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84. Guaranty of Operating Deficits -Vista Breeze 4868-6077-8883.7 ABSOLUTE AND UNCONDITIONAL GUARANTY OF OPERATING DEFICITS (Vista Breeze) This ABSOLUTE AND UNCONDITIONAL GUARANTY OF OPERATING DEFICITS (as amended, modified and supplemented from time to time, this “Guaranty”) is made as of December 1, 2023, by VISTA BREEZE, LTD., a Florida limited partnership (the “Borrower”), APC VISTA BREEZE, LLC, a Florida limited liability company, its managing general partner, VISTA BREEZE HACMB, INC., a Florida not for profit corporation, ATLANTIC PACIFIC COMMUNITIES, LLC, a Delaware limited liability company, APC VISTA BREEZE DEVELOPMENT, LLC, a Florida limited liability company, HACMB DEVELOPMENT, LLC, a Florida limited liability company, HOWARD D. COHEN REVOCABLE TRUST UNDER AGREEMENT DATED 4/6/1993, and HOWARD D. COHEN, individually (together with their respective heirs, successors and assigns hereinafter referred to collectively as the “Guarantor” or the “Guarantors”), for the benefit of the 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 THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, with a representative office located in Jacksonville, Florida, as fiscal agent under the below-described Funding Loan Agreement (in such capacity, the “Fiscal Agent”). RECITALS A. All capitalized terms in this Guaranty not otherwise defined herein shall have the meanings set forth in the Funding Loan Agreement (as hereinafter defined). B. The Governmental Lender has been created and organized pursuant to and in accordance with the provisions of Chapter 159, Part IV, Florida Statutes, as amended, Resolution R-1194-78, adopted October 17, 1978 and enacted on December 12, 1978, as Ordinance No. 78-89 by the Board of County Commissioners of Miami-Dade County, Florida, as amended by Ordinance No. 11-99 enacted December 6, 2011 by the Board of County Commissioners of Miami-Dade County, Florida, and all future acts supplemental thereto or amendatory thereof (collectively, the “Act”), for the purpose, among others, of financing multifamily rental housing within Miami-Dade County, Florida (the “County”). C. Pursuant to the Act, the Governmental Lender, the Fiscal Agent and the Borrower have entered into that certain Construction Phase Borrower Loan Agreement dated as of December 1, 2023 (the “Construction Phase Borrower Loan Agreement”), the terms of which are hereinafter incorporated by this reference, under which the Governmental Lender has agreed to make a loan pursuant to the Construction Phase Borrower Loan Agreement (the “Construction Phase Loan”) in the maximum aggregate principal amount of THIRTY-TWO MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($32,500,000) to the Borrower to finance the acquisition and construction of a multifamily rental housing development known as Vista Breeze (the “Project”) located on property within Miami-Dade County, Florida, the legal description for which is set forth in Exhibit “A” attached hereto and incorporated herein by this reference (the “Land”) and the Borrower has agreed to execute and deliver the Construction Phase Borrower Note (the “Borrower Note”) as security for the Construction Phase Loan. D. In order to provide the funds with which to make the Construction Phase Loan to Borrower, the Governmental Lender has authorized the issuance of its $32,500,000 Housing Finance Authority of Miami-Dade County, Florida Multifamily Housing Revenue Note, Series 2023 (Vista Breeze) (collectively, the “Governmental Lender Note”) pursuant to that certain Funding Loan Agreement dated as of 2 4868-6077-8883.7 December 1, 2023, among Bank of America, N.A., in its capacity as the Funding Lender, the Governmental Lender and the Fiscal Agent (the “Funding Loan Agreement”), the terms of which are incorporated herein by this reference. E. As a condition to the Governmental Lender making the Construction Phase Loan to Borrower and pursuant to the requirements of the Construction Phase Borrower Loan Agreement and the Funding Loan Agreement, the Governmental Lender, the Fiscal Agent and the Borrower have entered into a Land Use Restriction Agreement, the terms of which are incorporated herein by this reference, setting forth certain terms and conditions relating to the acquisition and construction of the Project and which sets forth various other covenants and agreements that run with the land on which the Project is located. F. To induce the Governmental Lender to issue and sell the Governmental Lender Note pursuant to the Funding Loan Agreement for the purpose of providing financing for the Project; and to further induce the Governmental Lender to make the Borrower Loans to the Borrower pursuant to the Borrower Loan Agreements; and to further induce the Governmental Lender to accept the Borrower Loan Agreements securing the Borrower Loans and Borrower Loan Agreements, the Guarantors have agreed to deliver this Guaranty. G. Each Guarantor acknowledges and agrees that each will benefit from the Project. NOW THEREFORE, for and in consideration of the premises and as part of the consideration for the Construction Phase Loan by the Governmental Lender to the Borrower and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Guarantors hereby covenant and agree with the Governmental Lender for the benefit of the Governmental Lender and the Fiscal Agent, as follows: ARTICLE 1 DEFINITIONS Section 1.1. Definitions. The following terms shall have the meanings ascribed thereto as set forth below: (a) “Debt Service Coverage Ratio” shall mean the ratio of the Net Operating Income for each month to the monthly payments of principal and interest and recurring fees under the Construction Phase Borrower Loan Agreement. (b) “Default Rate” shall mean the U.S. Prime Rate as published in the Wall Street Journal, plus 3%. (c) “Force Majeure” -- An act of God, strikes, lockouts, act of public enemy, lightning, fire, storm, flood, or any other cause of delay beyond the reasonable control of the party claiming the applicability of the Force Majeure doctrine (financial inability excepted). (d) “Guaranty Period” shall be the period commencing on the date hereof, and ending on the later of (A) three (3) years following the issuance of a certificate of occupancy for the Development, and (B) the Development's achievement of (i) an average 1.15x Debt Service Coverage Ratio, as determined by the Governmental Lender Servicer, (ii) ninety percent (90%) occupancy, and (iii) ninety percent (90%) of the potential rental income, net of utility allowances, if applicable, for a period equal to twelve (12) consecutive months, as certified by an independent certified public accountant and verified by the 3 4868-6077-8883.7 Governmental Lender Servicer. Failure to send notice of the expiration of the Guaranty Period shall have no effect on the expiration of the Guaranty Period. (e) “Net Operating Income” shall mean for any fiscal period, the gross cash receipts of the Borrower from the operations of the Project (including business interruption insurance) for such period (other than capital contributions, any extraordinary transactions, the proceeds of the Borrower Loans, and any casualty insurance proceeds that will be used to repair or replace items within the Project) (“Project Revenues”), less Project Expenses for such period. (f) “Operating Deficit” shall mean for any fiscal period, the excess of Project Expenses over the Project Revenues for such fiscal period and interest earnings on the funds and accounts under the Funding Loan Agreement available to pay debt service (excluding any non-recurring extraordinary expenses). “Operating Deficit” shall also include any shortfall in regular monthly payments due under the Construction Phase Borrower Note, excluding amounts which may be due solely by acceleration of the Construction Phase Borrower Note. Operating Deficit shall not include any shortfall in regular monthly payments due under the Construction Phase Borrower Note due to a disruption of the operation of the Project due to Force Majeure. (g) “Project Expenses” shall mean debt service payments (other than debt service payments payable only if there is available cash flow), all cash costs and cash expenses of every kind and character which the Borrower incurs (and which is currently due and payable, excluding any expenses that are payable only if there is available cash flow) in connection with the operation of the Project (excluding those expenses previously accrued and principal and interest and recurring fees, but including without limitation capital expenditures (but not capital expenditures paid from insurance or reserves), amounts expressly stated or otherwise reasonably required by the Governmental Lender to be allocated to any reserve account and all amounts payable pursuant to the Construction Phase Borrower Loan Agreement, the Construction Phase Borrower Note or the Governmental Lender Servicing Agreement), and all operating expenses associated with the Project that must be accrued monthly (including property taxes and insurance premiums and excluding any non-recurring extraordinary expenses and expenses paid from the net cash flow of the Borrower to its partners or its affiliates) and including expenses paid from revenues. ARTICLE 2 REPRESENTATIONS AND WARRANTIES The Guarantors jointly and severally make the following representations and warranties which shall be continuing representations and warranties until this Guaranty terminates in accordance with the provisions contained herein: Section 2.1. Existence and Rights. Each Guarantor is a person of sound mind and body or an entity duly organized under the laws of the State of its existence and is in good standing thereunder. Each entity Guarantor has powers and adequate authority, rights and franchises to own its property and to carry on its business as now owned and carried on, and is duly qualified and in good standing in each jurisdiction in which the property owned by it or the business conducted by it makes such qualification necessary, including without limitation, the State, and each entity Guarantor has the power and adequate authority to make and carry out this Guaranty. Section 2.2. Guaranty Authorized and Binding. The execution, delivery and performance of this Guaranty are duly authorized, where appropriate, and do not require the consent or approval of any governmental body or other regulatory authority; are not in contravention of, or in conflict with, any law or regulation or any term or provision of the organizational documents of each Guarantor; and this Guaranty 4 4868-6077-8883.7 is a valid and legally binding obligation of each Guarantor enforceable in accordance with its terms subject to bankruptcy and other similar laws and equitable principles. Section 2.3. No Conflict. The execution and delivery of this Guaranty are not, and the performance of this Guaranty will not be, in contravention of, or in conflict with, any agreement, indenture or undertaking to which any Guarantor is a party or by which any Guarantor or any of the Guarantor 's property is or may be bound or affected and do not, and will not, cause any security interest, lien or other encumbrance to be created or imposed upon any such property. Section 2.4. Litigation. As of the date of delivery of the Governmental Lender Note, except as set forth in Exhibit “B” attached hereto, there is no litigation or other proceeding pending (i.e., with respect to which service of process has been made on any Guarantor) or, to the best of each Guarantor's knowledge, threatened against, or affecting, any Guarantor or such Guarantor's properties which, if determined adversely to any Guarantor, would have a materially adverse effect on the financial condition, properties, businesses or operations of any Guarantor, or which prevents or interferes with or adversely affects any Guarantor from entering into this Guaranty or the validity of this Guaranty or the carrying out of the terms hereof, and no Guarantor has been informed that it is in default with respect to any order, writ, injunction, decree or demand of any court or other governmental or regulatory authority which would have a materially adverse effect on the financial condition, properties, businesses or operations of any such Guarantor. Section 2.5. Financial Condition. Each Guarantor's financial statements (or such other documents submitted in lieu of financial statements), which have heretofore been submitted in writing by each Guarantor to the Governmental Lender or the Governmental Lender's agents or consultants in connection herewith, are true and correct in all material respects and fairly present the financial condition of such Guarantor for the period covered thereby. As of the date of delivery of the Governmental Lender Note, since the date of said financial statements (or such other documents submitted in lieu of financial statements), there has been no materially adverse change in any Guarantor's financial condition. As of the date of delivery of the Governmental Lender Note, the Guarantors have no knowledge of any material liabilities, contingent or otherwise, as of the date of their respective financial statements (or such other documents submitted in lieu of financial statements) which are not reflected in said financial statements; and, other than in the ordinary course of any Guarantor's business, the Guarantors have not entered into any material commitments or contracts which are not reflected in their respective financial statements (or such other documents submitted in lieu of financial statements) or which may have a materially adverse effect upon any Guarantor's financial condition, operations or business as now conducted. Section 2.6. Solvency. Each Guarantor is not Insolvent (as defined below) as of the date hereof and the execution and delivery of this Guaranty will not (a) render any Guarantor insolvent under generally accepted accounting principles, (b) leave any Guarantor with remaining assets which constitute unreasonably small capital given the nature of any Guarantor's business, and (c) result in the incurrence of Debts (defined below) beyond any Guarantor's ability to pay them when and as they mature. For the purposes of this Section, “Insolvent” means that the present fair salable value of assets is less than the amount that will be required to pay the probable liability on existing Debts as they become absolute and matured. For the purposes of this Section, “Debts” includes any legal liability for indebtedness, whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent. Section 2.7. Financial or other Benefit or Advantage. Each Guarantor hereby acknowledges and warrants that such Guarantor has derived or expects to derive a financial or other benefit from the Project. 5 4868-6077-8883.7 ARTICLE 3 AGREEMENTS Section 3.1. Guaranteed Obligations. Each Guarantor hereby jointly and severally covenants and agrees to advance, on the terms set forth below, the funds required to fund Operating Deficits incurred by the Borrower during the Guaranty Period (the “Guaranteed Obligations”). Nothing contained in this Agreement shall be deemed to constitute a guarantee by the Guarantors of accelerated principal and interest on the Construction Phase Borrower Note. If the Borrower anticipates the need to request the Guarantors to make a payment under this Guaranty to fund an Operating Deficit, the Borrower will promptly notify the Guarantors, in writing, with a copy to the Governmental Lender, the Fiscal Agent and the Governmental Lender Servicer of the amount of such Operating Deficit (with sufficient supporting documentation to evidence the need to make a payment under this Guaranty). Unless the Governmental Lender or the Governmental Lender Servicer objects to such request within ten (10) days of receipt of such request and supporting documentation, the Guarantors shall promptly provide the Borrower with funds sufficient to pay the amount of such Operating Deficit and promptly upon receipt of such funds, the Borrower shall pay the Project Expenses causing such Operating Deficit. Notwithstanding the foregoing, the Governmental Lender, the Governmental Lender Servicer or the Fiscal Agent may submit a request directly to the Guarantors, on behalf of the Borrower, to make a payment under this Guaranty upon making a determination of the existence of an Operating Deficit. Failure of the Borrower to provide such a request and/or notice to the Governmental Lender, the Fiscal Agent or the Governmental Lender Servicer or the failure of the Guarantors to pay such Operating Deficit, shall neither impair nor reduce the Guarantors' obligation to pay any of the Guaranteed Obligations hereunder upon direct written demand by the Governmental Lender, the Fiscal Agent or the Governmental Lender Servicer. Upon payment of such Operating Deficit by the Guarantors, the same shall be credited towards the Guaranteed Obligations. The Governmental Lender, the Governmental Lender Servicer or the Fiscal Agent shall also be entitled to make a claim under this Guaranty to fund any Guaranteed Obligation during the Guaranty Period (excluding amounts which may be due solely by acceleration of the Construction Phase Borrower Note) by submission of a written demand notice to the Guarantors. After termination of this Guaranty as provided herein, neither the Fiscal Agent, the Governmental Lender, the Governmental Lender Servicer nor any other party shall be entitled to make a claim under this Guaranty. This is a guaranty of payment and not of collection only, and the obligations hereunder shall be absolute, independent and unconditional under any and all circumstances, without regard to the validity or enforceability of the Financing Documents (as defined in the Funding Loan Agreement) against the Borrower. After the termination of the Guaranty Period, upon request of the Guarantors and provision of written evidence that the Guaranty Period has ended, this Guaranty shall be returned to the Guarantors marked “cancelled.” Section 3.2. Third Party Beneficiary. No person or entity shall be a third party beneficiary of this Guaranty. Section 3.3. Further Assurances. Each Guarantor will, at its expense, execute, acknowledge and deliver all such further documentation, instruments and assurances and the like and take all such further action as the Governmental Lender or the Fiscal Agent shall reasonably require in order to carry out the intentions or facilitate the provisions of this Guaranty. Section 3.4. Obligations Absolute. The Guaranteed Obligations shall remain in full force and effect without regard to, and shall not be affected or impaired by the following, any of which may be taken 6 4868-6077-8883.7 without the consent of, or notice to, the Guarantors, nor shall any of the following give any Guarantor any recourse or right of action against the Governmental Lender or the Fiscal Agent: (a) Any delay, exercise or non-exercise by the Governmental Lender or the Fiscal Agent of any right or privilege under this Guaranty; (b) Any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceeding relating to any Guarantor, any partner or member or any other guarantor (which term shall include any other party at any time directly or contingently liable for any of the Guarantors' obligations under this Guaranty, including without limitation, any partner or member or property manager) or any affiliate of any Guarantor, or any action taken with respect to this Guaranty by any trustee or receiver, or by any court, in any such proceeding, whether or not any Guarantor shall have had notice or knowledge of any of the foregoing; (c) Any assignment or other transfer of this Guaranty in whole or in part; (d) Any acceptance of partial funding of the Guaranteed Obligations; and (e) Any subordination, compromise or release of any or all of the property or other collateral, if any, securing any Guarantor's obligations under this Guaranty, or any substitution with respect thereto. Actions taken without the consent of, or notice to Vista Breeze, Ltd., as set forth in this Section 3.4 are intended to apply to Vista Breeze, Ltd., in its capacity as a Guarantor and nothing in this Section 3.4 is intended to constitute a waiver of any notice or consent rights afforded to Vista Breeze, Ltd., in its capacity as the Borrower under the Financing Documents or any other document entered into in connection with the Construction Phase Loan. Section 3.5. Waivers. Each Guarantor unconditionally waives the following defenses to the enforcement of this Guaranty, including, without limitation: (a) All presentments, notices of nonperformance, protests, notices of protest, notices of dishonor, and notices of acceptance of this Guaranty; (b) Any right to require the Governmental Lender or the Fiscal Agent to proceed against the Borrower or any other guarantor at any time, or to proceed against or exhaust any security held by the Governmental Lender or the Fiscal Agent at any time, or to pursue any other remedy whatsoever at any time; (c) Any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceeding relating to the Borrower, or any Guarantor or any affiliate of the Borrower or the Guarantors or any action taken with respect to this Guaranty by any trustee or receiver, or by any court, in any such proceeding, whether or not any Guarantor shall have had notice or knowledge of any of the foregoing; (d) Any right any Guarantor might have under the laws of the State to revoke this Guaranty, it being the intention of each Guarantor that this Guaranty remain in full force and effect until termination, as provided herein; 7 4868-6077-8883.7 (e) Any defense based upon an election of remedies by the Governmental Lender or the Fiscal Agent, including, without limitation, any remedies which destroy or impair the subrogation rights of any Guarantor to proceed against the Borrower or any partner for reimbursement or both; (f) Any duty of the Governmental Lender or the Fiscal Agent to advise any Guarantor of any information known to the Governmental Lender or the Fiscal Agent regarding the financial condition of the Borrower or any partner or member and all other circumstances affecting the ability of the Borrower or any partner or member to perform its obligations to the Governmental Lender or the Fiscal Agent, it being agreed that each Guarantor assumes the responsibility for being and keeping informed regarding such conditions or any such circumstances; and (g) Any rights to enforce any remedy which the Governmental Lender or the Fiscal Agent now has or may hereafter have against the Borrower, or any partner or member and any benefit of, and any right to participate in, any security now or hereafter held by the Governmental Lender or the Fiscal Agent. (h) Any defense based upon the unenforceability for any reason of the Financing Documents or the failure of such documents for any reason to be valid, binding and enforceable obligations of the Borrower, other than full performance by the Borrower of its obligations thereunder. With respect to Vista Breeze, Ltd., the waivers set forth in this Section 3.5 are intended to apply to Vista Breeze, Ltd., in its capacity as a Guarantor and nothing in this Section 3.5 is intended to constitute a waiver of any notice rights afforded to Vista Breeze, Ltd., in its capacity as Borrower under the Financing Documents or any other document entered into in connection with the Borrower Loans. Section 3.6. Subrogation. Notwithstanding any other provision of this Guaranty to the contrary and until all outstanding obligations of the Guarantors hereunder have been paid in full or terminated in accordance with the terms hereof, each Guarantor hereby defers any claim or other rights which such Guarantors may now have or hereafter acquire against any other guarantor of all or any of the obligations of any Guarantor under this Guaranty, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification, any right to participate in any claim or remedy of the Governmental Lender or the Fiscal Agent against the Borrower, any partner or member or any Guarantor or any collateral which the Governmental Lender or the Fiscal Agent now has or hereafter acquires, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from the Borrower, any partner or member or any Guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights, except as otherwise provided in the last sentence of Section 3.10 hereof. Section 3.7. Additional Waivers. No Guarantor shall be released or discharged, either in whole or in part, by the Governmental Lender's or the Fiscal Agent's failure or delay to (a) perfect or continue the perfection of any lien or security interest in any collateral which secures the obligations of any other guarantor, or (b) protect the property covered by such lien or security interest. Section 3.8. Dealings with Parties. The Governmental Lender and the Fiscal Agent shall have complete discretion, without giving notice to or obtaining the consent of any Guarantor, the Borrower and each other person or entity who now is or after the date hereof becomes liable in any manner for any of the Guarantors' obligations under this Guaranty, in such manner as the Governmental Lender and the Fiscal Agent shall decide, and accordingly each Guarantor grants to the Governmental Lender and the Fiscal Agent full authority, in their sole discretion, whether before or after termination of this Guaranty, to do any and all of the following, without limiting the generality of the foregoing: extend credit, make loans and 8 4868-6077-8883.7 afford such financial accommodation to the Borrower or any partner or member at such times, in such amounts and on such terms as the Governmental Lender may approve; vary the terms or alter, compromise, accelerate and grant extensions or renewals of time or manner of payment of any present or future obligations under this Guaranty, assign or transfer this Guaranty or any other instrument evidencing or securing the obligations under this Guaranty in whole or in part; vary, exchange, release or discharge, wholly or partially, the Borrower or any partner or member or any other guarantor or obligor of the obligations under this Guaranty, and compromise or make any settlement or other arrangement with the Borrower, any partner or member and/or any other guarantor, and if the obligations under this Guaranty are now or hereafter secured, exchange, substitute or release in part or in full all of the security given for the payment and performance of any of the Guarantors' obligations under this Guaranty. With respect to Vista Breeze, Ltd., the provisions of this Section 3.8 are intended to apply to Vista Breeze, Ltd., in its capacity as a Guarantor and nothing in this Section 3.8 is intended to constitute a waiver of any notice rights afforded to Vista Breeze, Ltd., in its capacity as Borrower under the Financing Documents or any other document entered into in connection with the Borrower Loans. Section 3.9. Bankruptcy No Discharge; Repayments. So long as any of the Guaranteed Obligations shall be owing, no Guarantor shall, without the prior written consent of the Governmental Lender and the Fiscal Agent, as applicable, commence or join with any other party in commencing any bankruptcy, reorganization or insolvency proceedings of or against the Borrower or any partner or member. Each Guarantor understands and acknowledges that by virtue of this Guaranty, each Guarantor has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to the Borrower and any partner or member. As an example, and not in any way of limitation, a subsequent modification of the Guaranteed Obligations in any reorganization case concerning the Borrower or any partner or member shall not affect the obligation of any Guarantor to pay and perform the Guaranteed Obligations in accordance with their respective original terms. If claim is ever made upon the Governmental Lender or the Fiscal Agent for repayment of any amount or amounts received by the Governmental Lender or the Fiscal Agent in payment of the obligations under this Guaranty (whether or not all or any part of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid by the Governmental Lender or the Fiscal Agent) and the Governmental Lender or the Fiscal Agent repays all or any part of said amount, then, notwithstanding any revocation or termination of this Guaranty or any other instrument evidencing the Guaranteed Obligations, each Guarantor shall be and remain liable to the Governmental Lender or the Fiscal Agent for the amount so repaid by the Governmental Lender or the Fiscal Agent, to the same extent as if such amount had never originally been received by the Governmental Lender or the Fiscal Agent. Section 3.10. Subordination. So long as any of the obligations of any Guarantor hereunder remain unpaid or undischarged, each Guarantor agrees that any and all claims it may have against the Borrower or any partner or member shall be and hereby are subordinated to the Guaranteed Obligations and all other claims of the Governmental Lender or the Fiscal Agent against the Borrower or any partner or member. Any indebtedness of the Borrower or any partner or member to any Guarantor shall be collected and received by the Guarantors as trustee for the Governmental Lender and the Fiscal Agent and be paid over to the Governmental Lender or the Fiscal Agent on account of the indebtedness of the Guarantors to the Governmental Lender and the Fiscal Agent, upon demand by the Governmental Lender or the Fiscal Agent; provided that so long as there is no default existing hereunder or under any of the Financing Documents, the Guarantors shall be entitled to receive and retain payments and distributions described in or paid pursuant to the Borrower's partnership agreement. Section 3.11. Independent and Separate Obligations. The obligations of each Guarantor hereunder are independent of any obligation of the Borrower or any partner or member and, in the event of any default hereunder, a separate action or actions may be brought and prosecuted against any or all of the 9 4868-6077-8883.7 Guarantors whether or not such Guarantors are the alter ego of the Borrower, any member, or any other guarantor. The Governmental Lender's and the Fiscal Agent's rights hereunder shall not be exhausted until the conditions to termination in Section 4.6 below have been satisfied. Section 3.12. Setoff. The Governmental Lender and the Fiscal Agent shall have a right of setoff against, and each Guarantor hereby grants a security interest in, all moneys, securities and other property of such Guarantor now or hereafter in the possession of, or on deposit with the Governmental Lender or the Fiscal Agent in connection with the Construction Phase Loan, whether held in a general or special account or deposit, or for safekeeping or otherwise. Such right is in addition to any right of setoff the Governmental Lender or the Fiscal Agent may have by law. After an event of default hereunder which has not been cured within any applicable grace or cure period, all rights of setoff may be exercised without any further notice or demand to any Guarantor. No right of setoff shall be deemed to have been waived by any act or conduct on the part of the Governmental Lender or the Fiscal Agent, or by any neglect to exercise such right of setoff, or by any delay in doing so. Every right of setoff shall continue in full force and effect until the expiration of this Guaranty. Section 3.13. Payments. No Guarantor shall be credited for the funding of any of the Guaranteed Obligations unless and until the Borrower has delivered either (i) to the Governmental Lender and the Fiscal Agent written acknowledgment of receipt of the required payment in immediately available funds from such Guarantor after a demand has been made by the Governmental Lender or the Fiscal Agent pursuant to this Guaranty or (ii) the required payment to the Fiscal Agent in immediately available funds. Each Guarantor agrees that whenever a Guarantor shall pay any amount to the Governmental Lender or the Fiscal Agent hereunder on account of the liability hereunder, such Guarantor will deliver such payment to the Borrower with a copy of such evidence of payment and notice to the Governmental Lender and the Fiscal Agent at the addresses provided in Section 4.1 below. Each Guarantor agrees that whenever a Guarantor shall pay any amount to the Fiscal Agent hereunder upon a request by the Governmental Lender or the Fiscal Agent of a payment with respect to a Guaranteed Obligation, such Guarantor will deliver such payment to the Fiscal Agent with a copy of such evidence of payment and notice to the Governmental Lender and Borrower at the address provided in Section 4.1 below. Each Guarantor understands that the Borrower and/or each member may have obligations to the Governmental Lender with respect to the Project, and that those obligations are in addition to the Guarantor's obligations under this Guaranty. Section 3.14. Financial Statements. During the term of this Guaranty, each Guarantor covenants and agrees to provide the Governmental Lender and, until Completion, the Governmental Lender Servicer, on or before December 31 of each year, beginning December 31, 2024, with unaudited financial statements (or such other documents accepted by the Governmental Lender Servicer in lieu of financial statements), including a balance sheet, an income statement, a statement of changes in financial position and such other statements as may be reasonably required by the Governmental Lender or the Governmental Lender Servicer, prepared in accordance with generally accepted accounting practices consistently applied and certified as true and complete without qualification by the Guarantors, or with respect to any Guarantor other than individuals, an officer of such Guarantor or, if required by the Governmental Lender after an Event of Default, a certified public accountant acceptable to the Governmental Lender. Each Guarantor further covenants and agrees to immediately notify the Governmental Lender of any material adverse change in such Guarantor's financial condition. Section 3.15. Governing Law/Consent to Jurisdiction. This Guaranty shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts entered into and entirely to be performed therein. Each Guarantor hereby irrevocably submits and consents to the jurisdiction of the courts of Miami-Dade County, Florida, the State of Florida and of the United States District Court for the district in which the Project is located in connection with any action, suit or other proceeding arising out of or relating to this Guaranty or any action taken or omitted hereunder. If any 10 4868-6077-8883.7 Guarantor served in accordance with applicable law should fail to appear or answer within the time prescribed by law, then such Guarantor shall be deemed in default and judgment may be entered against such Guarantor for the amount or other relief as demanded in any summons, complaint or other process so served. Each Guarantor agrees that a final judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. ARTICLE 4 MISCELLANEOUS Section 4.1. Notices. All notices, requests, demands, consents, and other communications required or permitted to be given or made hereunder shall be in writing and shall be deemed to have been duly given if telecopied or mailed, certified first class mail, allowing 3 days for mail, postage prepaid, return receipt requested, to the party to whom the same is so given or made, at the telecopy number or address of such party as set forth below, which telecopy number or address may be changed by notice to the other parties hereto duly given pursuant hereto: To the Governmental Lender: Housing Finance Authority of Miami-Dade County, Florida 7855 NW 12th Street, Suite 202 Doral, Florida 33126 Attention: Executive Director Email: cgulley@hfamiami.com with a copy to: Miami-Dade County Attorney’s Office 111 N.W. First Street, Suite 2810 Miami, Florida 33128 Attention: David S. Hope, Esq. Email: dhope@miamidade.gov To the Fiscal Agent: The Bank of New York Mellon Trust Company, N.A. 4655 Salisbury Road, Suite 300 Jacksonville, Florida 32256 Attention: Corporate Trust Department Email: heidi.bowers@bnymellon.com Telephone: (904) 645-1983 Facsimile: (904) 886-1125 To the Governmental Lender Servicer: AmeriNat® 5130 Sunforest Drive, Suite 150 Tampa, Florida 33643 Attention: Mark Fredericks Telephone: (813) 282-4800 Ext. 1517 Email: mfredericks@amerinatls.com 11 4868-6077-8883.7 To the Guarantors: Vista Breeze, Ltd. c/o Atlantic Pacific Communities, LLC 161 NW 6th Street Suite 1020 Miami, Florida 33136 Attention: Kenneth Naylor Telephone: (305) 357-4700 Email: knaylor@apcompanies.com APC Vista Breeze, LLC c/o Atlantic Pacific Communities, LLC 161 NW 6th Street Suite 1020 Miami, Florida 33136 Attention: Kenneth Naylor Telephone: (305) 357-4700 Email: knaylor@apcompanies.com Vista Breeze HACMB, Inc. c/o Housing Authority of the City of Miami Beach 200 Alton Road Miami Beach, Florida 33139 Attention: Mike O’Hara Telephone: (305) 532-6401 Email: mikeo@hacmb.org Atlantic Pacific Communities, LLC 161 NW 6th Street Suite 1020 Miami, Florida 33136 Attention: Kenneth Naylor Telephone: (305) 357-4700 Email: knaylor@apcompanies.com 12 4868-6077-8883.7 APC Vista Breeze Development, LLC c/o Atlantic Pacific Communities, LLC 161 NW 6th Street Suite 1020 Miami, Florida 33136 Attention: Kenneth Naylor Telephone: (305) 357-4700 Email: knaylor@apcompanies.com HACMB Development, LLC c/o Housing Authority of the City of Miami Beach 200 Alton Road Miami Beach, Florida 33139 Attention: Mike O’Hara Telephone: (305) 532-6401 Email: mikeo@hacmb.org Howard D. Cohen Revocable Trust Under Agreement Dated 4/6/1993 c/o Atlantic Pacific Communities, LLC 161 NW 6th Street Suite 1020 Miami, Florida 33136 Attention: Kenneth Naylor Telephone: (305) 357-4700 Email: knaylor@apcompanies.com Howard D. Cohen c/o Atlantic Pacific Communities, LLC 161 NW 6th Street Suite 1020 Miami, Florida 33136 Attention: Kenneth Naylor Telephone: (305) 357-4700 Email: knaylor@apcompanies.com With a copy to: Klein Hornig LLP 1325 G. Street NW, Suite 770 Washington, DC 20005 Attention: Chris Hornig Tel: (202) 926-3402 Email: chornig@kleinhornig.com 13 4868-6077-8883.7 Fox Rothschild LLP BNY Mellon Center 500 Grant Street, Suite 2500 Pittsburg, Pennsylvania 15219 Attention: Alec Stone Email: ajstone@foxrothschild.com Telephone: (412) 391-2523 Funding Lender Representative: Bank of America, N.A. 401 E. Las Olas Boulevard, 9th Floor Fort Lauderdale, Florida 33301 Attention: Ben Rosenbaum Email: Binyamin.rosenbaum@bofa.com Telephone: (954) 765-2079 Bank of America, N.A. MA5-100-04-11 100 Federal Street Boston, MA 02110 Attention: Tax Credit Asset Management (Vista Breeze) Email: LIHTCreporting@bofa.com With a copy to: Holland & Knight LLP 31 West 52nd Street, 11th Floor New York, New York 10019 Email: Kathleen.furey@hklaw.com Telephone: (212) 513-3479 Section 4.2. Expenses. Each Guarantor agrees to pay all reasonable costs and expenses, including reasonable legal fees, which may be incurred by the Governmental Lender and the Fiscal Agent in any effort to collect or enforce any of the obligations of the Guarantors hereunder, whether or not any lawsuit is filed, including, without limitation, all costs and legal fees incurred by the Governmental Lender and the Fiscal Agent in any bankruptcy proceeding (including, without limitation, any action for relief from the automatic stay of any bankruptcy proceeding) and in any judicial or nonjudicial foreclosure action. Section 4.3. Amendments; Successors; Remedies. Neither this Guaranty nor any term hereof may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against which enforcement of the change, waiver, discharge or termination is sought, subject to the prior written consent of the Governmental Lender. All of the terms of this Guaranty shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, except that no Guarantor shall have the right to assign any of such Guarantors' rights or obligations under this Guaranty. All remedies of the Governmental Lender and the Fiscal Agent are cumulative. When the context in which the words are used in this Guaranty indicates that such is the intent, words in the singular number shall include the plural and vice-versa. If any one or more of the provisions of this Guaranty should be determined to be illegal or unenforceable, all other provisions shall remain effective. No delay or failure by the Governmental Lender or the Fiscal Agent to exercise any remedy against any Guarantor will be 14 4868-6077-8883.7 construed as a waiver of that right or remedy. If any Guarantor hereof consists of more than one person or entity, the obligations hereunder shall be joint and several. Section 4.4. Assignability by the Governmental Lender. The Governmental Lender or the Fiscal Agent may, at any time and from time to time, assign, conditionally or otherwise, all of their respective rights under this Guaranty, whereupon such assignee shall succeed to all rights of the Governmental Lender or the Fiscal Agent, as applicable, hereunder to the extent that such rights may be assigned to it. The Governmental Lender or the Fiscal Agent may give written notice to the Guarantors of any such assignment, but any failure to give, or delay in giving, such notice shall not affect the validity or enforceability of any such assignment. Section 4.5. Demands. Each demand by the Governmental Lender or the Fiscal Agent for performance or payment hereunder shall be in writing and shall be made in the manner set forth in Section 4.1 hereof. Interest shall accrue at the Default Rate on all sums not paid by any Guarantor to the Governmental Lender or the Fiscal Agent or the Borrower within ten (10) days after demand. Section 4.6. Term. Subject to Section 3.9 hereof, the obligations of each Guarantor under this Guaranty and any instrument which grants collateral to secure such obligations shall continue in full force and effect until the expiration of the Guaranty Period and the Guarantor s have fully performed all of the Guaranteed Obligations and paid all other amounts payable hereunder in accordance with the terms of this Guaranty. Section 4.7. Complete Agreement. This Guaranty supersedes any prior negotiations, discussions or communications between the Guarantors and the Governmental Lender and constitutes the entire agreement between the Governmental Lender, the Fiscal Agent and the Guarantors with respect to the Guaranteed Obligations. Section 4.8. Counterparts. This Guaranty may be executed in one or more counterparts, each of which taken together shall constitute one and the same instrument. Section 4.9. Advice of Counsel. Each Guarantor represents and acknowledges to the Governmental Lender that each Guarantor has consulted with its attorneys regarding the terms and conditions and waivers set forth in this Guaranty. Each Guarantor's attorney has advised such Guarantor of the true legal consequences of each waiver set forth in this Guaranty, including the rights each Guarantor would have in the absence of such waivers. Section 4.10. Waiver of Jury Trial. THE GOVERNMENTAL LENDER, THE FISCAL AGENT AND THE GUARANTORS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE GOVERNMENTAL LENDER ENTERING INTO THE CONSTRUCTION PHASE LOAN AND ACCEPTING THIS GUARANTY. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOPF, the Guarantors have caused this Guaranty to be duly executed and delivered as of the date set forth above. Guarantor: VISTA BREEZE, LTD., a Florida limited partnership By: APC Vista Breeze, LLC, a Florida limited liability company, Title: Vv ce President Guarantor: APC VISTA pene LLC, a Florida Vz ited }j y eA Ack Ae [Zz Tijle: tis ident Guarantor: By: VISTA BREEZE HACMB, INC., a Florida not for profit corporation By: Name: Miguell Del Campillo Title: Executive Director Guarantor: ATLANTIC PACIFIC rp eal LLC, Mad jabili A Naime: or Wa Nath Vice P yeh nt [Signature page to Guaranty of Operating Deficits — Vista Breeze] S--1 4868-6077-8883.6 IN WITNESS WHEREOF, the Guarantors have caused this Guaranty to be duly executed and delivered as of the date set forth above. Guarantor: VISTA BREEZE, LTD., a Florida limited partnership By: APC Vista Breeze, LLC, a Florida limited liability company, its managing general] partner By: Name: Kenneth Naylor Title: Vice President Guarantor: APC VISTA BREEZE, LLC, a Florida limited ability company By: Name: Kenneth Naylor Title: Vice President Guarantor: VISTA BREEZEHACMB, INC., a Florida‘yot for profit corporation <—L By: Name: Miguell Del Geafnpillo Title: Executive Director Guarantor: ATLANTIC PACIFIC COMMUNITIES, LLC, a Delaware limited liability company By: Name: Kenneth Naylor Title: Chief Operating Officer [Signature page to Guaranty of Operating Deficits ~- Vista Breeze] S--] 4868-6077-8883.6 Guarantor: APC VISTA BREEZE DEVELOPMENT, LLC, a ST A, By: y Name: Howar&D. Cohen Title: Manager Guarantor: HACMB DEVELOPMENT, LLC, a Florida limited liability company By: Miami Beach Housing Initiatives, Inc., a Florida not for profit corporation, its sole member By: Name: Miguell Del Campillo Title: Executive Director Guarantor: HOWARD D. COHEN REVOCABLE TRUST UNDER AG LALA By: ue * ' “Le Name: Howard'D. Cohen __ Title: Trustee Guarantor Howard D. Cohen, Individually [Signature page to Guaranty of Operating Deficits — Vista Breeze] 8-2 4868-6077-8883.6 Guarantor: APC VISTA BREEZE DEVELOPMENT, LLC, a Florida limited liability company By: Name: Howard D. Cohen Title: Manager Guarantor: HACMB DEVELOPMENT, LLC, a Florida limited Hability company By: | Miami Beach Housing Initiatives, Inc., a Florid “on corporation, its sole \ \ By: | Name: Miguel] Del Can Title: Executive Director Guarantor: HOWARD D. COHEN REVOCABLE TRUST UNDER AGREEMENT DATED 4/6/1993 By: Name: Howard D. Cohen Title: Trustee Guarantor By: Howard D. Cohen, Individually [Signature page to Guaranty of Operating Deficits — Vista Breeze] S-2 4868-6077-8883.6 A-1 4868-6077-8883.7 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. B-1 4868-6077-8883.7 EXHIBIT “B” LITIGATION C & C MANAGEMENT, INC. VS 1 STATES SECURITY COMPANY ET AL o The dispute is between one of our security vendors, 1 State Security, who pledged its A/R to the plaintiff, American Factor. Plaintiff alleges that APC was directed to make its payments to American Factor, but ceased doing so after receiving another direction to pay 1 State directly. Amount in controversy is approximately $145,000. There is no insurance coverage for this purpose, and we are paying for our representation. We’ve denied any liability and made a settlement offer of $20,000 and are awaiting response.