HomeMy WebLinkAboutR-2022-049 City Place Apartments Continued Support for a Conditional Loan Commitment of $1MRESOLUTION NO.2022-049
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, EXPRESSING CONTINUED SUPPORT FOR A
CONDITIONAL LOAN COMMITMENT OF ONE MILLION DOLLARS
($1,000,000.00) TO PARTIALLY FINANCE DEVELOPMENT OF THE CITY
PLACE HOUSING DEVELOPMENT BY CITY PLACE APARTMENTS, LTD.;
AUTHORIZING THE CITY MANAGER TO EXECUTE A FLORIDA
HOUSING FINANCE CORPORATION (FHFC) LOCAL GOVERNMENT
VERIFICATION OF CONTRIBUTION LOAN FORM; PROVIDING FOR
CONFLICTS; FURTHER PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, City Place Apartments, Ltd., a Florida limited partnership, and its affiliates
(the "City Place") propose to build a new multi -family development for affordable rental housing
to be known as City Place (the "Housing") to be located at 114 SW lst Street, Dania Beach,
Broward County, Florida, with restrictions on the incomes of the residents and rents that can be
charged; and
WHEREAS, in 2020 and 2021, pursuant to Resolution No. 2020-123 and 2021-092, the
City of Dania Beach ("City") agreed to provide a conditional loan commitment to City Place
Apartments, Ltd., in the amount of Six Hundred Forty Thousand Dollars ($640,000.00), so that
City Place could be considered for funding by Florida Housing Finance Corporation (FHFC) for
Competitive Housing Credits ("Housing Credits") for an Affordable Housing Project; and
WHEREAS, the City's proposed loan was considered to be a "Local Government Area of
Opportunity Funding", and provided a preference to City Place in ranking for the funding; and
WHEREAS, City Place's housing credit application for 2021 to the FHFC was successful
and FHFC has invited City Place into credit underwriting; and
WHEREAS, the increase in City support from $640,000.00 to $1,000,000.00 will assist
City Place to address rising construction costs; and
WHEREAS, it is anticipated that Broward County will issue Requests for Applications
("RFA") and/or Requests for Proposals ("RFP") for affordable housing funding, for which City
Place intends to respond. In its response to the Broward County RFA's and/or RFP's , City Place
intends to include a copy of FHFC's Local Government Verification of Contribution -Loan Form
attached hereto as Exhibit "A," once executed by the City Manager; and
WHEREAS, the scope of the City Place's development remains predominantly the same
(except that the number of units with income restrictions may be increased by one, from 99 to 100
units, and the market rate units may be reduced by one, from 11 to 10 units) as presented to the
City in 2020 and 2021. Total units will remain at 110 units; and
WHEREAS, the actual zoning application is being presented to the City at a quasi-judicial
hearing, for the City Commission to review and possibly approve; and
WHEREAS, the conditional commitment to lend the Request Amount shall be contingent
upon an award of Housing Credits and the City entering into agreements which, to its sole
satisfaction, secure the repayment of the Request Amount;
NOW, THEREFORE, BE IT RESOLVED, BY THE CITY COMMISSION OF THE
CITY OF DANIA BEACH, FLORIDA:
Section 1. That the above "WHEREAS" clauses are ratified and confirmed, and they
are made a part of and incorporated into this Resolution by this reference.
Section 2. That the City Commission authorizes the City Manager to execute FHFC's
Local Government Verification of Contribution -Loan Form, which is incorporated by reference
and attached as Exhibit "A", which shall be effective through December 31, 2023.
Section 3. That the City of Dania Beach conditionally approves the City Place's
continuing request for funding in the amount of $1,000,000.00 (the "Request Amount") to support
the Housing. The funding shall consist of a loan evidenced by a promissory note and secured by
a mortgage with a maximum term of 17 and 1/2 years (a 30 month construction period plus a term
of 15 years), subject to acceleration in the event of default, with collateral satisfactory to the City
and subject to the City, City Place, and other parties providing financing for the Housing and
entering into agreements which, to the sole satisfaction of the City, and subject to no material
alteration of the City Place's financial status, to secure the repayment of the Request Amount;
provided however, the City is not obligated to approve any loan documents with which it does not
agree. The proposed promissory note and mortgage are incorporated by reference and attached to
this Resolution as Exhibit B and contains the material terms and conditions of the City in
authorizing the loan.
Section 4. That the City Manager and City Attorney are authorized, empowered, and
directed to negotiate with City Place on the funding transaction if City Place receives an award of
Housing Credits, and they are authorized, empowered and directed to make revisions to the related
2 RESOLUTION #2022-049
documents which are deemed necessary and proper and in the best interest of the City that do not
directly conflict with the promissory note and the mortgage attached as Exhibit B to this
Resolution.
Section 5. That all resolutions or parts of resolutions in conflict with this Resolution
are repealed to the extent of such conflict.
Section 6. That this Resolution shall become effective upon its passage and adoption.
PASSED AND ADOPTED on March 22, 2022.
ATTEST:
CITY CLERK
APPROVED AS TO FORM AND CORRECTNESS:
EVE A. bOUIMIS
CITVTTOIVEY
TAMARA
MAYOR
3 RESOLUTION #2022-049
FLORIDA HOUSING FINANCE CORPORATION
LOCAL GOVERISTAMNT VERIFICATION OF CONTRIBUTION — LOAN FORM
Name of Development: City Place
Development Location: NE comer of the Intersection of S.W. 3rd Ave. & S.W. 1st St., Dania Beach, FL
(At a mmim,m provide the address number, street name and city, and/or provide the street name, closest designated intersection and either the
city (if located within a city) or county (if located in the unrncotporated area of the county)_ If the Development consists of Scattered Sites, the
Development Location stated above must reflect the Scattered Site where the Development Location Point is located.)
The CityiCounty of
Dania Beach commits $ 1' 000,000.00
(which may be used as an
FHFC Non -Corporation Funding Proposal in an Application for FHFC funding if it meets the required criteria) in
the form of a reduced interest rate loan to the Applicant for its use solely for assisting the proposed Development
referenced above.
The net present value of the above -referenced loan, based on its payment stream, inclusive of a reduced interest rate
and the designated discount rate (as stated in the applicable RFA) is: $
No consideration or promise of consideration has been given with respect to the loan. For purposes of the foregoing,
the promise of providing affordable housing does not constitute consideration. The commitment for this loan must
be effective as of the Application Deadline for the applicable RFA, and is provided specifically with respect to the
proposed Development.
I certify that the foregoing information is true and correct and that this commitment is effective at least through the
date required in the applicable RFA.
Signature
Ana M. Garcia
City Manager
Print or Type Name
Print or Type Title
NOTE TO LOCAL GOVERNMENT OFFICIAL: Additional information is set forth in the applicable Request for Application
under which the Applicant is applying for funding for the above referenced Development.
This certification must be signed by the chief appointed official (staff) responsible for such approvals, Mayor, City Manager,
County Manager /Administrator/Coordinator, Chairperson of the City Council/Commission or Chairperson of the Board of County
Commissioners. If the contribution is from a Land Authority organized pursuant to Chapter 380.0663. Florida Statutes, this
certification must be signed by the Chair of the Land Authority. One of the authorized persons named above may sign this form
for certification of state, federal or Local Government funds initially obtained by or derived from a Local Government that is
directly administered by an intermediary such as a housing finance authority, a community reinvestment corporation, or a state -
certified Community Housing Development Organization (CHDO). Other signatories are not acceptable. The Applicant will not
receive credit for this contribution if the certification is improperly signed. To be considered for points. the amount of the
contribution stated on this form must be a precise dollar amount and cannot include words such as estimated, up to, maximum of.,
not to exceed, etc.
If the Application is not eligible for automatic points, this contribution will not be considered if the certification contains corrections
or `white -out' or if the certification is altered or retyped. The certification may be photocopied.
Please note: This form may be modified by Florida Housing Finance Corporation per Section 67-60.005. F.A.G.
(Foam Rev_ 07-2019)
PROMISSORY NOTE
$1,000,000.00
Miami, Florida
, 202
FOR VALUE RECEIVED the undersigned, CITY PLACE APARTMENTS, LTD., a Florida
limited partnership (hereinafter referred to as the "Maker") with offices at 3050 Biscayne
Boulevard, Suite 300, Miami, FL 33137, promises to pay to the order of the CITY OF DANIA
BEACH, a municipal corporation of the State of Florida (hereinafter referred to as the "Lender"),
at 100 West Dania Beach Boulevard, Dania Beach, FL 33004, or such other location or address as
the Lender may direct from time to time, the principal sum of One Million and 00/100 Dollars
($1,000,000.00) (the "Loan"), together with interest thereon on funds outstanding.
1. Loan Purpose. The Loan shall be made on the terms provided herein for the purpose
of partially financing the Maker's acquisition, development and construction of a
multifamily apartment community to be located in the City of Dania Beach, Florida
and known as "City Place Apartments" (the "Project").
2. Loan Disbursement. The Loan shall be disbursed by Lender to Maker in three
installments, by wire transfer pursuant to instructions to be provided by Maker to
Lender, as follows:
a. 33% of the Loan amount (i.e., $330,000) shall be disbursed to Borrower
simultaneously with the closing of the first mortgage loan for the development and
construction of the Project;
b. 33% of the Loan amount (i.e., $330,000) shall be disbursed to Borrower upon the
achievement of 75% of construction completion, as confirmed by a construction
requisition certified by the Borrower's Architect overseeing the construction of the
Project; and
c. 34% of the Loan amount (i.e., $340,000) shall be disbursed to Borrower upon the
achievement of 95% of construction completion, as confirmed by a construction
requisition certified by the Borrower's Architect overseeing the construction of the
Project.
3. Payment Terms.
The Promissory Note shall be due and payable as follows:
Interest -Only Period: The "Interest -Only Period" shall be the initial thirty (30) month period
which follows the initial funding of the Loan. Interest shall accrue during the Interest -Only
Period at a rate equal to the Applicable Federal Short -Term Rate published by the Internal
Revenue Service in effect as of the date hereof, which is equal to percent
C__%) per annum.
Commencing on the thirtieth (30') day following the first "Calendar Quarter Day" (i.e.,
January 1, April 1, July 1, or October 1 of each calendar year) in the Interest -Only Period, and
continuing on the thirtieth (30t') day following every Calendar Quarter Day thereafter until
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the end of the Interest -Only Period, Maker shall pay installments of interest only for the
preceding calendar quarter. Lender shall provide to Maker an invoice for such accrued interest
by the date which is no later than the tenth (10t') day following each Calendar Quarter Day
during the Interest -Only Period.
Permanent Loan Period: The "Permanent Loan Period" shall be the period which commences
on the day after the expiration of the Interest -Only Period, and continues until the Maturity
Date (as defined below). Commencing on the first (1) Calendar Quarter Day of the
Permanent Loan Period, and continuing on every Calendar Quarter Day thereafter up to and
including the Maturity Date, Maker shall pay combined payments of principal and interest in
forty five (45) quarterly installments, pursuant to a series of amortization schedules to be
calculated as follows:
a. For the first fifteen (15) quarterly payments (applicable to months 1-60 of the
Permanent Loan Period), the interest rate will be fixed equal to the Applicable
Federal Mid -Term Rate published by the Internal Revenue Service (the "Mid -Term
AFR") in effect as of the first day of the Permanent Loan Period;
b. For the sixteenth (161) through thirtieth (30t') quarterly payments (applicable to
months 61-120 of the Permanent Loan Period), the interest rate will be fixed equal
to the Mid -Term AFR in effect as of the first day of the sixty first month of the
Permanent Loan Period; and
c. For the thirty first (31 ") through forty fifth (45a') quarterly payments (applicable to
months 121-180 of the Permanent Loan Period), the interest rate will be fixed equal
the Mid -Term AFR in effect as of the first day of the one hundred twenty first
month of the Permanent Loan Period.
Lender will provide an amortization schedule to the Maker within thirty (30) days following
the date on which the interest rate is reset during the Permanent Loan Period, setting forth the
amount of quarterly payments of principal and interest due for the ensuing fifteen (15)
payments.
The entire unpaid principal balance, together with all interest accrued thereon but unpaid shall
be due and payable on the date which is seventeen (17) years and six (6) months following
the date hereof (the "Maturity Date").
This Note may be prepaid in whole or in part without premium or penalty.
4. Security for the Note.
This Promissory Note is secured by that certain Mortgage and Security Agreement (the
"Mortgage") of even date herewith executed in favor of the Lender, relating to real property located
at 114 SW 1 Street, Dania Beach, FL (the "Property").
Maker's obligations under this Note are guaranteed by Landmark Development Corp., a
Florida corporation ("Guarantor"), pursuant to the Repayment Guaranty (Secured Loan) executed
in favor of Lender, dated of even date herewith. Guarantor has agreed to maintain net worth and
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liquidity in an amount not less than the outstanding Loan balance from time to time. Failure to
maintain such net worth and liquidity shall constitute a default hereunder.
5. Events of Default.
All sums advanced hereunder together with accrued interest thereon and all other sums due
hereunder shall become immediately due and payable, without notice or demand, upon the
occurrence of any one or more of the following Events of Default, subject to any applicable cure
period as provided in the Loan Documents: (a) the Maker's failure to promptly pay in full any
payment of principal or interest due under this Promissory Note; (b) the Maker's failure to pay any
insurance premium when due; (c) the dissolution, termination of existence, insolvency of, business
failure, appointment of a receiver for any part of the Property or assignment for the benefit of
creditors by, or the commencement of any proceedings under any bankruptcy or insolvency laws,
by or against any maker or guarantor hereof which shall continue beyond any applicable cure
period set forth in the Mortgage; or (d) any uncured breach, following the giving of notice and the
expiration of any applicable cure period, by the Maker of any of the terms, covenants or conditions
set forth in the Mortgage. Upon the occurrence of any of the foregoing events, and in addition to
any other remedies provided in the Mortgage, the amount disbursed hereunder, together with
interest accrued thereon at the rate provided herein, and all unpaid fees, charges and other obligations
of the Maker due hereunder or under the Mortgage, shall, at Lender's option, be immediately due
and payable.
Any property of Maker now or hereafter in the possession of the Lender, may at all times
be held and treated as collateral and security for the payment of this Promissory Note and all other
indebtedness or liability, direct or indirect, joint or several, absolute or contingent, now existing
or hereafter created, acquired or contracted, of the Maker to the Lender.
6. Waivers.
No delay or omission on the part of the Lender in the exercise of any right hereunder shall operate
as a waiver of such right or of any other right under this Promissory Note or any other indebtedness
or liability, direct or indirect, joint or several, absolute or contingent, now existing or hereafter
created, acquired or contracted, of the Maker to the Lender. A waiver by the Lender of any right
or remedy conferred to it hereunder on any one occasion shall not be construed as a bar to, or
waiver of, any such right and/or remedy as to any future occasion.
7. Expenses and Attorneys' Fees.
The Maker agrees that in the event each and every of the terms and conditions of this
Promissory Note or any instrument which secures or collateralizes the payment of the sums
hereunder is not duly performed, complied with, or abided by, subject to applicable notice and
cure period(s) set forth in the Mortgage, the whole of said indebtedness then outstanding shall
thereupon, at the option of the Lender, become immediately due and payable. If this Promissory
Note becomes in default and is placed in the hands of an attorney for collection, the Maker agrees
to pay all and singular the costs, charges, and expenses incurred by the Lender in the enforcement
of its rights hereunder, including, but not limited to reasonable attorneys' fees and costs, including
the attorneys' fees and costs for appellate proceedings, which fees and costs shall bear interest
from the date thereof at the rate of eight percent (8.00%), which rate shall be the "Default Rate."
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The Maker and all persons now or hereafter becoming obligated or liable for the payment
hereof, do jointly and severally waive demand, notice of non-payment, protest, notice of dishonor
and presentment.
8. No Excess Charge.
The Maker does not intend or expect to pay, nor does the Lender intend or expect to charge,
collect or accept, any interest greater than the highest legal rate of interest which may be charged
under any applicable law. Should the acceleration hereof or any charges made hereunder result in
the computation or earning of interest in excess of such legal rate, any and all such excess shall be
and the same is hereby waived by the Lender, and any such excess shall be credited by the Lender
to the balance hereof.
Each Maker, endorser, or any other person, firm or corporation now or hereafter becoming
liable for the payment of the loan evidenced by this Promissory Note, hereby consents to any
renewals, extensions, modifications, releases of security or any indulgence shown to or any
dealings between the Lender and any party now or hereafter obligated hereunder, without notice,
and jointly and severally agree that they shall remain liable hereunder notwithstanding any such
renewals, extensions, modifications or indulgences, until the debt evidenced hereby is fully paid.
The Maker agrees to pay a late charge equal to ten percent (10.0%) of each payment of
principal and/or interest which is not paid within ten (10) days of the date on which it is due. In
the event that any payment is returned on account of insufficient or uncollected funds, the Maker
shall additionally be liable for a return check charge of five percent (5%) of the amount of the
check and Lender may require that all future payments be made by cashier's check.
Any payment of principal and/or interest due under this Promissory Note which is not
promptly paid on the date such payment becomes due, shall bear interest at the Default Rate
commencing on the date immediately following the day upon which the payment was due. Upon
the occurrence of any event of default as defined herein, all sums outstanding under this
Promissory Note shall thereon immediately bear interest at the Default Rate from the date of
disbursement, without notice to the Maker or any guarantor or endorser of this Promissory Note,
and without any affirmative action or declaration on the part of the Lender.
In the event of the sale of the Property in violation of the requirements set forth in the
Mortgage, all sums outstanding under this Promissory Note shall bear interest at the Default Rate
from the date of disbursement, without notice to the Maker or any guarantor or endorser of this
Promissory Note, and without any affirmative action or declaration on the part of the Lender.
9. Law, Jurisdiction, Venue, Waiver of Jury Trial.
This Promissory Note shall be interpreted, construed and enforced according to the Laws of the
State of Florida, excluding all principles of choice of laws, conflict of laws or comity. The
exclusive venue for any lawsuit arising from, related to, or in connection with this Promissory
Note shall be in the state courts of the 17t' Judicial Circuit in and for Broward County, Florida. If
any claim arising from, related to, or in connection with this Promissory Note must be litigated in
federal court, the exclusive venue for any such lawsuit shall be in the United States District Court
or the United States Bankruptcy Court for the Southern District of Florida. All meetings to resolve
such a dispute, including voluntary arbitration, medication or other alternative dispute resolution
mechanism, will take place in this venue. The parties both waive any defense that venue in
Broward County is inconvenient.
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BY ENTERING INTO THIS NOTE, MAKER AND LENDER HEREBY EXPRESSLY
WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY
CIVIL LITIGATION RELATED TO THIS NOTE OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR THE
ACTIONS OF ANY PARTY HERETO. IF A PARTY FAILS TO WITHDRAW A
REQUEST FOR A JURY TRIAL IN A LAWSUIT ARISING OUT OF THIS NOTE AFTER
WRITTEN NOTICE BY THE OTHER PARTY OF VIOLATION OF THIS SECTION,
THE PARTY MAKING THE REQUEST FOR JURY TRIAL SHALL BE LIABLE FOR
THE REASONABLE ATTORNEYS' FEES AND COSTS OF THE OTHER PARTY IN
CONTESTING THE REQUEST FOR JURY TRIAL, AND SUCH AMOUNTS SHALL BE
AWARDED BY THE COURT IN ADJUDICATING THE MOTION. THIS PROVISION IS
A MATERIAL INDUCEMENT FOR THE LENDER EXTENDING THE LOAN
EVIDENCED BY THIS PROMISSORY NOTE.
10. Modifications.
None of terms or provisions of this Promissory Note may be changed, waived, modified,
discharged, or terminated except by a written agreement signed by the party against whom
enforcement of any such change, waiver, modification, discharge or termination is sought.
11. Severability.
In the event that any provision of this Promissory Note shall be held to be unenforceable under the
law, all remaining provisions of this Promissory Note shall be binding, valid, and enforceable.
SIGNATURE APPEARS ON FOLLOWING PAGE
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IN WITNESS WHEREOF, the Maker has hereunto set its hand and seal the day and
year first above written.
MAKER:
CITY PLACE APARTMENTS, LTD., a
Florida limited partnership
By: City Place Apartments GP, LLC,
general partner
Francisco Rojo, Vice President
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Prepared by, and after recording return to:
Brian J. McDonough, Esq.
Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A.
150 West Flagler Street, Suite 2200
Miami, FL 33130
NOTE TO RECORDER: This Mortgage is given in relation to the financing of housing under
Part V of Chapter 420 of the Florida Statutes and is exempt from taxation pursuant to Section
420.513 Florida Statutes.
MORTGAGE AND SECURITY AGREEMENT FOR
CITY PLACE APARTMENTS
THIS MORTGAGE AND SECURITY AGREEMENT (hereinafter referred to as the
"Mortgage"), is executed and delivered the day of , 202_, by CITY
PLACE APARTMENTS, LTD., a Florida limited partnership, whose address is 3050 Biscayne
Boulevard, Suite 300, Miami, FL 33137 (hereinafter collectively called "Mortgagor"), to the
CITY OF DANIA BEACH, a municipal corporation of the State of Florida, with offices at 100
West Dania Beach Boulevard, Dania Beach, FL 33004 (hereinafter called "Mortgagee").
WITNESSETH THAT:
A. Mortgagor will develop, construct, and operate 110 housing units in Dania Beach,
Florida, of which no less than 99 units shall be set aside for households earning up to 80% of the
Broward County, Florida median income, as adjusted for family size ("Project").
B. Mortgagee has agreed to provide lender with a loan in the amount of $1,000,000 in
order to assist Mortgagor in the construction and development of the Project.
FOR GOOD AND VALUABLE CONSIDERATION, including, but not limited
to, the aggregate sum of money named in the promissory note from the Mortgagor in favor
of the Mortgagee, in the original principal amount of One Million and 00/100 Dollars
($1,000,000.00) (hereinafter referred to as the "Note"), Mortgagor does mortgage, grant,
bargain, sell, alien, remise, release, convey, onto the Mortgagee to its own proper use and
benefit forever, subject to the provisions, terms and conditions of this Mortgage, including,
without limitation, all of Mortgagor's right, title and interest as holder of the fee simple
estate in and to the real property situated in Broward County, Florida (the "Land") more
particularly described on Exhibit "A" attached hereto and made a part hereof together with
the following present and future property and rights owned by Mortgagor (collectively,
along with the Land, the "Mortgaged Property"):
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A. All structures, buildings and improvements of every kind and description
now or at any time hereafter located or placed on the Land;
B. All furniture, furnishings, fixtures, goods, equipment, inventory or personal
now or subsequently located on, attached to or used in and about the Land,
including, but not limited to, all machines, engines, boilers, dynamos,
elevators, stokers, tanks, cabinets, awnings, screens, shades, blinds, carpets,
draperies, lawn mowers, and all appliances, plumbing, heating, air
conditioning, lighting, ventilating, refrigerating, disposals and incinerating
equipment, telephone systems, televisions and television systems, computer
systems, and all fixtures and appurtenances; and such other goods and
chattels and personal property owned by Mortgagor as are now or hereafter
used or furnished in operating the Land, or the activities conducted therein,
and all building materials and equipment hereafter situated on or about the
Land, and all warranties and guaranties relating thereto, and all additions
thereto and substitutions and replacements therefor;
C. All easements, rights -of -way, strips and gores of land, vaults, streets, ways,
alleys, passages, sewer rights, and other emblements now or subsequently
located on the Land or under or above the same or any part or parcel thereof,
and all estates, rights, titles, interests, tenements, hereditaments and
appurtenances, reversions and remainders whatsoever, in any way
belonging, relating or appertaining to the Land, or which subsequently shall
in any way belong, relate or be appurtenant to the Land, whether now owned
or subsequently acquired by Mortgagor;
D. All water, ditches, wells, reservoirs and drains and all water, ditch, well,
reservoir and drainage rights which are appurtenant to, located on, under or
above or used in connection with the Land, or any part thereof, whether now
existing or subsequently created or acquired;
E. All minerals, crops, timber, trees, shrubs, flowers and landscaping features
now or hereafter located on, under or above the Land;
F. All leases, lettings, rental agreements, occupancy agreements and licenses, if
any, of the Land or any portion thereof and all right, title and interest of the
Mortgagor thereunder, including, without limitation, the rights of the
Mortgagor, as landlord, in respect of cash, promissory notes and securities
deposited thereunder, the rights of Mortgagor, as landlord, pursuant to
applicable statutes including any landlord liens, and the right to receive and
collect the rents, issues and profits thereof and any other sums payable
thereunder; and
G. All right, title and interest of Mortgagor in any insurance policies or binders
now or subsequently relating to the Land including any unearned premiums
thereon.
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TO HAVE AND TO HOLD the same, together with all tenements and hereditaments and
appurtenances, unto the Mortgagee as a fee simple estate.
The Mortgagor does covenant with the Mortgagee that Mortgagor is indefeasibly seized of
a fee simple estate in the Mortgaged Property; that the Mortgagor has full power and lawful right
to convey its fee simple estate in the Mortgaged Property as aforesaid; that the Mortgagor will
make such further assurances to perfect its fee simple estate in the Mortgaged Property in the
Mortgagee as may reasonably be required; and that the Mortgagor does hereby fully warrant its
fee simple title to the Mortgaged Property, and will defend the same against the lawful claims of
all persons claiming by, through, or under Mortgagor, but against none other.
PROVIDED ALWAYS, that if the Mortgagor shall pay unto the Mortgagee or otherwise
perform and fulfill its obligations with respect to the indebtedness and obligations evidenced by
the Note, and shall perform, comply with and abide by each and every one of the stipulations,
agreements, conditions and covenants of the Note and this Mortgage, then this Mortgage and the
estate thereby created shall cease and be null and void.
AND THE MORTGAGOR HEREBY COVENANTS AND AGREES AS
FOLLOWS:
1. PERFORMANCE OF NOTE AND MORTGAGE. The Mortgagor shall pay or
otherwise fully perform its obligations with respect to the payment of all and singular the principal,
interest and other sums of money payable by virtue of the Note and this Mortgage, or either,
promptly on the days when the same severally become due and payable, and shall perform, comply
with and abide by each and every of the stipulations, agreements, conditions and covenants set
forth in the Note and this Mortgage.
2. TAXES AND OTHER CHARGES. The Mortgagor shall not seek any exemption
for real estate taxes at the Mortgaged Property. The Mortgagor shall pay when due and payable
and before any interest, charge or penalty is due thereon, without any deduction, defalcation or
abatement, all taxes, assessments, levies, liabilities, obligations, encumbrances, water and sewer
rents and all other charges or claims of every nature and kind which may be imposed, suffered,
placed, assessed, levied, or filed at any time against this Mortgage, the Mortgaged Property or any
part thereof or against the interest of the Mortgagee therein, or which by any present or future law
may have priority over the indebtedness secured hereby either in lien or in distribution out of the
proceeds of any judicial sale, without regard to any law heretofore or hereafter to be enacted
imposing payment of the whole or of any part upon the Mortgagee; and insofar as any such tax,
assessment, levy, liability, obligation or encumbrance is of record, the same shall be promptly
satisfied and discharged of record and the original official document (such as, for instance, the tax
receipt or the satisfaction paper officially endorsed or certified) shall be placed in the hands of the
Mortgagee no later than such dates; provided, however, that if, pursuant to this Mortgage or
otherwise, the Mortgagor shall have deposited with the Mortgagee before the due date thereof
sums sufficient to pay any such taxes, assessments, levies, water and sewer rents, charges or
claims, and the Mortgagor is not otherwise in default, they shall be paid by the Mortgagee; and
provided further, that if the Mortgagor in good faith and by appropriate legal action shall contest
the validity of any such items or the amount thereof, and shall have established on its books or by
deposit of cash with the Mortgagee, as the Mortgagee may elect, a reserve for the payment thereof
in such amount as the Mortgagee may require, then the Mortgagor shall not be required to pay the
item or to produce the required receipts: (a) while the reserve is maintained; and (b) so long as the
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contest operates to prevent collection, is maintained and prosecuted with diligence, and shall not
have been terminated or discontinued adversely to the Mortgagor. The Mortgagor shall furnish the
Mortgagee with annual receipted tax bills evidencing payment within ninety (90) days from their
due date.
3. INSTALLMENTS FOR INSURANCE, TAXES AND OTHER CHARGES.
Without limiting the effect of Paragraphs 2 or 5 hereof, and subject to the terms and conditions of
any senior mortgages, upon default in the payment thereof, the Mortgagee may thereafter require
the Mortgagor to pay to the Mortgagee, monthly, an amount equal to one -twelfth (1/12) of the
annual premiums for the insurance policies referred to hereinabove and the annual real estate taxes,
water and sewer rents, any special assessments, charges or claims and any other item which at any
time may be or become a lien upon the Mortgaged Property prior to the lien of this Mortgage; and
on demand from time to time the Mortgagor shall pay to the Mortgagee any additional sums
necessary to pay the premiums and other items, all as estimated by the Mortgagee. The amounts
so paid shall be used in payment thereof if the Mortgagor is not otherwise in default hereunder.
No amount so paid shall be deemed to be trust funds but may be commingled with general funds
of the Mortgagee, and no interest shall be payable thereon. If, pursuant to any provision of this
Mortgage, the whole amount of the unpaid principal debt becomes due and payable, the Mortgagee
shall have the right, at its election, to apply any amount so held against the entire indebtedness
secured hereby. At the Mortgagee's option, the Mortgagee from time to time may waive, and after
any such waiver may reinstate, the provisions of this Paragraph requiring monthly payments.
4. ATTORNEYS' FEES AND COSTS. The Mortgagee shall recover from the
Mortgagor, and this Mortgage shall secure payment of, all and singular the costs, charges and
expenses, including but not limited to, reasonable attorney's fees, including but not limited to those
for all trial, appellate, and bankruptcy litigation, including litigation for the amount as well as the
entitlement to such, costs, charges, and expenses, because of the failure on the part of the
Mortgagor to perform, comply with, and abide by, each and every of the stipulations, agreements,
conditions and covenants of the Note and this Mortgage, whether or not suit is brought, and every
such payment made by the Mortgagee shall bear interest from the date thereof at the Default Rate
as defined in the Note.
5. INSURANCE. The Mortgagor shall keep the buildings and improvements now or
hereafter erected on the Mortgaged Property continuously insured under a policy or policies
providing coverage on an "all risk" basis, in a sum not less than full insurable value, including
flood insurance if requested by the Mortgagee, in a company or companies acceptable to the
Mortgagee. The policy or policies of insurance shall be held by and be payable to the Mortgagee.
In the event any sum of money becomes payable under such policy or policies, the Mortgagee shall
have the option to receive and apply the same on account of the indebtedness secured by this
Mortgage or to permit the Mortgagor to receive and use it, or any part thereof, for other purposes,
without thereby waiving or impairing any equity lien or right under or by virtue of this Mortgage.
In the event the Mortgagor fails to procure and maintain the insurance coverage required hereby,
the Mortgagee may procure and pay for such insurance or any part thereof, without waiving or
affecting its option to foreclose this Mortgage, or any right thereunder. Each and every such
payment made by the Mortgagee shall be secured by this Mortgage; shall be due and payable on
demand; and, shall bear interest from the date each such payment is made at the Default Rate.
6. CARE OF THE MORTGAGED PROPERTY. The Mortgagor shall exercise
reasonable care in the maintenance of the Mortgaged Property, and shall not permit, commit or
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suffer any waste, impairment or deterioration of the Mortgaged Property or any part thereof. In the
event the Mortgagor fails to keep the Mortgaged Property in good repair, the Mortgagee may make
such repairs as it may deem necessary in its sole discretion for the proper preservation thereof, and
the full amount of each such payment shall be due and payable with interest at the Default Rate on
demand, and shall be secured by the lien of this Mortgage.
7. EXISTING/OTHER MORTGAGES AND OBLIGATIONS. Any default in
the payment or terms and conditions of any existing or other mortgage(s), or any modification
and/or acceptance of future advances from any existing or other mortgage(s) shall constitute a
default hereunder and the Mortgagee, at its option, may declare all sums due and payable and
accelerate the entire indebtedness. The Mortgagee may, at its option, and without waiving its right
to accelerate the indebtedness hereby secured and to foreclose the same, pay either before or after
delinquency any or all of those certain obligations required by the terms hereof to be paid by the
Mortgagor for the protection of the Mortgage security or for the collection of the indebtedness
hereby secured. All sums so advanced or paid by Mortgagee shall be charged into the mortgage
account, and every payment so made shall bear interest from the date thereof at the Default Rate
specified in the Note, and become an integral part thereof, subject in all respects to the terms,
conditions and covenants of the Note and this Mortgage, as fully and to the same extent as though
a part of the original indebtedness evidenced by the Note and secured by this Mortgage, excepting
however, that such sums shall be repaid to the Mortgagee within fifteen (15) days after demand by
the Mortgagee to the Mortgagor for such payment.
8. INSPECTION. The Mortgagee, and any persons authorized by the Mortgagee,
shall have the right during business hours, upon reasonable notice to the Mortgagor, to enter the
Mortgaged Property to inspect and photograph its condition and state of repair, subject to the rights
of tenants under the terms of their leases.
9. ACCELERATION OF MATURITY. That (a) in the event of any breach of this
Mortgage or default on the part of the Mortgagor which is not cured within thirty (30) days
following written notice from the Mortgagee, or if such default not cannot practicably be cured
within thirty (30) days, then within such additional time as may be required to effect a cure (such
additional time not to exceed one hundred and twenty (120) days), so long as (i) the cure is
commenced within thirty (30) days and is diligently prosecuted and (ii) the lack of a cure during
such continuing cure period has no material adverse effect on the Mortgaged Property, or (b) in
the event any of such sums of money herein referred to be not promptly and fully paid within five
(5) days next after the same severally become due and payable, without demand or notice; or (c)
in the event each and every stipulation, agreement, condition and covenants of the Note and this
Mortgage are not duly, promptly and fully performed, discharged, executed, effected, completed,
complied with and abided by, following the giving of notice and the expiration of applicable cure
periods; or (d) in the event the Mortgagor shall fail, within ten (10) days written notice by the
Mortgagee to execute a Mortgagor's certificate in favor of any assignee or prospective assignee of
the Mortgagee's interest hereunder which certificate shall contain such acknowledgments,
affirmations, and covenants as may be reasonably required to enable the Mortgagee to assign its
interest hereunder, or (e) upon the rendering by any court of last resort of a decision that an
undertaking by the Mortgagor as herein provided to pay taxes, assessments, levies liabilities,
obligations and encumbrances is legally inoperative or cannot be enforced, or in the event of the
passage of any law changing in any way or respect the laws now in force for the taxation of
mortgages or debts secured thereby, or the manner of collection of any such taxes, so as to
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materially adversely affect this Mortgage or the debt secured hereby; or (f) in the event there exists
an event of default under and pursuant to the terms of any other obligation of any kind or nature
whatsoever of the Mortgagor to the Mortgagee, direct or contingent, whether now existing or
hereafter due, existing, created or arising, then in either or any such event, the aggregate sum
mentioned in the Note then remaining unpaid, with interest accrued, and all monies secured hereby
shall become due and payable forthwith, or thereafter, at the option of the Mortgagee, as fully and
completely as if all of the sums of money were originally stipulated to be paid on such day,
anything in the Note and/or in this Mortgage to the contrary notwithstanding; and thereupon or
thereafter, at the option of the Mortgagee, without notice or demand, suit at law or in equity,
therefore, or thereafter begun, may be prosecuted as if all money secured hereby had matured prior
to its institution. Mortgagor's investor limited partner shall have the right, but not the obligation,
to cure any event of default, and such cure shall be accepted as if tendered by Mortgagor.
10. INTENTIONALLY DELETED.
11. DEFENSE OF MORTGAGED PROPERTY AND MORTGAGE. If any action
or proceeding shall be commenced by any person other than the Mortgagee, and the Mortgagee is
made a party, or in which it shall become necessary for the Mortgagee to defend or take action to
uphold or defend the lien of this Mortgage, all sums paid or incurred by the Mortgagee for the
expense of any litigation, including court costs and reasonable attorneys' fees incurred in any trial,
appellate, and bankruptcy proceedings, to prosecute or defend the rights and liens created by this
Mortgage shall be paid by the Mortgagor, together with interest thereon at the Default Rate from
the date thereof, and any such sum and interest thereon shall be a claim upon the Mortgaged
Property, attaching or accruing subsequent to the lien of this Mortgage, and shall be secured by
the lien of this Mortgage.
12. CASUALTY AND CONDEMNATION. In the event the Mortgaged Property
or any part thereof shall be damaged by casualty or condemned under the power of eminent
domain, Mortgagor may (subject to the rights of any senior lender whose mortgage has priority
over this Mortgage) use the proceeds of insurance proceeds or condemnation awards for the
restoration and repair of the Mortgaged Property if all of the following conditions are met: (i) the
Mortgagor is not in breach or default of any provision of this Mortgage or the Note; (ii) the
Mortgagor reasonably determines that there will be sufficient funds to (a) restore and repair the
Mortgaged Property to a condition as close as reasonably possible to what previously existed, (b)
meet all operating costs and other expenses, payments for reserves and loan repayment obligations
relating to the Mortgaged Property until completion of the restoration and repair of the Mortgaged
Property to a condition as close as reasonably possible to what previously existed; (iii) the
Mortgagor reasonably determines that the rental income of the Mortgaged Property, after
restoration and repair to a condition as close as reasonably possible to what previously existed will
be sufficient to meet all operating costs and other expenses, payments for reserves and loan
repayment obligations relating to the Mortgaged Property; and (iv) the Mortgagor has received the
Mortgagee's written concurrence with such determination.
13. SUBROGATION. To the extent of the indebtedness of the Mortgagor to the
Mortgagee as described in the Note, the Mortgagee shall be subrogated to the lien and the rights
of the owners and holders of each and every mortgage, lien or other encumbrance on the
Mortgaged Property which is paid or satisfied, in whole or in part, out of the proceeds of the Note.
The respective liens of such mortgages, liens or other encumbrances shall be and are hereby
security for the Note, as if they had been regularly assigned, transferred, and delivered unto the
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Mortgagee, notwithstanding the fact that the same may be set aside and canceled of record. It is
the intention of the parties hereto that the prior mortgages, liens or other encumbrances will be
satisfied and canceled of record by the holders thereof at or about the time of the recording of this
Mortgage.
14. APPOINTMENT OF RECEIVER. At any time while a suit is pending to
foreclose or to reform this Mortgage or to enforce any claims arising hereunder, the Mortgagee
may apply to a court of appropriate jurisdiction for the appointment of a receiver, and such court
shall forthwith appoint a Receiver of the Mortgaged Property, including all and singular the
income, profits, rents, issues and revenues from whatever source derived. The Receiver shall have
all the broad and effective functions and powers in anywise entrusted by a court to a Receiver, and
such appointment shall be made by such court as an admitted equity and as a matter of absolute
right to the Mortgagee without reference to the adequacy or inadequacy of the value of the
Mortgaged Property, or to the solvency or insolvency of the Mortgagor or the Defendants. All
income, profits, rents, issues and revenues collected by the Receiver shall be applied by such
Receiver according to the lien of this Mortgage, and the practice of such court.
15. NO TRANSFER OF MORTGAGED PROPERTY. It is expressly agreed that
should the Mortgagor convey title to the Mortgaged Property or, except as set forth in Mortgagor's
Amended and Restated Agreement of Limited Partnership, in any legal or equitable interest
therein, to any person, firm or corporation or shall permit or create any further encumbrances upon
the Mortgaged Property without the prior written approval of the Mortgagee to such conveyance
or encumbrance, all sums outstanding under the Note and secured by this Mortgage shall become
immediately due and payable, at the option of the Mortgagee.
16. LEASES AFFECTING MORTGAGED PROPERTY. The Mortgagor shall
comply with and observe its obligations as landlord under all leases affecting all or any portion of
the Mortgaged Property (the "Residential Leases"). Upon request, the Mortgagor shall furnish
promptly to the Mortgagee executed copies of all such Residential Leases now existing or hereafter
created. The Mortgagor shall not accept payment of rent more than one (1) month in advance
without the prior written consent of the Mortgagee. Nothing contained in this Section or elsewhere
in this Mortgage shall be construed to make the Mortgagee a mortgagee in possession unless and
until the Mortgagee actually takes possession of the Mortgaged Property either in person or
through an agent or receiver. To the extent not provided by applicable law, each Residential Lease
shall provide that, in the event of the enforcement by the Mortgagee of the remedies provided for
by law or by this Mortgage, the Residential Lease shall remain in full force and affect, without any
change in the terms or other provisions of the respective Residential Lease (and the Mortgagee or
such successor shall execute an agreement not to disturb the lessee, provided such lessee abides
by all terms and provisions in the applicable Residential Lease); provided, however, that such
successor in interest shall not be bound by (i) any payment of rent or additional rent for more than
one (1) month in advance, except prepayments in the nature of security for the performance by
such lessee of its obligations under such Residential Lease not in excess of an amount equal to one
(1) month's rental, or (ii) any amendment or modification in the lease made without the consent of
the Mortgagee or any successor in interest.
17. ASSIGNMENT OF RENTS, ISSUES AND PROFITS. The Mortgagor does
hereby bargain, sell, transfer, assign, convey, set over and deliver unto the Mortgagee, as security
for the payment and performance of all the terms and conditions of the Note and this Mortgage,
and any and all amendments, extensions and renewals thereof, all Residential Leases now existing
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or which may be executed at any time in the future during the life of this Mortgage, and all
amendments, extensions and renewals of such Residential Leases and any of them, and all rents
and other income which may now or hereafter be or become due or owing under the Residential
Leases, and any of them, it being intended hereby to establish a complete transfer of the Residential
Leases hereby assigned and all the rents and other income arising thereunder and on account of
the use of the Mortgaged Property unto the Mortgagee, with the right, but without the obligation,
to collect all of such rents and other income which may become due during the life of the Note and
this Mortgage. The Mortgagor agrees to deposit with the Mortgagee upon demand such Residential
Leases as may from time to time be designated by the Mortgagee. Although it is the intention of
the parties that this shall be a present assignment, it is expressly understood and agreed, anything
herein contained to the contrary notwithstanding, that the Mortgagee shall not exercise any of the
rights or powers herein conferred upon it until a default shall occur under the terms and provisions
of the Note and this Mortgage, but upon the occurrence of any default the Mortgagee shall be
entitled, upon notice to the tenants, to all rents and other amounts then due under the leases and
thereafter accruing, and this Mortgage shall constitute a direction to and full authority to the tenants
to pay all such amounts to the Mortgagee without proof of the default relied upon. The tenants are
hereby irrevocably authorized to rely upon and comply with any notice or demand by the
Mortgagee for the payment to the Mortgagee of any rental or other sums which may be or thereafter
become due under the leases, or for the performance of any of the tenants' undertakings under the
Residential Leases and shall have no right or duty to inquire as to whether any default under this
Mortgage has actually occurred or is then existing.
18. MORTGAGE CONSTITUTES SECURITY AGREEMENT. This Mortgage
also constitutes a security agreement as defined under the Uniform Commercial Code. The
Mortgagor hereby grants to the Mortgagee a security interest in and to all furniture, furnishings,
equipment, machinery, and personal property of every nature whatsoever now owned or hereafter
acquired by the Mortgagor located upon the Mortgaged Property together with all proceeds
therefrom. The Mortgagor shall execute any and all documents as the Mortgagee may request,
including, without limitation, financing statements pursuant to the Uniform Commercial Code as
adopted by the State of Florida, to preserve and maintain the priority of the lien created hereby on
property which may be deemed personal property or fixtures. The Mortgagor hereby authorizes
and empowers the Mortgagee to execute and file on behalf of the Mortgagor all financing
statements and refilings and continuations thereof as the Mortgagee deems necessary or advisable
to create, preserve or protect such lien. The Mortgagor and Mortgagee expressly agree that the
filing of a financing statement shall never be construed as in anywise derogating from or impairing
the express declaration and intention of the parties hereto that all such personality located on or
utilized in connection with the real property encumbered by this Mortgage shall at all times and
for all purposes, in all proceedings both legal and equitable, be deemed a part of the real property
encumbered by this Mortgage.
19. CARE OF PROPERTY.
(a) The Mortgagor shall preserve and maintain the Mortgaged Property in good
condition and repair. Except for: (i) repairs or replacements for ordinary wear and tear or in the
ordinary course of management of the Mortgaged Property; (ii) tenant or similar improvements
and upgrades; and (iii) repairs, replacements, or other restorations in the event of a casualty or
condemnation, the Mortgagor shall not remove, demolish, alter or change the use of any building,
structure or other improvement presently or hereafter on the Land constituting any part of the
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Mortgaged Property without the prior written consent of the Mortgagee. The Mortgagor shall not
permit, commit or suffer any waste, impairment or deterioration of the Mortgaged Property or of
any part thereof, and will not take any action which will increase the risk of fire or other hazard to
the Mortgaged Property or to any part thereof. The Mortgagor shall comply with all applicable
local, state, and federal regulations in regards to the Property.
(b) Except as otherwise provided in this Mortgage, no fixture, personal property or
other part of the Mortgaged Property shall be removed, demolished or altered, without the prior
written consent of the Mortgagee. The Mortgagor may sell or otherwise dispose of, free from the
lien of this Mortgage, furniture, furnishings, equipment, tools, appliances, machinery, fixtures or
appurtenances, subject to the lien hereof, which may become worn out, undesirable or obsolete,
only if they are replaced immediately with similar items of at least equal value which shall, without
further action, become subject to the lien of this Mortgage.
20. MORTGAGE SECURES INDEBTEDNESS. It is expressly agreed and
understood that this Mortgage secures the indebtedness and the obligation of the Mortgagor to the
Mortgagee with respect to the Note, as the same is evidenced by the Note, and all renewals,
extensions and modifications thereof. This Mortgage shall not be deemed released, discharged or
satisfied until the entire indebtedness evidenced by the Note is paid in full.
21. MORTGAGEE'S REMEDIES CUMULATIVE. The Mortgagor agrees that all
rights of the Mortgagee hereunder shall be separate, distinct, and cumulative, and that none shall
be in exclusion of the other, and that no act of the Mortgagee shall be construed as an election to
proceed under any provision of covenant herein to the exclusion of any other, notwithstanding
anything herein to the contrary.
22. FUTURE ADVANCES. Pursuant to the laws of the State of Florida, this
Mortgage shall secure not only the existing indebtedness evidenced by the Note, but also such
future advances as may be made by the Mortgagee to the Mortgagor in accordance with the Note,
this Mortgage, or any other Loan Document executed in connection herewith, whether or not such
advances are obligatory or are to be made at the option of the Mortgagee, or otherwise, and as are
made within twenty (20) years from the date hereof, to the same extent as if such future advances
were made on the date of the execution of this Mortgage. The total amount of indebtedness that
may be so secured may decrease or increase from time to time, but the total unpaid balance so
secured at one time shall not exceed two times the face amount of the Note, plus interest thereon,
and any disbursements made for the payment of taxes, levies or insurance on the Mortgaged
Property with interest on such disbursements at the Default Rate.
23. SOVEREIGN IMMUNITY. Nothing herein shall be deemed a waiver, express
or implied, of the Mortgagee's sovereign immunity under Section 768.28, Florida Statutes, or
considered a waiver of immunity or the limits of liability beyond any statutorily limited waiver of
immunity or limits of liability which may have been adopted by the Florida Legislature in Section
768.28, Florida Statutes, or other state statute. The obligations of the Mortgagor under this Section
shall survive any defeasance of the Mortgage.
24. INDEMNIFICATION. The Mortgagor hereby protects, indemnifies and saves
harmless the Mortgagee, its officers, directors, agents and employees, from and against any and
all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses
(including without limitation, reasonable attorneys' fees and expenses) imposed upon, incurred by
or asserted against the Mortgagee or any of such persons by reason of (a) ownership of any interest
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in the Mortgaged Property or any part thereof, (b) any accident, injury to or death of persons or
loss of or damage to property occurring on or about the Mortgaged Property or any part thereof or
the adjoining sidewalks, curbs, vaults and vault space, if any, streets or ways, (c) any use, disuse
or condition of the Mortgaged Property or any part thereof, or the adjoining sidewalks, curbs,
vaults and vault space, if any, or any streets or ways, (d) any failure on the part of the Mortgagor
to perform or comply with any of the terms hereof, or any inaccuracy in any representation or
warranty made by the Mortgagor herein, (e) any necessity to defend any of the right, title or interest
conveyed by this Mortgage, (f) the performance of any labor or services or the furnishing of any
materials or other property in respect of the Mortgaged Property or any part thereof, (g) any
subsidence or erosion of any part of the surface of the Mortgaged Property, including any shoreline
or any bank of any river, stream, creek, lake, ocean or other water source, or (h) the location or
existence of asbestos or any toxic or hazardous waste, chemicals, materials or substance on, at, in
or under the Mortgaged Property or any part thereof. If any action, suit or proceeding is brought
against the Mortgagee, or any of its officers, directors, agents or employees, for any such reason,
the Mortgagor, upon the request of such party, will, at the Mortgagor's expense, cause such action,
suit or proceeding to be resisted and defended by counsel reasonably satisfactory to the Mortgagee
or such person. Any amounts payable to an indemnified partyunder this Section which are not
paid within ten (10) days after written demand therefor shall bear interest at the at the Default Rate
from the date of such demand, and such amounts, together with such interest, shall be indebtedness
secured by this Mortgage. The obligations of the Mortgagor under this Section shall survive any
defeasance of the Mortgage.
25. HAZARDOUS MATERIALS. Except for ordinary household cleaning
materials and substances, the Mortgagor agrees that it will not use, generate, store or dispose of
Hazardous Materials on the Mortgaged Property. For purposes hereof, "hazardous materials"
include (but are not limited to) materials defined as "hazardous waste" under the Federal Resource
Conservation and Recovery Act and similar state laws, or as "hazardous substances" under the
Federal Comprehensive Environmental Response, Compensation and Liability Act and similar
state laws. Hazardous materials include (but are not limited to) solid, semi -solid, liquid or gaseous
substances which are toxic, ignitable, corrosive, carcinogenic or otherwise dangerous to human,
plant or animal health and wellbeing. Examples of hazardous waste include paints, solvents,
chemicals, petroleum products, batteries, transformers, and other discarded man-made materials
with hazardous characteristics. The Mortgagee shall have all remedies at law and equity for failure
of the Mortgagor to carry out the foregoing obligation, including but not limited to specific
performance, damages, reasonable attorneys' fees and court costs. This provision shall survive
payment of the Note and termination of this Mortgage.
26. REPRESENTATIONS AND WARRANTIES. In order to induce the
Mortgagee to make the Loan evidenced by the Note, the Mortgagor represents and warrants that:
(a) there are no actions, suits or proceedings pending or threatened against or affecting the
Mortgagor or any portion of the Mortgaged Property, or involving the validity or enforceability of
this Mortgage or the priority of its lien, before any court of law or equity or any tribunal,
administrative board or governmental authority, and the Mortgagor is not in default under any
other indebtedness or with respect to any order, writ, injunction, decree, judgment or demand of
any court or any governmental authority; (b) to the best of Mortgagor's knowledge and belief, the
execution and delivery of the Note and this Mortgage do not and shall not (i) violate any provisions
of any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award
applicable to the Mortgagor or any other person executing the Note or this Mortgage nor (ii) result
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in a breach of, or constitute a default under, any indenture, bond, mortgage, lease, instrument,
credit agreement, undertaking, contract or other agreement to which the Mortgagor or such other
person is a party or by which either or both of them or their respective properties may be bound or
affected; (c) to the best of Mortgagor's knowledge and belief, the Note and this Mortgage
constitute valid and binding obligations of the Mortgagor and any other person executing the same,
enforceable against the Mortgagor and such other person(s) in accordance with their respective
terms; (d) there is no fact that the Mortgagor has not disclosed to the Mortgagee in writing that
could materially adversely affect the property, business, or financial conditions of the Mortgage
Property or any other collateral for the Loan; (e) the Mortgagor has duly obtained all permits,
licenses, approvals and consents from, and made all filings with, any governmental authority (and
the same have not lapsed nor been rescinded or revoked) which are necessary in connection with
the execution and delivery of this Mortgage, the making of the Loan, the performance of its
obligations hereunder, or the enforcement hereof, and that all such representations and warranties
shall survive the closing of the Loan and any bankruptcy proceedings.
27. SEVERABILITY OF INVALID PROVISIONS. In the event any provision of
the Note or this Mortgage should be held unconstitutional, illegal or unenforceable for any reason,
such provision shall not affect, alter, or otherwise impair any other provision of the Note and or
this Mortgage.
28. NO WAIVER. It is expressly agreed and understood that a waiver by the
Mortgagee (which waiver shall only be valid if given in writing) of any right or rights conferred
to it hereunder with regard to any one transaction or occurrence shall not be deemed a waiver of
such right or rights to any subsequent transaction or occurrence. It is further agreed that any
forbearance or delay by the Mortgagee in the enforcement of any right or remedy hereunder shall
not constitute or be deemed a waiver of such right or remedy.
29. GOVERNING LAW AND VENUE. This Mortgage shall be construed and
enforced according to the Laws of the State of Florida, excluding all principles of choice of laws,
conflict of laws or comity. Any action pursuant to a dispute under this Mortgage must be brought
in the state courts of the Seventeenth Judicial Circuit in and for Broward County, Florida. If any
claim arising from, related to, or in connection with the Mortgage must be litigated in federal court,
the exclusive venue for any such lawsuit shall be in the United States District Court for the
Southern District of Florida or United States Bankruptcy Court for the Southern District of Florida.
All meetings to resolve said dispute, including voluntary arbitration, mediation, or other alternative
dispute resolution mechanism, will take place in this venue. The parties both waive any defense
that venue in Broward County is inconvenient.
30. HEADINGS. The headings of the articles, sections, paragraphs and subdivisions
of this Mortgage are for convenience and ease of reference only, and are not to be considered a
part hereof, and shall not limit or otherwise affect any of the terms or provisions hereof.
31. GENDER AND NUMBER. In this Mortgage and the Note it secures, the singular
shall include the plural and the masculine shall include the feminine and neuter.
32. PARTIES BOUND; NO ORAL MODIFICATIONS. Each and every of the
terms, covenants and conditions contained herein shall be binding upon the parties hereto and their
successors, heirs, assigns and devisee. This Mortgage is not subject to modification other than by
a written document or instrument executed by the party or parties to be charged with such
modification.
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33. WAIVER OF TRIAL BY JURY. BY ENTERING INTO THIS
MORTGAGE, MORTGAGOR AND MORTGAGEE HEREBY EXPRESSLY WAIVE
ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL
LITIGATION RELATED TO THIS MORTGAGE. IF A PARTY FAILS TO WITHDRAW
A REQUEST FOR A JURY TRIAL IN A LAWSUIT ARISING OUT OF THIS
MORTGAGE AFTER WRITTEN NOTICE BY THE OTHER PARTY OF VIOLATION
OF THIS SECTION, THE PARTY MAKING THE REQUEST FOR JURY TRIAL SHALL
BE LIABLE FOR THE REASONABLE ATTORNEYS' FEES AND COSTS OF THE
OTHER PARTY IN CONTESTING THE REQUEST FOR JURY TRIAL, AND SUCH
AMOUNTS SHALL BE AWARDED BY THE COURT IN ADJUDICATING THE
MOTION. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
MORTGAGEE EXTENDING THE LOAN SECURED BY THIS MORTGAGE.
34. AGREEMENT TO SUBORDINATE. Mortgagee agree that this Mortgage and
the Note that it secures are and shall be subordinated in right of payment to the prior payment in
full of the indebtedness evidenced by that certain first mortgage encumbering the Mortgaged
Property, in favor of ("Senior Lender"), recorded simultaneously
herewith in the Public Records of Broward County, Florida ("Senior Mortgage"). This Mortgage
and the Note it secures are and shall be subject and subordinate in all respects to the liens, terms,
covenants and conditions of the Senior Mortgage and any other loan documents in favor of the
Senior Lender ("Senior Loan Documents") and to all advances heretofore made or which may
hereafter be made pursuant to the Senior Mortgage and the other Senior Loan Documents
(including but not limited to, all sums advanced for the purposes of (1) protecting or further
securing the lien of the Senior Mortgage, curing defaults by the Mortgagor under the Senior Loan
Documents or for any other purpose expressly permitted by the Senior Mortgage, or (2)
constructing, renovating, repairing, furnishing, fixturing or equipping the Mortgaged Property).
37. NOTICES. In order for a notice to a party to be effective under the Loan
Documents, notice must be sent via U.S. first-class mail with a contemporaneous copy via e-mail
to the addresses listed below and shall be effective upon mailing. The addresses for notice shall
remain as set forth herein unless and until changed by providing notice of such change in
accordance with the provisions of this Section.
NOTICE TO MORTGAGEE:
City of Dania Beach
100 West Dania Beach Boulevard
Dania Beach, FL 33004
Attn:
With a copy to:
Page 12 of 13
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NOTICE TO MORTGAGOR:
City Place Apartments, Ltd.
3050 Biscayne Boulevard, Suite 300
Miami, FL 33137
Attn: Francisco Rojo
With copies to:
Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
150 West Flagler Street, Suite 2200
Miami, FL 33130
Attn: Brian J. McDonough
and
[Investor Address]
SIGNATURE APPEARS ON FOLLOWING PAGE
Page 13 of 13
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IN WITNESS WHEREOF, the Mortgagor has hereunto set its hand and seal the day and
year first above written.
WITNESSES:
Print Name:
Print Name:
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
MORTGAGOR:
CITY PLACE APARTMENTS, LTD., a
Florida limited partnership
By: City Place Apartments GP, LLC,
general partner
Francisco Rojo, Vice President
ACKNOWLEDGMENT
THE FOREGOING INSTRUMENT was acknowledged before me by means of ❑ physical
presence or ❑ online notarization on this day of , 202_, by Francisco
Rojo, as Vice President of City Place Apartments GP, LLC, general partner of City Place
Apartments, Ltd., ❑ who is personally known to me or ❑ who produced a
as identification.
My Commission Expires:
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Signature of Notary Public, State of Florida
Printed Name of Notary Public
EXHIBIT "A"
LEGAL DESCRIPTION
Lots 13, 14, 15 and 16, Block 21, TOWN OF DANIA (FORMERLY MODELO), according to the map or plat
thereof as recorded in Plat Book B, Page 49, Public Records of Miami -Dade County, Florida. Said lands
situate in Broward Counh, Florida.
and
Parcel I Lot 12, Block 21, TOWN OF DANIA (FORMERLY MODELO), according to the map or plat
thereof as recorded in Plat Book B, Page 49, Public Records of Miami -Dade County, Florida. Said lands
situate in Broward County, Florida.
and
Lot Eleven (11), Block Twenty -One (21), TOWN OF MODELO (NOW DANIA), according to the
plat thereof as recorded in Plat Book B, Page 49, Public Records of Miami -Dade County, Florida,
said lands situate, lying and being in Broward, County, Florida.
Parcel Identification Number: 5042-34-01-3130
a/k/a 134 Southwest 1st Street, Dania Beach, FL 33004
and
Lot 10, Block 21, TOWN OF MODELO, according to the map or plat thereof
as recorded In Plat Book B, Page 49 of the Public Records of Miami -Dade
County, Florida; said lands situate, lying and being in Broward County,
Florida.
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REPAYMENT GUARANTY
This REPAYMENT GUARANTY (this "Guaranty") is entered into as of
, 202_, by LANDMARK DEVELOPMENT CORP., a Florida corporation
(the "Guarantor"), for the benefit of the CITY OF DANIA BEACH, a municipal corporation of
the State of Florida (the "Lender").
RECITALS:
A. City Place Apartments, Ltd., a Florida limited partnership (the `Borrower"), has
applied to Lender for a loan (the "Loan") for certain development costs associated with the
acquisition, construction, development, equipping and/or operation of a 110-unit multifamily
residential project located in the City of Dania Beach, Broward County, Florida, known or to be
known as City Place Apartments (the "Mortgaged Property").
B. Simultaneously with the execution of this Guaranty and as a part of the same
transaction, the Borrower has executed and delivered to the Lender that certain Promissory Note
in the maximum principal amount of $1,000,000 (the "Note"), together with the other Loan
Documents (each as hereinafter defined), that are intended to evidence and secure the Loan.
C. The Loan is secured by, among other things, that certain Mortgage and Security
Agreement for City Place Apartments (as amended, restated and/or supplemented from time to
time, the "Security Instrument"), dated as of the date hereof, encumbering the Mortgaged
Property, and will be made to Borrower pursuant to the Loan Documents.
D. The Loan will be advanced to Borrower pursuant to the terms of the Note (the
Note, the Security Instrument and all other documents executed in connection with the Loan,
including this Guaranty, are collectively referred to as the "Loan Documents").
E. As a condition to the making of the Loan, Lender requires that Guarantor execute
this Guaranty.
F. Guarantor will directly or indirectly derive a material financial benefit from the
making of the Loan.
NOW, THEREFORE, in order to induce Lender to make the Loan to Borrower, and in
consideration thereof, Guarantor agrees as follows:
1. Defined Terms. Capitalized terms used but not defined in this Guaranty shall
have the meanings assigned to them in the Security Agreement.
2. Scope of Guaranty. Guarantor represents to Lender that Guarantor will derive a
material financial benefit from the making of the Loan. Guarantor hereby does jointly, severally
and unconditionally guaranty to Lender the due performance and prompt payment, whether at
maturity or by acceleration or otherwise, of Borrower's obligations to repay the principal amount
of the Loan, all interest accrued thereon, all default interest, late charges, penalties, late fees,
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prepayment fees and charges, fees and other amounts or sums evidenced and/or secured by the
Note and the other Loan Documents (collectively, the "Guaranteed Obligations").
If Borrower shall fail to duly and punctually perform and observe any of the Guaranteed
Obligations, then Guarantor forthwith upon demand by Lender or its designee will themselves, at
their own expense, do, promptly perform and observe such Guaranteed Obligations. In the case
of any payment to be made by Guarantor, such payment shall be made within thirty (30) days
following demand therefor, and any amounts not paid within such time shall accrue interest at
the Default Rate (as defined in the Note) from the earlier of the date of demand therefor or such
other date as may be provided under the Loan Documents.
3. Guaranty of Payment. Guarantor's obligations under this Guaranty constitute
an unconditional and continuing guaranty of payment and not merely a guaranty of collection.
Guarantor hereby irrevocably and unconditionally covenants and agrees that Guarantor is liable
for the Guaranteed Obligations as a primary obligor. The Guaranteed Obligations and this
Guaranty are separate, distinct and in addition to any liability and/or obligations that Borrower or
Guarantor may have under any other guaranty or indemnity executed by Borrower or Guarantor
in connection with the Loan, and no other agreement, guaranty or indemnity executed in
connection with the Loan shall act to reduce or set off any of Guarantor's liability hereunder.
4. Unconditional Guaranty. The obligations of Guarantor under this Guaranty
shall be performed without demand by Lender and shall be unconditional irrespective of the
genuineness, validity, regularity or enforceability, in whole or in part, of the Guaranteed
Obligations, the Note or any other Loan Document, and without regard to any other circumstance
which might otherwise constitute a legal or equitable discharge of a surety, a guarantor or a
borrower. Guarantor hereby waives the benefit of all principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms of this Guaranty and agrees that
Guarantor's obligations shall not be affected by any circumstances, whether or not referred to in
this Guaranty, which might otherwise constitute a legal or equitable discharge of a surety, a
guarantor or a borrower. Guarantor hereby waives the benefits of any right of discharge under
any and all statutes or other laws relating to a guarantor, a surety or a borrower, and any other
rights of a guarantor, a surety or a borrower, thereunder. Without limiting the generality of the
foregoing, Guarantor hereby waives, to the fullest extent permitted by law, diligence in
collecting the indebtedness, presentment, demand for payment, protest, all notices with respect to
the Note and this Guaranty which may be required by statute, rule of law or otherwise to
preserve Lender's rights against Guarantor under this Guaranty, including, but not limited to,
notice of acceptance, notice of any amendment of the Loan Documents, notice of the occurrence
of any default or Event of Default, notice of intent to accelerate, notice of acceleration, notice of
dishonor, notice of protest, and notice of the incurring by Borrower of any obligation or
indebtedness. Guarantor also waives, to the fullest extent permitted by law, all rights to require
Lender to (a) proceed against Borrower or any other guarantor of Borrower's payment or
performance with respect to the indebtedness (an "Other Guarantor"), (b) if Borrower or any
Other Guarantor is a partnership, proceed against any general partner of Borrower or the Other
Guarantor, (c) proceed against or exhaust any collateral held by Lender to secure the repayment
of the indebtedness, (d) pursue any other remedy it may now or hereafter have against Borrower,
or, if Borrower is a partnership, any general partner of Borrower or (e) to file any financing
statement or to otherwise enforce, perfect, protect, secure or insure any lien or security interest
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given as security in connection with the Loan Documents. Guarantor further waives, to the
fullest extent permitted by applicable law, (a) any right to revoke this Guaranty as to any future
advances under the Loan Documents, (b) any defenses that could arise with respect to an
amendment or modification of the Guaranteed Obligations by operation of law, action of any
court or the amendment of any of the Loan Documents, (c) any defense that Lender have waived
any Guaranteed Obligation by failing to enforce any right or remedy hereunder, or to promptly
enforce any such right or remedy and (d) any other event or circumstance that may constitute a
defense of Borrower or Guarantor to payment of the Guaranteed Obligations.
5. Modification of Loan Documents. At any time or from time to time and any
number of times, without notice to Guarantor and without affecting the liability of Guarantor, (a)
the time for payment of the principal of or interest on the indebtedness may be extended or the
indebtedness may be renewed in whole or in part; (b) the time for Borrower's performance of or
compliance with any covenant or agreement contained in the Note or any other Loan Document,
whether presently existing or hereinafter entered into, may be extended or such performance or
compliance may be waived; (c) the maturity of the indebtedness may be accelerated as provided
in the Note or any other Loan Document; (d) the Note or any other Loan Document may be
modified or amended by Lender and Borrower in any respect, including, but not limited to, an
increase in the principal amount; and (e) any security for the indebtedness may be modified,
exchanged, surrendered or otherwise dealt with or additional security may be pledged for the
indebtedness.
6. RESERVED.
7. Subordination of Borrower's Indebtedness to Guarantor. Any indebtedness
of Borrower held by Guarantor now or in the future is and shall be subordinated to the
indebtedness of Borrower to Lender under the Loan Documents. After the occurrence and during
the continuance of an Event of Default or the occurrence and during the continuance of an Event
of Default, Guarantor shall not receive or collect, directly or indirectly, from Borrower or any
other party any amount of such indebtedness until the Guaranteed Obligations are paid in full. To
the extent that Guarantor receives payment of any of the indebtedness of Borrower in violation
of the preceding sentence, the same shall be collected, enforced and received by Guarantor, as
trustee for Lender, but without reducing or affecting in any manner the liability of Guarantor
under the other provisions of this Guaranty.
8. Waiver of Subrogation. Guarantor agrees to withhold the exercise of any and all
subrogation and reimbursement rights against Borrower, against any other person, and against
any collateral or security for the indebtedness and Guarantor shall have no right of, and hereby
waives any claim for, subrogation or reimbursement against Borrower or any managing member
or general partner of Borrower by reason of any payment by Guarantor under this Guaranty,
whether such right or claim arises at law or in equity or under any contract or statute, until (a) the
indebtedness has been indefeasibly paid and satisfied in full, (b) all obligations owed to Lender
have been fully performed, (c) there has expired the maximum possible period thereafter during
which any payment made by Borrower to Lender with respect to the indebtedness, could be
deemed a preference under the United States Bankruptcy Code and (d) Lender has released,
transferred or disposed of all its right, title and interest in such collateral or security.
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9. Preference. If any payment by Borrower is held to constitute a preference under
any applicable bankruptcy, insolvency, or similar laws, or if for any other reason any of Lender
is required to refund any sums to Borrower, such refund shall not constitute a release of any
liability of Guarantor under this Guaranty. It is the intention of Lender and Guarantor that
Guarantor's obligations under this Guaranty shall not be discharged except by Guarantor's
performance of such obligations and then only to the extent of such performance.
10. Reinstatement. If at any time any payment of any amounts due under the Loan
Documents by Borrower, Guarantor or any other Person is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of Borrower or Guarantor
or otherwise, Guarantor's obligations hereunder with respect to such payment shall be reinstated
as though such payment has been due but not made at such time.
11. Guarantor's Financial Condition.
(a) Guarantor hereby represents and warrants to Lender that as of the date
hereof and throughout the term of the Loan, and after giving effect to this Guaranty and
the contingent obligation evidenced hereby, Guarantor is and will be solvent and has and
will have (i) assets which, fairly valued, exceed its obligations, liabilities and debts, and
(ii) property and assets sufficient to satisfy and repay its obligations and liabilities.
Guarantor hereby covenants and agrees that during the term of the Loan, except for the
payment of employee salaries and benefits and dividends in the ordinary course of
business, it shall not sell, pledge, mortgage or otherwise transfer any of its assets, or any
interest therein, on terms materially less favorable than would be obtained in an arms -
length transaction for fair consideration.
(b) Guarantor hereby represents and warrants to Lender that all financial
statements and other financial data previously delivered to Lender in connection with the
application for the Loan and/or this Guaranty relating to the Guarantor are true, correct
and complete in all material respects. Such financial statements fairly present the
financial positions of all Persons who are the subjects thereof as of the respective dates
thereof. Guarantor further covenants that it shall maintain its net worth and liquidity in an
amount which is never less than the outstanding balance of the Loan, as it appears from
time to time. Except as otherwise previously disclosed to Lender in writing, Guarantor
has no knowledge of any material contractual obligations of Guarantor which might have
a material adverse effect upon the ability of Guarantor to perform Guarantor's obligations
under this Guaranty.
(c) Guarantor shall furnish or cause to be furnished to Lender as soon as
available and in any event within one hundred eighty (180) days after the end of each
fiscal year of Guarantor, copies of the following financial statements of Guarantor for
such fiscal year, prepared by an independent certified public accountant, in accordance
with generally accepted accounting principles: (A) a balance sheet as of the end of such
fiscal year (including supporting schedules), and (B) a statement of income and capital
accounts for such fiscal year.
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(d) Guarantor shall from time to time, upon request by Lender, but not more
than once every six (6) months, deliver to Lender such other unaudited financial
statements as Lender may reasonably require.
12. Term of Guaranty. Subject to the provisions of Section 9 (Preference) and
Section 10 (Reinstatement), upon the satisfaction of the indebtedness and all of Borrower's other
obligations under the Loan Documents, this Guaranty shall automatically terminate, except with
respect to any outstanding payment obligations hereunder which have not been waived by
Lender.
13. Determinations by Lender. Except to the extent expressly set forth in this
Guaranty to the contrary, in any instance where the consent or approval of Lender may be given
or is required, or where any determination, judgment or decision is to be rendered by Lender
under this Guaranty, the granting, withholding or denial of such consent or approval and the
rendering of such determination, judgment or decision shall be made or exercised by Lender, as
applicable (or its designated representative) at its sole and exclusive option and in its sole and
absolute discretion.
14. Governing Law. This Guaranty shall be governed by and enforced in accordance
with the laws of the Property Jurisdiction, without giving effect to the choice of law principles of
the Property Jurisdiction that would require the application of the laws of a jurisdiction other
than the Property Jurisdiction.
15. Consent to Jurisdiction and Venue. Guarantor agrees that any controversy
arising under or in relation to this Guaranty shall be litigated exclusively in the Property
Jurisdiction. The state and federal courts and authorities with jurisdiction in the Property
Jurisdiction shall have exclusive jurisdiction over all controversies which shall arise under or in
relation to this Guaranty. Guarantor irrevocably consents to service, jurisdiction, and venue of
such courts for any such litigation and waives any other venue to which it might be entitled by
virtue of domicile, habitual residence or otherwise. However, nothing herein is intended to
limit Lender's right to bring any suit, action or proceeding relating to matters arising under this
Guaranty against Guarantor in the state of Guarantor's organization, or to enforce a judgment
against Guarantor or any of Guarantor's assets in any court of any other jurisdiction where any
of Guarantor's assets are located.
16. Successors and Assigns. This Guaranty shall be binding upon Guarantor and its
heirs, legal representatives, successors, successors -in -interest and assigns, as appropriate, and
shall inure to the benefit of the Lender and its successors, successors -in -interest and assigns. The
terms used to designate any of the parties herein shall be deemed to include the heirs, legal
representatives, successors, successors -in -interest and assigns, as appropriate, of such parties.
References to a "person" or "persons" shall be deemed to include individuals and entities.
Guarantor acknowledges and agrees that Lender, at its option, may assign its respective rights
and interests under this Guaranty and the other Loan Documents in whole or in part and upon
such assignment all the terms and provisions of this Guaranty or the other Loan Documents shall
inure to the benefit of such assignee to the extent so assigned. Guarantor may not assign or
delegate its rights, interests or obligations under this Guaranty without first obtaining Lender's
prior written consent.
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17. Severability. The invalidity, illegality or unenforceability of any provision of
this Guaranty shall not affect the validity, legality or enforceability of any other provision, and
all other provisions shall remain in full force and effect.
18. Expenses. Guarantor shall pay to the Lender, upon demand, the amount of any
and all expenses, including, without limitation, reasonable attorneys' fees (including reasonable
time charges of attorneys who may be employees of Lender), which the Lender may incur in
connection with (a) the exercise or enforcement of any of their rights hereunder, (b) the failure
by Guarantor to perform or observe any of the provisions hereof, or (c) the breach by Guarantor
of any representation or warranty of Guarantor set forth herein. Guarantor shall also pay to the
Lender, interest on such expenses computed at the Default Rate set forth in the Note from the
date on which such expenses are incurred to the date of payment thereof.
19. Remedies Cumulative. In the event of Guarantor's default under this Guaranty,
the Lender may exercise all or any one or more of their rights and remedies available under this
Guaranty, at law or in equity. Such rights and remedies shall be cumulative and concurrent, and
may be enforced separately, successively or together, and the exercise of any particular right or
remedy shall not in any way prevent the Lender from exercising any other right or remedy
available to the Lender. The Lender may exercise any such remedies from time to time as often
as may be deemed necessary by the Lender.
20. No Agency or Partnership. Nothing contained in this Guaranty shall constitute
Lender as a joint venturer, partner or agent of Guarantor, or render Lender liable for any debts,
obligations, acts, omissions, representations or contracts of Guarantor.
21. Entire Agreement; Amendment and Waiver. This Guaranty contains the
complete and entire understanding of the parties with respect to the matters covered herein.
Guarantor acknowledges that Guarantor has received copies of the Note, the Environmental
Agreement and all other Loan Documents. This Guaranty may not be amended, modified or
changed, nor shall any waiver of any provision hereof be effective, except by a written
instrument signed by the party against whom enforcement of the waiver, amendment, change, or
modification is sought, and then only to the extent set forth in that instrument. No specific waiver
of any of the terms of this Guaranty shall be considered as a general waiver.
22. Further Assurances. Guarantor shall at any time and from time to time,
promptly execute and deliver all further instruments and documents, and take all further action
that may be reasonably necessary or desirable, or that Lender may reasonably request, in order to
protect any right or interest granted by this Guaranty or to enable Lender to exercise and enforce
its rights and remedies under this Guaranty.
23. Notices; Change of Guarantor's Address. All notices given under this
Guaranty shall be in writing and shall be sent to the respective addresses of the parties, in the
manner set forth in the Security Instrument. Notices to Guarantor may be sent to the address of
Borrower set forth in the Security Instrument. Guarantor agrees to notify Lender (in the manner
for giving notices provided in the Security Agreement) of any change in Guarantor's address
within ten (10) Business Days after such change of address occurs.
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24. Counterparts. To the extent Guarantor consists of more than one party, this
Guaranty may be executed in multiple counterparts, each of which shall constitute an original
document and all of which together shall constitute one agreement.
25. Captions. The captions of the sections of this Guaranty are for convenience only
and shall be disregarded in construing this Guaranty.
26. Servicer. Guarantor hereby acknowledges and agrees that, pursuant to the terms
of the Security Instrument: (a) from time to time, Lender may appoint a servicer to collect
payments, escrows and deposits, to give and to receive notices under the Note, this Guaranty or
the other Loan Documents, and to otherwise service the Loan and (b) unless Borrower receives
written notice from Lender to the contrary, any action or right which shall or may be taken or
exercised by Lender may be taken or exercised by such servicer with the same force and effect.
27. Lender as Third Party Beneficiary. Lender shall be a third party beneficiary of
this Guaranty for all purposes.
28. Waiver of Trial by Jury. TO THE MAXIMUM EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF GUARANTOR AND THE LENDER (A)
COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO
ANY ISSUE ARISING OUT OF THIS GUARANTY OR THE RELATIONSHIP BETWEEN
THE PARTIES THAT IS TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT
TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY
SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL
BY JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND
VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.
29. Time of the Essence. Time is of the essence with respect to this Guaranty.
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IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Repayment Guaranty or caused this Repayment Guaranty to be duly executed and delivered by
its authorized representative as of the date first set forth above. The undersigned intends that this
instrument shall be deemed to be signed and delivered as a sealed instrument.
GUARANTOR:
LANDMARK DEVELOPMENT CORP.,
a Florida corporation
By: _
Name:
Title:
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