50. Amended and Restaed Leasehold Mortgage Sec Agr and Fix FiinglThis Instrument Was Prepared By:
Record and Return to:
Rafael A. Paz
City Attorney
Office of the City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
C-F N 2023RO905288
OR BK 34013 Pss 2998-3021 Q2 Pss i
RECORDED 12118/2023' 14:33 , 20
JLJAH FERNANDE?--BARQUI:N
CLERK OF 'rHE COURT & COIT1TROLI...I_R
MIAMI-DADE COUNTY? FL
THIS IS A BALLOON MORTGAGE WHERE THE PRINCIPAL BALANCE DUE UPON
MATURITY IS $1,003,969.00 NOTWITHSTANDING ACCRUED INTEREST, ONLY IF
APPLICABLE, WITH ALL ADVANCEMENTS MADE BY THE MORTGAGEE UNDER
THE TERMS OF THIS MORTGAGE.
AMENDED AND RESTATED LEASEHOLD MORTGAGE,
SECURITY AGREEMENT AND FIXTURE FILING
THIS AMENDED AND RESTATED LEASEHOLD MORTGAGE, SECURITY
AGREEMENT AND FIXTURE FILING (this "Mortgage") made and executed this J'5 day of
aeC.&Mbet✓ , 2023, by VISTA BREEZE, LTD., a Florida limited partnership having its
principal office located at 161 NW 6th Street, Suite 1020, Miami, FL 33136 (the "Mortgagor") to
the CITY OF MIAMI BEACH, FLORIDA, a Florida municipal corporation (the "Mortgagee"),
whose address is 1700 Convention Center Drive, Miami Beach, Florida 33139.
WITNESSETH:
WHEREAS, on September 21, 2023, Mortgagor made and executed in favor of Mortgagee
that certain Promissory Note dated as of September 21, 2023, in the original principal amount of
Five Hundred Thousand and 00/100 Dollars ($500,000.00) (the "Original Note") which Original
Note was secured by that certain Leasehold Mortgage, Security Agreement and Fixture Filing
from Mortgagor to Mortgagee recorded on September 27, 2023 in Official Records Book 33902,
RECORDER'S NOTE: THIS AMENDED AND RESTATED LEASEHOLD
MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING IS GIVEN TO SECURE
THE FINANCING OF HOUSING UNDER PART V OF CHAPTER 420, FLORIDA
STATUTES AND IS EXEMPT FROM TAXATION PURSUANT TO SECTION 420.513,
FLORIDA STATUTES.
Page 1 of 17
Page 1175 of the Public Records of Miami -Dade County, Florida (the "Original Mortgage"), which
Mortgage encumbers the real property more particularly described therein (the "Property");
WHEREAS, pursuant to Section 111.5 of the Original Mortgage, Mortgagee has agreed
to make a future advance loan to Mortgagor in the original principal amount of Five Hundred
Three Thousand Nine Hundred Sixty -Nine and 00/100 Dollars ($503,969.00) (the "Future
Advance");
WHEREAS, contemporaneously herewith, the Original Note is being amended, restated,
renewed and consolidated pursuant to that certain Amended, Restated, Renewal and
Consolidated Promissory Note dated of even date herewith (the "Consolidated Note") in the
aggregate principal amount of One Million Three Thousand Nine Hundred and Sixty -Nine and
00/100 Dollars ($1,003,969.00);
WHEREAS, this Mortgage secures the indebtedness evidenced by the Consolidated
Note; and
WHEREAS, Mortgagor and Mortgagee desire hereby to amend, restate, replace and
supersede the Original Mortgage pursuant to the terms of this Mortgage.
That for valuable consideration, and also in consideration of the aggregate sum of money
described in the Consolidated Note, Mortgagor does grant, bargain, sell, alien, remise, release,
convey, and confirm unto the Mortgagee, a lien upon and security interest in the Mortgagor's
leasehold interest in that certain parcel of real property located in Miami -Dade County, Florida,
which is described in Exhibit "A" attached hereto and made a part hereof. Hereinafter the
Mortgagor's leasehold interest in said real estate, buildings, improvements (including
improvements to be made hereafter), and fixtures attached thereto, as herein below described
and located on said real estate, and all easements, rights, rents, issues, proceeds and profits
accruing and to accrue from the Premises, all of which are hereby included within the foregoing
description and the habendum thereof are sometimes collectively referred to as the "Premises".
TO HAVE AND TO HOLD the Premises and all parts, rights, members, and
appurtenances thereof, to the use, benefit, and behalf of the Mortgagee, its successors and
assigns forever, and the Mortgagor covenants that the Mortgagor is lawfully seized and
possessed of a leasehold interest in the Premises pursuant to the Ground Lease (as defined on
Exhibit "A" attached hereto), which is in good standing and in full force and effect, and has good
right to convey the same, and that the Mortgagor will warrant and defend the leasehold title thereto
against the claims of all persons whomsoever, except as hereinafter expressly provided.
PROVIDED ALWAYS that if the Mortgagor shall pay unto the Mortgagee all sums required
under the terms of the Consolidated Note, and shall comply with and abide by each and every
one of the stipulations, agreements, conditions and covenants contained herein, then in such
event this Mortgage and the estate hereby created shall cease and be null and void.
Page 2 of 17
The Mortgagor covenants with the Mortgagee as follows:
Payment of Indebtedness. The Mortgagor will pay the Consolidated Note according to the
terms thereof and all other sums secured hereby promptly as the same shall become due.
2. Taxes, Liens, and Other Charges.
a. In the event of the passage of any state, federal, municipal, or other governmental
law, order, rule or regulation, subsequent to the date hereof, in any manner
changing or modifying the laws now in force governing the taxation of debts
secured by mortgages or the manner of collecting taxes so as to affect adversely
the Mortgagee, the Mortgagor will promptly pay any such tax; if the Mortgagor fails
to make such prompt payment or if any such state, federal, municipal, or other
governmental law, order, rule, or regulation prohibits the Mortgagor from making
such payment or would penalize the Mortgagee from making such payment or
would penalize the Mortgagee if the Mortgagor makes such payment, then the
entire balance of the principal sum secured by this Mortgage shall, without notice,
immediately become due and payable at the option of the Mortgagee.
b. The Mortgagor will pay, before the same become delinquent, all taxes, liens,
assessments, and charges of every character already levied or assessed or that
may hereafter be levied or assessed upon or against the Premises and all utility
charges, whether public or private; and upon demand will furnish the Mortgagee
receipted bills evidencing such payment.
C. The Mortgagor will not suffer any mechanic's, materialmen's, laborer's, statutory,
or other lien which might or could be prior to or equal to the security interest and
mortgage liens of this Mortgage to be created or to remain outstanding upon any
part of the Premises other than (i) the lien of this Mortgage; (ii) the lien of a senior
leasehold mortgage in the amount of $32,500,000.00 in favor of the Housing
Finance Authority of Miami -Dade County, Florida (the "HFA"), as assigned to The
Bank of New York Mellon Trust Company, N.A., as fiscal agent (the "Fiscal Agent"
and together with the HFA, "Bond Lender"); (iii) the lien of a senior leasehold
mortgage in the amount of $4,300,000.00 in favor of Florida Housing Finance
Corporation, a public corporation and a public body corporate and politic created
and existing under the laws of the State of Florida ("Florida Housing") as the
Viability lender ("Viability Lender"); (iv) the lien of a senior leasehold mortgage in
the amount of $3,000,000.00 in favor of Florida Housing as the SAIL lender ("SAIL
Lender"); (v) the lien of a senior leasehold mortgage in the amount of $600,000.00
in favor of Florida Housing as the ELI lender ("ELI Lender"); (vi) (the lien of a senior
leasehold mortgage in the amount of $1,301,500.00 in favor of Florida Housing as
the NHTF lender ("NHTF Lender"), (vii) the lien of a senior leasehold mortgage in
the amount of $5,950,000.00 in a favor of Miami -Dade County, Florida as the
Surtax lender ("Surtax Lender" and together with Bond Lender, Viability Lender,
SAIL Lender, ELI Lender and NHTF Lender, collectively, the "Senior Lender"), as
and to the extent set forth in each of the Subordination Agreements entered into
by Mortgagor, Mortgagee and each Senior Lender of even date herewith and
recorded contemporaneously herewith in the Public Records of Miami -Dade
County, Florida (collectively, the "Subordination Agreements").
Page 3 of 17
3. Intentionally Deleted.
4. Insurance. The Mortgagor will keep all buildings and improvements now or hereafter on
the Premises insured against loss or damage by fire, extended coverage, and other perils,
in an amount not less than the replacement value, and agrees to deliver said policy or
policies to the Mortgagee when issued with the receipts for the payment of the premium
therefore; and said policy or policies shall be subject to the approval of Mortgagee, shall
include a standard mortgage clause, and shall name Mortgagee as an additional loss
payee and/or as an additional insured; and in the event any sum of money becomes
payable under such policy or policies, the Mortgagee shall permit the Mortgagor to receive
and use it, or any part thereof, for repair or restoration of the Premises, subject to terms
reasonably acceptable to Mortgagee, without thereby waiving or impairing any equity, lien,
or right under or by virtue of this Mortgage; and the Mortgagee if it deems necessary may
place and pay for such insurance, or any part thereof, without losing, waiving, or affecting
Mortgagee's option to foreclose for breach of this covenant, or any part thereof, or any
right or option under this Mortgage, and every such payment shall bear interest from date
thereof until paid at the Default Interest Rate, and all such payments with interest as
aforesaid shall be secured by the lien hereof. In the event any loss or damage is suffered,
Mortgagor shall notify the insurance carrier and Mortgagee of such loss or damage within
seven (7) days after the happening thereof; the failure to give such notice shall constitute
a default and the Mortgagee shall have the rights herein given for all defaults, and in such
case, without waiving such default rights, Mortgagee shall be authorized to notify the
insurance carrier and process any related claims.
5. Care of Premises.
(a) The Mortgagor will keep the improvements now or hereafter erected on the
Premises in good condition and repair, will not commit or suffer any waste
and will not do or suffer to be done anything which will increase the risk of
fire or other hazard to the Premises or any part thereof.
(b) The Mortgagor will not remove or demolish nor alter the design or structural
character of any building (now or hereafter erected), fixture, or chattel
which are part of the security or other part of the Premises without the prior
written consent of the Mortgagee.
(c) If the Premises or any part thereof is damaged by fire or any other cause,
the Mortgagor will give written notice of the same to the Mortgagee.
(d) The Mortgagee or its representative is hereby authorized to enter upon and
inspect the Premises at any time during normal business hours.
(e). The Mortgagor will promptly comply with all present and future laws,
ordinances, rules, and regulations of any governmental authority affecting
the Premises or any part thereof.
(f) If all or any part of the Premises shall be damaged by fire or other casualty,
the Mortgagor will, upon request of the Mortgagee, promptly restore the
Premises to the equivalent of its condition immediately prior to such
damage, and if a part of the Premises shall be damaged through
Page 4 of 17
condemnation, the Mortgagor will, upon request of Mortgagee, promptly
restore, repair, or alter the remaining part of the Premises in a manner
reasonably satisfactory to the Mortgagee.
6. Further Assurances; Modifications. At any time, and from time to time, upon the
reasonable request by the Mortgagee, the Mortgagor will make, execute, and deliver or
cause to be made, executed, and delivered, to the Mortgagee, any and all other further
instruments, certificates, and other documents as may, in the reasonable opinion of the
Mortgagee, be necessary or desirable in order to effectuate, complete, perfect or continue
and preserve (i) the obligations of the Mortgagor under the Consolidated Note, (ii) the
security interest of this Mortgage, and (iii) the mortgage lien hereunder, provided that such
further instruments, certificates and other documents shall not expand or increase the
obligations of the Mortgagor under the Loan Documents (as defined herein).
7. Expenses. The Mortgagor will pay or reimburse the Mortgagee for all reasonable
attorney's fees, costs, and expenses, of any action, legal proceeding, or dispute of any
kind in which the Mortgagee is victorious, affecting the indebtedness secured hereby, this
Mortgage, or the interest created herein, or the Premises, including, but not limited to, the
foreclosure of this Mortgage, any condemnation action involving the Premises or any
action to protect the security hereof; and any such amounts paid by the Mortgagee shall
be secured by this Mortgage.
8. Estoppel Affidavits. The Mortgagor, upon ten (10) days prior written notice, shall furnish
the Mortgagee with a written statement, duly acknowledged, setting forth the unpaid
principal of, and interest on, the indebtedness secured hereby and whether or not any off-
sets or defenses exist against such principal and interest. The Mortgagee shall provide a
similar estoppel affidavit to Mortgagor, upon ten (10) days prior written notice to
Mortgagee.
9. Performance by Mortgagee of Defaults by Mortgagor. If the Mortgagor shall default in the
payment of any tax, lien, assessment, or charge levied or assessed against the Premises;
in the payment of any utility charge, whether public or private; in the payment of any
insurance premium; in the procurement of insurance coverage and the delivery of the
insurance policies required hereunder; in the performance of any covenant, term, or
condition of any leases affecting all or any part of the Premises; or in the performance or
observance of any covenant, condition, or term of this Mortgage; then the Mortgagee, at
its option, may perform or observe the same, and all payments made or costs incurred by
the Mortgagee in connection therewith, shall be secured hereby and shall be, without
demand, immediately repaid by the Mortgagor to the Mortgagee together with interest at
the Default Interest Rate accruing from the date of such payment by Mortgagee. The
Mortgagee is hereby empowered to enter and to authorize others to enter upon the
Premises or any part thereof for the purpose of performing or observing any such defaulted
covenant, condition, or term, without thereby becoming liable to the Mortgagor or any other
person in possession holding under the Mortgagor.
10. Restrictive Covenants. The Funds (as defined in the HOME Agreement, as defined herein)
have been funded through HOME Investment Partnership Program ("HOME") program
funds, which will be used as follows: a portion of the Funds in the amount of $500,000.00
will be used solely for hard costs of construction of a new seawall along the waterfront
portions of the Premises, as the initial phase of the development of one hundred and
nineteen (119) studio apartment units of elderly affordable rental housing for Extremely -
Page 5 of 17
Low, Very -Low- and Low -Income persons, to be known as Vista Breeze (the "Project"),
and for no other purpose (other than ancillary uses related to affordable housing); and a
portion of the Funds in the amount of $503,969.00 will be used solely for hard costs of
construction of the Project in accordance with the City Manager -approved budget, and for
no other purpose. In consideration for these Funds, Mortgagor has executed various loan
documents including this Mortgage, the Consolidated Note, a HOME Program
Development Agreement dated as of September 21, 2023, as amended and restated of
even date herewith (collectively, the "HOME Agreement"), and a Declaration of Restrictive
Covenants dated as of September 21, 2023, as amended and restated of even date
herewith and to be recorded in the Public Records of Miami -Dade County, Florida
(collectively, the "Declaration"), which, among other provisions, subjects the Premises to
certain recapture provisions, covenants, and restrictions ("Covenants") for a period of thirty
(30) years from the Project Completion Date, as defined herein (the "Affordability Period"),
all of even date, as applicable, and all of which are, collectively, referred to herein as the
"Loan Documents." The Loan Documents are subject to the rights of the Senior Lenders
as expressly set forth in the Subordination Agreements. The "Project Completion Date"
shall mean the date of issuance by the City of Miami Beach Building Department of a Final
Certificate of Occupancy for the Project.
11. Condemnation. If all or any material part of the Premises shall be damaged or taken
through condemnation (which term when used in this Mortgage shall include any damage
or taking by any governmental authority, and any transfer by private sale in lieu thereof),
either temporarily or permanently, the entire indebtedness secured hereby shall at the
option of the Mortgagee, become immediately due and payable. The Mortgagee shall be
entitled to all compensation awards, and other payments or relief therefore and is hereby
authorized, at its option, to commence, appear in and prosecute, in its own or the
Mortgagor's name, any action, or proceeding relating to any condemnation, and to settle
or compromise any claim in connection therewith. All such compensation, awards,
damages, claims, rights of action and proceeds and the right thereto are hereby assigned
by the Mortgagor to the Mortgagee, who, after deducting there from all its expenses,
including attorney's fees, may release any moneys so received by it to Mortgagor without
affecting the lien of this Mortgage or may apply the same to the reduction of the sums
secured hereby, and to any prepayment charge herein provided, and any balance of such
moneys then remaining shall be paid to the Mortgagor. The Mortgagor agrees to execute
such further assignments of any compensation, awards, damages, claims, rights of action,
and proceeds as the Mortgagee may reasonably require. Notwithstanding the foregoing,
Mortgagee shall allow any proceeds or other sums payable from a condemnation
proceeding to be applied for restoration of the Premises, subject to such terms and
conditions as are reasonably satisfactory to Mortgagee.
12. Hazardous Substances. As used in this Section: (a) "Hazardous Substances" are those
substances defined as toxic or hazardous substances, pollutants, or wastes by
Environmental Law and the following substances: gasoline, kerosene, other flammable
or toxic petroleum products, toxic pesticides or herbicides, volatile solvents, materials
containing asbestos or formaldehyde, and radioactive materials: (b) "Environmental Law"
means federal laws and laws of the jurisdiction where the Premises is located that relate
to health, safety or environmental protection; (c) "Environmental Cleanup" includes any
response action, remedial action, or removal action, as defined in or contemplated by any
Environmental Law, and (d) an "Environmental Condition" means a condition that can
cause, contribute to, or otherwise trigger an Environmental Cleanup.
Page 6 of 17
Mortgagor shall not cause or permit the presence, use, disposal, storage, or release of
any Hazardous Substances, or threaten to release any Hazardous Substances, on or in
the Premises. Mortgagor shall not do, nor allow anyone else to do, anything affecting the
Premises (a) that is in violation of any Environmental Law, (b) which creates an
Environmental Condition, or (c) which due to the presence, use or release of a Hazardous
Substance, creates a condition that adversely affects the value of the Premises. The
preceding two (2) sentences shall not apply to the presence, use or storage on the
Premises of small quantities of Hazardous Substances that are generally recognized to
be appropriate to normal residential uses and to maintenance of the Premises (including,
but not limited to, hazardous substances in consumer products), which presence, use and
storage complies with all applicable Environmental Laws.
Mortgagor shall promptly give Mortgagee written notice of (a) any investigation, claim,
demand, lawsuit or other action by any governmental or regulatory agency or private party
involving the Premises and the Hazardous Substance or Environmental Law of which
Mortgagor has actual knowledge, (b) any Environmental Condition, including but not
limited to, any spilling, leaking, discharge, release or threat of release of any Hazardous
Substance, and (c) any condition caused by the presence, use or release of a Hazardous
Substance which adversely affects the value of the Premises. If Mortgagor learns, or is
notified by any governmental or regulatory authority, or any private party, that any removal
or other remediation of any Hazardous Substance affecting the Premises is necessary,
Mortgagor shall promptly take all necessary remedial actions in accordance with
Environmental Law. Nothing in this Mortgage shall create any obligation on Mortgagee
for an Environmental Cleanup.
Default. A default shall have occurred hereunder if:
(a) The Mortgagor shall fail to pay in full within fifteen (15) days from the date when
due any installment of principal, interest, late charges, or any other payment
required by the Consolidated Note, this Mortgage, or any other Loan Document;
or
(b) The Mortgagor shall fail to duly observe on time any covenant, condition or
agreement of this Mortgage or of any other Loan Document or other instrument
evidencing, securing, or executed in connection with the indebtedness secured
hereby, and such failure remains uncured for a period of thirty (30) days after notice
thereof shall have been given by the Mortgagee to the Mortgagor (or for an
extended period not to exceed one hundred (120) days as may be approved in
writing by Mortgagee, through the City Manager, in the City Manager's sole
discretion, if the City Manager determines that such default stated in such notice
can be corrected by Mortgagor, but not within such thirty (30) day period, and
further provided that Mortgagor commences such correction within such initial
thirty (30) day period and thereafter diligently pursues the same to completion
within such approved extended period not to exceed one hundred twenty (120)
days); or
(c) Any warranties or representations made or agreed to be made in any of the Loan
Documents shall be breached by the Mortgagor or information provided in
connection with the application for the loan of the Funds shall prove to be false or
Page 7 of 17
misleading in any material respect, or Mortgagor fails to provide material
information. Material representations include, without limitation, representations
concerning occupancy of the Premises by income eligible households as set forth
and agreed to in the HOME Agreement; or
(d) Any lien for labor or material or otherwise shall be filed against the Premises, and
such lien is not canceled, removed, transferred, or bonded off within thirty (30)
days; or
(e) A levy shall be made under any process on, or a receiver be appointed for, the
Premises or any other property of the Mortgagor; or
(f) The Mortgagor shall file a voluntary petition in bankruptcy, or any other petition or
answer seeking or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, or similar relief for the Mortgagor under any present or
future federal, state, or other statute, law, or regulation relating to bankruptcy,
insolvency, or other relief for debtor; or
(g) The Mortgagor shall seek or consent to or acquiesce in the appointment of any
trustee, receiver, or liquidator of the Mortgagor or of all or any part of the Premises
or of any or all of the rents, revenues, issues, earnings, profits, or income thereof;
or
(h) The Mortgagor shall make any general assignment for the benefit of creditors; or
(i) In any legal proceeding, the Mortgagor shall be adjudged to be insolvent or unable
to pay the Mortgagor's debts as they become due; or
(j) Any default under any indebtedness secured by any Permitted Senior Mortgage
(as defined in the Declaration) or any other promissory note, mortgage, security
agreement or restrictive covenant encumbering the Premises that occurs and
continues beyond any applicable cure period, shall constitute a default under this
Mortgage, which default under this Mortgage automatically will be deemed to have
continued beyond any applicable cure period; or
(k) An Event of Default occurs under the terms of the Loan Documents beyond any
applicable notice and cure period; or
(1) Any encumbrance, refinance, sale, lease (other than by residential leases in the
ordinary course of business), transfer or otherwise disposing of any portion of the
Premises without the prior written consent of the City Manager. Notwithstanding
the foregoing, (i) Mortgagor may encumber the Premises pursuant to the Permitted
Senior Mortgages to which this Mortgage is subordinate, and the Senior Lenders
may exercise their rights under their respective Permitted Senior Mortgages, in
each case, as and to the extent set forth in each of the Subordination Agreements
and (ii) the Premises may be transferred to the Housing Authority of the City of
Miami Beach ("HACMB") or any of the following entities (and no others) provided
that such entities are at all times 100% wholly -owned by HACMB (or, in the case
of HACMB — VB (as defined herein), wholly -owned by an entity that is wholly -
owned by HACMB): Vista Breeze HACMB, Inc., a Florida nonprofit corporation
("VBHI"); Miami Beach Housing Initiatives, Inc., a Florida nonprofit corporation
Page 8 of 17
("MBHI"); or HACMB — Vista Breeze, LLC, a Florida limited liability company
("HACMB—VB") (each such entity 100% wholly -owned by HACMB (or, in the case
of HACMB — VB, wholly -owned by MBHI), an "HACMB Affiliate" and, together, the
"HACMB Affiliates"), in each case, without the written consent of the City Manager
(each a "Permitted Transfer"); provided that as a condition to such transfer,
Mortgagor shall assign to HACMB or the applicable HACMB Affiliate, and HACMB
or the applicable HACMB Affiliate shall assume, all obligations of Mortgagor
hereunder and HACMB or the applicable HACMB Affiliate shall become the
Mortgagor hereunder as fully and completely as if HACMB or the applicable
HACMB Affiliate had been the original Mortgagor hereunder, which assignment
and assumption shall be made pursuant to a written agreement in form and
substance reasonably acceptable to Mortgagee, which agreement shall be duly
executed by Mortgagor and HACMB or the applicable HACMB Affiliate and
recorded by Mortgagor, at Mortgagor's sole cost and expense (including without
limitation any applicable documentary stamp and/or intangible taxes due in
connection therewith), in the Public Records of Miami -Dade County
contemporaneously with such transfer and a copy of such recorded agreement
shall be promptly delivered by Mortgagor to Mortgagee. For the avoidance of
doubt, notwithstanding anything to the contrary set forth in this Mortgage or any of
the other Loan Documents, if at any time any of VBHI, MBHI and/or HACMB - VB
ceases to be 100% wholly -owned by HACMB (or, in the case of HACMB — VB,
wholly -owned by MBHI), then all such entities shall cease to be "HACMB Affiliates"
for all purposes of this Mortgage and the other Loan Documents; or
(m) Any change in the Controlling Interest in Mortgagor or its general partner without
the prior written consent of the City Manager. A "Controlling Interest" shall mean
any direct or indirect transfers or sales, that, when added to any prior changes in
the ownership interests in such entity, exceed fifty-one percent (51 %) of the total
aggregate ownership interests in Mortgagor or its general partner, as applicable.
Changes to limited partnership interests or non -managing limited liability company
interests, as applicable, shall not require prior approval, and as such, shall also be
considered a Permitted Transfer; however, Mortgagor shall provide the City with
prior written notice of any such change in a majority of the limited partnership
interests or non -managing limited liability company interests, as applicable, and
any other Permitted Transfer hereunder. Notwithstanding the foregoing, a
Controlling Interest may be transferred to HACMB or an HACMB Affiliate and shall
be deemed a Permitted Transfer. Notwithstanding anything to the contrary
contained herein or in the other Loan Documents, Mortgagee shall receive its Profit
Recapture (as defined and described in the HOME Agreement and Declaration)
contemporaneously with any sale or transfer of the Property or any direct or
indirect ownership interests in the Mortgagor to any person or entity, but
Mortgagee shall not receive or be entitled to receive any Profit Recapture in
connection with any sale or transfer of the Property or any ownership interests in
Mortgagor (i) to HACMB or an HACMB Affiliate or (ii) in connection with any
foreclosure or deed in lieu of foreclosure by a Senior Lender under a Permitted
Senior Mortgage or the exercise by a Senior Lender of any pledge or collateral
assignment to such Senior Lender of partnership interests or other collateral.
2. Acceleration of Maturity. If a default shall have occurred hereunder beyond any applicable
notice and cure period, then the whole unpaid principal sum of the Funds secured hereby,
with interest accrued thereon, shall, at the option of the Mortgagee, become due and
Page 9 of 17
payable without notice or demand, time being of the essence of this Mortgage and of the
Consolidated Note secured hereby; and no omission on the part of the Mortgagee to
exercise such option when entitled so to do shall be considered as a waiver of such right.
3. Right of Mortgagee to Enter and Take Possession.
(a) If any default shall have occurred and be continuing beyond any applicable grace
period, the Mortgagor, upon demand of the Mortgagee, shall forthwith surrender
to the Mortgagee the actual possession of the Premises and if, and to the extent
permitted by law, the Mortgagee may enter and take possession of the Premises
and may exclude the Mortgagor and the Mortgagor's agents and employees wholly
therefrom.
(b) For the purpose of carrying out the provisions of this paragraph, the Mortgagor
hereby constitutes and appoints the Mortgagee the true and lawful attorney in fact
of the Mortgagor to do and perform, from time to time, any and all actions
necessary and incidental to such purpose and does, by these presents, ratify and
confirm any and all actions of said attorney in fact in the Premises.
(c) Whenever all such defaults have been cured and satisfied, the Mortgagee shall
surrender possession of the Premises to the Mortgagor, provided that the right of
the Mortgagee to take possession, from time to time, pursuant to this
subparagraph shall exist if any subsequent default shall occur and be continuing.
4. Appointment of a Receiver and Foreclosure.
(a) If a default shall have occurred hereunder, then the whole indebtedness secured
by this Mortgage, with all interest thereon, and all other amounts hereby secured
shall, at the option of Mortgagee, become immediately due and payable, and may
forthwith or at any time thereafter be collected by suit at law, foreclosure, or other
proceeding upon this Mortgage or by any other proper, legal, or equitable
procedure without declaration of such option and without notice.
(b) Upon, or at any time after, the filing of a complaint to foreclose this Mortgage, the
court in which such complaint is filed may appoint a receiver of the Premises. Such
appointment may be made either before or after sale, without notice, without
regard to the solvency or insolvency of Mortgagor at the time of application for
such receiver and without regard to the then value of the Premises. Such receiver
shall have power to collect the rents, issues, and profits of the Premises during the
pendency of such foreclosure suit, and in case of a sale and a deficiency, during
the full statutory period of redemption, if any, whether there be redemption or not,
as well as during any further times when Mortgagor, except for the intervention of
such receiver, would be entitled to collect such rents, issues, and profits, and all
other powers which may be necessary or are usual in such cases for the protection,
possession, control, management, and operation of the Premises during the whole
of said period.
(c) Mortgagor shall deliver to Mortgagee at any time on its request, upon 48 hours
prior notice, all agreements for deed, contracts, leases, abstracts, title insurance
policies, muniments of title, surveys and other papers relating to the Premises, and
in case of foreclosure thereof and failure to redeem, the same shall be delivered
Page 10 of 17
to and become the property of the person obtaining a deed to the Premises by
reason of such foreclosure.
5. Discontinuance of Proceedings and Restoration of the Parties. In case the Mortgagee
shall have proceeded to enforce any right or remedy under this Mortgage by receiver,
entry, or otherwise, and such proceedings shall have been discontinued or abandoned for
any reason or shall have been determined adverse to the Mortgagee, then and in every
such case the Mortgagor and the Mortgagee shall be restored to their former positions
and rights hereunder, and all rights, powers, and remedies of the Mortgagee shall continue
as if no such proceeding had been taken.
6. Remedies Cumulative. No right, power, or remedy conferred upon or reserved by the
Mortgagee by this Mortgage is intended to be exclusive of any other right, power, or
remedy, but each and every such right, power, and remedy shall be cumulative and
concurrent and shall be in addition to any other right, power, and remedy given hereunder
or now or hereafter existing at law or in equity or by statute.
Joint and Several Liability; Successors and Assigns Included in Parties. Mortgagor
covenants and agrees that Mortgagor's obligations and liability shall be joint and several.
Any successor in interest of Mortgagor who assumes Mortgagor's obligations under this
Mortgage in writing, and as approved by Mortgagee, shall obtain all of Mortgagor's rights
and benefits under this Mortgage. Mortgagor shall not be released from Mortgagor's
obligations and liability under this Mortgage unless Mortgagee agrees to such release in
writing. Whenever in this Mortgage one of the parties hereto is named or referred to, the
heirs, legal representatives, successors, and assigns of such parties shall be included and
all covenants and agreements contained in this indenture by or on behalf of the Mortgagor
and by or on behalf of the Mortgagee shall bind and inure to the benefit of their respective
heirs, legal representatives, successors and assigns, whether so expressed or not.
Provided, however, that the Mortgagor shall have no right to assign its obligations
hereunder without the prior written consent of the Mortgagee.
2. Headings. The headings of the sections, paragraphs and subdivisions of this Mortgage
are for the convenience of reference only, are not to be considered a part hereof and shall
not limit or otherwise affect any of the terms hereof.
3. Invalid Provisions to Affect No Others. If fulfillment of any provision hereof or any
transaction related hereto or to the Consolidated Note, at the time performance of such
provisions shall be due, shall involve transcending the limit of validity prescribed by law,
then ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity;
and if any clause or provision herein contained operates or would prospectively operate
to invalidate this Mortgage in whole or in part, then such clause or provision only shall be
held for naught, as though not herein contained, and the remainder of this Mortgage shall
remain operative and in full force and effect. Notwithstanding any provision contained
herein, the total liability of Mortgagor for payment of interest, including service charges,
penalties, or any other fees pursuant to this Agreement, shall not exceed the maximum
amount of such interest permitted by applicable law to be charged, and if any payments
by Mortgagor include interest in excess of the maximum allowable amount, then said
excess shall be applied to the reduction of the unpaid Funds due pursuant hereto.
Page 11 of 17
4. Number and Gender. Whenever the singular or plural number, masculine or feminine or
neuter gender is used herein, it shall equally include the other.
5. Future Advances. This Mortgage shall secure the existing indebtedness described herein
and such future advances that may be made by Mortgagee, at its option, from time to time
within twenty (20) years from the date of execution of this Mortgage, to the same extent
as if such future advances were made on the date of execution of this Mortgage. The total
amount of such secured indebtedness from Mortgagee to Mortgagor may decrease or
increase from time to time, but the total unpaid aggregate balance secured by this
Mortgage at any one time shall not exceed $1,500,000 in principal amount, plus interest
thereon, and any disbursements made for the payment of taxes, levies, insurance, or other
liens on the Premises, with interest on such disbursements.
6. No Merger of Fee and Leasehold Estates. So long as any portion of the Funds or other
amounts secured by this Mortgage (including without limitation any future advances made
hereunder) shall remain unpaid, the fee title to the Premises and the leasehold estate
created therein pursuant to the Ground Lease shall not merge and shall always be kept
separate and distinct, notwithstanding the union of such estates in Mortgagor, Mortgagee,
the Housing Authority of the City of Miami Beach, or in any other person by purchase,
operation of law or otherwise.
Delegated Authority. Notwithstanding any provision to the contrary in this Mortgage or in
the other Loan Documents, nothing herein or in the other Loan Documents shall preclude
the City Manager, in his or her reasonable discretion, from seeking direction from or
electing to have the City Commission determine any matter arising out of or related to this
Mortgage or the other Loan Documents, including, without limitation, any approval
contemplated under this Mortgage or the other Loan Documents and/or any approval of
any proposed amendment or modification to this Mortgage or any separate agreement
relating to the Premises or otherwise referenced in this Mortgage or any other Loan
Document.
8. No Novation. Neither the Consolidated Note nor this Mortgage is intended to, and neither
shall be interpreted to, result in a novation or a loss of the existing lien priority of the
Original Mortgage except as expressly set forth in the Subordination Agreements. Except
as expressly set forth in the Subordination Agreements, it is the intent of the parties that
there be no change in priority of the mortgage lien held by Mortgagee as a result of the
execution of this Mortgage or the Consolidated Note.
IV.
Notice. Any notice or other communication required or permitted to be given hereunder
shall be sufficient if in writing and delivered in person, transmitted by electronic means
(excluding default notices), or sent by United States Certified Mail or reputable overnight
courier (such as Federal Express), postage prepaid, to the parties being given such notice
at the following addresses:
Page 12 of 17
MORTGAGOR: VISTA BREEZE, LTD
161 NW 6th Street, Suite 1020
Miami, FL 33136
Attention: Ken Naylor
Telephone: (305) 357-4700
Email: knaylor(a)-apcommunities.com
With copies to: HOUSING AUTHORITY OF THE CITY OF MIAMI
BEACH
200 Alton Road
Miami Beach, FL 33139
Attention: Miguell Del Campillo, Executive Director
and
Fox Rothschild LLP
BNY Mellon Center
500 Grant Street, Suite 2500
Pittsburgh, PA 15219
Attention: Michael H. Syme
MORTGAGEE: CITY OF MIAMI BEACH
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Manager
Telephone: 305-673-7000 Ext. 26486
Email: AlinaHudak(a)-miamibeachfl.gov
With a copy to: CITY OF MIAMI BEACH
Office of Housing & Community Services
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Director
Telephone: 305-673-7491
Email: AlbaTarre(a)-miamibeachfl.gov
and Rafael A. Paz, City Attorney
CITY OF MIAMI BEACH
1700 Convention Center Drive
Miami Beach, Florida 33139
Default notices to a party must be provided by United States Certified Mail or reputable
overnight courier (such as Federal Express), postage prepaid or by courier. Any party
may change said address by giving the other parties hereto notice of such change of
address. Notice given as hereinabove provided shall be deemed given on the date of its
deposit in the United States Mail and, unless sooner received, shall be deemed received
by the party to whom it is addressed on the third calendar day following the date on which
said notice is deposited in the mail, or if courier system is used, on the date of delivery of
the notice.
Page 13 of 17
V.
1. Assignment of Rents and Leases. Mortgagor hereby transfers, assigns, and sets over
unto Mortgagee all leases, if any, entered into by Mortgagor with respect to all or any part
of the Premises, and all renewals, extensions, subleases, or assignments thereof, and all
other written or oral occupancy agreements, by concession, license, or otherwise, together
with all of the rents, income, receipts, revenues, issues, and profits arising therefrom.
Except while an Event of Default exists, Mortgagor shall be entitled to all rents, income,
receipts, revenues, issues and profits arising from the Premises as and when they become
due and payable. Neither this assignment not Mortgagee's enforcement of the provisions
of these assignments (including receipt of rents) will operate to subordinate the lien of this
Mortgage to any of the rights of any tenant of all or any part of the Premises or subject
Mortgagee to any liability to any such tenant for the performance of any obligations of
Mortgagor under any such lease. Mortgagee shall have, in addition to all other rights and
remedies hereunder, those rights of a mortgagee under Florida Statutes Section 697.07,
as now or hereafter in effect.
2. Security Agreement. This instrument also creates a security interest in any and all
equipment and furnishings as are considered or determined to be personal property or
fixtures, together with all replacements, substitutions, additions, products, and proceeds
thereof, in favor of the Mortgagee under the Florida Uniform Commercial Code to secure
payment of principal, interest, and other amounts due Mortgagee now or hereafter secured
hereby, and Mortgagee shall also have all the rights and remedies of a secured party
under the Florida Uniform Commercial Code, and without limitation upon or in derogation
of the rights and remedies created and accorded to the Mortgagee by this Mortgage
pursuant to the common law or any other laws of the State of Florida or any other
jurisdiction, it being understood that the rights and remedies of Mortgagee under the
Florida Uniform Commercial Code shall be cumulative and in addition to all other rights
and remedies of Mortgagee arising under the common law or any other laws of the State
of Florida or any other jurisdiction.
3. Fixture Filing. This Mortgage shall be effective as a financing statement filed as a fixture
filing with respect to all fixtures included within the Premises, which financing statement is
made by Mortgagor, as debtor, in favor of Mortgagee, as secured party, and is to be filed
for record in the Public Records of Miami -Dade County, Florida. This Mortgage shall also
be effective as a financing statement with respect to any other portion of the Premises as
to which a security interest may be perfected by the filing of a financing statement and
may be filed as such in any appropriate filing or recording office. The respective mailing
addresses of Mortgagor and Mortgagee are set forth in the preamble of this Mortgage. A
carbon, photographic or other reproduction of this Mortgage or any other financing
statement relating to this Mortgage shall be sufficient as a financing statement for any
purposes referred to in this Section.
4. Choice of Law. This Mortgage is to be construed in all respects and enforced according
to the laws of the State of Florida without regard to principles of conflicts of law.
5. Binding Effect. This Mortgage shall be binding upon and inure to the benefit of the
Mortgagor and Mortgagee hereto, and their respective heirs, successors and assigns.
Page 14 of 17
THIS IS A BALLOON MORTGAGE WHERE THE PRINCIPAL BALANCE DUE UPON
MATURITY IS $1,003,969.00 NOTWITHSTANDING ACCRUED INTEREST, ONLY IF
APPLICABLE, WITH ALL ADVANCEMENTS MADE BY THE MORTGAGEE UNDER THE
TERMS OF THIS MORTGAGE.
THIS MORTGAGE IS EXEMPT FROM NONRECURRING INTANGIBLE TAX
PURSUANT TO SECTION 199.183, FLORIDA STATUTES.
[Signatures appear on following pages]
Page 15 of 17
IN WITNESS WHEREOF, Mortgagor has caused this Amended and Restated Mortgage
to be executed on the date first above written.
WITNESSES:
Print Na
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 comp
its Managing General Partnep
By:
The foregoing Mortgage was acknowledged before me, by means of (Lyphysical
presence or ( ) online notarization, this 2'T"th day of' 2023, in the
County and State aforesaid, by Kenneth Naylor, as Vice -President of APC Vista Breeze, LLC, a
Florida limited liability company, the managing general partner of VISTA BREEZE, LTD., a Florida
limited partnership, on behalf of said entity. He is personally known to me or has produced
as identification.
Notary Public State of Florida
Rebeca Martinez
My Commission
HH 213601
ExP. 1/ai2026
Name:
Notary Public
State of Florida at Large
My commission expires: % 14-[ZLp
APPROVED AS TO
FORM & LANGUAGE [Signature Page - City HOME Mortgage]
& FOR EXECUTION Page 16 of 17
va.- k%-
City A torney Date
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:
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.
4890-6079-4248, v. 14
Page 17 of 17
DOCUMENTARY STAMP TAXES IN THE AMOUNT OF $1,750.00 HAVE PREVIOUSLY BEEN PAID ON
THAT CERTAIN LEASEHOLD MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING DATED
SEPTEMBER 21, 2023, RECORDED SEPTEMBER 27, 2023, IN OFFICIAL RECORDS BOOK 33902
PAGE 1175 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA, WHICH LEASEHOLD
MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING SECURED A PROMISSORY NOTE IN
THE AMOUNT OF FIVE HUNDRED THOUSAND AND 00/100 DOLLARS ($500,000.00) (THE "EXISTING
INDEBTEDNESS"). NO ADDITIONAL TAXES ARE DUE IN CONNECTION WITH THIS AMENDED,
RESTATED, RENEWAL AND CONSOLIDATED PROMISSORY NOTE (THIS "NOTE") OR THE
AMENDED AND RESTATED LEASEHOLD MORTGAGE, SECURITY AGREEMENT AND FIXTURE
FILING (THE "MORTGAGE") SECURING THE INDEBTEDNESS EVIDENCED BY THIS NOTE
BECAUSE SUCH MORTGAGE IS GIVEN TO SECURE THE FINANCING OF HOUSING UNDER PART
V OF CHAPTER 420, FLORIDA STATUTES AND IS EXEMPT FROM TAXATION PURSUANT TO
SECTION 420.513, FLORIDA STATUTES.
AMENDED, RESTATED, RENEWAL AND CONSOLIDATED PROMISSORY NOTE
$1,003,969.00
December 15, 2023
Miami Beach, Florida
FOR VALUE RECEIVED the undersigned, VISTA BREEZE, LTD., a Florida limited
partnership, having its principal office at 161 NW 6th Street, Suite 1020, Miami, FL 33136
(hereinafter referred to as the "Maker"), promises to pay to the order of the CITY OF MIAMI
BEACH, FLORIDA, a Florida municipal corporation (hereinafter referred to as the "Holder"), at
1700 Convention Center Drive, Miami Beach, Florida 33139, Attention: City Manager, or such
other place as Holder may from time to time designate in writing, the principal sum of ONE
MILLION THREE THOUSAND NINE HUNDRED SIXTY-NINE AND 001100 DOLLARS
($1,003,969.00) (together with any additional amounts that may be advanced by Holder in
connection herewith, the "Funds"), to be paid in lawful money of the United States of America in
accordance with the terms of this Amended, Restated, Renewal and Consolidated Promissory
Note (the "Note").
THIS NOTE IS SECURED BY A MORTGAGE.
This Note is secured by an Amended and Restated Leasehold Mortgage, Security
Agreement and Fixture Filing of even date herewith from Maker in favor of Holder (the "Mortgage)
encumbering the Maker's leasehold interest in certain real property located in Miami -Dade
County, Florida, at 175 South Shore Drive and 280 S. Shore Drive, Miami Beach, Miami -Dade
County, Florida (the "Premises"), which Mortgage amends, restates and supersedes a Leasehold
Mortgage, Security Agreement and Fixture Filing (the "Original Mortgage") dated as of September
21, 2023 and recorded September 27, 2023 in Official Records Book 33902, Page 1175 of the
Public Records of Miami -Dade County, Florida, from the Maker in favor of Holder. The Funds
have been funded through HOME Investment Partnership ("HOME") Program funds. A portion of
the Funds in the amount of $500,000.00 will be used solely for hard costs of construction of a new
seawall at the Premises, as part of the initial phase of the development of one hundred and
nineteen (119) studio apartment units of senior rental housing, for Extremely -Low, Very -Low- and
Low -Income persons, to be known as Vista Breeze (the "Project"), and a portion of the Funds in
the amount of $503,989.00 will be used solely for hard costs of construction of the Project in
accordance with the City Manager -approved budget, and for no other purpose. The Mortgage,
this Note and all other agreements, instruments, and documents delivered in connection herewith
and therewith, including the HOME Program Development Agreement, dated as of September
21, 2023, as amended and restated of even date herewith, as may be further amended from time
Page 1 of 7
to time (collectively, the "HOME Program Development Agreement") and that certain Declaration
of Restrictive Covenants dated as of September 21, 2023 and recorded on September 27, 2023
in Official Records Book 33902, Page 1195 of the Public Records of Miami -Dade County, Florida,
as amended and restated of even date herewith and to be recorded in the Public Records of
Miami -Dade County, Florida contemporaneously herewith, as may be further amended from time
to time (collectively, the "Declaration"), which subjects the Premises to certain recapture
provisions, covenants, and restrictions ("Covenants") for a period of thirty (30) years from the
Project Completion Date, as defined herein (the "Affordability Period"), all dated as of September
21, 2023 or of even date herewith, as applicable, are collectively referred to herein as the "Loan
Documents." The "Project Completion Date" shall mean the date of issuance by the City of Miami
Beach Building Department of a Final Certificate of Occupancy for the Project.
2. INTEREST
Interest on this Note shall be zero percent (0%) per annum; except that if Maker fails to
pay this Note as required (at maturity, upon acceleration or otherwise) or otherwise defaults under
the terms of the Loan Documents, after the expiration of any applicable cure periods therein, the
loan evidenced by this Note shall bear interest at the rate prescribed by Section 55.03, Florida
Statutes, as accrues ("Default Interest Rate"), effective retroactively (a) with respect to the portion
of the Funds in the amount of $500,000.00, to September, 21, 2023 until paid to Holder and (b)
with respect to the portion of the Funds in the amount of $503,969.00, to the date hereof until paid
to Holder.
3. PAYMENTS
This loan is being provided by Holder to Maker as a deferred payment loan and shall be
advanced by Holder to Maker for eligible costs in such manner as provided for in the HOME
Program Development Agreement. This Note shall mature upon the expiration of the Affordability
Period ("Maturity Date"). So long as Maker is not in default of any of the provisions of this Note
or the other Loan Documents, no interest or principal payments shall be due prior to the Maturity
Date. Upon the earlier of (i) the Maturity Date, or (ii) an Event of Default under this Note, the total
amount of the Funds provided to Maker by Holder shall be due and payable to Holder under this
Note, together with accrued interest, if any, at the Default Interest Rate. Notwithstanding anything
contained herein to the contrary, the entire principal balance and interest, if any, may be forgiven
on the Maturity Date by Holder, in the sole and absolute discretion of the City Manager.
Notwithstanding anything to the contrary herein, Holder shall have the right to declare the
total unpaid balance hereof to be immediately due and payable, together with interest at the
Default Interest Rate, under the following circumstances (each, an "Event of Default"): 1. upon
the sale or transfer of any part of, or interest in, the Premises or the refinance or encumbrance of
the Premises by the Maker without the City Manager's prior written consent during the Affordability
Period, except as otherwise provided in the Declaration and/or the Mortgage; 2. In the event that
Maker is not a natural person, and the Controlling Interest (as defined in the Mortgage) in Maker
is sold or transferred without the prior written approval of the City Manager, except as otherwise
provided in the Declaration and/or the Mortgage; 3. upon the occurrence of an event of default
pursuant to any one of the Loan Documents (including the Covenants incorporated in the
Declaration) now or hereafter evidencing, securing or guaranteeing payment of the indebtedness
evidenced by this Note, after the expiration of any applicable cure period provided in the Loan
Documents; 4. Upon Maker's failure to continuously operate all of the units in the Project as
affordable rental units pursuant to the stated use and purpose of the Project, after the expiration
of any applicable cure period provided in the Loan Documents; 5. Upon Maker's failure to provide
Page 2 of 7
the City with proof of insurance, as required by the Loan Documents, within fifteen (15) days from
a written request; 6. In the event that foreclosure proceedings are instituted against the Premises;
or 7. Any willful misstatement of, or failure to disclose, a material fact by Maker. Exercise of this
right shall be without notice to Maker, as notice of such exercise is expressly waived.
Any payments made hereunder shall be applied first to unpaid costs of collection, servicing
fees, and late charges, if any, then to accrued, deferred, and unpaid interest and the balance, if
any, to the principal balance.
4. CHOICE OF LAW
This Note has been executed and delivered in, and is to be governed by and construed
under. the laws of, the State of Florida, as amended, except as modified by the laws and
regulations of the United States of America, and without regard to principles of conflicts of law.
5. ENFORCEMENT
Time is of the essence. In the event that this Note is collected by law or through attorneys
at law, or under their advice therefrom, Maker agrees, to pay all costs of collection, including
reasonable attorneys' fees, whether or not suit is brought, and whether incurred in connection
with collection, trial, appeal, bankruptcy or other creditors proceedings, or otherwise. Venue in
connection with any litigation arising out of this Note shall be in Miami -Dade County, Florida.
6. NO WAIVER
Acceptance of partial payments or payments marked "payment in full" or "in satisfaction"
or words to similar effect shall not affect the duty of Maker to pay all obligations due under this
Note, and shall not affect the right of Holder to pursue all remedies available to it under the Loan
Documents.
The remedies of Holder shall be cumulative and concurrent, and may be pursued
singularly, successively, or together, at the sole discretion of Holder, and may be exercised as
often as occasion therefore shall arise. No action or omission of Holder, including specifically any
failure to exercise or forbearance in the exercise of any remedy, shall be deemed to be a waiver
or release of the same, such waiver or release to be effective only to the extent specifically recited
in a written document executed by Holder. A waiver or release with reference to any one event
shall not be construed as continuing or as constituting a cause of dealing, nor shall it be construed
as a bar to, or as a waiver or release of, any subsequent remedy as to a subsequent event.
7. NOTICE
Any notice to be given or to be served upon the Maker or the Holder in connection with this Note,
whether required or otherwise, shall be given in writing and delivered in person or sent by United
States Certified Mail or reputable overnight courier (such as Federal Express), postage prepaid,
to the parties being given such notice at the following addresses:
Maker: Mr. Kenneth Naylor
Vista Breeze, Ltd.
161 NW 6th Street, Suite 1020
Miami, Florida 33136
Page 3 of 7
With a copy to: Mr. Miguell Del Campillo, Executive Director
Housing Authority of the City of Miami Beach
200 Alton Road
Miami Beach, FL 33139
and: Fox Rothschild LLP
BNY Mellon Center
500 Grant Street, Suite 2500
Pittsburgh, PA 15219
Attention: Michael H. Syme
Holder: Ms. Alba Tarre, Department Director
Office of Housing and Community Services Director
c/o Office of Housing and Community Development
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
With a copy to: Alina T. Hudak, City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
and: Rafael A. Paz, City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Any party may change said address by giving the other parties hereto notice of such
change of address. Notice given as hereinabove provided shall be deemed given on the date of
its deposit in the United States Mail or with such reputable overnight courier, postage prepaid,
and, unless sooner received, shall be deemed received by the party to whom it is addressed on
the third calendar day following the date on which said notice is deposited in the mail, or if a
courier system is used, on the date of delivery of the notice.
8. NUMBER AND GENDER
Whenever the context so requires, the neuter gender includes the feminine and/or masculine, as
the case may be, and the singular number includes the plural, and the plural number includes the
singular.
9. BORROWER WAIVERS
Maker hereby (a) expressly waives any valuation and appraisal, presentment, demand for
payment, notice of dishonor, protest, notice of nonpayment or protest, all other forms of notice
whatsoever, and diligence in collection; and (b) consents that Holder may, from time to time and
without notice to Maker or demand, (i) extend, rearrange, renew, or postpone any or all payments,
(ii) release, exchange, add to, or substitute all or any part of the collateral for this Note, and/or (iii)
Page 4 of 7
release Maker, without in any way modifying, altering, releasing, affecting, or limiting their
respective liability or the lien of any security instrument.
10. WAIVER OF JURY TRIAL
BY EXECUTING THIS NOTE, MAKER KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ITS RIGHTS OR THE RIGHTS OF ITS HEIRS, ASSIGNS,
SUCCESSORS, OR PERSONAL REPRESENTATIVES TO A TRIAL BY JURY, IF ANY, IN ANY
ACTION, PROCEEDING, OR SUIT, WHETHER ARISING IN CONTRACT, TORT, OR
OTHERWISE, AND WHETHER ASSERTED BY WAY OF COMPLAINT, ANSWER,
CROSSCLAIM, COUNTERCLAIM, AFFIRMATIVE DEFENSE, OR OTHERWISE, BASED ON,
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS NOTE, ANY LOAN DOCUMENT
OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR TO BE
EXECUTED IN CONNECTION HEREWITH OR THEREWITH OR WITH RESPECT TO THE
INDEBTEDNESS OR THE RENEWAL, MODIFICATION, OR EXTENSION OF ANY OF THE
FOREGOING OR ANY FUTURE ADVANCE THEREUNDER. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR HOLDER'S EXTENDING CREDIT TO A MAKER AND NO WAIVER OR
LIMITATION OF HOLDER'S RIGHTS HEREUNDER SHALL BE EFFECTIVE, UNLESS IN
WRITING AND MANUALLY SIGNED ON HOLDER'S BEHALF.
Maker acknowledges that the above paragraph has been expressly bargained for by
Holder as part of the transaction with Maker and that, but for Maker's agreement to such
paragraph, Holder would not have loaned the Funds to the Maker pursuant to the terms of this
Note.
11. RECOURSE AGAINST MAKER
Holder shall have full recourse against Maker through completion of the Project, as evidenced
from the Project securing the Certificate of Occupancy. Following completion of the Project, this
Note shall become a nonrecourse obligation of Maker and neither Maker nor any other party shall
have any personal liability for repayment of the Funds, except with respect to any willful
misstatement of, or failure to disclose, a material fact by Maker. Recovery against Maker for fraud
or misrepresentation is not limited to the proceeds of sale of the Premises, but may include
personal judgment and execution thereon to the full extent authorized by law.
12. CONSOLIDATION
This Note amends, restates, renews and supersedes that certain Promissory Note dated
as of September 21, 2023 in the original principal amount of Five Hundred Thousand and 00/100
Dollars made by Maker in favor of Holder (the "Original Note") by increasing the original principal
amount by Five Hundred Three Thousand Nine Hundred Sixty -Nine and 00/100 Dollars
($503,969.00), constituting a future advance under the Original Mortgage, and consolidating all
such indebtedness into one debt in the amount of One Million Three Thousand Nine Hundred
Sixty -Nine and 00/100 Dollars ($1,003,969.00) evidenced by this Note. For the avoidance of any
doubt, One Million Three Thousand Nine Hundred Sixty -Nine and 00/100 Dollars ($1,003,969.00)
represents the entire amount of Funds loaned to Maker by Holder to date and there are no other
Funds owed by Maker to Holder in relation to the Project. The execution of this Note is not
intended to and does not constitute a novation of the Original Note and is not intended to and
shall not be interpreted to result in a novation or loss of the existing lien priority of the Original
Mortgage, except as expressly set forth in the Subordination Agreements (as defined in the
Mortgage) entered into by Maker and Holder with each of the Senior Lenders (as defined in the
Page 5 of 7
Mortgage) of even date herewith and recorded contemporaneously with the Mortgage in the
Public Records of Miami -Dade County, Florida. Hereinafter, all references to the Original Note in
the Loan Documents shall refer to this Note.
[Signature appears on the following page]
Page 6 of 7
Lit'%. S T F'AGE
written.
IN WITNESS WHEREOF, Maker has executed this Note on the day and year first above
THIS PROMISSORY NOTE IS EXEMPT FROM NONRECURRING INTANGIBLE TAX
PURSUANT TO SECTION 199.183, FLORIDA STATUTES.
MAKER:
VISTA BREEZE, LTD.
a Florida limited partnership
By: APC Vista Breeze, LLC,
a Florida limited liability company,
its Man
By:
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
The foregoing Promissory Note was acknowledged before me, by means of _✓ physical
presence or _ online notarization, this 2"I+'►day of t4p-i ber , 2023, by Kenneth
Naylor, as Vice -President of APC Vista Breeze, LLC, a Florida limited liability company, the
managing general partner of VISTA BREEZE, LTD., a Florida limited partnership on behalf of the
partnership. He/she is personally known to me or has produced
as identification.
E
y Public State of Floridaeca Martinez
Commission
H 213601
p. 1/4/2026
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
City Attorney Date
Name: r
Notary Public, State of Florida at Large
My commission expires: i 1 +11 2k
[Signature Page - City HOME Promissory Note]
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