R19-132 1 RESOLUTION NO. R19-132
2
3 A RESOLUTION OF THE CITY OF BOYNTON BEACH,
4 FLORIDA, APPROVING AND AUTHORIZING THE
5 MAYOR TO SIGN A PROMISSORY NOTE AND LOAN
6 AGREEMENT, FIRST AMENDMENT TO PURCHASE
7 AND DEVELOPMENT AGREEMENT,
8 SUBORDINATION AGREEMENT, AND ANY OTHER
9 AGREEMENTS OR RELATED DOCUMENTS
l o ASSOCIATED WITH THE LOAN TO OCEAN BREEZE
11 EAST APARTMENTS LLC SECURING THE LOCAL
12 GOVERNMENT CONTRIBUTION OF $567,500.00; AND
13 PROVIDING AN EFFECTIVE DATE.
14
15
16 WHEREAS, on February 6, 2018 the City entered into an Interlocal Agreement with
17 the Community Redevelopment Agency via Resolution #18-026 for funding of the Local
18 Government Contribution Match of$567,500.00 in connection with the Ocean Breeze East
19 Apartments LLC project in connection with their application for 9%Low Income Housing Tax
20 Credit Program; and
21 WHEREAS, the application requires the Local Government(City of Boynton Beach)
22 to verify the contribution amount of$567,500.00 as part of Ocean Breeze East Apartments
23 LLC (Centennial Management Corporation) application submission to the Florida Housing
24 Finance Corporation; and
25 WHEREAS,the Interlocal Agreement provides for the financial support to be paid by
26 the Boynton Beach Community Redevelopment Agency; and
27 WHEREAS,this will allow the Community Redevelopment Agency to complete their
28 project affordable housing project with Ocean Breeze East Apartments LLC.
29 WHEREAS,the City Commission,upon recommendation of staff,deems it in the best
30 interest of the Citizens and residents of the City of Boynton Beach to approve and authorize
31 the Mayor to sign a Promissory Note and Loan Agreement, First Amendment to Purchase and
32 Development Agreement, Subordination Agreement, and any other agreements or related
(00339515.1 306-9001821)
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documents associated with the loan to Ocean Breeze East Apartments LLC securing the local
2 government contribution of$567,500.00.
3 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
4 THE CITY OF BOYNTON BEACH, FLORIDA,THAT:
5 Section 1. The foregoing"WHEREAS" clauses are true and correct and hereby
6 ratified and confirmed by the City Commission.
7 Section 2. The City Commission of the City of Boynton Beach hereby approves
8 and authorizes the Mayor to sign a Promissory Note and Loan Agreement, First Amendment
9 to Purchase and Development Agreement, Subordination Agreement, and any other
10 agreements or related documents associated with the loan to Ocean Breeze East Apartments
11 LLC securing the local government contribution of$567,500.00.
12 Section 3. That this Resolution will become effective immediately upon passage.
13 PASSED AND ADOPTED this day of 10 ve ry oA.-, 2019.
14 CITY OF BOYNTON BEACH, FLORIDA
15 YES NO
16
17 Mayor— Steven B. Grant t/
18
19 Vice Mayor—Justin Katz ✓
20
21 Commissioner—Mack McCray ✓
22
23 Commissioner—Christina L. Romelus
24
25 Commissioner—Ty Penserga
26
27 VOTE S-o
28 ATTEST:
29 ry �
30
31 C stal Gibson, MMC ,v 1,• ' "
32 City Clerks
4
33 Ott�� 192
34 > x b;
35 (Corporate Seal) zf
{00339515.1 306-9001821} ; .. i 1
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FIRST AMENDMENT
TO
PURCHASE AND DEVELOPMENT AGREEMENT
THIS FIRST AMENDMENT TO PUR HASE AND DEVELOPMENT
AGREEMENT (the "First Amendment") made as of Vci do - , 2019 by and between
BOYNTON BEACH COMMUNITY REDEVELOPMENT AGENCY, a public agency created
pursuant to Chapter 163, Part III, of the Florida Statutes (the "Seller"), and OCEAN BREEZE
EAST APARTMENTS LLC, a Florida limited liability company(the"Purchaser").
WHEREAS, the parties entered into that certain Purchase and Development Agreement
dated effective as of December 15, 2017 ("PDA");
WHEREAS, the PDA contained an error in the legal description of the real property;
WHEREAS, pursuant to the PDA, the Purchaser and Seller closed on the purchase and
sale of the Property and recorded that certain Warranty Deed on March 2, 2018;
WHEREAS, the Purchaser closed on equity financing for the Project in the approximate
amount of $20,594,440 and construction debt financing for the Project in the approximate
amount of$13,700,000 (altogether the equity and construction debt financing is hereby referred
to as the "Financing") and building permits for the Project have been approved;
WHEREAS, Purchaser has agreed to repay the City the full amount of the City's
$567,500 Local Government Contribution in accordance with the loan documents attached
hereto as Exhibit A (the "Loan Documents") and, Lewis V. Swezy, a principal of Purchaser has
agreed to provide to the Seller the Completion Guaranty attached hereto as Exhibit B (the
"Guaranty");
WHEREAS, the Purchaser and the Seller desire to amend the PDA in accordance with
the terms hereof; and
NOW, THEREFORE, in consideration of the recitals, covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged,the parties agree as follows:
1. Capitalized terms herein shall have the meaning assigned to them in the PDA, unless
otherwise specifically provided herein.
2. The definition of"Property" in the PDA is amended, as of the date of the Warranty Deed,
to identify the property more particularly described on Exhibit D.
3. Purchaser represents and warrants that the Financing has closed or will close concurrently
with the consummation hereof.
4. Upon execution and delivery of the Loan Documents by the Purchaser and the Guaranty
by Lewis V. Swezy (a) Seller's sole and exclusive remedy for any default relating to the
PDA shall be an action to enforce the Completion Guaranty, which shall be subject to
senior lender's subordination agreement, except that Seller shall retain the right to bring
First Amendment to Purchase and Development Agreement—Ocean Breeze East
an action to enforce Section 19.2(h) of the PDA, (b) the Reverter Agreement shall be
terminated in accordance with that certain Reverter Termination Agreement attached
hereto as Exhibit C, and (c) Sections 22, 23 and 24 shall be terminated in connection
herewith.
5. Section 19.2(h) of the PDA shall be amended and restated as follows: The Project will
include construction of a three (3) story, 100-123 unit affordable multi-family rental
housing development, with flex space for a new Neighborhood Officer Program office
and community space, which shall be provided to the CRA for said use rent free and be
constructed in accordance with the site plan.
6. The provisions set forth in Section 25 of the PDA shall survive and are incorporated
herein by reference.
7. By its joinder hereto, the City approves of the Loan Documents and will execute the Note
and Loan Agreement and a subordination agreement in form and substance reasonably
acceptable to the first mortgage lender and any refinancing thereof.
[Remainder of this page intentionally left blank]
First Amendment to Purchase and Development Agreement—Ocean Breeze East
IN WITNESS WHEREOF, the parties have caused this First Amendment to be duly
executed as of the date first written above.
SELLER:
BOYNTON BEACH COM UNITY
REDEV _ T 0.,...! _
By: 4.._ 40
Name: !`7l 'r! 'S. CrOvkT("'
Title: C '8 Gfrao Gti R—
PURCHASER:
OCEAN BREEZE EAST APARTMENTS LLC,
a Florida limited liability company
By: Ocean Breeze Manager LLC, a Florida
limited liability company,its manager
By:
Lewis V. Swezy, Manager
LEWIS V. SWEZY
THE CITY OF BOYNTON BEACH, a political
subdi ' 1,. to I le rida
By: 0 '�
Name: 67516N) . G1- rc -
Title: Mpri012_ 0r BoyNroyQ S -k
First Amendment to Purchase and Development Agreement—Ocean Breeze East
IN WITNESS WHEREOF, the parties have caused this First Amendment to be duly
executed as of the date first written above.
SELLER:
BOYNTON BEACH COMMUNITY
REDEVELOPMENT AGENCY
By:
Name:
Title:
PURCHASER:
OCEAN BREEZE EAST APARTMENTS LLC,
a Florida limited liability company
By: Ocean Breeze Mana: - a Florida
limited !lab' ' P:j•:n nager
•0 RIC anager .
d'W -VAVVEZY AP '
THE CITY OF BOYNTON BEACH,a political
subdivision of the State of Florida
By:
Name:
Title:
First Amendment to Purchase and Development Agreement—Ocean Breeze East
EXHIBIT A
First Amendment to Purchase and Development Agreement—Ocean Breeze East
•
Prepared by and return to:
Randal M.Alligood,Esq.
Nelson Mullins Broad and Cassel
390 N.Orange Avenue, Suite 1400
Orlando,FL 32801
THIS MORTGAGE IS GIVEN TO SECURE THE FINANCING OF HOUSING UNDER
PART V OF CHAPTER 420, FLORIDA STATUTES, AND IS EXEMPT FROM TAXATION
PURSUANT TO SECTION 420.513, FLORIDA STATUTES. ACCORDINGLY, NO
DOCUMENTARY STAMP TAX OR INTANGIBLE TAX IS DUE IN CONNECTION WITH
THIS MORTGAGE.
Folio#s:
MORTGAGE
THIS MORTGAGE,hereinafter referred to as the"Mortgage"is made on or as of the 7th
day of November , 2019, by and between OCEAN BRUIT EAST APARTMENTS LLC, a Florida
limited liability company, hereinafter referred to as "Borrower," whose principal address is 7735 NW 146
Street, Suite 306,Miami Lakes,FL 33016, and THE CITY OF BOYNTON BEACH, a political subdivision
of the State of Florida,whose principal address is 3301 Quantum Blvd,Suite 101,Boynton Beach,FL 33426
hereinafter referred to as "Lender".
WITNESSETH:
THAT to secure the payment of an indebtedness in the principal amount of Five Hundred Sixty-
Seven Thousand Five Hundred and NO/100 Dollars($567,500.00), hereinafter referred to as the "Loan",
which shall be payable in accordance with that certain Promissory Note and Loan Agreement,bearing even
date herewith, inclusive of the signature of the Borrower,which is affixed hereto and made a part hereof,
hereinafter referred to as the "Note", and all other indebtedness which Borrower is obligated to pay to
Lender pursuant to the provisions of the Note and this Mortgage, Borrower hereby grants, conveys and
mortgages to Lender all of its right,title and interest in:
ALL THAT certain lot,piece or parcel of land situated in Palm Beach County and State of
Florida,bounded and described in Exhibit"A"
TOGETHER with all of Borrower's right, title and interest in the improvements now or hereafter
erected on the property, and all easements,rights,appurtenances, rents, royalties,mineral, oil and gas rights
and profits,water,water rights,and water stock,and all fixtures now or hereafter attached to the property,all
of which,including replacements and additions hereto,shall be deemed to be and remain a part of the property
covered by this Mortgage and all of the foregoing, together with said property are herein referred to as the
"Property";and
TOGETHER with any and all of Borrower's right,title and interest in awards now or hereafter made
for the taking of the property mortgaged hereby,or any part thereof(including any easement)by the exercise
of the power of eminent domain, including any award for change of grade of any street or other roadway,
which awards are hereby assigned to Lender and are deemed a part of the property mortgaged hereby; and
Lender is hereby authorized to collect and receive the same toward the payment of indebtedness secured by
this Mortgage,notwithstanding the fact that the amount thereon may not then be due and payable;and
4839-3055-9657 v.8
TOGETHER with all rights, title and interest of Borrower in and to the land lying in the streets,
roads, or alleys adjoining to the above-described land. All the above described land, buildings, other
structures, fixtures, articles of personal property, awards and other rights and interests being hereinafter
collectively referred to as the "Mortgaged Property."
TO HAVE AND TO HOLD the Mortgaged Property and every part thereof unto Lender, its
successors and assigns forever for the purposes and uses herein set forth.
AND Borrower further covenants and agrees with Lender,as follows:
1. PAYMENT OF PRINCIPAL AND INTEREST.
Borrower shall promptly pay the principal of the indebtedness evidenced by the Note,and all
other charges and indebtedness provided therein and in this Mortgage,at the times and in the manner provided
in the Note.
Payment of principal shall be due in full on twentieth annual anniversary of the date hereof
(hereinafter referred to as the"Loan Term")or prior to the expiration of the Loan Term if the Property is sold
without the Lender's prior written consent. The Loan may be forgiven any time after the end of the
Compliance Period (as defined in the Borrower's Amended and Restated Operating Agreement) in the sole
and absolute discretion of the Lender.
2. FUNDS FOR TAXES,ASSESSMENTS AND LIENS.
Borrower shall pay before the same become delinquent, as hereinafter provided, all taxes,
assessments, and other governmental charges, fines and impositions, of every kind and nature whatsoever,
now or hereafter imposed on the Mortgaged Property,or any part thereof,and will pay when due every amount
of indebtedness secured by any lien to which the lien of this Mortgage is expressly subject.
3. COMPLETION OF IMPROVEMENTS.
This Mortgage and the attached Note were executed and delivered to secure moneys
advanced in full to Borrower by Lender as or on account of a loan evidenced by the Note for the purpose of
constructing on the Mortgaged Property one hundred twenty-three (123) rental apartments, hereinafter
collectively referred to as the "Improvements." Borrower shall make or cause to be made all of the
Improvements.
4. BUILDING REMOVAL, ADDITIONS AND COMPLIANCE WITH
REQUIREMENTS.
No building,structure,improvement,fixture or personal property mortgaged hereby shall be
removed or demolished without the prior written consent of Lender except for obsolete or worn property
replaced by adequate substitutes equal or greater in value than the replaced items when new and inventory
and goods in the ordinary course of business. Borrower will not make,permit,or suffer any alteration of or
addition to any building, structure or improvement which may hereafter be erected or installed upon the
Mortgaged Property,or any part thereof,except the Improvements required to be made pursuant to Paragraph
3 hereof,nor will Borrower use,or permit or suffer the use of,any of the Mortgaged Property for any purpose
other than the purpose or purposes for which the same is now intended to be used, without the prior written
consent of Lender.Borrower will maintain the Mortgaged Property in good condition and state of repair and
will not suffer or permit any waste to any part thereof,and will promptly comply with all the requirements of
Federal, State and local governments or of any departments,divisions or bureaus thereof,pertaining to such
property or any part thereof.
5. CHARGES AND LIENS.
4839-3055-9657 v.8
Borrower will not voluntarily create,or permit or suffer to be created or to exist,on or against
the Mortgaged Property or any part thereof, any lien superior to the lien of this Mortgage, exclusive of the
lien or liens to which this Mortgage is expressly subject, and will keep and maintain the same free from the
claims of all parties supplying labor and/or materials which will enter into the construction or installation of
the Improvements.The Lender hereby acknowledges and agrees that the Mortgage will be subordinate
to the first construction loan and first permanent mortgage loan and any refinancing thereof,
including increases in the first mortgage loan amounts(collectively,the"Prior Mortgage"). All of the
provisions herein shall be subject to the terms of the Prior Mortgage.
6. NOTICE OF FIRE OR CASUALTY.
Borrower will give immediate notice by registered or certified mail to Lender of any fire,
damage or other casualty affecting the Mortgaged Property, or of any conveyance, transfer or change in
ownership of such property, or any part thereof excepting a transfer otherwise permitted in the Borrower's
Amended and Restated Operating Agreement.
7. COVERAGE OF INSURANCE POLICIES.
a. Borrower will keep all buildings,other structures and improvements insured against
loss by fire, flood (when applicable) and other hazards, casualties and contingencies in such amounts and
manner and for such periods as may be reasonably required by Lender.Lender's insurance requirements may
change from time to time throughout the term of the indebtedness.All such insurance policies must include
standard fire and extended coverage in amounts not less than necessary to comply with the coinsurance clause.
Flood insurance IS NOT required for the subject property during the term of the mortgage loan unless
required by the Prior Mortgage. When required, flood insurance shall be in an amount at least equal to the
outstanding principal balance of all mortgage(s), or the maximum amount of insurance available with
respect to the project under the National Flood Insurance Act,whichever is lesser. All such insurance shall
be carried by companies reasonably approved by Lender,and all policies shall be in such form and shall have
attached thereto loss payable clauses in favor of Lender and any other parties as shall be reasonably
satisfactory to Lender. All such policies and attachments thereto shall be delivered promptly to Lender,unless
they are required to be delivered to the holder of a lien or a mortgage or similar instrument to which this
Mortgage is expressly subject, in which latter event certificates thereof, satisfactory to Lender, shall be
delivered promptly to Lender. Borrower will pay promptly when due, as hereinafter provided, any and all
premiums on such insurance.The Lender shall be listed as an additional insured on all such insurance policies.
b. In the event of loss or damage to the Mortgaged Property, Borrower will give to
Lender immediate notice thereof by mail, at the address herein above stated and Lender may make and file
proof of loss if not made otherwise promptly by or on behalf of Borrower. Unless Borrower and Lender
otherwise agree in writing, insurance proceeds shall be applied to restoration or repair, provided such
restoration or repair is economically feasible and the security of this Mortgage is not thereby impaired.If such
restoration or repair is not economically feasible or if the security of this Mortgage would be impaired,the
insurance proceeds shall be applied to the sums secured by this Mortgage with the excess, if any, paid to
Borrower. If the Property is abandoned by Borrower, for more than thirty (30) days unless due to events
described in Paragraph 3,or if Borrower fails to respond to Lender within thirty(30)days from the date notice
is mailed by Lender to Borrower that the insurance carrier offers to settle a claim for insurance benefits,Lender
is authorized to collect and apply the insurance proceeds at Lender's option either to restoration or repair of
the Property or to the sums secured by this Mortgage.Usage of condemnation proceeds shall be subject to the
same provisions of this Section 7(b).
c. At least thirty (30) days prior to the expiration of each policy, the Borrower will
furnish the Lender with evidence satisfactory to the Lender of the payment of premium and the reissuance
of a policy continuing insurance in force as required by this Mortgage. All policies, including policies for
any amounts carried in excess of the required minimum and policies not specifically required by the Lender,
4839-3055-9657 v.8
will be in a form satisfactory to the Lender,and will be maintained in full force and effect.All policies will
contain a provision that the policies will not be cancelled or materially amended (including any reduction
in the scope or limits of coverage),without at least ten(10)days prior written notice to the Lender. If all or
any part of the insurance will expire,or be withdrawn,or become void or unsafe,by reason of the Borrower's
breach of any condition, or if for any reason whatsoever the insurance will be unsatisfactory to the Lender,
the Borrower will place new insurance on the premises, satisfactory to the Lender. Notwithstanding
anything to the contrary herein, Borrower's compliance with the insurance requirements of the Prior
Mortgage shall be deemed compliance with the terms of this Section 7.
8. TAXES.
In order to protect more fully the security of this Mortgage,Borrower shall promptly submit
to Lender upon request,or Lender's designated agent,the Palm Beach County Tax Invoice for the Mortgaged
Property. Such invoice shall show either that no taxes are due or be accompanied by a receipt showing taxes
have been paid in full.
9. LOCAL ORDINANCES.
The Improvements and all plans and specifications shall comply with all applicable local
ordinances,regulations and rules made or promulgated with lawful authority,including without limitation the
Palm Beach County Construction Code and the Palm Beach County Property Maintenance Code.
10. PROTECTION OF LENDER'S SECURITY.
If Borrower fails to perform the covenants and agreements contained in this Mortgage or
the Agreement, excluding any lien to which this Mortgage is expressly subject, or if any action or
proceeding is commenced which materially affects Lender's interest in the Property, including, but not
limited to eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a
bankrupt or decedent, then Lender at Lender's option, upon notice to Borrower, may make such
appearances,disburse such sums,and take such action as is necessary to protect Lender's interest,including,
but not limited to,disbursement of reasonable attorney's fees.
Any amounts disbursed by Lender pursuant to this Paragraph with interest thereon, shall become
additional indebtedness of Borrower secured by this Mortgage. Unless Borrower and Lender agree to other
terms of payments, such amounts shall be payable upon notice from Lender to Borrower requesting payment
thereof, and shall bear interest from the date of disbursement at the rate payable from time to time on
outstanding principal under the Note unless payment of interest at such time would be contrary to applicable
law, in which event such amounts shall bear interest at the highest rate permissible under applicable law.
Nothing contained in this Paragraph shall require Lender to incur any expense or take any action hereunder.
11. LENDER INSPECTIONS.
Lender,or any of its Agents or Representatives,shall have the right to inspect the Mortgaged
Property upon reasonable notice,which shall not be less than 3 business days.Should the Mortgaged Property,
or any part thereof, require repair,care or attention,then, after written notice as provided herein (Paragraph
16)to Borrower,and Borrower's failure to so perform, Lender may enter or cause entry to be made upon the
Mortgaged Property and repair, protect and maintain the property as Lender may deem necessary. Any and
all money that Lender must pay to accomplish the proper maintenance on the mortgaged property shall
become due and payable under the provision of Paragraph 10.
12. EVENT OF DEFAULT.
An Event of Default will be the occurrence of any one of the following events and expiration
of the applicable cure period set forth in Paragraph 13 below, and upon that occurrence Lender may, at
Lender's option, declare all sums secured by this Mortgage to be immediately due and payable.
4839-3055-9657 v.8
a. Failure to pay the amount of any installment of principal and interest, or other
charges payable on the Note,which shall have become due,prior to the due date of the next such installment;
b. Nonperformance by Borrower of any covenant,agreement,term,or condition of this
Mortgage,the Note,the Agreement,or of any other agreement made by Borrower with Lender in connection
with such indebtedness,after Borrower has been given due notice in accordance with Paragraph 13 below by
Lender to cure such nonperformance and thirty(30)days to cure;
c. Failure of Borrower to perform any covenant, agreement, term or condition in any
instrument creating a lien upon the Mortgaged Property, or any part thereof, which shall have priority over
the lien of this Mortgage which continues beyond any applicable grace or cure period and for which a default
has been declared;
d. Lender's discovery of Borrower's failure in any application of Borrower to Lender
to disclose any fact deemed by Lender to be material, or the making herein, or in any of the agreements
entered into by Borrower with Lender (including, but not limited to, the Note and this Mortgage) of any
misrepresentation by,on behalf of,or for the benefit of Borrower;
e. Failure by the Borrower to submit promptly to the Lender or Lender's designated
agent proof of payment of all insurance and taxes,as required herein;
f. If the construction or installation of the Improvements shall not be carried out with
reasonable diligence,or shall be discontinued at any time for a period of thirty(30)consecutive days for any
reason other than strikes,lock-outs,acts of God, fires, floods or other similar catastrophes, such as riots,war
or insurrection,or other events beyond the control of Borrower;or
g. IF BORROWER DOES NOT REMAIN OWNER, OR IF ALL OR ANY
PART OF THE PROPERTY OR AN INTEREST THEREIN IS RENTED,LEASED OR SOLD BY
BORROWER, EXCEPT IN THE ORDINARY COURSE OF BUSINESS AS AN AFFORDABLE
HOUSING RENTAL DEVELOPMENT,WITHOUT LENDER'S PRIOR WRITTEN CONSENT.
13. OPTION OF MORTGAGEE UPON EVENT OF DEFAULT.
Upon the occurrence of An Event of Default,Lender,prior to acceleration, shall mail notice
to Borrower and its Investor Member as is provided in Paragraph 16 hereof,specifying:
a. The breach;
b. The action required to cure such breach;
c. A date not less than ten(10)days from the date the notice is mailed to Borrower by
which such breach must be cured if the default is a monetary default,and a date not less than thirty(30)days
from the date the notice is mailed to Borrower by which such breach must be cured if the default is a non-
monetary default; and
d. That failure to cure such breach on or before the date specified in the notice may
result in acceleration of the sums secured by this Mortgage, foreclosure by judicial proceedings, and sale of
the property.The notice shall further inform Borrower of the right to assert in the foreclosure proceedings the
non-existence of a default,or any other defense of Borrower to acceleration and foreclosure.
If the breach is not cured on or before the date specified in the notice, Lender, at Lender's
option, may declare all of the sums secured by this Mortgage to be immediately due and payable without
4839-3055-9657 v.8
further demand and may foreclose this Mortgage by judicial proceedings. Lender shall be entitled to collect
in such proceedings all expenses of foreclosure, including,but not limited to, reasonable attorney's fees and
costs of documentary evidence, abstract,title reports and court costs.
Notwithstanding anything herein to the contrary, Borrower's investor member shall have the right,
but not the obligation,to cure a default hereunder within the same cure period as the Borrower.
14. APPOINTMENT OF RECEIVER.
Lender in any action to foreclose this Mortgage may be entitled to have a receiver appointed
by a Court of Law as a matter of right and without regard to the value of the Mortgaged Property or the
solvency of Borrower or other parties liable for the payment of the Note and other indebtedness secured by
this Mortgage. Said receiver shall enter upon, take possession of and manage the Property, and will collect
rents of the Property, including those past due. All rents collected by the receiver shall be applied first to
payments of the costs of management of the Property and collection of rents, including, but not limited to,
receiver's fees,premiums on receiver's bonds,and reasonable attorney's fees,and then to the sums secured by
this Mortgage.The receiver shall be liable to account only for those rents actually received.
15. FORBEARANCE BY LENDER NOT A WAIVER.
Any forbearance by Lender in exercising any right or remedy hereunder, or otherwise
afforded by applicable law, shall not be a waiver of or preclude the exercise of any such right or remedy.The
procurement of insurance or the payment of taxes or other liens or charges by Lender shall not be a waiver of
Lender's right to accelerate the maturity of indebtedness secured by this Mortgage.
16. NOTICE.
Except for any notice required under applicable law to be given in another manner, (a)any
notice to Borrower provided for in this Mortgage shall be given by mailing such notice by certified mail
addressed to Borrower at the property address or at such other address as Borrower may designate by notice
to Lender as provided herein, and (b) any notice to Lender shall be given by certified mail, return receipt
requested,to Lender's address below,or to such other address as Lender may designate by notice to Borrower
as provided herein.Any notice provided for in this Mortgage shall be deemed to have been given to Borrower
or Lender when given in the manner designated herein.
LENDER: The City of Boynton Beach
3301 Quantum Blvd, Suite 101
Boynton Beach,FL 33426
WITH A COPY TO:
Lewis Longman Walker
515 North Flagler Drive, Suite 1500
West Palm Beach,FL 33401
Attn: Kenneth W. Dodge, Esq.
BORROWER: Ocean Breeze East Apartments LLC
7735 NW 146 Street,Suite 306
Miami Lakes,FL 33016
Attn: Lewis V. Swezy
WITH A COPY TO:
Nelson Mullins Broad and Cassel
390 N. Orange Avenue, Suite 1400
Orlando,Florida 32801
4839-3055-9657 v.8
Attn: Randal M.Alligood,Esq.
INVESTOR:
do Raymond James Tax Credit Funds,Inc.
880 Carillon Parkway
St.Petersburg,Florida 33716
Facsimile No.: 727-567-8455
Attention: Steven J.Kropf,President
Nixon Peabody LLP
Exchange Place
53 State Street
Boston,MA 02109
Attn:Nathan A.Bernard
Facsimile No.: 617-345-1000
17. ONE PARCEL.
In case of a foreclosure sale of the Mortgaged Property,it may be sold as one parcel.
18. BORROWER'S COPY.
Borrower shall be furnished a conformed copy of the Note and of this Mortgage at the time
of execution or after recordation thereof.
19. LAWFULLY SEIZED.
Borrower is lawfully seized of the Mortgaged Property and has good right, full power,and
lawful authority to sell and convey the same in the manner above provided, and will warrant and defend the
same to Lender forever against the lawful claims and demands of any and all parties whatsoever.
20. BORROWER NOT RELEASED.
Extension of the time for payment or modification of amortization of the sums secured by
this Mortgage granted by Lender to any successor in interest of Borrower shall not operate to release in any
manner the liability of the original Borrower and Borrower's successor in interest.Lender shall not be required
to commence proceedings against such successor or refuse to extend time for payment or otherwise modify
amortization of the sums secured by this Mortgage by reason of any demand made by the original Borrower
and Borrower's successors in interest.
21. CAPTIONS.
The captions of this Mortgage are for convenience only and shall not be construed as defining
or limiting the scope or intent of the provisions hereof.
22. SUCCESSORS AND ASSIGNS.
This Mortgage and all covenants, agreements, terms, and conditions herein contained shall
be binding upon and inure to the benefit of Borrower, and, to the extent permitted by law,every subsequent
owner of the Mortgaged Property and shall be binding upon and inure to the benefit of Lender and its assigns.
The word "Lender" shall include any person,corporation, or other party who may from time to time be the
holder of this Mortgage.Whenever used herein,the singular number shall include the plural,the plural number
shall include the singular, and the use of any gender shall be applicable to all genders wherever the sense
requires.
23. VENUE AND APPLICABLE LAW
4839-3055-9657 v.8
Each party covenants and agrees that any and all legal actions arising out of or connected
with this Mortgage shall be instituted in the state courts located in and for Palm Beach County,Florida,as
the exclusive forums and venues for any such action, subject to any right of either party to removal from
state court to federal court, which is hereby reserved, and each party further covenants and agrees that it
will not institute any action in any other forum or venue and hereby consents to immediate dismissal or
transfer of any such action instituted in any other forum or venue.This Mortgage is entered into within,and
with reference to the internal laws of, the State of Florida, and shall be governed, construed and applied in
accordance with the internal laws(excluding conflicts of law)of the State of Florida.
24. SURVIVABILITY AND SEVERABILITY
a. Any term, condition, covenant or obligation which requires performance by either
party subsequent to termination of this Mortgage shall remain enforceable against such party subsequent to
such termination.
b. In the event any section, sentence, clause or provision of this Mortgage is held to
be invalid, illegal or unenforceable by a court having jurisdiction over the matter, the remainder of this
Mortgage shall not be affected by such determination and shall remain in full force and effect.
25. RELEASE
Upon payment of all sums secured by this Mortgage and the Note, the Lender shall release
this Mortgage and the Note.The Borrower shall pay all recordation costs.
26. NONRECOURSE
The Borrower, its members and successors and assigns shall only be liable upon the
indebtedness evidenced by the Agreement,and sums or amounts to accrue or to become payable thereunder
or under this Mortgage or either of them, to the extent of the nonrecourse security granted under the
Agreement or the Mortgage. If a default occurs, any judicial proceedings or enforcement of the remedies
under the Agreement and this Mortgage against the Borrower,its members and successors and assigns shall
be limited to the preservation, enforcement and foreclosure of the liens, estates, assignments, titles,rights
and security interests now or at any time hereafter acquired in such security and no judgment, attachment,
execution or other writ of process shall be sought,issued or levied upon the assets,property or funds of the
Borrower, its members or successors and assigns other than the properties, rights, estates and interests of
the Borrower as are identified as security in this Mortgage. In the event of a foreclosure or other disposition
as provided for in this Mortgage of such liens, estates, assignments, titles, rights and security interests,
whether by judicial proceedings or the exercise of the power of sale,no judgment for the deficiency of such
indebtedness, sums and amounts shall be sought or obtained against the Borrower and/or its successors and
assigns.
27. MERGER AND MODIFICATIONS
This Mortgage will not be modified or amended except by agreement in writing signed by
both parties. This Mortgage embodies the entire agreement and understanding between the parties hereto
and there are no other agreements and/or understandings, oral or written, with respect to the subject matter
hereof,that are not merged herein and superseded hereby.
[Signatures on the following page]
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
4839-3055-9657 v.8
IN WITNESS WHEREOF, this Mortgage has been duly signed and sealed by the Borrower on
or as of the day and year first above written.
'g — OCEAN BREEZE EAST APARTME
!/ LLC,a Florida limited liability compan
nness Signaturg 1
A-he / Vi s L9 77.42..-- By: Ocean Breeze - , a Florida
Name print:1 or typed limited . tr coi oft 1,: :ler
ter,
i , ss Si t4 .turet �.S ,Manager
4('P# A•10140
Name pri ted or typed
STATE OF FLORIDA
COUNTY OF Mt4AVi-4 h!!i
The foregoing instrument was acknowledged before me this G day of A44100/11.-- ,2019,
by Lewis V. Swezy, as manager of Ocean Breeze Manager LLC, a Florida limited liability company, the
manager o n Breeze East Apartments LLC, a Florida limited liability company, who is e
o‘ vho has produced as identification.
Witness my hand and official seal the date afores
Aor Notary Public State of Florida Notary Public,State of Tl ida at Large
Richard P Grammig
�c'#s 1 My Commission 00 321400 1.141414116 i t/
an
Expires 07H0/2023
Notary: Print or Type Name
My Commission Expires 7•I f-
4839-3055-9657 v.8
MORTGAGE
Ocean Breeze East Apartments
Exhibit"A"
Legal Description
The land referred to herein below is situated in the County of Palm Beach, State of Florida, and
described as follows:
Lots 3 through 12 inclusive, in Block 1, AND Lots 1 and 2, in Block 1, LESS all that portion of Lots 1
and 2 lying West of the East right-of-way line for Seacrest Boulevard as shown on Road Plat Book 5,
at Page 182 AND LESS a 20 foot return curve area for road right-of-way, PALM BEACH COUNTRY
CLUB ESTATES, according to the plat thereof, as recorded in Plat Book 11, at Page 43, of the Public
Records of Palm Beach County, Florida.
AND
The South 1/2 of the East 1/2 of Lot 2 of Subdivision of the West 1/2 of the Southeast 1/4 of Section
21,Township 45 South, Range 43 East, LESS the South 125 feet thereof; LESS the parcels conveyed
to the City of Boynton Beach by Official Records Book 852, Page 642, and LESS the right-of-way for
Seacrest Boulevard, as shown on Road Plat Book 5, at Page 182, according to the plat thereof, as
recorded in Plat Book 1, at Page 4, Public Records of Palm Beach County, Florida.
End of Exhibit"A"
4839-3055-9657 v.8
PROMISSORY NOTE AND LOAN AGREEMENT
Folio Number and Property Address: See Exhibit"A":
Date: November 7,2019
Amount: $567,500.00
FOR VALUE RECEIVED,the undersigned,hereinafter referred to as"Borrower,"promises to pay to
the order of THE CITY OF BOYNTON BEACH, a political subdivision of the State of Florida, hereinafter
referred to as "Lender", or its successors, the sum Five Hundred Sixty-Seven Thousand Five Hundred and
NO/100 Dollars($567,500.00)(the"Loan Sum")to the extent such amount has been disbursed by Lender to
Borrower.
LOAN AGREEMENT: Lender shall loan to Borrower on or after the date hereof,the Loan Sum in
one or more draws upon written request of Borrower for the purpose of developing and constructing a 123 unit
multifamily apartment complex to be owned,used and operated as low income housing under IRC Section 42
(the "Project"). Such request shall be accompanied by a draw request approved by the first mortgage
construction lender showing the specific uses of the requested draw from the Lender for hard and soft costs of
the Project and also showing disbursement of first mortgage loan proceeds to the Borrower. Borrower shall
not use the Loan Sum proceeds for any purpose other than the hard and soft costs associated with the Project.
Subject to the foregoing,the funding will occur upon commencement or during construction,but no later than
twelve(12)months after the date of closing.
LOAN PAYMENT: Borrower shall promptly pay the principal of the indebtedness evidenced by this
Note,and all other charges and indebtedness provided herein and in that certain Mortgage to be entered into on
date even herewith and recorded in the Public Records of Palm Beach County,Florida(the"Mortgage"),at the
times and in the manner provided in this Note and in the Mortgage. The interest rate on the loan shall be zero
percent(0%)interest.
Payment of any principal shall be due in full on the twentieth annual anniversary of the date hereof
(hereinafter referred to as the"Loan Term"). This Note may be forgiven any time after the end of the Compliance
Period (as defined in the Borrower's Amended and Restated Operating Agreement) in the sole and absolute
discretion of the Lender.
Loan payment hereunder is secured by the terms of that certain Mortgage by and between Borrower and
Lender dated of even date herewith(the"Mortgage").
DEFAULT & ACCELERATION: Lender shall have the optional right to declare the amount of the
total unpaid balance hereof to be due and forthwith payable in advance of the maturity date of any sum due or
installment, as fixed herein, after notice has been given in accordance with the terms and conditions in the
Mortgage securing this Note, upon the occurrence of any event or failure to perform in accordance with any of
the terms and conditions in the Mortgage or this Note. Notwithstanding anything herein to the contrary,
Borrower's investor member shall have the right, but not the obligation, to cure a default hereunder within the
same cure period as Borrower.
ESTOPPEL/WAIVER: Failure of Lender to declare a default shall not constitute a waiver of such
default.Upon default,this Note will accrue interest at the highest rate permissible under applicable law,or,if this
Note be reduced to judgment,such judgment should bear interest at the highest rate permissible under applicable
law.
Promissory Note and Loan Agreement(City of Boynton Beach)—Ocean Breeze 1
4824-5364-0361 v.8
PREPAYMENT: Borrower reserves the right to prepay at any time all or part of the principal amount
of this Note without the payment of penalties or premiums. All payments of this Note,prior to default, shall be
first applied to reduce the principal amount of this Note and second to the payment of interest,if any.
COLLECTION COSTS: If suit is instituted by Lender to recover this Note,Borrower agree(s)to pay
all reasonable out of pocket costs of such collection including reasonable attorney's fees and court costs.
PARTIES:The words`Borrower"and"Lender"in this Note shall be construed to include the respective
heirs,personal representatives,successors,and assigns of the Borrower and the Lender.
CONSTRUCTION AND VENUE: Each party covenants and agrees that any and all legal actions
arising out of or connected with this Note shall be instituted in the state courts located in and for Palm Beach
County,Florida,as the exclusive forums and venues for any such action, subject to any right of either party to
removal from state court to federal court,which is hereby reserved,and each party further covenants and agrees
that it will not institute any action in any other forum or venue and hereby consents to immediate dismissal or
transfer of any such action instituted in any other forum or venue. This Note is entered into within, and with
reference to the internal laws of, the State of Florida, and shall be governed, construed and applied in
accordance with the internal laws(excluding conflicts of law)of the State of Florida.
NONRECOURSE: The nonrecourse terms of the Mortgage are incorporated herein by reference and
shall survive regardless of whether the mortgage is satisfied or amended.
THIS NOTE ARISES OUT OF OR IS GIVEN TO SECURE THE REPAYMENT OF A LOAN ISSUED
IN CONNECTION WITH THE FINANCING OF AFFORDABLE HOUSING AND IS EXEMPT FROM
DOCUMENTARY AND INTANGIBLE TAXES PURSUANT TO SECTION 420.513(1), FLORIDA
STATUTES.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
Promissory Note and Loan Agreement(City of Boynton Beach)—Ocean Breeze 2
4824-5364-0361 v.8
IN WITNESS WHEREOF, this Note has been duly executed by Borrower as of the day and year
first written above.
I OCEAN BREEZE EAST APARTMENTS LLC,a
(J Florida limited liability company
ttness Si lure
' / I/ u h r_a By: Ocean Breeze ••: er a • '•a
ame print or typed limited • • • ...ny,it • .ger
/ c ..d/../ .
W .-:. Si_ :lure !'vis i.Swezy 11:41 er
au • A 42,,A.--...f
Name printed or typed
STATE OF FLORIDA J
COUNTY OF t 1-,elev
The foregoing instrument was acknowledged before me this G day of 0 VP*3*.- ,2019,by
Lewis V.Swezy,as manager of Ocean Breeze Manager LLC,a Florida limited liability com an ,the manager
of Ocean Breeze East Apartments LLC,a Florida limited liability comp:441. o is personally known e or
who has produced ;is identification.
Witness my hand and official seal the date aforesai '
4
Wary Public sake of Florida Notary Public,State
der Wary of Flo r"•'. at Large
. 4%. Richard P GrammigI My �/,�,,'
Ex ire. 00 321400 �(te#41(1 144$'44.141•''�a Expires 0111512023
Notary:Print or Type Name
My Commission Expires 1-1~f-'L'3
Promissory Note and Loan Agreement(City of Boynton Beach)—Ocean Breeze 3
4824-5364-0361 v.8
IN WITNESS WHEREOF,this Note has been duly executed by Lender as of the day and year first
written above.
THE CITY OF BOYNTON BEACH, a political
erwoo-- subdi .1.. : theS • o, - •fa
ness Signatu j
t 1 ef-l1 Q-rs1-� l.) e'l BY � rO< Aft%
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Name printed or typed N. i s-. - .oh
Title: ;, .:6 r-. 1j-
WI(ess
is-WI(ess Si na
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Name printed or typed
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STATE OF FLORIDA1
COUNTY OF
The foregoing instrument was acknowledged before me this faday of N OV ik/V6E'ZZ019,by
as f1/I f O12 of CAll v1= 134lt.7CDtJ $ e
, who is personally known to me or ho has produced
as identification.
Witness my hand and official seal the date aforesaid, \
PP
Nod• ic, of Florida at Large
B0t4 +C t uLvt ef\j
Notary:Print or Type Name
My Commission Expires
_ Bonnie Niddien
NOTARY PUBLIC
' STATE OF FLORIDA
411114'�` Com.C4108394
Expires 5/25/2021
Promissory Note and Loan Agreement(City of Boynton Beach)—Ocean Breeze 4
4824-5364-0361 v.8
PROMISSORY NOTE AND LOAN AGREEMENT
Ocean Breeze East Apartments
Exhibit"A"
Legal Description
The land referred to herein below is situated in the County of Palm Beach,State of Florida,and described
as follows:
Lots 3 through 12 inclusive, in Block 1,AND Lots 1 and 2, in Block 1, LESS all that portion of Lots 1 and
2 lying West of the East right-of-way line for Seacrest Boulevard as shown on Road Plat Book 5, at Page
182 AND LESS a 20 foot return curve area for road right-of-way, PALM BEACH COUNTRY CLUB
ESTATES, according to the plat thereof, as recorded in Plat Book 11, at Page 43, of the Public Records
of Palm Beach County, Florida.
AND
The South 1/2 of the East 1/2 of Lot 2 of Subdivision of the West 1/2 of the Southeast 1/4 of Section 21,
Township 45 South, Range 43 East, LESS the South 125 feet thereof; LESS the parcels conveyed to the
City of Boynton Beach by Official Records Book 852, Page 642, and LESS the right-of-way for Seacrest
Boulevard, as shown on Road Plat Book 5,at Page 182,according to the plat thereof,as recorded in Plat
Book 1, at Page 4, Public Records of Palm Beach County, Florida.
End of Exhibit"A"
Promissory Note and Loan Agreement(City of Boynton Beach)—Ocean Breeze 5
4824-5364-0361 v.8
EXHIBIT B
First Amendment to Purchase and Development Agreement—Ocean Breeze East
GUARANTY OF COMPLETION
THIS GUARANTY OF COMPLETION (this "Guaranty") is made effective as of the 7th day
of November , 2019, notwithstanding the date of execution, by Lewis V. Swezy, an individual
resident of the State of Florida (the "Guarantor"), in favor of BOYNTON BEACH COMMUNITY
REDEVELOPMENT AGENCY, a public agency created pursuant to Chapter 163, Part III, of the Florida
Statutes, whose principal address is 3301 Quantum Blvd, Suite 101, Boynton Beach, FL 33426 (the
"CRA").
RECITALS:
WHEREAS, Ocean Breeze East Apartments LLC, a Florida limited liability company (the
"Company")and the CRA entered into that certain Purchase and Development Agreement dated effective
as of December 15,2017 (the"PDA");
WHEREAS,the Company has requested an amendment to the PDA;
WHEREAS,the CRA requires, as a condition to making the amendment,that Guarantor execute
and deliver this Guaranty for the benefit of the CRA.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt of which is hereby acknowledged, and in order to induce the CRA to make the
amendment to the PDA,Guarantor hereby represents,warrants and covenants to the CRA as follows:
1. Obligations Guaranteed. Guarantor unconditionally guarantees to the CRA, (a) the final
completion of the improvements by the Company (the "Project") on the land described on Exhibit A
attached hereto, free and clear of all liens (other than liens described in that certain First American Title
Company Title Insurance Commitment No. 2037-4488741 dated October 2, 2019), substantially in
accordance with the description of such improvements set forth on Exhibit B attached hereto ("Final
Completion"); (b) the Company's obligation to pay all sewer and water rents, impact fees, permitting
fees, any other fees levied by any governmental authority having jurisdiction over the Project in
connection with the development or construction of the Project, real estate taxes and assessments and
payments in lieu of the foregoing, assessed or levied against the Project during the period of construction
until Final Completion; and (c) payment in full of any and all reasonable expenses that may be paid or
incurred by the CRA in the collection of all or any portion of Guarantor's obligations hereunder or the
exercise or enforcement of any one or more of the other rights, powers, privileges, remedies and interests
of the CRA hereunder, including, without limitation, reasonable attorneys' and paralegals' fees,
irrespective of the manner or success of any such collection, exercise or enforcement, at trial, on appeal,
in any bankruptcy proceedings or whether suit be brought or not, and whether or not such expenses
constitute part of the Company's obligations.
2. Unconditional Guaranty. This Guaranty is an absolute, unconditional, primary, present
and continuing guaranty of payment and performance and not of collection and is in no way conditioned
or contingent upon any attempt to enforce the CRA's rights against the Company or any other guarantor
or to collect from the Company or any other Guarantor or upon any other condition or contingency.
Guarantor hereby waives and releases any claim (within the meaning of 11 U.S.C. § 101) which such
Guarantor may have against the Company arising from a payment made by such Guarantor under this
Guaranty and agrees not to assert or take advantage of any subrogation rights of such Guarantor or any
right of such Guarantor to proceed against the Company for reimbursement, unless and until the
Guaranteed Obligations are indefeasibly paid in full in cash.
4827-4125-3289 v.6
3. Liability Unimpaired. To the fullest extent permitted by law, Guarantor's liability
hereunder shall in no way be limited or impaired by any act or inaction of the CRA or the City of
Boynton Beach (the"City") in connection with that certain Promissory Note and Loan Agreement by the
Company to the order of the City, dated of even date herewith (the "Loan Agreement") or that certain
Mortgage by and between the Company and the City dated of even date herewith (the "Mortgage").
4. Reinstatement. This Guaranty shall continue to be effective, or be reinstated
automatically, as the case may be, if at any time payment, in whole or in part, of any of the obligations
guaranteed hereby is rescinded or otherwise must be restored or returned by the CRA (whether as a
preference, fraudulent conveyance or otherwise) upon or in connection with the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Company, Guarantor or any other Person, or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the
Company, Guarantor or any other Person or for a substantial part of the Company's, Guarantor's or any
of such other Person's property, as the case may be, or otherwise, all as though such payment had not
been made. Guarantor further agrees that in the event any such payment is rescinded or must be restored
or returned, all costs and reasonable expenses (including, without limitation, reasonable legal fees and
expenses) incurred by or on behalf of the CRA in defending or enforcing such continuance or
reinstatement, as the case may be, shall constitute costs of enforcement, the payment of which is
guaranteed by Guarantor pursuant to Paragraph 1 above.
5. Litigation. Compliance with Judgments. Guarantor represents and warrants that there are
no actions, suits or proceedings pending or threatened against or affecting such Guarantor, at law, in
equity or before or by any governmental authorities which would have a material effect on such
Guarantor's ability to perform its obligations hereunder. To the best of Guarantor's knowledge,Guarantor
is not in default with respect to any order, writ, injunction, decree or demand of any court or
governmental authorities.
6. Authorization and Enforceability; No Conflicts. Guarantor represents and warrants that it
has the full power and authority to enter into and perform its obligations under this Guaranty and this
Guaranty is a legal, valid and binding instrument, enforceable against Guarantor in accordance with its
terms. The execution, delivery and performance of this Guaranty has been authorized by all proper and
necessary actions of Guarantor. Guarantor represents and warrants that the consummation of the
transactions contemplated hereby and the performance of this Guaranty have not resulted and will not
result in any breach of, or constitute a default under, any mortgage, deed of trust, lease, bank loan or
credit agreement, corporate charter, by-laws, partnership agreement, trust agreement or other instrument
to which such Guarantor is a party or by which such Guarantor may be bound or affected.
7. Compliance with Laws. Guarantor represents and warrants that Guarantor is in
compliance with, and the transactions contemplated by this Guaranty do not and will not violate any
provision of, or require any filing,registration, consent or approval under, any federal, state or local law,
rule, regulation, ordinance, order, writ,judgment, injunction, decree, determination or award(hereinafter,
"Laws") presently in effect having applicability to such Guarantor. Guarantor will comply promptly with
all Laws now or hereafter in effect having applicability to Guarantor.
8. Accuracy of Information; Full Disclosure. Guarantor represents and warrants that neither
this Guaranty nor any documents, financial statements, reports,notices, schedules, certificates, statements
or other writings furnished by or on behalf of Guarantor to the CRA in connection with the negotiation of
the amendment to the PDA or the consummation of the transactions contemplated thereby, or required
herein to be furnished by or on behalf of Guarantor, contains any untrue or misleading statement of a
material fact as of the date thereof; to Guarantor's knowledge, there is no fact which Guarantor has not
4827-4125-3289 v.6
disclosed to the CRA in writing which materially affects adversely any of the Project or the business
affairs or financial condition of Guarantor,or the ability of Guarantor to perform this Guaranty.
9. Mechanics' Liens. If the Company and/or Guarantor shall have completed or caused the
completion of the construction of the Project, so as to achieve Final Completion, then upon the expiration
of any time period beyond the date in which the Company or Guarantor has achieved Final Completion,
within which mechanics, materialmen or other Persons (collectively, "Mechanics") are entitled to file
liens against the Project for development,construction, materials or related work claims(such completion
and the expiration of such time period, is herein referred to as the "Completion of the Project'),
Guarantor shall be released of any further obligations under this Guaranty;provided,however, if the CRA
shall have received after Completion of the Project, duly executed lien waivers from all Mechanics
entitled to file liens against the Project evidencing the payment in full for all of their work relating to the
Project, this Guaranty shall terminate upon receipt of such lien waivers. The CRA agrees that upon the
CRA's receipt of evidence satisfactory to the CRA of the Completion of the Project, and, provided, that
no undischarged liens which have not been bonded over shall have been filed against the Project by
Mechanics, CRA shall deliver a written confirmation that this Guaranty is limited only to a guaranty
against the filing of subsequent liens against the Project by Mechanics with respect to which such duly
executed lien waivers have not been received by the CRA. Thereafter, this Guaranty shall continue as a
guaranty against claims and liens by Mechanics that have not been waived until Mechanics are no longer
legally entitled to file any such claims or liens against the Project, whereupon the CRA, upon receipt of
written request from Guarantor, shall deliver to Guarantor the CRA's final written confirmation of
termination of this Guaranty in full, provided that no undischarged Mechanics' liens have been filed
against the Project.
10. Non-Waiver Remedies Cumulative. No failure or delay on the CRA's part in exercising
any right,power or privilege under this Guaranty shall operate as a waiver of any such privilege,power or
right or shall be deemed to constitute the CRA's acquiescence in any default by Guarantor. A waiver by
the CRA of any right or remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the CRA otherwise would have on any future occasion. The rights and remedies
provided herein are cumulative, may be exercised singly or concurrently and are not exclusive of any
rights or remedies provided by law.
11. Severability. Any provision of this Guaranty, or the application thereof to any Person or
circumstance,which, for any reason, in whole or in part, is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Guaranty(or the remaining portions of such provision)or the
application thereof to any other Person or circumstance, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision (or portion thereof) or the
application thereof to any Person or circumstance in any other jurisdiction.
12. Entire Agreement; Amendments. This Guaranty contains the entire agreement of the
parties with respect to the subject matter hereof and supersedes all prior oral or written agreements or
statements relating to such subject matter, and none of the terms and provisions hereof may be waived,
amended or terminated except by a written instrument signed by the Person against whom enforcement of
the waiver,amendment or termination is sought.
13. Successors and Assigns. This Guaranty shall be binding upon and shall inure to the
benefit of the CRA and Guarantor and their respective heirs, personal representatives, successors and
assigns. This Guaranty may be assigned by the CRA with respect to all or any portion of the obligations
guaranteed hereby, and when so assigned Guarantor shall be liable under this Guaranty to the assignee(s)
of the portion(s) of the obligations guaranteed hereby so assigned without in any manner affecting the
4827-4125-3289 v.6
liability of Guarantor hereunder to the CRA with respect to any portion of the obligations guaranteed
hereby retained by the CRA.
14. WAIVER OF TRIAL BY JURY. GUARANTOR, AND BY ITS ACCEPTANCE
HEREOF, THE CRA, EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY
ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO TRIAL BY JURY FULLY
TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH
REGARD TO THE GUARANTY, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION
ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS
GIVEN KNOWINGLY AND VOLUNTARILY BY GUARANTOR AND THE CRA, AND IS
INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO
WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. GUARANTOR AND
THE CRA ARE EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY
PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER.
15. ADDITIONAL WAIVERS IN THE EVENT OF ENFORCEMENT. GUARANTOR
HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVES, IN CONNECTION WITH ANY
SUIT, ACTION OR PROCEEDING BROUGHT BY OR ON BEHALF OF THE CRA ON THIS
GUARANTY,ANY AND EVERY RIGHT GUARANTOR MAY HAVE TO (I) INJUNCTIVE RELIEF,
(II) INTERPOSE ANY COUNTERCLAIM THEREIN (OTHER THAN COMPULSORY
COUNTERCLAIMS), AND (III) HAVE THE SAME CONSOLIDATED WITH ANY OTHER OR
SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING HEREIN CONTAINED SHALL
PREVENT OR PROHIBIT GUARANTOR FROM INSTITUTING OR MAINTAINING A SEPARATE
ACTION AGAINST THE CRA WITH RESPECT TO ANY ASSERTED CLAIM.
16. Governing Law: Submission To Jurisdiction. This Guaranty and the rights and
obligations of the parties hereunder shall in all respects be governed by, and construed and enforced in
accordance with,the laws of the State of Florida(without giving effect to Florida's principles of conflicts
of law). Guarantor hereby irrevocably submits to the exclusive jurisdiction of the state courts located in
and for Palm Beach County over any suit, action or proceeding arising out of or relating to this Guaranty,
and Guarantor hereby agrees and consents that, in addition to any methods of service of process provided
for under applicable law, all service of process in any such suit, action or proceeding in any Florida State
or Federal court sitting in the County of Palm Beach may be made by certified or registered mail, return
receipt requested, directed to Guarantor at the address indicated below, and service so made shall be
complete ten(10)days after the same shall have been so mailed.
17. Paragraph Headings. Any paragraph headings and captions in this Guaranty are for
convenience only and shall not affect the interpretation or construction hereof.
18. Notices.Notices shall be given with respect to Guarantor at the address set forth below:
GUARANTOR: Lewis V. Swezy
c/o Centennial Management Co.
7735 NW 146 Street, Suite 306
Miami Lakes,FL 33016
WITH A COPY TO:
Nelson Mullins Broad and Cassel
390 N. Orange Avenue, Suite 1400
Orlando, Florida 32801
Attn: Randal M. Alligood,Esq.
4827-4125-3289 v.6
19. Counterparts. This Guaranty may be executed in any number of counterparts, each of
which shall be an original and all of which shall constitute together but one and the same agreement.
[EXECUTION PAGE FOLLOWS]
4827-4125-3289 v.6
[SIGNATURE PAGE TO GUARANTY OF COMPLETION]
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly exe • and 01 vered
by its duly authorized official as of the 7th day of November ,2019.
GUARANTOR:
AfF Ad -
fr"
•
4827-4125-3289 v.6
EDIT A
Le2a1 Description
The land referred to herein below is situated in the County of Palm Beach, State of Florida,and described
as follows:
Lots 3 through 12 inclusive, in Block 1, AND Lots 1 and 2,in Block 1, LESS all that portion of Lots 1
and 2 lying West of the East right-of-way line for Seacrest Boulevard as shown on Road Plat Book 5,at
Page 182 AND LESS a 20 foot return curve area for road right-of-way,PALM BEACH COUNTRY
CLUB ESTATES, according to the plat thereof,as recorded in Plat Book 11, at Page 43,of the Public
Records of Palm Beach County,Florida.
AND
The South 1/2 of the East 1/2 of Lot 2 of Subdivision of the West 1/2 of the Southeast 1/4 of Section 21,
Township 45 South,Range 43 East,LESS the South 125 feet thereof; LESS the parcels conveyed to the
City of Boynton Beach by Official Records Book 852,Page 642,and LESS the right-of-way for Seacrest
Boulevard,as shown on Road Plat Book 5,at Page 182, according to the plat thereof, as recorded in Plat
Book 1,at Page 4,Public Records of Palm Beach County,Florida.
4827-4125-3289 v.6
EXHIBIT B
Description of Improvements
1. If requested or required by the CRA, the Project will be designed to be a gated community to
enhance the value of the Property. A decorative fence may be installed around the buildings
comprising the Project to create an enclosed space. If requested or required by the CRA, a
mechanical gate will be installed at the entry and exit of the Project requiring proof of residency
for entry. Gates shall not be required if space required for gates (including stacking and turn-
around requirements) is impractical or would negatively impact other elements of the site plan
including the unit count.
2. The Project will have a minimum of a 6'sidewalk constructed around the entirety of the Project.
3. The Project will include street lights installed along the entire perimeter of the Project that are
complimentary to those existing along the east side of N. Seacrest Boulevard adjacent to the
Property.
4. The Project will include on-street parking spaces,where feasible.
5. The Project will include street and site trees that exceed the size and caliper requirement of the
City's Land Development Regulations which will be installed along the entire perimeter of the
Project.
6. The Project will include enhanced resident amenities within the proposed project boundaries.
7. The Project will include plaza style open space that exceeds the requirement of the City's Land
Development Regulations with landscape, hardscape and accent lighting features preferably
located on N. Seacrest Boulevard or at the corner of N. Seacrest Boulevard and NE 7th Avenue.
8. The Project will include construction of a three (3) story, 100-123 unit affordable multi-family
rental housing development, with flex space for a new Neighborhood Officer Program office and
community space,which shall be provided to the CRA for said use rent free and be constructed in
accordance with the site plan.
4827-4125-3289 v.6
EXHIBIT C
First Amendment to Purchase and Development Agreement—Ocean Breeze East
This instrument prepared by and return to:
Randal M.Alligood,Esq.
Nelson Mullins Broad and Cassel
390 North Orange Avenue, Suite 1400
Orlando,Florida 32801
TERMINATION OF
REVERTER AGREEMENT
THIS TERMINATION OF REVERTER AGREEMENT (this "Termination") is
executed this 7th day of November , 2019 by OCEAN BREEZE EAST APARTMENTS
LLC, a Florida limited liability company ("Ocean Breeze"), whose address is 7735 NW 146th
Street, Suite 306, Miami Lakes, Florida 33016 and BOYNTON BEACH COMMUNITY
REDEVELOPMENT AGENCY, a public agency created pursuant to Chapter 163, Part III, of
the Florida Statutes ("Seller").
WITNESSETH:
WHEREAS, Seller entered into that Reverter Agreement with Ocean Breeze as of
December 15, 2017 (the "Reverter") with regard to the real property described in the attached
Exhibit A (the"Property");
WHEREAS, Ocean Breeze and Seller desire to terminate the Reverter;
NOW,THEREFORE, for and in consideration of the premises hereof and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:
1. The foregoing recitals are true and correct and are incorporated herein by this
reference. Capitalized terms not otherwise defined herein shall have the meaning as set forth in the
Reverter.
2. The Reverter is terminated in its entirety and shall be of no further force or effect
whatsoever, and Seller has no further rights of reversion or to a repurchase of the Property under
the Reverter or under any other agreement.
3. The Reverter is the"Reverter Agreement"referred to in that certain Warranty Deed
dated January 31, 2018,from Seller to Ocean Breeze as recorded in Official Records Book 29685,
Page 749 of the Public Records of Palm Beach County, Florida, and for clarity, any reverter rights
under such Warranty Deed are also terminated.
4. This Agreement may be recorded.
1 of 3
4847-6277-5977 v.5
CONSENTED TO BY:
Witness:, -=C., /2OCEAN BREEZE EAST APARTMENTS LLC, a
Print Name:,t/e I Lyy 2T.,e,_, Florida limited liability company
By: Ocean Breeze Man:. Florida
Witness limited liability c• ,0" rr
Print N eP g Gavt.,rc/
By //I
• '1s e , : age
4000111r-
STATE OF FLORIDA
COUNTY OF U+L Mwt -A4,11
• The foregoing instrument was acknowledged before me this t. day of dri ui'ifltt" , 2019,
by Lewis V. Swezy, as manager of Ocean Breeze Manager LLC, a Florida limited liability company, as
manager of Ocean Breeze East Apartments LLC, a Florida limited liability company, who has produced
as identificatio *j�t• it
Notary Public
•
P Notary Public Siete or Florida Richard p Print Name: �l tMK �t
‘p ( 0 on(300 321 400
My Commission
Expires 07J1 3 My Commission Expires: 7-1x--.1.,
3 of4
Witness: i�� _'� BOYNTON BEACH COMMUNITY
Print Name: Oil t-e-.k 5/^4-7 P 4-4 4-3 REDEV PM T A CY
! c By.
Witness: # '/ /e) Name: S $. Copor
Print Name: fiQe., Title: co‹ 'QOhe-D C44* R-
STATE OF FLORIDA
COUNTY OF ?Pcu. , Witdoi+
The foregoing instrument was acknowledged before me this $ day of NOVECi P 2019,
by 6 *1\I 27. 02-e'' , as C21 - C e-of Boynton Beach Community
Redevelopment Agency, a public agency created pursuant to Chapter 163, 'art III, of - o '.. Statutes,
who has produced as identification or is . .nally o .n to e.
11/241dy
Ridden .tary '• Bonnie .he
_ t NOTARY PUBLIC
STATE OF FLORIDA Print Name: 5_9_Oh F i cU
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Expires 525/2021 My Commission Expires: 55I Z512-
3
5123 of 4
EXHIBIT A
Legal Description
The land referred to herein below is situated in the County of Palm Beach, State of Florida, and
described as follows:
Lots 3 through 12 inclusive, in Block 1, AND Lots 1 and 2, in Block 1, LESS all that portion of Lots 1
and 2 lying West of the East right-of-way line for Seacrest Boulevard as shown on Road Plat Book 5,
at Page 182 AND LESS a 20 foot return curve area for road right-of-way, PALM BEACH COUNTRY
CLUB ESTATES, according to the plat thereof, as recorded in Plat Book 11, at Page 43, of the Public
Records of Palm Beach County, Florida.
AND
The South 1/2 of the East 1/2 of Lot 2 of Subdivision of the West 1/2 of the Southeast 1/4 of Section
21,Township 45 South, Range 43 East, LESS the South 125 feet thereof; LESS the parcels conveyed
to the City of Boynton Beach by Official Records Book 852, Page 642, and LESS the right-of-way for
Seacrest Boulevard, as shown on Road Plat Book 5, at Page 182, according to the plat thereof, as
recorded in Plat Book 1, at Page 4, Public Records of Palm Beach County, Florida.
4 of 4
EXHIBIT D
The land referred to herein below is situated in the County of Palm Beach, State of
Florida,and described as follows:
Lots 3 through 12 inclusive, in Block 1,AND Lots 1 and 2, in Block 1, LESS all that
portion of Lots 1 and 2 lying West of the East right-of-way line for Seacrest Boulevard as
shown on Road Plat Book 5, at Page 182 AND LESS a 20 foot return curve area for road
right-of-way,PALM BEACH COUNTRY CLUB ESTATES,according to the plat
thereof,as recorded in Plat Book 11,at Page 43, of the Public Records of Palm Beach
County,Florida.
AND
The South 1/2 of the East 1/2 of Lot 2 of Subdivision of the West 1/2 of the Southeast 1/4
of Section 21,Township 45 South,Range 43 East, LESS the South 125 feet thereof;
LESS the parcels conveyed to the City of Boynton Beach by Official Records Book 852,
Page 642, and LESS the right-of-way for Seacrest Boulevard, as shown on Road Plat
Book 5, at Page 182, according to the plat thereof, as recorded in Plat Book 1,at Page 4,
Public Records of Palm Beach County,Florida.
First Amendment to Purchase and Development Agreement—Ocean Breeze East
NELSON MULLINS tIOR.LYS AND coc NSELORS Al LAV!
III BROAD AND CASSEL Sun Trust Bank Bldg.
Melissa N. VanSickle 215 South Monroe Street Suite 400
Board Certified Real Estate Lawyer Tallahassee, FL 32301
Direct Line: (850) 205-3307 T: 850.681.6810 F: 850.681.9792
11.1elissa.VanSickle(a,nclsonmullins.com
uelsonmullins.com
November 19, 2019
VIA FEDERAL EXPRESS
The City of Boynton Beach
3301 Quantum Boulevard, Suite 101
Boynton Beach, FL 33426
Re: Ocean Breeze Original, Recorded Documents
To Whomever it May Concern:
Enclosed are the following recorded documents regarding the referenced closing:
1. Mortgage executed by Borrower in favor of The City of Boynton Beach("Lender").
Also enclosed is First American Title Insurance Company's Loan Policy number 5011321-
0636506e. Please let me know if have any questions or concerns.
Sincerely,
vvywv6c1._
Melissa N. VanSickle
Enclosures
4843-5412-6253v.1 118035/00049
S p M E R C Loan Policy of Title Insurance
" ., id (with Florida modifications)
First American Title' ISSUED BY
First American Title Insurance Company
POLICY NUMBER
Loan Policy 5011312-0636506e
Any notice of claim and any other notice or statement in writing required to be given to the Company under this policy must be given to
the Company at the address shown in Section 17 of the Conditions.
COVERED RISKS
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B, AND THE
CONDITIONS, FIRST AMERICAN TITLE INSURANCE COMPANY, a Nebraska corporation (the"Company") insures as of Date of Policy, against
loss or damage,not exceeding the Amount of Insurance,sustained or incurred by the Insured by reason of:
1. Title being vested other than as stated in Schedule A.
2. Any defect in or lien or encumbrance on the Title. This Covered Risk includes but is not limited to insurance against loss from
(a) A defect in the Title caused by
(i) forgery,fraud,undue influence,duress,incompetency,incapacity,or impersonation;
(ii) failure of any person or Entity to have authorized a transfer or conveyance;
(iii) a document affecting Title not properly created,executed,witnessed,sealed,acknowledged,notarized,or delivered;
(iv) failure to perform those acts necessary to create a document by electronic means authorized by law;
(v) a document executed under a falsified,expired,or otherwise invalid power of attorney;
(vi) a document not properly filed, recorded,or indexed in the Public Records including failure to perform those acts by electronic means
authorized by law;or
(vii) a defective judicial or administrative proceeding.
(b) The lien of real estate taxes or assessments imposed on the Title by a governmental authority due or payable,but unpaid.
(c) Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate
and complete land survey of the Land. The term "encroachment" includes encroachments of existing improvements located on the Land
onto adjoining land,and encroachments onto the Land of existing improvements located on adjoining land.
3. Unmarketable Title.
4. No right of access to and from the Land.
(Covered Risks Continued on Page 2)
In Witness Whereof, First American Title Insurance Company has caused its corporate name to be hereunto affixed by its authorized officers as of
Date of Policy shown in Schedule A.
First American Title Insurance Company For Reference:
File#: 118035.00049A
.4,/,4714, Loan #: Ocean Breeze
Dennis J.Gilmore Issued By:
President
Nelson Mullins Riley & Scarborough LLP d/b/a
g/e/#41 Nelson Mullins Broad and Cassel
215 S. Monroe Street, 4th Floor
Jeffrey S.Robinson Tallahassee, FL 32301
Secretary
(This Policy is valid only when Schedules A and B are attached) This jacket was created electronically and constitutes an original document
Copyright 2006-2009 American Land Title Association.All rights reserved.The use of this form is restricted to ALTA licensees and ALTA members in good standing as of the date of use.
All other uses are prohibited.Reprinted under license from the American Land Title Association.
I Form 5011312(7-1-14) Page 1 of 6 I ALTA Loan Policy of Title Insurance(6-17-06)(with Florida modifications)
Policy#: 5011312-0636506e COVERED RISKS(Continued)
5. The violation or enforcement of any law, ordinance, permit, or governmental regulation (including those relating to building and zoning)
restricting,regulating,prohibiting,or relating to
(a) the occupancy,use,or enjoyment of the Land;
(b) the character,dimensions,or location of any improvement erected on the Land;
(c) the subdivision of land;or
(d) environmental protection
if a notice, describing any part of the Land, is recorded in the Public Records setting forth the violation or intention to enforce, but only to the
extent of the violation or enforcement referred to in that notice.
6. An enforcement action based on the exercise of a governmental police power not covered by Covered Risk 5 if a notice of the enforcement
action,describing any part of the Land,is recorded in the Public Records,but only to the extent of the enforcement referred to in that notice.
7. The exercise of the rights of eminent domain if a notice of the exercise,describing any part of the Land,is recorded in the Public Records.
8. Any taking by a governmental body that has occurred and is binding on the rights of a purchaser for value without Knowledge.
9. The invalidity or unenforceability of the lien of the Insured Mortgage upon the Title. This Covered Risk includes but is not limited to insurance
against loss from any of the following impairing the lien of the Insured Mortgage
(a) forgery,fraud, undue influence,duress,incompetency, incapacity,or impersonation;
(b) failure of any person or Entity to have authorized a transfer or conveyance;
(c) the Insured Mortgage not being properly created,executed,witnessed,sealed,acknowledged,notarized,or delivered;
(d) failure to perform those acts necessary to create a document by electronic means authorized by law;
(e) a document executed under a falsified,expired,or otherwise invalid power of attorney;
(f) a document not properly filed, recorded, or indexed in the Public Records including failure to perform those acts by electronic means
authorized by law;or
(g) a defective judicial or administrative proceeding.
10. The lack of priority of the lien of the Insured Mortgage upon the Title over any other lien or encumbrance.
11. The lack of priority of the lien of the Insured Mortgage upon the Title as security for each and every advance of proceeds of the loan secured by
the Insured Mortgage over any statutory lien for services, labor, or material arising from construction of an improvement or work related to the
Land when the improvement or work is either
(a) contracted for or commenced on or before Date of Policy;or
(b) contracted for, commenced, or continued after Date of Policy if the construction is financed, in whole or in part, by proceeds of the loan
secured by the Insured Mortgage that the Insured has advanced or is obligated on Date of Policy to advance.
12. The invalidity or unenforceability of any assignment of the Insured Mortgage, provided the assignment is shown in Schedule A,or the failure of
the assignment shown in Schedule A to vest title to the Insured Mortgage in the named Insured assignee free and clear of all liens.
13. The invalidity,unenforceability,lack of priority,or avoidance of the lien of the Insured Mortgage upon the Title
(a) resulting from the avoidance in whole or in part, or from a court order providing an alternative remedy, of any transfer of all or any part of
the title to or any interest in the Land occurring prior to the transaction creating the lien of the Insured Mortgage because that prior transfer
constituted a fraudulent or preferential transfer under federal bankruptcy,state insolvency,or similar creditors'rights laws;or
(b) because the Insured Mortgage constitutes a preferential transfer under federal bankruptcy,state insolvency,or similar creditors'rights laws
by reason of the failure of its recording in the Public Records
(i) to be timely,or
(ii) to impart notice of its existence to a purchaser for value or to a judgment or lien creditor.
14. Any defect in or lien or encumbrance on the Title or other matter included in Covered Risks 1 through 13 that has been created or attached or
has been filed or recorded in the Public Records subsequent to Date of Policy and prior to the recording of the Insured Mortgage in the Public
Records.
The Company will also pay the costs, attorneys'fees,and expenses incurred in defense of any matter insured against by this Policy, but only to the
extent provided in the Conditions.
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of (b) Any governmental police power. This Exclusion 1(b) does
this policy, and the Company will not pay loss or damage, costs, not modify or limit the coverage provided under
attorneys'fees,or expenses that arise by reason of: Covered Risk 6.
1. (a) Any law, ordinance, permit, or governmental regulation 2. Rights of eminent domain. This Exclusion does not modify or
(including those relating to building and zoning) restricting, limit the coverage provided under Covered Risk 7 or 8.
regulating,prohibiting,or relating to 3. Defects,liens,encumbrances,adverse claims,or other matters
(i) the occupancy,use,or enjoyment of the Land; (a) created, suffered, assumed, or agreed to by the Insured
(ii) the character, dimensions, or location of any Claimant;
improvement erected on the Land; (b) not Known to the Company, not recorded in the Public
(iii) the subdivision of land;or Records at Date of Policy, but Known to the Insured
(iv) environmental protection; Claimant and not disclosed in writing to the Company by
or the effect of any violation of these laws, ordinances, or the Insured Claimant prior to the date the Insured Claimant
governmental regulations. This Exclusion 1(a) does not became an Insured under this policy;
modify or limit the coverage provided under Covered Risk 5. (c) resulting in no loss or damage to the Insured Claimant;
I Form 5011312(7-1-14) Page 2 of 6 I ALTA Loan Policy of Title Insurance(6-17-06)(with Florida modifications)
Policy#: 5011312-0636506e EXCLUSIONS FROM COVERAGE(Continued)
(d) attaching or created subsequent to Date of Policy;or 6. Any claim, by reason of the operation of federal bankruptcy,
(e) resulting in loss or damage that would not have been state insolvency, or similar creditors' rights laws, that the
sustained if the Insured Claimant had paid value for the transaction creating the lien of the Insured Mortgage,is
Insured Mortgage. (a) a fraudulent conveyance or fraudulent transfer,or
4. Unenforceability of the lien of the Insured Mortgage because of (b) a preferential transfer for any reason not stated in Covered
the inability or failure of an Insured to comply with applicable Risk 13(b)of this policy.
doing-business laws of the state where the Land is situated. 7. Any lien on the Title for real estate taxes or assessments
5. Invalidity or unenforceability in whole or in part of the lien of the imposed by governmental authority and created or attaching
Insured Mortgage that arises out of the transaction evidenced by between Date of Policy and the date of recording of the Insured
the Insured Mortgage and is based upon usury or any consumer Mortgage in the Public Records.
credit protection or truth-in-lending law.
CONDITIONS
1. DEFINITION OF TERMS terms are defined by applicable electronic
The following terms when used in this policy mean: transactions law;
(a) "Amount of Insurance":The amount stated in Schedule A, as (C) successors to an Insured by dissolution, merger,
may be increased or decreased by endorsement to this consolidation,distribution,or reorganization;
policy, increased by Section 8(b) or decreased by Section 10 (D) successors to an Insured by its conversion to
of these Conditions. another kind of Entity;
(b) "Date of Policy": The date designated as "Date of Policy" in (E) a grantee of an Insured under a deed delivered
Schedule A. without payment of actual valuable consideration
(c) "Entity": A corporation, partnership, trust, limited liability conveying the Title
company,or other similar legal entity. (1) if the stock, shares, memberships, or other
(d) "Indebtedness": The obligation secured by the Insured equity interests of the grantee are
Mortgage including one evidenced by electronic means wholly-owned by the named Insured,
authorized by law, and if that obligation is the payment of a (2) if the grantee wholly owns the named Insured,
debt,the Indebtedness is the sum of or
(i) the amount of the principal disbursed as of Date of (3) if the grantee is wholly-owned by an affiliated
Policy; Entity of the named Insured, provided the
(ii) the amount of the principal disbursed subsequent to affiliated Entity and the named Insured are
Date of Policy; both wholly-owned by the same person or
(iii) the construction loan advances made subsequent to Entity;
Date of Policy for the purpose of financing in whole or in (F) any government agency or instrumentality that is an
part the construction of an improvement to the Land or insurer or guarantor under an insurance contract or
related to the Land that the Insured was and continued guaranty insuring or guaranteeing the Indebtedness
to be obligated to advance at Date of Policy and at the secured by the Insured Mortgage, or any part of it,
date of the advance; whether named as an Insured or not;
(iv) interest on the loan; (ii) With regard to (A), (B), (C), (D), and (E) reserving,
(v) the prepayment premiums, exit fees, and other similar however, all rights and defenses as to any successor
fees or penalties allowed by law; that the Company would have had against any
(vi) the expenses of foreclosure and any other costs of predecessor Insured, unless the successor acquired the
enforcement; Indebtedness as a purchaser for value without
(vii) the amounts advanced to assure compliance with laws Knowledge of the asserted defect, lien,encumbrance,or
or to protect the lien or the priority of the lien of the other matter insured against by this policy.
Insured Mortgage before the acquisition of the estate or (f) "Insured Claimant":An Insured claiming loss or damage.
interest in the Title; (g) "Insured Mortgage": The Mortgage described in paragraph 4
(viii) the amounts to pay taxes and insurance;and of Schedule A.
(ix) the reasonable amounts expended to prevent (h) "Knowledge" or"Known": Actual knowledge, not constructive
deterioration of improvements; knowledge or notice that may be imputed to an Insured by
but the Indebtedness is reduced by the total of all payments reason of the Public Records or any other records that impart
and by any amount forgiven by an Insured. constructive notice of matters affecting the Title.
(e) "Insured":The Insured named in Schedule A. (i) "Land": The land described in Schedule A, and affixed
(i) The term"Insured"also includes improvements that by law constitute real property. The term
(A) the owner of the Indebtedness and each successor "Land" does not include any property beyond the lines of the
in ownership of the Indebtedness, whether the area described in Schedule A, nor any right, title, interest,
owner or successor owns the Indebtedness for its estate, or easement in abutting streets, roads, avenues,
own account or as a trustee or other fiduciary, alleys, lanes,ways,or waterways, but this does not modify or
except a successor who is an obligor under the limit the extent that a right of access to and from the Land is
provisions of Section 12(c)of these Conditions; insured by this policy.
(B) the person or Entity who has "control" of the (j) "Mortgage": Mortgage, deed of trust, trust deed, or other
"transferable record," if the Indebtedness is security instrument, including one evidenced by electronic
evidenced by a "transferable record," as these means authorized by law.
IForm 5011312(7-1-14) Page 3 of 6 I ALTA Loan Policy of Title Insurance(6-17-06)(with Florida modifications)
Policy#: 5011312-0636506e CONDITIONS(Continued)
(k) "Public Records": Records established under state statutes at expenses incurred by the Insured in the defense of those
Date of Policy for the purpose of imparting constructive notice causes of action that allege matters not insured against by
of matters relating to real property to purchasers for value and this policy.
without Knowledge. With respect to Covered Risk 5(d), (b) The Company shall have the right, in addition to the options
"Public Records" shall also include environmental protection contained in Section 7 of these Conditions, at its own cost,to
liens filed in the records of the clerk of the United States institute and prosecute any action or proceeding or to do any
District Court for the district where the Land is located. other act that in its opinion may be necessary or desirable to
(I) "Title":The estate or interest described in Schedule A. establish the Title or the lien of the Insured Mortgage, as
(m) "Unmarketable Title": Title affected by an alleged or apparent insured, or to prevent or reduce loss or damage to the
matter that would permit a prospective purchaser or lessee of Insured. The Company may take any appropriate action
the Title or lender on the Title or a prospective purchaser of under the terms of this policy,whether or not it shall be liable
the Insured Mortgage to be released from the obligation to to the Insured. The exercise of these rights shall not be an
purchase, lease, or lend if there is a contractual condition admission of liability or waiver of any provision of this policy.
requiring the delivery of marketable title. If the Company exercises its rights under this subsection, it
2. CONTINUATION OF INSURANCE must do so diligently.
The coverage of this policy shall continue in force as of Date of (c) Whenever the Company brings an action or asserts a
Policy in favor of an Insured after acquisition of the Title by an defense as required or permitted by this policy,the Company
Insured or after conveyance by an Insured, but only so long as the may pursue the litigation to a final determination by a court of
Insured retains an estate or interest in the Land, or holds an competent jurisdiction, and it expressly reserves the right, in
obligation secured by a purchase money Mortgage given by a its sole discretion,to appeal any adverse judgment or order.
purchaser from the Insured, or only so long as the Insured shall 6. DUTY OF INSURED CLAIMANT TO COOPERATE
have liability by reason of warranties in any transfer or conveyance (a) In all cases where this policy permits or requires the
of the Title. This policy shall not continue in force in favor of any Company to prosecute or provide for the defense of any
purchaser from the Insured of either(i)an estate or interest in the action or proceeding and any appeals, the Insured shall
Land,or(ii)an obligation secured by a purchase money Mortgage secure to the Company the right to so prosecute or provide
given to the Insured. defense in the action or proceeding,including the right to use,
3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT at its option, the name of the Insured for this purpose.
The Insured shall notify the Company promptly in writing(i)in case Whenever requested by the Company, the Insured, at the
of any litigation as set forth in Section 5(a) of these Conditions, Company's expense, shall give the Company all reasonable
(ii)in case Knowledge shall come to an Insured of any claim of title aid (i) in securing evidence, obtaining witnesses, prosecuting
or interest that is adverse to the Title or the lien of the Insured or defending the action or proceeding,or effecting settlement,
Mortgage, as insured, and that might cause loss or damage for and (ii) in any other lawful act that in the opinion of the
which the Company may be liable by virtue of this policy, or(iii) if Company may be necessary or desirable to establish the
the Title or the lien of the Insured Mortgage,as insured,is rejected Title,the lien of the Insured Mortgage,or any other matter as
as Unmarketable Title. If the Company is prejudiced by the failure insured. If the Company is prejudiced by the failure of the
of the Insured Claimant to provide prompt notice, the Company's Insured to furnish the required cooperation, the Company's
liability to the Insured Claimant under the policy shall be reduced obligations to the Insured under the policy shall terminate,
to the extent of the prejudice. including any liability or obligation to defend, prosecute, or
4. PROOF OF LOSS continue any litigation, with regard to the matter or matters
In the event the Company is unable to determine the amount of requiring such cooperation.
loss or damage, the Company may, at its option, require as a (b) The Company may reasonably require the Insured Claimant
condition of payment that the Insured Claimant furnish a signed to submit to examination under oath by any authorized
proof of loss. The proof of loss must describe the defect, lien, representative of the Company and to produce for
encumbrance, or other matter insured against by this policy that examination, inspection, and copying, at such reasonable
constitutes the basis of loss or damage and shall state, to the times and places as may be designated by the authorized
extent possible, the basis of calculating the amount of the loss or representative of the Company, all records, in whatever
damage. medium maintained, including books, ledgers, checks,
5. DEFENSE AND PROSECUTION OF ACTIONS memoranda, correspondence, reports, e-mails, disks, tapes,
(a) Upon written request by the Insured, and subject to the and videos whether bearing a date before or after Date of
options contained in Section 7 of these Conditions, the Policy,that reasonably pertain to the loss or damage.Further,
Company, at its own cost and without unreasonable delay, if requested by any authorized representative of the
shall provide for the defense of an Insured in litigation in Company, the Insured Claimant shall grant its permission, in
which any third party asserts a claim covered by this policy writing, for any authorized representative of the Company to
adverse to the Insured.This obligation is limited to only those examine, inspect,and copy all of these records in the custody
stated causes of action alleging matters insured against by or control of a third party that reasonably pertain to the loss or
this policy. The Company shall have the right to select damage. All information designated as confidential by the
counsel of its choice (subject to the right of the Insured to Insured Claimant provided to the Company pursuant to this
object for reasonable cause) to represent the Insured as to Section shall not be disclosed to others unless, in the
those stated causes of action. reasonable judgment of the Company, it is necessary in the
It shall not be liable for and will not pay the fees of any other administration of the claim. Failure of the Insured Claimant to
counsel. The Company will not pay any fees, costs, or submit for examination under oath, produce any reasonably
IForm 5011312(7-1-14) Page 4 of 6 I ALTA Loan Policy of Title Insurance(6-17-06)(with Florida modifications)
Policy#: 5011312-0636506e CONDITIONS(Continued)
requested information, or grant permission to secure (ii) the Indebtedness,
reasonably necessary information from third parties as (iii) the difference between the value of the Title as insured and
required in this subsection, unless prohibited by law or the value of the Title subject to the risk insured against by
governmental regulation, shall terminate any liability of the this policy,or
Company under this policy as to that claim. (iv) if a govemment agency or instrumentality is the Insured
7. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS; Claimant,the amount it paid in the acquisition of the Title or
TERMINATION OF LIABILITY the Insured Mortgage in satisfaction of its insurance contract
In case of a claim under this policy, the Company shall have the or guaranty.
following additional options: (b) If the Company pursues its rights under Section 5 of these
(a) To Pay or Tender Payment of the Amount of Insurance or to Conditions and is unsuccessful in establishing the Title or the lien
Purchase the Indebtedness. of the Insured Mortgage,as insured,
(i) To pay or tender payment of the Amount of Insurance under (i) the Amount of Insurance shall be increased by 10%,and
this policy together with any costs, attomeys' fees, and (ii) the Insured Claimant shall have the right to have the loss or
expenses incurred by the Insured Claimant that were damage determined either as of the date the claim was
authorized by the Company up to the time of payment or made by the Insured Claimant or as of the date it is settled
tender of payment and that the Company is obligated to and paid.
pay;or (c) In the event the Insured has acquired the Title in the manner
(ii) To purchase the Indebtedness for the amount of the described in Section 2 of these Conditions or has conveyed the
Indebtedness on the date of purchase, together with any Title,then the extent of liability of the Company shall continue as
costs,attorneys'fees,and expenses incurred by the Insured set forth in Section 8(a)of these Conditions.
Claimant that were authorized by the Company up to the (d) In addition to the extent of liability under (a), (b), and (c), the
time of purchase and that the Company is obligated to pay. Company will also pay those costs, attorneys' fees, and
When the Company purchases the Indebtedness, the Insured expenses incurred in accordance with Sections 5 and 7 of these
shall transfer, assign, and convey to the Company the Conditions.
Indebtedness and the Insured Mortgage, together with any 9. LIMITATION OF LIABILITY
collateral security. (a) If the Company establishes the Title, or removes the alleged
Upon the exercise by the Company of either of the options defect, lien, or encumbrance, or cures the lack of a right of
provided for in subsections(a)(i)or(ii),all liability and obligations access to or from the Land, or cures the claim of Unmarketable
of the Company to the Insured under this policy, other than to Title, or establishes the lien of the Insured Mortgage, all as
make the payment required in those subsections,shall terminate, insured, in a reasonably diligent manner by any method,
including any liability or obligation to defend, prosecute, or including litigation and the completion of any appeals, it shall
continue any litigation. have fully performed its obligations with respect to that matter
(b) To Pay or Otherwise Settle With Parties Other Than the Insured and shall not be liable for any loss or damage caused to the
or With the Insured Claimant. Insured.
(i) to pay or otherwise settle with other parties for or in the (b) In the event of any litigation, including litigation by the Company
name of an Insured Claimant any claim insured against or with the Company's consent, the Company shall have no
under this policy. In addition, the Company will pay any liability for loss or damage until there has been a final
costs,attorneys'fees,and expenses incurred by the Insured determination by a court of competent jurisdiction,and disposition
Claimant that were authorized by the Company up to the of all appeals, adverse to the Title or to the lien of the Insured
time of payment and that the Company is obligated to pay; Mortgage,as insured.
or (c) The Company shall not be liable for loss or damage to the
(ii) to pay or otherwise settle with the Insured Claimant the loss Insured for liability voluntarily assumed by the Insured in settling
or damage provided for under this policy,together with any any claim or suit without the prior written consent of the
costs,attorneys'fees,and expenses incurred by the Insured Company.
Claimant that were authorized by the Company up to the 10. REDUCTION OF INSURANCE; REDUCTION OR TERMINATION
time of payment and that the Company is obligated to pay. OF LIABILITY
Upon the exercise by the Company of either of the options (a) All payments under this policy,except payments made for costs,
provided for in subsections (b)(i) or (ii), the Company's attomeys' fees, and expenses, shall reduce the Amount of
obligations to the Insured under this policy for the claimed loss or Insurance by the amount of the payment. However, any
damage, other than the payments required to be made, shall payments made prior to the acquisition of Title as provided in
terminate, including any liability or obligation to defend, Section 2 of these Conditions shall not reduce the Amount of
prosecute,or continue any litigation. Insurance afforded under this policy except to the extent that the
8. DETERMINATION AND EXTENT OF LIABILITY payments reduce the Indebtedness.
This policy is a contract of indemnity against actual monetary loss or (b) The voluntary satisfaction or release of the Insured Mortgage
damage sustained or incurred by the Insured Claimant who has shall terminate all liability of the Company except as provided in
suffered loss or damage by reason of matters insured against by this Section 2 of these Conditions.
policy. 11. PAYMENT OF LOSS
(a) The extent of liability of the Company for loss or damage under When liability and the extent of loss or damage have been definitely
this policy shall not exceed the least of fixed in accordance with these Conditions,the payment shall be made
(i) the Amount of Insurance, within 30 days.
IForm 5011312(7-1-14) Page 5 of 6 I ALTA Loan Policy of Title Insurance(6-17-06)(with Florida modifications)
Policy#: 5011312-0636506e CONDITIONS(Continued)
12. RIGHTS OF RECOVERY UPON PAYMENT OR SETTLEMENT option of the Insured, the Rules in effect at Date of Policy shall be
(a) The Company's Right to Recover binding upon the parties. The award may include attorneys' fees
Whenever the Company shall have settled and paid a claim only if the laws of the state in which the Land is located permit a
under this policy, it shall be subrogated and entitled to the court to award attorneys'fees to a prevailing party.Judgment upon
rights of the Insured Claimant in the Title or Insured Mortgage the award rendered by the Arbitrator(s) may be entered in any
and all other rights and remedies in respect to the claim that court having jurisdiction thereof.
the Insured Claimant has against any person or property, to The law of the situs of the land shall apply to an arbitration under
the extent of the amount of any loss, costs, attorneys' fees, the Title Insurance Arbitration Rules.
and expenses paid by the Company. If requested by the A copy of the Rules may be obtained from the Company upon
Company, the Insured Claimant shall execute documents to request.
evidence the transfer to the Company of these rights and 14. LIABILITY LIMITED TO THIS POLICY; POLICY ENTIRE
remedies.The Insured Claimant shall permit the Company to CONTRACT
sue, compromise, or settle in the name of the Insured (a) This policy together with all endorsements, if any, attached to
Claimant and to use the name of the Insured Claimant in any it by the Company is the entire policy and contract between
transaction or litigation involving these rights and remedies. the Insured and the Company. In interpreting any provision of
If a payment on account of a claim does not fully cover the this policy,this policy shall be construed as a whole.
loss of the Insured Claimant, the Company shall defer the (b) Any claim of loss or damage that arises out of the status of
exercise of its right to recover until after the Insured Claimant the Title or lien of the Insured Mortgage or by any action
shall have recovered its loss. asserting such claim whether or not based on negligence
(b) The Insured's Rights and Limitations shall be restricted to this policy.
(i) The owner of the Indebtedness may release or substitute (c) Any amendment of or endorsement to this policy must be in
the personal liability of any debtor or guarantor, extend writing and authenticated by an authorized person, or
or otherwise modify the terms of payment, release a expressly incorporated by Schedule A of this policy.
portion of the Title from the lien of the Insured Mortgage, (d) Each endorsement to this policy issued at any time is made a
or release any collateral security for the Indebtedness, if part of this policy and is subject to all of its terms and
it does not affect the enforceability or priority of the lien provisions. Except as the endorsement expressly states, it
of the Insured Mortgage. does not (i) modify any of the terms and provisions of the
(ii) If the Insured exercises a right provided in (b)(i), but has policy, (ii) modify any prior endorsement, (iii)extend the Date
Knowledge of any claim adverse to the Title or the lien of of Policy,or(iv)increase the Amount of Insurance.
the Insured Mortgage insured against by this policy, the 15. SEVERABILITY
Company shall be required to pay only that part of any In the event any provision of this policy, in whole or in part, is held
losses insured against by this policy that shall exceed invalid or unenforceable under applicable law, the policy shall be
the amount, if any, lost to the Company by reason of the deemed not to include that provision or such part held to be
impairment by the Insured Claimant of the Company's invalid,but all other provisions shall remain in full force and effect.
right of subrogation. 16. CHOICE OF LAW; FORUM
(c) The Company's Rights Against Non-insured Obligors (a) Choice of Law: The Insured acknowledges the Company has
The Company's right of subrogation includes the Insured's underwritten the risks covered by this policy and determined
rights against non-insured obligors including the rights of the the premium charged therefor in reliance upon the law
Insured to indemnities, guaranties, other policies of insurance, affecting interests in real property and applicable to the
or bonds, notwithstanding any terms or conditions contained in interpretation, rights, remedies, or enforcement of policies of
those instruments that address subrogation rights. title insurance of the jurisdiction where the Land is located.
The Company's right of subrogation shall not be avoided by Therefore,the court or an arbitrator shall apply the law of the
acquisition of the Insured Mortgage by an obligor(except an jurisdiction where the Land is located to determine the validity
obligor described in Section 1(e)(i)(F) of these Conditions) of claims against the Title or the lien of the Insured Mortgage
who acquires the Insured Mortgage as a result of an that are adverse to the Insured and to interpret and enforce
indemnity, guarantee, other policy of insurance, or bond, and the terms of this policy. In neither case shall the court or
the obligor will not be an Insured under this policy. arbitrator apply its conflicts of law principles to determine the
13. ARBITRATION applicable law.
Unless prohibited by applicable law, arbitration pursuant to the (b) Choice of Forum: Any litigation or other proceeding brought
Title Insurance Arbitration Rules of the American Arbitration by the Insured against the Company must be filed only in a
Association may be demanded if agreed to by both the Company state or federal court within the United States of America or
and the Insured at the time of controversy or claim. Arbitrable its territories having appropriate jurisdiction.
matters may include, but are not limited to, any controversy or 17. NOTICES,WHERE SENT
claim between the Company and the Insured arising out of or Any notice of claim and any other notice or statement in writing
relating to this policy, and service of the Company in connection required to be given to the Company under this policy must be given
with its issuance or the breach of a policy provision or other to the Company at First American Title Insurance Company,
obligation. Arbitration pursuant to this policy and under the Rules Attn: Claims National Intake Center, 1 First American Way,
in effect on the date the demand for arbitration is made or, at the Santa Ana,California 92707. Phone:888-632-1642.
IForm 5011312(7-1-14) Page 6 of 6 I ALTA Loan Policy of Title Insurance(6-17-06)(with Florida modifications)
, .M E,, Loan Policy of Title Insurance
t First American Title ISSUED BY
y,_ �4 First American Title Insurance Company
A
POLICY NUMBER
Schedule 5011321-0636506e
Name and Address of Title Insurance Company:
FIRST AMERICAN TITLE INSURANCE COMPANY, 1 First American Way, Santa Ana, California 92707
Issuing Office File Number: 118035-00049A
Address Reference: 700 N. Seacrest Blvd, Boynton Beach, FL 33435
Amount of Insurance: $567,500.00
Date of Policy: 11/14/2019 11:21 a.m.
1. Name of Insured:
City of Boynton Beach, a political subdivision of the State of Florida, its successors and/or assigns, as their
interests may appear.
2. The estate or interest in the Land that is encumbered by the Insured Mortgage is: Fee Simple
3. Title is vested in:
Ocean Breeze East Apartments, LLC, a Florida limited liability company
4. The Insured Mortgage, and its assignments, if any, are described as follows:
Mortgage executed by Ocean Breeze East Apartments, LLC, a Florida limited liability company,to City of Boynton
Beach, a political subdivision of the State of Florida, securing indebtedness in the original principal amount of
$567,500.00, dated as of November 8, 2019 and recorded November 14, 2019 in Official Records Book 31024,
Page 1844, in the public records of Palm Beach County, Florida.
Form 5011312(2-1-11) Page 1 of 7 ALTA Loan Policy of Title Insurance(6-17-06)(with Florida modifications)
t •~F•,
ISSUED BY
First American Title First American Title Insurance Company
POLICY NUMBER
Schedule A (Continued) 5011321-0636506e
5. The Land referred to in this policy is described as follows:
See Exhibit "A" attached hereto and made a part hereof
6. This policy incorporates by reference those ALTA endorsements selected below:
[ ] ALTA Endorsement 4.1-06 Condominium (with Florida modifications)
[ ] ALTA Endorsement 5.1-06 Planned Unit Development (with Florida modifications)
[ ] ALTA Endorsement 6-06 Variable Rate
[ ] ALTA Endorsement 6.2-06 Variable Rate - Negative Amortization
[ ] ALTA Endorsement 8.1-06 Environmental Protection Lien (with Florida modifications) Paragraph
b refers to the following state statute(s): NONE.
[ ] ALTA Endorsement 9-06 Restrictions, Easements, Minerals (with Florida modifications)
[ ] ALTA Endorsement 13.1-06 Leasehold Loan
[ ] ALTA Endorsement 14-06 Future Advance - Priority (with Florida modifications)
[ ] ALTA Endorsement 14.1-06 Future Advance - Knowledge (with Florida modifications)
[ ] ALTA Endorsement 14.3-06 Future Advance - Reverse Mortgage (with Florida modifications)
[ ] Florida Endorsement NSE Navigational Servitude
Other Endorsements:
[ ] Survey Endorsement
[ ] Contiguity Endorsement
NELSON MULLINS BRO D AND CASSEL
By: 1
\Authorized Signatory
(This Schedule A valid only when Schedule BI&BII are attached)
Form 5011312(2-1-11) Page 2 of 7 ALTA Loan Policy of Title Insurance(6-17-06)(with Florida modifications)
44' w Y F R'r7
ISSUED BY
First American Title First American Title Insurance Company
POLICY NUMBER
Exhibit " A 5011321-0636506e
Issuing Office File Number: 118035-00049A
The land referred to herein below is situated in the County of Palm Beach, State of Florida, and described as
follows:
Lots 3 through 12 inclusive, in Block 1, AND Lots 1 and 2, in Block 1, LESS all that portion of Lots 1 and 2 lying
West of the East right-of-way line for Seacrest Boulevard as shown on Road Plat Book 5, at Page 182 AND
LESS a 20 foot return curve area for road right-of-way, PALM BEACH COUNTRY CLUB ESTATES, according to
the Plat thereof, as recorded in Plat Book 11, at Page 43, of the Public Records of Palm Beach County, Florida.
AND
The South 1/2 of the East 1/2 of Lot 2 of Subdivision of the West 1/2 of the Southeast 1/4 of Section 21,
Township 45 South, Range 43 East, LESS the South 125 feet thereof; LESS the parcels conveyed to the City of
Boynton Beach by Official Records Book 852, Page 642, and LESS the right-of-way for Seacrest Boulevard, as
shown on Road Plat Book 5, at Page 182, according to the Plat thereof, as recorded in Plat Book 1, at Page 4,
Public Records of Palm Beach County, Florida.
Form 5011312(2-1-11) Page 3 of 7 ALTA Loan Policy of Title Insurance(6-17-06)(with Florida modifications)
44, A M F R,r Loan Policy of Title Insurance
410k.,~ First American Title
ISSUED BY
1� e
First American Title Insurance Company
POLICY NUMBER
Schedule BI
5011321-0636506e
Issuing Office File Number: 118035-00049A
PART I
EXCEPTIONS FROM COVERAGE
Except as provided in Schedule B - Part II, this policy does not insure against loss or damage, and the
Company will not pay costs, attorneys' fees, or expenses that arise by reason of:
1. Intentionally Deleted.
2. Intentionally Deleted.
3. Intentionally Deleted.
4. Intentionally Deleted.
5. Intentionally Deleted.
6. Intentionally Deleted.
7. Intentionally Deleted.
8. Taxes and assessments for the year 2020 and subsequent years, which are not yet due and
payable.
9. Restrictions, dedications, conditions, reservations, easements and other matters shown on the plat
of PALM BEACH COUNTRY CLUB ESTATES, as recorded March 3, 1925 in Plat Book 11, Page(s) 43,
but deleting any covenant, condition or restriction indicating a preference, limitation or
discrimination based on race, color, religion, sex, handicap, familial status or national origin to the
extent such covenants, conditions or restrictions violate 42 USC 3604(c).
10. Reservations unto the State of Florida for oil,gas, minerals,fissionable materials and 200 foot State
Road Right of Way as contained in Deed No. 2851 recorded March 4, 1946 in Deed Book 751, Page
209, as affected by Quitclaim Deed from Trustees of the Internal Improvement Trust Fund of the
State of Florida release the right of entry and exploration recorded November 9, 1983 in Book
4081, Page 1973 and Release of Road Reservation for Deed Nos. 2147, 2851 and 3486 by Trustees
recorded August 16, 2006 in Book 20739, Page 486. (as to Lots 1, 2 and 6 Block 1)
11. Reservations unto the State of Florida for oil,gas, minerals,fissionable materials and 200 foot State
Road Right of Way as contained in Deed No. 3486 recorded September 19, 1947 in Deed Book
822, Page 121, as affected by Quitclaim Deed from Trustees of the Internal Improvement Trust
Fund of the State of Florida release the right of entry and exploration recorded November 9, 1983
Form 5011312(2-1-11) Page 4 of 7 ALTA Loan Policy of Title Insurance(6-17-06)(with Florida modifications)
in Book 4081, Page 1972 and Release of Road Reservation for Deed Nos. 2147, 2851 and 3486 by
Trustees recorded August 16, 2006 in Book 20739, Page 486. (as to Lots 7-12 Block 1)
12. Easement granted to Florida Power&Light Company recorded August 17, 1967 in Book 1571, Page
429. (as to all property, less Lots 1, 2 and 11 Block 1)
13. Mortgage and Security Agreement executed by Ocean Breeze East Apartments, LLC, a Florida
limited liability company, to TD Bank, N.A., a national banking association, securing indebtedness
in the original principal amount of $13,700,000.00, dated as of November 8, 2019 and recorded
November 14, 2019 in Official Records Book 31024, Page 1759, in the public records of Palm Beach
County, Florida.
14. Assignment of Leases and Rents,executed by Ocean Breeze East Apartments, LLC, a Florida limited
liability company to TD Bank, N.A., a national banking association, dated November 8, 2019 and
recorded November 14, 2019 in Official Records Book 31024, Page 1811 in the public records of
Palm Beach County, Florida.
15. UCC-1 Financing Statement naming Ocean Breeze East Apartments LLC, a Florida limited liability
company, a Florida limited liability company, as debtor, and TD Bank, N.A., as secured party,
recorded November 14, 2019 Official Records Book 31024, Page 1827 of the Public Records Palm
Beach County, Florida.
16. Subordination Agreement and Consent(CRA/PDA) recorded November 14, 2019 in Official Records
Book 31024, Page 1832, in the Public Records of Palm Beach County, Florida.
17. Subordination Agreement recorded November 14, 2019 in Official Records Book 31024, Page 1854,
in the Public Records of Palm Beach County, Florida.
18. Pending disbursement of the full proceeds of the loan secured by the Insured Mortgage, this policy
only insures up to the amount actually disbursed, but, as proceeds are disbursed, increases in
accordance with Florida Construction Loan Update Endorsement(s), up to the Amount of Insurance
stated in Schedule A.
Form 5011312(2-1-11) Page 5 of 7 ALTA Loan Policy of Title Insurance(6-17-06)(with Florida modifications)
a�, •«ER �, Loan Policy of Title Insurance
t First American Title ISSUED BY
4.0 First American Title Insurance Company
POLICY NUMBER
Schedule Bil 5011321-0636506e
Issuing Office File Number: 118035-00049A
In addition to the matters set forth in Part I of this Schedule, the Title is subject to the following matters, and the
Company insures against loss or damage sustained in the event that they are not subordinate to the lien of the
Insured Mortgage:
1. Notice of Commencement executed by Ocean Breeze East Apartments LLC, a Florida limited liability
company, recorded November 14, 2019, in Official Records Book 31024, Page 1866 of Palm Beach
County, Florida.
Form 5011312(2-1-11) Page 6 of 7 ALTA Loan Policy of Title Insurance(6-17-06)(with Florida modifications)
AmENoc
1+ ISSUED BY
First American Title First American Title Insurance Company
44.
POLICY NUMBER
Schedule BII (Continued) 5011321-0636506e
Issuing Office File Number: 118035-00049A
Notices - Where Sent
All notices required to be given the Company and any statement in writing required to be furnished the Company
shall include the number of this policy and shall be addressed to the Company, Attention: Claims Department, 1
First American Way, Santa Ana, CA 92707.
Service, Quality and Availability
First American Title Insurance Company cares about its customers and their ability to obtain information and service
on a convenient, timely and accurate basis. A qualified staff of service representatives is dedicated to serving you.
A toll-free number is available for your convenience in obtaining information about coverage and to provide
assistance in resolving complaints at 1-800-929-7186. Office hours are from 8:30 a.m. through 5:30 p.m. Monday
through Friday.
Form 5011312(2-1-11) Page 7 of 7 ALTA Loan Policy of Title Insurance(6-17-06)(with Florida modifications)
E-RECORDED simptiluv•
ID: 2°1104 1 b$ci s 3Iit`I P VON
Prepared and return to: Q C
Randal M..Alligood,Esq. County: w. Dt4•-vN.
Nelson Mullins Broad and Cassel Date: I El 7°1 -rime: 1 I•ti 1 ' �1
390 N.Orange Avenue, Suite 1400
Orlando,FL 32801
THIS MORTGAGE IS GIVEN TO SECURE THE FINANCING OF HOUSING UNDER
PART V OF CHAPTER 420, FLORIDA STATUTES, AND IS EXEMPT FROM TAXATION
PURSUANT TO SECTION 420.513, FLORIDA STATUTES. ACCORDINGLY, NO
DOCUMENTARY STAMP TAX OR INTANGIBLE TAX IS DUE IN CONNECTION WITH
THIS MORTGAGE.
Folio#s: 08-43-45-21-10-001-0010 & 08-43-45-21-00-000-0021
MORTGAGE
THIS MORTGAGE,hereinafter referred to as the"Mortgage"is made on or as of the 8th day
of November, 2019, by and between OCEAN BREEZE EAST APARTMENTS LLC, a Florida limited
liability company, hereinafter referred to as "Borrower," whose principal address is 7735 NW 146 Street,
Suite 306, Miami Lakes, FL 33016, and THE CITY OF BOYNTON BEACH, a political subdivision of the
State of Florida, whose principal address is 3301 Quantum Blvd, Suite 101, Boynton Beach, FL 33426
hereinafter referred to as"Lender".
WITNESSETH:
THAT to secure the payment of an indebtedness in the principal amount of Five Hundred Sixty-
Seven Thousand Five Hundred and NO/100 Dollars ($567,500.00), hereinafter referred to as the "Loan",
which shall be payable in accordance with that certain Promissory Note and Loan Agreement,bearing even
date herewith, inclusive of the signature of the Borrower, which is affixed hereto and made a part hereof,
hereinafter referred to as the "Note", and all other indebtedness which Borrower is obligated to pay to
Lender pursuant to the provisions of the Note and this Mortgage, Borrower hereby grants, conveys and
mortgages to Lender all of its right,title and interest in:
ALL THAT certain lot, piece or parcel of land situated in Palm Beach County and State of
Florida,bounded and described in Exhibit"A"
TOGETHER with all of Borrower's right, title and interest in the improvements now or hereafter
erected on the property, and all easements, rights, appurtenances, rents, royalties, mineral, oil and gas rights
and profits,water,water rights,and water stock,and all fixtures now or hereafter attached to the property,all
of which,including replacements and additions hereto,shall be deemed to be and remain a part of the property
covered by this Mortgage and all of the foregoing, together with said property are herein referred to as the
"Property";and
TOGETHER with any and all of Borrower's right,title and interest in awards now or hereafter made
for the taking of the property mortgaged hereby,or any part thereof(including any easement)by the exercise
of the power of eminent domain, including any award for change of grade of any street or other roadway,
which awards are hereby assigned to Lender and are deemed a part of the property mortgaged hereby; and
Lender is hereby authorized to collect and receive the same toward the payment of indebtedness secured by
this Mortgage,notwithstanding the fact that the amount thereon may not then be due and payable;and
4839-3055-9657 v.8
TOGETHER with all rights, title and interest of Borrower in and to the land lying in the streets,
roads, or alleys adjoining to the above-described land. All the above described land, buildings, other
structures, fixtures, articles of personal property, awards and other rights and interests being hereinafter
collectively referred to as the "Mortgaged Property."
TO HAVE AND TO HOLD the Mortgaged Property and every part thereof unto Lender, its
successors and assigns forever for the purposes and uses herein set forth.
AND Borrower further covenants and agrees with Lender,as follows:
1. PAYMENT OF PRINCIPAL AND INTEREST.
Borrower shall promptly pay the principal of the indebtedness evidenced by the Note,and all
other charges and indebtedness provided therein and in this Mortgage,at the times and in the manner provided
in the Note.
Payment of principal shall be due in full on twentieth annual anniversary of the date hereof
(hereinafter referred to as the"Loan Term")or prior to the expiration of the Loan Term if the Property is sold
without the Lender's prior written consent. The Loan may be forgiven any time after the end of the
Compliance Period (as defined in the Borrower's Amended and Restated Operating Agreement) in the sole
and absolute discretion of the Lender.
2. FUNDS FOR TAXES,ASSESSMENTS AND LIENS.
Borrower shall pay before the same become delinquent, as hereinafter provided, all taxes,
assessments, and other governmental charges, fines and impositions, of every kind and nature whatsoever,
now or hereafter imposed on the Mortgaged Property,or any part thereof,and will pay when due every amount
of indebtedness secured by any lien to which the lien of this Mortgage is expressly subject.
3. COMPLETION OF IMPROVEMENTS.
This Mortgage and the attached Note were executed and delivered to secure moneys
advanced in full to Borrower by Lender as or on account of a loan evidenced by the Note for the purpose of
constructing on the Mortgaged Property one hundred twenty-three (123) rental apartments, hereinafter
collectively referred to as the "Improvements." Borrower shall make or cause to be made all of the
Improvements.
4. BUILDING REMOVAL, ADDITIONS AND COMPLIANCE WITH
REQUIREMENTS.
No building,structure,improvement,fixture or personal property mortgaged hereby shall be
removed or demolished without the prior written consent of Lender except for obsolete or worn property
replaced by adequate substitutes equal or greater in value than the replaced items when new and inventory
and goods in the ordinary course of business. Borrower will not make,permit, or suffer any alteration of or
addition to any building, structure or improvement which may hereafter be erected or installed upon the
Mortgaged Property,or any part thereof,except the Improvements required to be made pursuant to Paragraph
3 hereof,nor will Borrower use,or permit or suffer the use of,any of the Mortgaged Property for any purpose
other than the purpose or purposes for which the same is now intended to be used,without the prior written
consent of Lender. Borrower will maintain the Mortgaged Property in good condition and state of repair and
will not suffer or permit any waste to any part thereof,and will promptly comply with all the requirements of
Federal, State and local governments or of any departments, divisions or bureaus thereof,pertaining to such
property or any part thereof.
5. CHARGES AND LIENS.
Borrower will not voluntarily create,or permit or suffer to be created or to exist,on or against
4839-3055-9657 v.8
the Mortgaged Property or any part thereof, any lien superior to the lien of this Mortgage, exclusive of the
lien or liens to which this Mortgage is expressly subject, and will keep and maintain the same free from the
claims of all parties supplying labor and/or materials which will enter into the construction or installation of
the Improvements.The Lender hereby acknowledges and agrees that the Mortgage will be subordinate
to the first construction loan and first permanent mortgage loan and any refinancing thereof,
including increases in the first mortgage loan amounts(collectively,the"Prior Mortgage"). All of the
provisions herein shall be subject to the terms of the Prior Mortgage.
6. NOTICE OF FIRE OR CASUALTY.
Borrower will give immediate notice by registered or certified mail to Lender of any fire,
damage or other casualty affecting the Mortgaged Property, or of any conveyance, transfer or change in
ownership of such property, or any part thereof excepting a transfer otherwise permitted in the Borrower's
Amended and Restated Operating Agreement.
7. COVERAGE OF INSURANCE POLICIES.
a. Borrower will keep all buildings,other structures and improvements insured against
loss by fire, flood (when applicable) and other hazards, casualties and contingencies in such amounts and
manner and for such periods as may be reasonably required by Lender.Lender's insurance requirements may
change from time to time throughout the term of the indebtedness.All such insurance policies must include
standard fire and extended coverage in amounts not less than necessary to comply with the coinsurance clause.
Flood insurance IS NOT required for the subject property during the term of the mortgage loan unless
required by the Prior Mortgage. When required, flood insurance shall be in an amount at least equal to the
outstanding principal balance of all mortgage(s), or the maximum amount of insurance available with
respect to the project under the National Flood Insurance Act,whichever is lesser. All such insurance shall
be carried by companies reasonably approved by Lender,and all policies shall be in such form and shall have
attached thereto loss payable clauses in favor of Lender and any other parties as shall be reasonably
satisfactory to Lender. All such policies and attachments thereto shall be delivered promptly to Lender,unless
they are required to be delivered to the holder of a lien or a mortgage or similar instrument to which this
Mortgage is expressly subject, in which latter event certificates thereof, satisfactory to Lender, shall be
delivered promptly to Lender. Borrower will pay promptly when due, as hereinafter provided, any and all
premiums on such insurance.The Lender shall be listed as an additional insured on all such insurance policies.
b. In the event of loss or damage to the Mortgaged Property, Borrower will give to
Lender immediate notice thereof by mail, at the address herein above stated and Lender may make and file
proof of loss if not made otherwise promptly by or on behalf of Borrower. Unless Borrower and Lender
otherwise agree in writing, insurance proceeds shall be applied to restoration or repair, provided such
restoration or repair is economically feasible and the security of this Mortgage is not thereby impaired.If such
restoration or repair is not economically feasible or if the security of this Mortgage would be impaired,the
insurance proceeds shall be applied to the sums secured by this Mortgage with the excess, if any, paid to
Borrower. If the Property is abandoned by Borrower, for more than thirty (30) days unless due to events
described in Paragraph 3,or if Borrower fails to respond to Lender within thirty(30)days from the date notice
is mailed by Lender to Borrower that the insurance carrier offers to settle a claim for insurance benefits,Lender
is authorized to collect and apply the insurance proceeds at Lender's option either to restoration or repair of
the Property or to the sums secured by this Mortgage.Usage of condemnation proceeds shall be subject to the
same provisions of this Section 7(b).
c. At least thirty (30) days prior to the expiration of each policy, the Borrower will
furnish the Lender with evidence satisfactory to the Lender of the payment of premium and the reissuance
of a policy continuing insurance in force as required by this Mortgage. All policies, including policies for
any amounts carried in excess of the required minimum and policies not specifically required by the Lender,
will be in a form satisfactory to the Lender,and will be maintained in full force and effect.All policies will
contain a provision that the policies will not be cancelled or materially amended(including any reduction
4839-3055-9657 v.8
in the scope or limits of coverage),without at least ten(10)days prior written notice to the Lender. If all or
any part of the insurance will expire,or be withdrawn,or become void or unsafe,by reason of the Borrower's
breach of any condition,or if for any reason whatsoever the insurance will be unsatisfactory to the Lender,
the Borrower will place new insurance on the premises, satisfactory to the Lender. Notwithstanding
anything to the contrary herein, Borrower's compliance with the insurance requirements of the Prior
Mortgage shall be deemed compliance with the terms of this Section 7.
8. TAXES.
In order to protect more fully the security of this Mortgage,Borrower shall promptly submit
to Lender upon request,or Lender's designated agent,the Palm Beach County Tax Invoice for the Mortgaged
Property. Such invoice shall show either that no taxes are due or be accompanied by a receipt showing taxes
have been paid in full.
9. LOCAL ORDINANCES.
The Improvements and all plans and specifications shall comply with all applicable local
ordinances,regulations and rules made or promulgated with lawful authority,including without limitation the
Palm Beach County Construction Code and the Palm Beach County Property Maintenance Code.
10. PROTECTION OF LENDER'S SECURITY.
If Borrower fails to perform the covenants and agreements contained in this Mortgage or
the Agreement, excluding any lien to which this Mortgage is expressly subject, or if any action or
proceeding is commenced which materially affects Lender's interest in the Property, including, but not
limited to eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a
bankrupt or decedent, then Lender at Lender's option, upon notice to Borrower, may make such
appearances,disburse such sums,and take such action as is necessary to protect Lender's interest,including,
but not limited to,disbursement of reasonable attorney's fees.
Any amounts disbursed by Lender pursuant to this Paragraph with interest thereon, shall become
additional indebtedness of Borrower secured by this Mortgage. Unless Borrower and Lender agree to other
terms of payments,such amounts shall be payable upon notice from Lender to Borrower requesting payment
thereof, and shall bear interest from the date of disbursement at the rate payable from time to time on
outstanding principal under the Note unless payment of interest at such time would be contrary to applicable
law, in which event such amounts shall bear interest at the highest rate permissible under applicable law.
Nothing contained in this Paragraph shall require Lender to incur any expense or take any action hereunder.
11. LENDER INSPECTIONS.
Lender,or any of its Agents or Representatives,shall have the right to inspect the Mortgaged
Property upon reasonable notice,which shall not be less than 3 business days.Should the Mortgaged Property,
or any part thereof, require repair, care or attention, then, after written notice as provided herein(Paragraph
16)to Borrower,and Borrower's failure to so perform,Lender may enter or cause entry to be made upon the
Mortgaged Property and repair, protect and maintain the property as Lender may deem necessary. Any and
all money that Lender must pay to accomplish the proper maintenance on the mortgaged property shall
become due and payable under the provision of Paragraph 10.
12. EVENT OF DEFAULT.
An Event of Default will be the occurrence of any one of the following events and expiration
of the applicable cure period set forth in Paragraph 13 below, and upon that occurrence Lender may, at
Lender's option,declare all sums secured by this Mortgage to be immediately due and payable.
a. Failure to pay the amount of any installment of principal and interest, or other
charges payable on the Note,which shall have become due,prior to the due date of the next such installment;
4839-3055-9657 v.8 •
b. Nonperformance by Borrower of any covenant,agreement,term,or condition of this
Mortgage,the Note,the Agreement,or of any other agreement made by Borrower with Lender in connection
with such indebtedness,after Borrower has been given due notice in accordance with Paragraph 13 below by
Lender to cure such nonperformance and thirty(30)days to cure;
c. Failure of Borrower to perform any covenant, agreement, term or condition in any
instrument creating a lien upon the Mortgaged Property, or any part thereof, which shall have priority over
the lien of this Mortgage which continues beyond any applicable grace or cure period and for which a default
has been declared;
d. Lender's discovery of Borrower's failure in any application of Borrower to Lender
to disclose any fact deemed by Lender to be material, or the making herein, or in any of the agreements
entered into by Borrower with Lender (including, but not limited to, the Note and this Mortgage) of any
misrepresentation by, on behalf of, or for the benefit of Borrower;
e. Failure by the Borrower to submit promptly to the Lender or Lender's designated
agent proof of payment of all insurance and taxes,as required herein;
f. If the construction or installation of the Improvements shall not be carried out with
reasonable diligence, or shall be discontinued at any time for a period of thirty(30)consecutive days for any
reason other than strikes, lock-outs,acts of God,fires,floods or other similar catastrophes, such as riots,war
or insurrection,or other events beyond the control of Borrower;or
g. IF BORROWER DOES NOT REMAIN OWNER, OR IF ALL OR ANY
PART OF THE PROPERTY OR AN INTEREST THEREIN IS RENTED,LEASED OR SOLD BY
BORROWER, EXCEPT IN THE ORDINARY COURSE OF BUSINESS AS AN AFFORDABLE
HOUSING RENTAL DEVELOPMENT,WITHOUT LENDER'S PRIOR WRITTEN CONSENT.
13. OPTION OF MORTGAGEE UPON EVENT OF DEFAULT.
Upon the occurrence of An Event of Default,Lender,prior to acceleration, shall mail notice
to Borrower and its Investor Member as is provided in Paragraph 16 hereof, specifying:
a. The breach;
b. The action required to cure such breach;
c. A date not less than ten(10)days from the date the notice is mailed to Borrower by
which such breach must be cured if the default is a monetary default,and a date not less than thirty(30)days
from the date the notice is mailed to Borrower by which such breach must be cured if the default is a non-
monetary default;and
d. That failure to cure such breach on or before the date specified in the notice may
result in acceleration of the sums secured by this Mortgage, foreclosure by judicial proceedings, and sale of
the property.The notice shall further inform Borrower of the right to assert in the foreclosure proceedings the
non-existence of a default,or any other defense of Borrower to acceleration and foreclosure.
If the breach is not cured on or before the date specified in the notice, Lender, at Lender's
option, may declare all of the sums secured by this Mortgage to be immediately due and payable without
further demand and may foreclose this Mortgage by judicial proceedings. Lender shall be entitled to collect
in such proceedings all expenses of foreclosure, including, but not limited to, reasonable attorney's fees and
costs of documentary evidence,abstract,title reports and court costs.
4839-3055-9657 v.8
Notwithstanding anything herein to the contrary, Borrower's investor member shall have the right,
but not the obligation,to cure a default hereunder within the same cure period as the Borrower.
14. APPOINTMENT OF RECEIVER.
Lender in any action to foreclose this Mortgage may be entitled to have a receiver appointed
by a Court of Law as a matter of right and without regard to the value of the Mortgaged Property or the
solvency of Borrower or other parties liable for the payment of the Note and other indebtedness secured by
this Mortgage. Said receiver shall enter upon, take possession of and manage the Property, and will collect
rents of the Property, including those past due. All rents collected by the receiver shall be applied first to
payments of the costs of management of the Property and collection of rents, including, but not limited to,
receiver's fees,premiums on receiver's bonds,and reasonable attorney's fees,and then to the sums secured by
this Mortgage.The receiver shall be liable to account only for those rents actually received.
15. FORBEARANCE BY LENDER NOT A WAIVER.
Any forbearance by Lender in exercising any right or remedy hereunder, or otherwise
afforded by applicable law,shall not be a waiver of or preclude the exercise of any such right or remedy.The
procurement of insurance or the payment of taxes or other liens or charges by Lender shall not be a waiver of
Lender's right to accelerate the maturity of indebtedness secured by this Mortgage.
16. NOTICE.
Except for any notice required under applicable law to be given in another manner, (a)any
notice to Borrower provided for in this Mortgage shall be given by mailing such notice by certified mail
addressed to Borrower at the property address or at such other address as Borrower may designate by notice
to Lender as provided herein, and (b) any notice to Lender shall be given by certified mail, return receipt
requested,to Lender's address below,or to such other address as Lender may designate by notice to Borrower
as provided herein.Any notice provided for in this Mortgage shall be deemed to have been given to Borrower
or Lender when given in the manner designated herein.
LENDER: The City of Boynton Beach
3301 Quantum Blvd, Suite 101
Boynton Beach,FL 33426
WITH A COPY TO:
Lewis Longman Walker
515 North Flagler Drive, Suite 1500
West Palm Beach, FL 33401
Attn: Kenneth W. Dodge,Esq.
BORROWER: Ocean Breeze East Apartments LLC
7735 NW 146 Street, Suite 306
Miami Lakes,FL 33016
Attn: Lewis V. Swezy
WITH A COPY TO:
Nelson Mullins Broad and Cassel
390 N. Orange Avenue, Suite 1400
Orlando, Florida 32801
Attn: Randal M. Alligood,Esq.
4839-3055-9657 v.8
INVESTOR:
c/o Raymond James Tax Credit Funds,Inc.
880 Carillon Parkway
St.Petersburg,Florida 33716
Facsimile No.: 727-567-8455
Attention: Steven J.Kropf,President
Nixon Peabody LLP
Exchange Place
53 State Street
Boston,MA 02109
Attn:Nathan A.Bernard
Facsimile No.: 617-345-1000
17. ONE PARCEL.
In case of a foreclosure sale of the Mortgaged Property,it may be sold as one parcel.
18. BORROWER'S COPY.
Borrower shall be furnished a conformed copy of the Note and of this Mortgage at the time
of execution or after recordation thereof.
19. LAWFULLY SEIZED.
Borrower is lawfully seized of the Mortgaged Property and has good right, full power, and
lawful authority to sell and convey the same in the manner above provided, and will warrant and defend the
same to Lender forever against the lawful claims and demands of any and all parties whatsoever.
20. BORROWER NOT RELEASED.
Extension of the time for payment or modification of amortization of the sums secured by
this Mortgage granted by Lender to any successor in interest of Borrower shall not operate to release in any
manner the liability of the original Borrower and Borrower's successor in interest.Lender shall not be required
to commence proceedings against such successor or refuse to extend time for payment or otherwise modify
amortization of the sums secured by this Mortgage by reason of any demand made by the original Borrower
and Borrower's successors in interest.
21. CAPTIONS.
The captions of this Mortgage are for convenience only and shall not be construed as defming
or limiting the scope or intent of the provisions hereof.
22. SUCCESSORS AND ASSIGNS.
This Mortgage and all covenants, agreements, terms, and conditions herein contained shall
be binding upon and inure to the benefit of Borrower, and,to the extent permitted by law, every subsequent
owner of the Mortgaged Property and shall be binding upon and inure to the benefit of Lender and its assigns.
The word "Lender" shall include any person, corporation, or other party who may from time to time be the
holder of this Mortgage.Whenever used herein,the singular number shall include the plural,the plural number
shall include the singular, and the use of any gender shall be applicable to all genders wherever the sense
requires.
23. VENUE AND APPLICABLE LAW
Each party covenants and agrees that any and all legal actions arising out of or connected
with this Mortgage shall be instituted in the state courts located in and for Palm Beach County,Florida, as
the exclusive forums and venues for any such action, subject to any right of either party to removal from
4839-3055-9657 v.8
state court to federal court, which is hereby reserved, and each party further covenants and agrees that it
will not institute any action in any other forum or venue and hereby consents to immediate dismissal or
transfer of any such action instituted in any other forum or venue.This Mortgage is entered into within,and
with reference to the internal laws of,the State of Florida,and shall be governed, construed and applied in
accordance with the internal laws(excluding conflicts of law)of the State of Florida.
24. SURVIVABILITY AND SEVERABILITY
a. Any term,condition, covenant or obligation which requires performance by either
party subsequent to termination of this Mortgage shall remain enforceable against such party subsequent to
such termination.
b. In the event any section, sentence, clause or provision of this Mortgage is held to
be invalid, illegal or unenforceable by a court having jurisdiction over the matter, the remainder of this
Mortgage shall not be affected by such determination and shall remain in full force and effect.
25. RELEASE
Upon payment of all sums secured by this Mortgage and the Note,the Lender shall release
this Mortgage and the Note.The Borrower shall pay all recordation costs.
26. NONRECOURSE
The Borrower, its members and successors and assigns shall only be liable upon the
indebtedness evidenced by the Agreement,and sums or amounts to accrue or to become payable thereunder
or under this Mortgage or either of them, to the extent of the nonrecourse security granted under the
Agreement or the Mortgage. If a default occurs, any judicial proceedings or enforcement of the remedies
under the Agreement and this Mortgage against the Borrower,its members and successors and assigns shall
be limited to the preservation, enforcement and foreclosure of the liens, estates, assignments,titles, rights
and security interests now or at any time hereafter acquired in such security and no judgment, attachment,
execution or other writ of process shall be sought, issued or levied upon the assets,property or funds of the
Borrower, its members or successors and assigns other than the properties, rights, estates and interests of
the Borrower as are identified as security in this Mortgage. In the event of a foreclosure or other disposition
as provided for in this Mortgage of such liens, estates, assignments, titles, rights and security interests,
whether by judicial proceedings or the exercise of the power of sale,no judgment for the deficiency of such
indebtedness,sums and amounts shall be sought or obtained against the Borrower and/or its successors and
assigns.
27. MERGER AND MODIFICATIONS
This Mortgage will not be modified or amended except by agreement in writing signed by
both parties. This Mortgage embodies the entire agreement and understanding between the parties hereto
and there are no other agreements and/or understandings, oral or written,with respect to the subject matter
hereof,that are not merged herein and superseded hereby.
[Signatures on the following page]
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
4839-3055-9657 v.8
IN WITNESS WHEREOF,this Mortgage has been duly signed and sealed by the Borrower on
or as of the day and year first above written.
OCEAN BREEZE EAST APARTME
LLC,a Florida limited liability compan
rtness Signature I _
<.1 se / V i e_.2 h % By: Ocean Breezed - , a Florida
Name print-• or typed limited ' .. ti co•• ►its a.. ager
i.• ss Sid .tore - .1 • . S ,Manager
AXP, d<4145
Name p v ted or typed
STATE OF FLORIDA /
COUNTY OF NMV
lti--di 4'7 i
The foregoing instrument was acknowledged before me this 6 day of A4t/ 6 ,2019,
by Lewis V. Swezy, as manager of Ocean Breeze Manager LLC, a Florida limited liability company, the
manager of a -. Breeze East Apartments LLC, a Florida limited liability company, who is pe
o o I.: : ho has produced as identification.
Witness my hand and official seal the date afore i
.1
Notary Public, State of Fl'0 ida at Large
fNotary Public State i Florida
Richard P Grammig
My Commiswon GG 321400 �((44-throe (�"2414vtwi l/
.3/4),."
ia R� re�07/15/2023 Notary:Print or Type Name
My Commission Expires 7- 1 T-Z3
4839-3055-9657 v.8
MORTGAGE
Ocean Breeze East Apartments
Exhibit"A"
Legal Description
The land referred to herein below is situated in the County of Palm Beach, State of Florida, and
described as follows:
Lots 3 through 12 inclusive, in Block 1, AND Lots 1 and 2, in Block 1, LESS all that portion of Lots 1
and 2 lying West of the East right-of-way line for Seacrest Boulevard as shown on Road Plat Book 5,
at Page 182 AND LESS a 20 foot return curve area for road right-of-way, PALM BEACH COUNTRY
CLUB ESTATES, according to the plat thereof, as recorded in Plat Book 11, at Page 43, of the Public
Records of Palm Beach County, Florida.
AND
The South 1/2 of the East 1/2 of Lot 2 of Subdivision of the West 1/2 of the Southeast 1/4 of Section
21, Township 45 South, Range 43 East, LESS the South 125 feet thereof; LESS the parcels conveyed
to the City of Boynton Beach by Official Records Book 852, Page 642, and LESS the right-of-way for
Seacrest Boulevard, as shown on Road Plat Book 5, at Page 182, according to the plat thereof, as
recorded in Plat Book 1, at Page 4, Public Records of Palm Beach County, Florida.
End of Exhibit"A"
4839-3055-9657 v.8
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RESOLUTION NO. R18 -026
A RESOLUTION OF THE CITY OF BOYNTON BEACH,
FLORIDA, APPROVING AND AUTHORIZING THE MAYOR TO
SIGN AN INTERLOCAL AGREEMENT BETWEEN THE CITY OF
BOYNTON BEACH AND THE BOYNTON BEACH COMMUNITY
REDEVELOPMENT AGENCY FOR FINANCIAL SUPPORT TO
THE OCEAN BREEZE EAST APARTMENTS LLC., IN
ASSOCIATION WITH THEIR APPLICATION FOR THE 9% TAX
CREDIT FOR LOW INCOME HOUSING TAX CREDITS AND TO
SIGN ANY RELATED APPLICATION DOCUMENTS TO
CONFIRM SUCH SUPPORT; AND PROVIDING AN EFFECTIVE
DATE.
WHEREAS; on January 18, 2018 the CRA Board approved an Interlocal Agreement
with the City of Boynton Beach for funding of the Local Government Contribution match of
$567,500 in connection with Ocean Breeze East Apartments LLC in connection with their
application for 9% Low Income Housing Tax Credit Program; and
WHEREAS, the application requires the Local Government to verify the contribution
amount of $567,500 as part of Ocean Breeze East Apartments, LLC., application submission;
and
WHEREAS, the Local Government is the City of Boynton Beach and this Interlocal
Agreement provides for the financial support to be paid by the Boynton beach Community
Redevelopment Agency providing the application for the 9% LIHTC Program is successful;
I and
WHEREAS, the attached Interlocal Agreement contains the details of the CRA funding
commitments associated with the Project.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
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Section 1. Each Whereas clause set forth above is true and correct and incorporated
herein by this reference.
Section 2. The City Commission of the City of Boynton Beach, Florida does hereby
approve and authorize the Mayor to sign the Interlocal Agreement between the City of Boynton
Beach and the Boynton Beach Community Redevelopment Agency for CRA funding to the
Ocean Breeze East Apartments LLC in association with their application for the 9% tax credit
for Low Income Housing Tax Credits and to sign any related application documents to confirm
such support. A copy of said Interlocal Agreement is attached hereto as Exhibit "A ".
Section 3. That this Resolution shall become effective immediately upon passage.
PASSED AND ADOPTED this 6� day of February, 2018.
CITY OF BOYNTON BEACH, FLORIDA
YES NO
Mayor — Steven B. Grant
Vice Mayor — Justin Katz
Commissioner — Mack McCray
Commissioner — Christina L. Romelus
Commissioner — Joe Casello
VOTE
ATTEST:
1,
Judith . Pyle, CMC
City Clerk
(Corporate Seal)
/ `)_�\ S _ C)A L.
INTERLOCAL AGREEMENT BETWEEN CITY OF BOYNTON
BEACH AND BOYNTON BEACH COMMUNITY
REDEVELOPMENT AGENCY TO PROVIDE FOR THE PAYMENT
OF THE LOCAL GOVERNMENT CONTRIBUTION UNDER THE
FLORIDA HOUSING FINANCE CORPORATION STATE
APARTMENT LOAN PROGRAM FOR THE PROJECT KNOWN
AS THE OCEAN BREEZE EAST PROJECT SITE TO BE
DEVELOPED BY OCEAN BREEZE EAST APARTMENTS LLC,
PURSUANT TO CHAPTER 420, PART V, SECTIONS 420.5093 -
420.5099, FLORIDA STATUTES, PROVIDING AN EFFECTIVE
DATE.
THIS AGREEMENT, made and entered into on the la°' day of
2018 by and between:
CITY OF BOYNTON BEACH, FLORIDA
a Florida municipal corporation
100 E. Boynton Beach Boulevard
Boynton Beach, Florida 33425
(hereinafter referred to as "CITY ")
FIX N1 01
BOYNTON BEACH COMMUNITY REDEVELOPMENT
AGENCY,
a Public Agency of the State of Florida
710 N. Federal Highway
Boynton Beach, Florida 33435
(hereinafter referred to as "CRA ")
WITNESSETH:
WHEREAS, CITY and CRA ( "Parties ") desire to encourage Affordable and Workforce
Housing development within the City and the CRA; and
WHEREAS, the CRA has determined that the provision of Affordable and Workforce Housing
within the CRA furthers the CRA's purpose of eliminating slum and blight; and
WHEREAS, the CRA has approved a financial contribution of five hundred sixty -seven
thousand and five hundred dollars ($567,500.00) in the form of a grant contribution ( "Grant ") to
assist the developer, Ocean Breeze East Apartments LLC ( "Grantee "), in the development of certain
properties located 700 N. Seacrest Boulevard in Boynton Beach, Florida, as described in Exhibit "A"
attached hereto, and
WHEREAS, the Parties desire to enter into an Interlocal Agreement ( "Agreement ") for the City
of Boynton Beach to pay the Grant, on behalf of the CRA, to the "Grantee," under the condition that
the Grantee obtains award underwriting approval of a 9% Low Income Housing Tax Credit allocation
from the Florida Housing Finance Corporation by June 30, 2018, and
00919723 -1 Page 1 of 7
WHEREAS, CITY and CRA have determined that it is mutually beneficial and in the best
interests of its citizens and residents to enter into this Agreement; and
WHEREAS, Part I of Chapter 163, Florida Statutes, as amended (the "Florida Interlocal
Cooperation Act "), permits the Parties, as public agencies under the Interlocal Cooperation Act, to enter
into interlocal agreements with each other to authorize one public agency to exercise, on behalf of the
other public agency, jointly held powers, privileges or authorities which each such public agency shares
in common and which each might exercise separately, permitting the public agencies to make the most
efficient use of their power by enabling them to cooperate on a basis of mutual advantage and thereby
provide services and facilities in a manner and pursuant to forms of governmental organization that
accords best with geography, economy, population and other factors influencing the needs and
development of such public agencies; and
WHEREAS, this Interlocal Agreement will become effective upon filing with the Clerk of the
Court in the Fifteenth Judicial Circuit in accordance with the provisions of the Interlocal Cooperation
Act; and
WHEREAS, CITY hereby represents to CRA that it has the authority, pursuant to the Interlocal
Cooperation Act, to execute any and all documents necessary to effectuate and to implement the terms
of this Agreement; and
WHEREAS, CRA hereby represents to CITY that it has the authority, pursuant to the Interlocal
Cooperation Act, to execute any and all documents necessary to effectuate and to implement the terms
of this Agreement; and
NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual covenants and
agreements hereinafter set forth, the Parties hereto agree as follows:
Section 1. RECITALS
1.01 The above recitals are true and correct and are incorporated herein.
Section 2. TERM OF AGREEMENT
2.01 This Agreement shall be effective upon the approval of both parties and upon filing with the
Clerk of the Court in the Fifteenth Judicial Circuit and shall terminate upon the earlier of the
following: 1) the CRA reimbursing the CITY for final payment of the Grant of five hundred
sixty -seven thousand and five hundred dollars ($567,500.00) to Grantee consistent with the
terms of this Agreement; or 2) the failure of Grantee to obtain award underwriting approval of
a 9% Low Income Housing Tax Credit from Florida Housing Finance Corporation by June 30,
2018.
Section 3. DUTIES AND RESPONSIBILITIES OF THE PARTIES
3.01 The Parties agree that per Resolution No._, the Grant shall be paid by the CITY to Grantee on
behalf of the CRA. The Parties agree further that the CRA will reimburse the CITY for the payment of
said Grant, within 30 days of CITY's notice of making payment. Payment shall be made to Grantee
upon: 1) Grantee providing evidence that they have been awarded a nine percent (9 %) low income tax
00919723 -1 Page 2 of 7
credit from the Florida Housing Finance Corporation; and 2) a real estate closing for the sale of the
project properties located at 700 N. Seacrest Boulevard in Boynton Beach, Florida, as described in
Exhibit "A."
Section 5. RECORDS
5.01 CRA and CITY shall each maintain their own respective records and documents associated
with this Agreement in accordance with the requirements set forth in Chapter 119, Florida
Statutes. All such records shall be adequate to justify all charges, expenses, and costs incurred
in accordance with generally accepted accounting principles. Each party shall have access to
the other party's books, records and documents as required in this Agreement for the purpose
of inspection or audit during normal business hours during the term of this Agreement and for
at least three (3) years after completion of the development of the on the Ocean Breeze East
project site located at 700 N. Seacrest Boulevard in Boynton Beach, Florida, as described in
Exhibit "A."
Section 6. ASSIGNMENT
6.01 The respective obligations of the parties shall not be assigned, in whole or in part, without the
written consent of the other party.
Section 7. DEFAULT
7.02 If either party fails to perform or observe any of the material terms and conditions of this
Agreement for a period of ten (10) calendar days after receipt of written notice of such default
from the other party, the non - defaulting party may terminate this Agreement. Failure of any
party to exercise its right in the event of any breach by the other party shall not constitute a
waiver of such rights. No party shall be deemed to have waived any failure to perform by the
other party unless such waiver is in writing and signed by the other party. Such waiver shall
be limited to the terms specifically contained therein. This section shall be without prejudice
to the rights of any party to seek a legal remedy for any breach of the other party as may be
available to it in law or equity.
Section 8. COMPLIANCE WITH LAWS
8.01 CITY and CRA shall comply with all statutes, laws, ordinances, rules, regulations and lawful
orders of the United States of America, State of Florida and of any other public authority which
may be applicable.
00919723 -1 Page 3 of 7
Section 9. VENUE
9.01 Any and all legal actions necessary to enforce the terms of this Agreement shall be conducted
in the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, or, if in federal court,
in the United States District Court for the Southern District of Florida.
Section 10. GOVERNING LAW
10.01 The validity, construction and effect of this Agreement shall be governed by the laws of the
State of Florida.
Section 11. ENTIRE AGREEMENT
11.01 This Agreement contains the entire understanding of the parties relating to the subject matter
hereof superseding all prior communications between the parties whether oral or written, and
this Agreement may not be altered, amended, modified or otherwise changed nor may any of
the terms hereof be waived, except by a written instrument executed by both parties. The failure
of a party to seek redress for violation of or to insist on strict performance of any of the
covenants of this Agreement shall not be construed as a waiver or relinquishment for the future
of any covenant, term, condition or election but the same shall continue and remain in full force
and effect.
Section 12. SEVERABILITY
12.01 Should any part, term or provision of this Agreement be by the courts decided to be illegal or
in conflict with any law of the State, the validity of the remaining portions or provisions shall
not be affected thereby so long as the Parties' rights and obligations contained in this Agreement
are not materially prejudiced and the intentions of the Parties can continue to be achieved.
Section 13. NOTICES
13.01 Whenever either party desires to give notice to the other, such notice must be in writing and
sent by United States mail, return receipt requested, courier, evidenced by a delivery receipt, or
by overnight express delivery service, evidenced by a delivery receipt, addressed to the party
for whom it is intended at the place last specified; and the place for giving of notice shall remain
until it shall have been changed by written notice in compliance with the provisions of this
paragraph. For the present, the parties designate the following as the respective places for giving
of notice.
CITY: Lori LaVerriere, City Manager
City of Boynton Beach
100 E. Boynton Beach Boulevard
Boynton Beach, FL 33435
00919723 -1 Page 4 of 7
CRA: Michael Simon, Executive Director
Boynton Beach CRA
710 N. Federal Highway
Boynton Beach, Florida 33435
Copies To: James A. Cherof
Goren, Cherof, Doody & Ezrol, P.A.
3099 East Commercial Boulevard, Suite 200
Fort Lauderdale, Florida 33308
Tara Duhy, Esquire
Lewis, Longman & Walker, P.A.
515 North Flagler Drive, Suite 1500
West Palm Beach, Florida 33401
Section 14. INTERPRETATION
14.01 This Agreement shall not be construed more strictly against one party than against the other
merely by virtue of the fact that it may have been prepared by counsel for one of the parties.
THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK
00919723 -1 Page 5 of 7
IN WITNESS WHEREOF, the CITY OF BOYNTON BEACH and the BOYNTON BEACH
COMMUNITY REDEVELOPMENT AGENCY have caused these presents to be executed in their
respective names by the proper officials the day and year first above written.
ATTEST:
Cit Clerk
• pr form:
'
C' y Attorney
Approved as to form:
C�R�A�Attorn�ey
CITY OF BOYNTON BEACH
a municipal corporation organized and existing under
the laws of the State of Florida
By:
Steven Grant, Mayor
BOYNTON BEACH COMMUNITY
REDEVELOPMENT AGENCY
a public agency orga ' ed d ex' g er the laws
of the State of o
By: '
Steven Grant, Chair
00919723 -1 Page 6 of 7
EXHIBIT "A"
00919723 -1 Page 7 of 7
EXHIBIT "A"
LEGAL DESCRIPTION
Lots 3 through 12 inclusive, in Block 1, Lots 1 and 2, in Block 1, LESS all that portion of lots 1 and
2 lying West of the East right -of -way line for "Seacrest Boulevard" as shown on Road Plat Book
5, at Page 182 and less a 20 foot return curve area for road right -of -way, PALM BEACH COUNTRY
CLUB ESTATES, according to the Plat thereof, as recorded in Plat Book 11, at Page 43, of the Public
Records of Palm Beach County, Florida, and the South Half (S1/2) of the East Half (E1/2) of Lot 2
of Subdivision of the West Half (W1/2) of the Southeast Quarter (SE1 /4) of Section 21, Township
45 South, Range 43 East, LESS the South 125 feet thereof; Less parcels conveyed to the City of
Boynton Beach by Official Records Book 852, Page 642 and LESS the right -of -way for "Seacrest
Boulevard" as shown on Road Plat Book 5, at Page 182, according to the Plat thereof, as recorded
in Plat Book 1, at Page 4, Public Records of Palm Beach County, Florida.