholder (any such interest is referred to
as a "Controlling Interest") in Mortgagor, or a Controlling Interest in any entity which has a Controlling
Interest in Mortgagor, in each case except as approved in writing by Mortgagee (it being understood that
the limited partnership interest held by the Investor Limited Partner or the Special Limited Partner (each as
defined in the Agreement), if one has been designated, shall be deemed not to be a Controlling Interest in
Mortgagor and that the transfer of the limited partnership interests held by the Investor Limited Partner or
Special Limited Partner, if one has been designated, shall not constitute an Event of Default). Furthermore,
notwithstanding anything to the contrary herein, the following events shall not constitute an Event of
Default: (i) removal of any general partner by the Investor Limited Partner and/or Special Limited Partner,
if one has been designated, in accordance with the terms of that certain Amended and Restated Agreement
of Limited Partnership of Mortgagor dated as of the date hereof, among APC Vista Breeze, LLC, Vista
0
Breeze HACMB, Inc., the Investor Limited Partner, and the Howard D. Cohen Revocable Trust u/a/d
4/6/1993, as the Withdrawing Limited Partner (as the same may be amended, restated or otherwise modified
from time to time, the "Partnership Agreement"); (ii) the acquisition by Vista Breeze HACMB, Inc. or its
affiliate of APC Vista Breeze, LLC's interest in Mortgagor in accordance with Section 8.05 of the
Partnership Agreement; (iii) transfers permitted pursuant to the terms of the Ground Lease; or (iv) for so
long as the Mortgagee is affiliated with a general partner of the Mortgagor, any act or omission of
Mortgagor that would otherwise be deemed to be an Event of Default hereunder and that is attributable to
such general partner affiliated with Mortgagee.
(c) Mortgagor defaults under any other agreement to which the Mortgagee and
Mortgagor are parties, which default is not cured under any permissible cure period provided for in such
other agreements.
(d) Mortgagor breaches any covenants, terms, or agreements of any agreement or
document to which Mortgagor and Mortgagee are parties, which breach is not cured under any permissible
cure period provided for in such other agreements or documents; provided that if such breach by Mortgagor
results from a breach by Mortgagee, or any affiliate of Mortgagee, acting as management agent for the
Mortgaged Property, of its management obligations with respect to the Mortgaged Property, then such
breach by Mortgagor shall not constitute an Event of Default hereunder.
Upon an Event of Default then, and in any such event, the entire unpaid balance of said principal
sum and all other sums paid by Mortgagee to or on behalf of Mortgagor pursuant to the terms of the Note,
the Agreement, the Ground Lease, or this Mortgage, together with unpaid interest thereon, shall at the
option of Mortgagee and without further notice become immediately due and payable, and foreclosure
proceedings may be brought forthwith on this Mortgage and prosecuted to judgment, execution, and sale
for the collection of the debt, together with costs of suit and a reasonable attorney's fees plus interest. With
respect to a default under this Mortgage, if no longer or shorter grace period is specified herein, Mortgagor
shall be entitled to a thirty (30)-day cure period following notice from Mortgagor; provided, that if any such
default is not reasonably capable of being cured within such thirty (30)-day period, and if Mortgagor
(i) initiates corrective action within such period, and (ii) diligently, continually, and in good faith works to
effect a cure as soon as possible, then Mortgagor shall have such additional time as reasonably necessary
to cure the default prior to the exercise by Mortgagee of any remedies available to it under the Note, the
Agreement or this Mortgage, but in no event shall the cure period be extended later than 210 days after the
notice from Mortgagee to Mortgagor of such default. In the event that a default cannot be cured within any
applicable cure period, to the extent it may legally do so, Mortgagor hereby forever waives and releases all
errors in said proceedings, waives stay of execution, and waives all exemptions from levy and sale of any
property that now is or hereafter may be exempted by law. Notwithstanding any contrary provision hereof,
Mortgagee agrees that it shall give written notice to the Investor Limited Partner, its permitted affiliates,
successors and/or assigns and, if designed by the Investor Limited Partner under the Partnership Agreement,
Special Limited Partner (as defined in the Partnership Agreement), as otherwise provided in Section 16.01
of the Agreement, upon the occurrence of an Event of Default hereunder, so that the Investor Limited
Partner shall also have the opportunity, but not the obligation, to cure such default within the applicable
cure period specified herein.
13. Remedies. The holder of this Mortgage, upon the occurrence of an Event of Default or in
any action to foreclose this Mortgage, shall be entitled to the appointment of a receiver without notice and
without regard to the value of the Mortgaged Property as security for the debt, or the solvency or insolvency
of any person liable for the payment of the debt.
14. Future Advances. This Mortgage shall secure not only indebtedness due and payable under
the Note, but also such future advances, whether such advances are obligatory or to be made at the option
7
of Mortgagee, or otherwise, as are made within twenty (20) years from the date thereof, to the same extent
as if such future advances were made on the date of the execution of this Mortgage. The total amount of
indebtedness that may be so secured may decrease or increase from time to time, but the total unpaid balance
so secured at any one time shall not exceed two times the principal amount of the Note.
15. Interest Rate. Notwithstanding any provision contained in this Mortgage or in the Note
secured hereby, nothing contained therein shall be construed or shall operate as to require Mortgagor, or
any person liable for the payment of the indebtedness to pay interest in an amount or rate greater than the
highest rate permissible under the laws of the State of Florida. Should any interest or other charges paid by
Mortgagor, or any parties liable for the payment of the indebtedness result in the computation or earning of
interest in excess of the highest rate permissible under applicable law, then any and all such excess shall be
and the same is hereby waived by the holder hereof, and all such excess shall be automatically credited
against and in reduction of the principal balance and any portion of said excess which exceeds the principal
balance shall be paid by the holder hereof to Mortgagor and any parties liable for the payment of the
indebtedness made pursuant to the Note.
16. Mortgage Expenses. If Mortgagee becomes a party to any suit or proceeding affecting the
Mortgaged Property, the lien created by this Mortgage, or Mortgagee's interest in the Mortgaged Property
(including any proceeding in the nature of eminent domain), or if Mortgagee engages counsel to collect any
of the indebtedness or to enforce performance of the agreements, conditions, covenants, provisions, or
stipulations of this Mortgage or the Note, Mortgagee's costs, expenses, and reasonable attorneys' fees,
whether or not suit is instituted, shall be paid to Mortgagee by Mortgagor, on demand, with interest at the
highest rate provided in the Note. Until paid, they shall be deemed to be part of the indebtedness evidenced
by the Note and secured by this Mortgage.
17. Appointment of Mortgagee as Attorney -in -Fact. Mortgagee is hereby irrevocably
appointed attorney -in -fact for Mortgagor (without requiring any of them to act as such), such appointment
being coupled with an interest, to do any or all of the following: (a) collect the Rents after the occurrence
of an Event of Default; (b) settle for, collect and receive any awards payable under Section 12 of this
Mortgage from the authorities malting the same after the occurrence of an Event of Default; and (c) execute,
deliver and file such financing statements and other instruments as Mortgagee may require in order to
perfect and maintain its security interest under the Uniform Commercial Code on any portion of the
Mortgaged Property.
18. Notices. All notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder must be in writing and will be effective upon receipt if delivered pursuant
to Section 16.01 of the Agreement.
19. Illegali1y. In case any one or more of the provisions contained in this Mortgage should be
invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired thereby.
20. Changes in Writing. No modification, amendment or waiver of any provision of this
Mortgage nor consent to any departure by Mortgagor therefrom, will in any event be effective unless the
same is in writing and signed by Mortgagee, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice to or demand on Mortgagor in any case
will entitle Mortgagor to any other or further notice or demand in the same, similar, or other circumstance.
21. Entire Agreement. This Mortgage (including the documents and instruments referred to
herein) constitutes the entire agreement and supersedes all other prior agreements and understandings, both
written and oral, between Mortgagor and Mortgagee with respect to the subject matter hereof.
22. Survival, Successors and Assigns. This Mortgage will be binding upon and inure to the
benefit of Mortgagor and Mortgagee and their respective heirs, executors, administrators, successors, and
assigns; provided, that Mortgagor may not assign this Mortgage in whole or in part without the prior written
consent of Mortgagee and Mortgagee at any time may assign this Mortgage in whole or in part.
23. Governing Law; Jurisdiction and Venue, Interpretation. This Mortgage shall be construed,
interpreted, and governed by the laws of the State of Florida, and with respect to any dispute hereunder,
jurisdiction and venue shall lie with the courts of Miami -Dade County, Florida. In this Mortgage, the
singular includes the plural and the plural the singular; words importing any gender include the other
genders; references to statutes are to be construed as including all statutory provisions consolidating,
amending or replacing the statute referred to; the word "or" shall be deemed to include "and/or", the words
"including", "includes" and "include" shall be deemed to be followed by the words "without limitation".
Section headings in this Mortgage are included for convenience of reference only and shall not constitute a
part of this Mortgage for any other purpose. If this Mortgage is executed by more than one party as
Mortgagor, the obligations of such persons or entities will be joint and several.
24. Indemnity. Mortgagor agrees to indemnify Mortgagee, its successors and assigns (the
"Indemnified Parties"), and to hold each Indemnified Party harmless from and against any and all claims,
damages, losses, liabilities, and expenses (including, without limitation, all fees of counsel with whom any
Indemnified Party may consult and all expenses of litigation or preparation therefor) which any Indemnified
Party may incur or which may be asserted against any Indemnified Party in connection with or arising out
of the matters referred to in this Mortgage or in the other Authority Documents by any person, entity, or
governmental authority (including any person or entity claiming derivatively on behalf of Mortgagor)
whether (a) arising from or incurred in connection with any breach of a representation, warranty or covenant
by Mortgagor, or (b) arising out of or resulting from any suit, action, claim, proceeding, or governmental
investigation, pending or threatened, whether based on statute, regulation, order, tort, contract, or otherwise,
before any court or governmental authority, which arises out of or relates to this Mortgage, or any other
Authority Documents; provided, that the foregoing indemnity agreement shall not apply to claims;
damages, losses, liabilities, and expenses attributable to an Indemnified Party's gross negligence or willful
misconduct. The indemnity agreement contained in this Section shall survive the termination of this
Mortgage and assignment of any rights hereunder. Mortgagor may participate at its expense in the defense
of any such action or claim.
23. Sale in Parcels. In case any sale under this Mortgage occurs by virtue of judicial
proceedings, the Mortgaged Property may be sold in one parcel and as an entity, or in such parcels, and in
such manner or order, as Mortgagee in its sole discretion may elect.
24. Binding Nature. The covenants, conditions, and agreements contained in this Mortgage
shall bind, and the benefits thereof shall inure to Mortgagor and Mortgagee and their respective successors
and assigns.
[Signature pages follow]
0
MORTGAGOR SIGNATURE PAGE TO
OPEN-END LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
IN WITNESS WHEREOF, the Mortgagor has executed this Open -End Leasehold Mortgage and
Security Agreement as of the date first above written.
WITNESS/ATTEST:
By:
(Print name)
By: ,l l�
MAP T\
(Print name)
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
MORTGAGOR:
VISTA BREEZE LTD.,
a Florida limited partnership
By: APC VISTA BREEZE, LLC,
a Florida limited liability corr.
its managing general partner,/
By:
Name:
Title:
The foregoing instrument was acknowledged before me by means of (Of"physical presence or ( )
online notarization, this 114-�, day ofD em6e • 2023 by Kenneth Naylor, as the Vice President of APC
Vista Breeze, LLC, a Florida limited liability company, the Man ing General Partner of Vista Breeze,
Ltd., a Florida limited partnership. Kenneth Naylor is (►ersonally known to me or () has
produced as identification.
'--R ( 'L. 0 Q
Notary Public State of Florida
ft Rebeca Martinez
My Commission
HH 213601
Exp, 1/4/2026
Notary Public; State of Flon av
Print Name: 1:�%e r T ► %AZ
My Commission Expires: 17-�-e
My Commission No.: -1 A 2. t it, s a 1
MORTGAGEE SIGNATURE PAGE TO
OPEN-END LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
IN WITNESS WHEREOF, the Mortgagee has executed this Open -End Leasehold Mortgage and
Security Agreement as of the date first above written.
WITNESS/ TE T:
By:
(Print name)
<— J
(Print name)
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
MORTGAGEE:
HO THORITY OF THE CITY OF
MI MIBEAC %
By:
Miguell Del Campill , txecutive Director
The foregoing instruprient was acknowledggd before me by means of D�(physical presence or ( )
nnline nnta7a rition_ this/ day of'AK 3 by Miauell Del Camnil o. as the Executive Director
of the Housing Authority of the City of Miami Beach, on behalf of the Housing Authority of the City of
Miami Beach, as the Executive Director of the Housing Authority of the City of Miami Beach. Miguell Del
Campillo is �) personally known to me or () has produced as
identificatio .
,sueyp
ROBERTODIAZ Notary Public; Sty of Florida
MY COMMISSION # HH 3133titi Print Name:
' QpNP;` EXPIRES: October 30,2026 My Commission Expire 2,126
My Commission No.: AF .3133
EXHIBIT A
LEGAL DESCRIPTION
That leasehold estate created by that Second Amended and Restated Ground Lease, by and between Vista
Breeze, Ltd., a Florida limited partnership, and the Housing Authority of The City of Miami Beach, a
public body corporate and politic, as evidenced by that Amended and Restated Memorandum of Lease to
be recorded over the following described lands:
PARCEL 1:
LOT 3, 4 and 5, Block 55, OF NORMANDY GOLF COURSE, ACCORDING TO THE PLAT
THEREOF, AS RECORDED IN PLAT BOOK 44, AT PAGE 62, OF THE PUBLIC RECORDS OF
MIAMI-DADE COUNTY, FLORIDA.
PARCEL 2:
LOTS 6,7 and 8, BLOCK 56, NORMANDY GOLF COURSE SUBDIVISION, ACCORDING TO THE
PLAT THEREOF RECORDED IN PLAT BOOK 44, PAGE 62, OF THE PUBLIC RECORDS OF
MIAMI-DADE COUNTY, FLORIDA.
LASS'" PAGE
LIENS AND ENCUMBRANCES
EXHIBIT B
1. Liens and encumbrances shown in the pro forma owner's policy of title insurance issued on or
about the date hereof, Order No.: 11389795.
2. Second Amended and Restated Ground Lease dated as of the date hereof between Mortgagor and
Mortgagee.
3. The Extended Low -Income Housing Agreement to be entered into between Mortgagor and Florida
Housing Finance Corporation.
4. Other Permitted Leasehold Mortgages (as defined in the Ground Lease) identified on Exhibit D to
the Ground Lease