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Home My WebLink AboutR-2022-181 City Place Apartments, LTD. Amending Number of Units and Loan Terms in R-2022-049 RESOLUTION NO. 2022-181 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA BEACH,FLORIDA,APPROVING REVISIONS TO THE LOAN DOCUMENTS PREVIOUSLY APPROVED IN RESOLUTION NO. 2022-049 TO CORRECT SCRIVENER'S ERRORS, SET AN AMORTIZATION PERIOD, AND OTHER CHANGES, TO ENTER INTO A SUBORDINATION AGREEMENT WITH THE CONSTRUCTION LENDER AND TO AMEND A REFERENCE TO THE NUMBER OF UNITS IN THE PROJECT BEING DEVELOPED BY CITY PLACE APARTMENTS, LTD., AT 75 PARK AVENUE WEST, IN THE CITY OF DANIA BEACH,FLORIDA,AS LEGALLY DESCRIBED IN EXHIBIT"A"; AND AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO EXECUTE THE MORTGAGE DOCUMENTS; PROVIDING FOR CONFLICTS; AND FURTHER, PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, The City Commission of the City of Dania Beach, Florida, adopted Resolution 2022-049 on March 22, 2022 (the"Prior Resolution"),providing, among other things, for the City of Dania Beach to make a loan(the "City Loan")to City Place Apartments, Ltd., (the "Applicant") in the amount of One Million Dollars ($1,000,000) to be secured by a mortgage in accordance with the terms of the Prior Resolution, in connection with the affordable housing project to be located at 75 Park Avenue West, in the City of Dania Beach(the"Project"); and WHEREAS,revisions to the draft Note,Mortgage and Guaranty(the"Loan Documents") for the City Loan have been made by counsel to the Applicant and reviewed by the City Attorney, including correction of a scrivener's error relating to the number of quarterly payments due over the term of the loan, provision of a specific amortization term of thirty (30) years, with a balloon payment on the maturity date, changing references to the number of units in the Project and other changes set forth in the redlines showing the changes from the Loan Documents attached to the Prior Resolution, which are attached as composite Exhibit "B" to this Resolution (the "Revised Loan Documents"); and WHEREAS, the City Commission finds that the approval of the proposed changes set forth in the Revised Loan Documents will be beneficial for improved accuracy and clarity and to disclose the terms thereof more fully; and WHEREAS, the construction lender for the Project, Truist Bank ("Senior Lender"), may require execution by the City of Dania Beach of a Subordination Agreement in favor of Senior Lender specifically acknowledging the intended subordinate lien position of the City Loan with respect to the Truist Bank loan in the amount of$26,000,000, as such subordination is provided for in Section 34 of the Mortgage in favor of the City approved in the Prior Resolution; and WHEREAS,pursuant to the Amended Site Plan approved in Resolution 2022-189 of even date with this Resolution (the "Site Plan Modification Resolution"), among other things, the number of residential units to be included in the Project has been reduced from 110 to 99; and WHEREAS, the correction of the number of proposed units in the Project from 110 to 99 accurately reflects the effect of the Site Plan Modification Resolution and thus updates the Prior Resolution; NOW, THEREFORE,BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH,FLORIDA: Section 1. That the foregoing WHEREAS clauses are ratified and confirmed as being true and correct and they are made a part of and incorporated into this Resolution by reference. Section 2. That the Revised Loan Documents attached as composite Exhibit "B" are approved, together with such other non-material changes to the Loan Documents as may be reasonably approved by the City Attorney and the City Manager as necessary and proper and in the best interest of the City. Section 3. That the references in the Prior Resolution to the number of residential units in the Project are changed from 110 units to 99 units. Section 4. That the Mayor and City Manager are hereby authorized to execute on behalf of the City of Dania Beach a Subordination Agreement in favor of Senior Lender, in a commercially reasonable form approved by the City Attorney and the City Manager as necessary and proper and in the best interest of the City, specifically acknowledging the intended subordinate lien position of the City Loan with respect to the Senior Lender's loan. 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 be in force and take effect immediately upon its passage and adoption. 2 RESOLUTION#2022-181 accuracy and clarity and to disclose the terms thereof more fully; and WHEREAS, the construction lender for the Project, Truist Bank ("Senior Lender"), may require execution by the City of Dania Beach of a Subordination Agreement in favor of Senior Lender specifically acknowledging the intended subordinate lien position of the City Loan with PASSED AND ADOPTED on December 13, 2022. ATTEST: HOMAS SCHNEIDER, CMC • ARCHIB • • J. tYAN IV CITY CLERK \ te► / MAYOR `•9 ,ado '`7"51 SHED / APPROVED AS TO FORM AND CORRECTNESS: WAth/diked E E A. BOU SIS C,TY •,TTORNEY 3 RESOLUTION#2022-181 EXHIBIT "A" LEGAL DESCRIPTION Lots 10, 11, 12, 13, 14, 15 and 16, Block 21, TOWN OF DANIA (FORMERLY MODELO), according to the Plat thereof recorded in Plat Book B, Page 49, of the Public Records of Miami- Dade County, Florida, said lands situate in Broward County, Florida. 4 RESOLUTION#2022-181 RESOLUTION#2022-181 EXHIBIT "B" REVISED LOAN DOCUMENTS 5 RESOLUTION#2022-181 , TOWN OF DANIA (FORMERLY MODELO), according to the Plat thereof recorded in Plat Book B, Page 49, of the Public Records of Miami- Dade County, Florida, said lands situate in Broward County, Florida. 4 RESOLUTION#2022-181 RESOLUTION#2022-181 H&K Eq. Comments 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, Florida 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, Florida 33004 (hereinafter called"Mortgagee"). WITNESSETH THAT: A. Mortgagor will develop, construct, and operate 99 housing units in Dania Beach, Florida, all of which shall be set aside for households earning up to 60%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(i)the fee simple estate in and to the real property situated in Broward County, Florida (the "Land") more particularly described as Parcel 1 and (ii)the exclusive easement estate in and to the real property situated in Broward County,Florida(the"Easement")more particularly described as Parcel 2,both on Exhibit"A"attached hereto and made a part hereof together with the Page 1 of 13 #8687447 v10 33867-0140 H&K Eq. Comments following present and future property and rights owned by Mortgagor(collectively, along with the Land and the Easement,the"Mortgaged Property"): 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 Page 2 of 13 #8687447 vl0 33867-0140 H&K Eq. Comments 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. 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 Parcel 1 of the Mortgaged Property and an easement estate in Parcel 2 of the Mortgaged Property; that the Mortgagor has full power and lawful right to grant, mortgage and convey its fee simple and easement estates in the Mortgaged Property as aforesaid; that the Mortgagor will make such further assurances to perfect its fee simple and easement estates in the Mortgaged Property in the Mortgagee as may reasonably be required; and that the Mortgagor does hereby fully warrant its fee simple and easement 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 Page 3 of 13 #8687447 v10 33867-0140 H&K Eq. Comments 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 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. Subject to the terms and conditions of any senior mortgages, 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, subject to the terms and conditions of any senior mortgages, 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 Page 4 of 13 #8687447 v10 33867-0140 H&K Eq. Comments 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 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 Page 5 of 13 #8687447 v10 33867-0140 age Page 4 of 13 #8687447 v10 33867-0140 H&K Eq. Comments 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 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 Page 6 of 13 #8687447 v10 33867-0140 10 33867-0140 age Page 4 of 13 #8687447 v10 33867-0140 H&K Eq. Comments 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 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 Page 7 of 13 #8687447 v10 33867-0140 Page 4 of 13 #8687447 v10 33867-0140 H&K Eq. Comments 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. Subject to the rights of any senior mortgagee, 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 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 Page 8 of 13 #8687447 v10 33867-0140 33867-0140 H&K Eq. Comments 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 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. Page 9 of 13 #8687447 v10 33867-0140 ate, 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 Page 8 of 13 #8687447 v10 33867-0140 33867-0140 H&K Eq. Comments 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 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 party under 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. Page 10 of 13 #8687447 v10 33867-0140 H&K Eq. Comments 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 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. Page 11of13 #8687447 v10 33867-0140 payment of the Note and termination of this Mortgage. Page 10 of 13 #8687447 v10 33867-0140 H&K Eq. Comments 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. 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 agrees 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). Notwithstanding anything to the contrary contained herein,Mortgagee agrees that the lien created by this Mortgage shall be subordinate to any extended low-income housing commitment (as such term is defined in Section 42(h)(6)(B)of the Internal Revenue Code of 1986,as amended) (the "Extended Use Agreement") recorded against the Property,provided that such Extended Use Agreement, by its terms, must terminate upon foreclosure under this Mortgage or upon a transfer of the Property by instrument in lieu of foreclosure, in accordance with Section 42(h)(6)(E) of the Internal Revenue Code of 1986, as amended. 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 Page 12 of 13 #8687447 v10 33867-0140 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. Page 11of13 #8687447 v10 33867-0140 payment of the Note and termination of this Mortgage. Page 10 of 13 #8687447 v10 33867-0140 H&K Eq. Comments 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: Ana M. Garcia, ICMA-CM, City Manager With a copy to: City of Dania Beach 100 West Dania Beach Boulevard Dania Beach, FL 33004 Attn: Eve A. Boutsis, City Attorney City of Dania Beach 100 West Dania Beach Boulevard Dania Beach,FL 33004 Attn: Frank DiPaolo, Chief Financial Officer 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 Page 13 of 13 #8687447 v10 33867-0140 GATION 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 agrees 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). Notwithstanding anything to the contrary contained herein,Mortgagee agrees that the lien created by this Mortgage shall be subordinate to any extended low-income housing commitment (as such term is defined in Section 42(h)(6)(B)of the Internal Revenue Code of 1986,as amended) (the "Extended Use Agreement") recorded against the Property,provided that such Extended Use Agreement, by its terms, must terminate upon foreclosure under this Mortgage or upon a transfer of the Property by instrument in lieu of foreclosure, in accordance with Section 42(h)(6)(E) of the Internal Revenue Code of 1986, as amended. 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 Page 12 of 13 #8687447 v10 33867-0140 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. Page 11of13 #8687447 v10 33867-0140 payment of the Note and termination of this Mortgage. Page 10 of 13 #8687447 v10 33867-0140 H&K Eq. Comments and TCC City Place Apartments LLC c/o Truist Community Capital, LLC 303 Peachtree Street,Northeast, Suite 2200 Atlanta, Georgia 30308 Attention: City Place Apartments With copy to: Holland & Knight LLP 10 St. James Avenue Boston, Massachusetts 02116 Attention: Jarrod Connors SIGNATURE APPEARS ON FOLLOWING PAGE Page 14 of 13 #8687447 v10 33867-0140 H&K Eq. Comments IN WITNESS WHEREOF,the Mortgagor has hereunto set its hand and seal the day and year first above written. WITNESSES: MORTGAGOR: CITY PLACE APARTMENTS,LTD., a Print Name: Florida limited partnership By: City Place Apartments GP, LLC, Print Name: general partner By: Francisco Rojo, Vice President ACKNOWLEDGMENT STATE OF FLORIDA ) COUNTY OF MIAMI-DADE) 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: Signature of Notary Public, State of Florida Printed Name of Notary Public #8687447 v10 33867-0140 447 v10 33867-0140 GATION 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 agrees 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). Notwithstanding anything to the contrary contained herein,Mortgagee agrees that the lien created by this Mortgage shall be subordinate to any extended low-income housing commitment (as such term is defined in Section 42(h)(6)(B)of the Internal Revenue Code of 1986,as amended) (the "Extended Use Agreement") recorded against the Property,provided that such Extended Use Agreement, by its terms, must terminate upon foreclosure under this Mortgage or upon a transfer of the Property by instrument in lieu of foreclosure, in accordance with Section 42(h)(6)(E) of the Internal Revenue Code of 1986, as amended. 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 Page 12 of 13 #8687447 v10 33867-0140 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. Page 11of13 #8687447 v10 33867-0140 payment of the Note and termination of this Mortgage. Page 10 of 13 #8687447 v10 33867-0140 H&K Eq. Comments EXHIBIT"A" LEGAL DESCRIPTION Parcel 1 -Fee Simple Lots 10, 11, 12, 13, 14, 15 and 16,Block 21, TOWN OF DANIA(FORMERLY MODELO), according to the Plat thereof recorded in Plat Book B, Page 49, of the Public Records of Miami- Dade County, Florida, said lands situate in Broward County,Florida. Parcel 2 -Exclusive Easement Together with a exclusive lift station easement for the benefit of Parcel 1 created by that Lift Station Easement and Operating Agreement by and between The City of Dania Beach, a Florida municipal corporation, and City Place Apartments, Ltd., a Florida limited partnership, dated , recorded in Instrument# #8687447 v10 33867-0140 H&K Eq. Comments PROMISSORY NOTE Miami,Florida $1,000,000.00 , 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 Maker 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 Maker upon the achievement of 75% of construction completion, as confirmed by a construction requisition certified by the Maker's Architect overseeing the construction of the Project; and c. 34% of the Loan amount (i.e., $340,000) shall be disbursed to Maker upon the achievement of 95% of construction completion, as confirmed by a construction requisition certified by the Maker'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, based on quarterly payments,published by the Internal Revenue Service in effect as of the date hereof,which is equal to percent ( %)per annum. Commencing on the thirtieth (30th) 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 (30th) day following every Calendar Quarter Day thereafter until #8687446 v12 33867-0140 ring, furnishing, fixturing or equipping the Mortgaged Property). Notwithstanding anything to the contrary contained herein,Mortgagee agrees that the lien created by this Mortgage shall be subordinate to any extended low-income housing commitment (as such term is defined in Section 42(h)(6)(B)of the Internal Revenue Code of 1986,as amended) (the "Extended Use Agreement") recorded against the Property,provided that such Extended Use Agreement, by its terms, must terminate upon foreclosure under this Mortgage or upon a transfer of the Property by instrument in lieu of foreclosure, in accordance with Section 42(h)(6)(E) of the Internal Revenue Code of 1986, as amended. 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 Page 12 of 13 #8687447 v10 33867-0140 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. Page 11of13 #8687447 v10 33867-0140 payment of the Note and termination of this Mortgage. Page 10 of 13 #8687447 v10 33867-0140 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 (10th) 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 (1st) 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 sixty (60) quarterly installments, pursuant to a series of amortization schedules (the "Amortization Schedules")to be calculated as follows: a. For the first twenty (20) 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, based on quarterly payments, 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 twenty-first (21 st) through fortieth (40th) quarterly payments (applicable to months 61-120 of the Permanent Loan Period),the interest rate will be fixed equal to the Mid-Term AFR, based on quarterly payments, in effect as of the first day of the sixty-first month of the Permanent Loan Period; and c. For the forty-first (41st) through sixtieth (60th) quarterly payments (applicable to months 121-180 of the Permanent Loan Period),the interest rate will be fixed equal to the Mid-Term AFR, based on quarterly payments, 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 twenty (20) payments. Each Amortization Schedule shall be based on the unexpired portion of a thirty (30)year amortization term of the principal amount of the Note. 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 114-134 SW 1st Street and 59-65 SW 3rd Avenue, a/k/a 75 Park Avenue West, Dania Beach, Florida(the"Property"). Page 2 of 7 #8687446 v12 33867-0140 dinate to any extended low-income housing commitment (as such term is defined in Section 42(h)(6)(B)of the Internal Revenue Code of 1986,as amended) (the "Extended Use Agreement") recorded against the Property,provided that such Extended Use Agreement, by its terms, must terminate upon foreclosure under this Mortgage or upon a transfer of the Property by instrument in lieu of foreclosure, in accordance with Section 42(h)(6)(E) of the Internal Revenue Code of 1986, as amended. 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 Page 12 of 13 #8687447 v10 33867-0140 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. Page 11of13 #8687447 v10 33867-0140 payment of the Note and termination of this Mortgage. Page 10 of 13 #8687447 v10 33867-0140 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 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 Page 3 of 7 #8687446 v12 33867-0140 hall 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. Page 11of13 #8687447 v10 33867-0140 payment of the Note and termination of this Mortgage. Page 10 of 13 #8687447 v10 33867-0140 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." 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 17th 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 Page 4 of 7 #8687446 v12 33867-0140 uthern 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. Page 11of13 #8687447 v10 33867-0140 payment of the Note and termination of this Mortgage. Page 10 of 13 #8687447 v10 33867-0140 mechanism, will take place in this venue. The parties both waive any defense that venue in Broward County is inconvenient. 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. 12. Non-Recourse Note. Notwithstanding anything to the contrary contained in this Note or in the Mortgage, the Lender expressly agrees that the liability of the Maker and Maker's partners under this Note and the Mortgage shall be strictly and absolutely limited to the property encumbered under the Mortgage, and the leases, rents, profits and issues thereof and any other collateral securing the repayment of this Note. Lender shall not seek any deficiency judgment against Maker or Maker's partners, it being understood and agreed that i) neither Maker nor its partners shall have any personal liability for the payment of the indebtedness and obligations evidenced by this Note and secured by the Mortgage and ii)such indebtedness shall be considered non-recourse to Maker and its partners. Notwithstanding the non-recourse provisions above,Lender does not waive any of its rights to seek recovery under that certain Guaranty dated , 202_, given to Lender by Landmark Development Corp. a Florida corporation, in the event Maker defaults hereunder. SIGNATURE APPEARS ON FOLLOWING PAGE Page 5 of 7 #8687446 v12 33867-0140 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 17th 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 Page 4 of 7 #8687446 v12 33867-0140 uthern 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. Page 11of13 #8687447 v10 33867-0140 payment of the Note and termination of this Mortgage. Page 10 of 13 #8687447 v10 33867-0140 H&K Eq. Comments 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 By: Francisco Rojo, Vice President #8687446 v12 33867-0140 t station easement for the benefit of Parcel 1 created by that Lift Station Easement and Operating Agreement by and between The City of Dania Beach, a Florida municipal corporation, and City Place Apartments, Ltd., a Florida limited partnership, dated , recorded in Instrument# #8687447 v10 33867-0140 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 99-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, #8821389 v5 33867-0140 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 17th 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 Page 4 of 7 #8687446 v12 33867-0140 uthern 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. Page 11of13 #8687447 v10 33867-0140 payment of the Note and termination of this Mortgage. Page 10 of 13 #8687447 v10 33867-0140 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 2 #8821389 v5 33867-0140 age 11of13 #8687447 v10 33867-0140 payment of the Note and termination of this Mortgage. Page 10 of 13 #8687447 v10 33867-0140 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. 3 #8821389 v5 33867-0140 nder 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 2 #8821389 v5 33867-0140 age 11of13 #8687447 v10 33867-0140 payment of the Note and termination of this Mortgage. Page 10 of 13 #8687447 v10 33867-0140 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. 4 #8821389 v5 33867-0140 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. 3 #8821389 v5 33867-0140 nder 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 2 #8821389 v5 33867-0140 age 11of13 #8687447 v10 33867-0140 payment of the Note and termination of this Mortgage. Page 10 of 13 #8687447 v10 33867-0140 (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 State of Florida, without giving effect to the choice of law principles of the State of Florida that would require the application of the laws of a jurisdiction other than the State of Florida. 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 State of Florida. The state and federal courts and authorities with jurisdiction in the State of Florida 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. 5 48821389 v5 33867-0140 as released, transferred or disposed of all its right,title and interest in such collateral or security. 3 #8821389 v5 33867-0140 nder 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 2 #8821389 v5 33867-0140 age 11of13 #8687447 v10 33867-0140 payment of the Note and termination of this Mortgage. Page 10 of 13 #8687447 v10 33867-0140 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 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. 6 #8821389 v5 33867-0140 ent. 5 48821389 v5 33867-0140 as released, transferred or disposed of all its right,title and interest in such collateral or security. 3 #8821389 v5 33867-0140 nder 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 2 #8821389 v5 33867-0140 age 11of13 #8687447 v10 33867-0140 payment of the Note and termination of this Mortgage. Page 10 of 13 #8687447 v10 33867-0140 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. • #8821389 v5 33867-0140 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 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. 6 #8821389 v5 33867-0140 ent. 5 48821389 v5 33867-0140 as released, transferred or disposed of all its right,title and interest in such collateral or security. 3 #8821389 v5 33867-0140 nder 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 2 #8821389 v5 33867-0140 age 11of13 #8687447 v10 33867-0140 payment of the Note and termination of this Mortgage. Page 10 of 13 #8687447 v10 33867-0140 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: #8821389 v5 33867-0140 rating Agreement by and between The City of Dania Beach, a Florida municipal corporation, and City Place Apartments, Ltd., a Florida limited partnership, dated , recorded in Instrument# #8687447 v10 33867-0140