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HomeMy WebLinkAboutR-98-0542J-98-528 5/07/98 RESOLUTION NO. 9 8+ 542 A RESOLUTION, WITH ATTACHMENT, RATIFYING THE EXECUTION OF THE CONTRACT FOR LOAN GUARANTEE ASSISTANCE UNDER SECTION 108 OF THE HOUSING AND COMMUNITY DEVELOPMENT ACT OF 1974, AS AMENDED, 42 U.S.C. §5308, WITH THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT ("HUD"), ATTACHED HERETO; DIRECTING THE CITY MANAGER AND THE CITY ATTORNEY, AS RESPECTIVELY APPROPRIATE, TO PREPARE AND/OR EXECUTE, ANY AND ALL OTHER DOCUMENTS, INCLUDING NOTES, WHICH ARE NECESSARY TO EFFECTUATE THE CITY'S RECEIPT FROM HUD AND DISBURSEMENT OF THE SECTION 108 LOAN GUARANTEE IN THE AMOUNT OF $5.5 MILLION TO DADE FOREIGN TRADE ZONE, INC. TO ASSIST IN THE FINANCING OF THE WYNWOOD FREE TRADE ZONE. WHEREAS, pursuant to Resolution No. 95-585, passed and adopted by the City Commission on July 13, 1995, the City Manager was authorized to prepare and submit an application on behalf of Dade Foreign Trade Zone, Inc., to the U.S. Department of Housing and Urban Development for a $5.5 million Section 108 Loan Guarantee ("Section 108 Loan") to assist in the financing for the Wynwood Free Trade Zone; and ATTACHMENT (S) CONTAINED MAY 2 6 1998 8915QU60a No. 98-542 WHEREAS, HUD officially approved the City's Section 108 Loan application in September, 1995; and WHEREAS, pursuant to Resolution No. 95-859, passed and adopted by the City Commission on December 7, 1995, the City Manager was authorized to execute the Funding Approval/Agreement with HUD for the Section 108 Loan; and WHEREAS, pursuant to Resolution No. 95-860, passed and adopted by the City Commission on December 7, 1995, the City Manager was authorized to enter into an agreement with Dade Foreign Trade Zone, Inc. for the disbursement and utilization of the Section 108 Loan; and WHEREAS, pursuant to Ordinance No. 11333, passed and adopted by the City Commission on December 7, 1995, a Special Revenue Fund entitled "Wynwood Free Trade Zone Section 108" was established and $5.5 million was appropriated for the operation of the Wynwood Free Trade Zone; and WHEREAS, in order to effectuate the receipt from HUD and the disbursement of the Section 108 Loan to Dade Foreign Trade Zone, Inc., certain documents have to be executed by the City, NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. 98- 542 Section 2. The execution of the Contract for Loan Guarantee Assistance Under Section 108 of the Housing and Community Development Act of 1974, as amended, 42 U.S.C. §5308, with the U.S. Department of Housing and Urban Development ("HUD"), attached hereto, is hereby ratified to effectuate the City's receipt from HUD and the disbursement of the Section 108 Loan in the amount of $5.5 million to Dade Foreign Trade Zone, Inc. to assist in the financing for the Wynwood Free Trade Zone. Section 3. The City Manager and the City Attorney, as respectively appropriate, are hereby directed to prepare and/or execute any and all other documents, including Notes, which are necessary to effectuate said financing. Section 4. This Resolution shall become effective immediately upon its adoption. PAS SED AND ADOPTED this 2 6 th day of May , 1998. ATTEST: WALTER, J. FOEMAN, CITY CLERK JOE CAROLLO, MAYOR In accordance with Miami Code Sec. 2-36, since the Mayor did not indicate approval of this legislation by signing it in the designated place provided, said legislation { becomes effective with the elapse of ten (10) days from�thdte of Comm' icn aci regarding same, without the Mayor exer isi gA06eto. , *it er J- oe a City Clerk 8- 542 L AK KEARSO , ASSISTANT CITY ATTORNEY Lkk/W2566 APPRO �T O CO C S O LLO TY ATTORNEY 98 r 542 CONTRACT FOR LOAN GUARANTEE ASSISTANCE UNDER SECTION 108 OF THE HOUSING AND COMMUNITY DEVELOPMENT ACT OF 1974, AS AMENDED, 42 U.S.C. 55308 Date of Contract This Contract for Loan Guarantee Assistance ("Contract") is entered into between THE CITY OF MIAMI, FLORIDA as Borrower (the "Borrower") and the Secretary of Housing and Urban Development ("Secretary") as guarantor for the guarantee made pursuant to Section 108 of Title I of the Housing an& Community Development Act of 1974, as amended ("Title I") and to 24 C.F.R. Part 570, Subpart M, of Note B-95-MC-12-0013-A, all notes'substituted as provided in the original Note, and any additional notes issued pursuant to the loan guarantee commitment dated September 27, 1995 (collectively, the "Notes"), all having the same note number. The Notes are hereby incorporated into the Contract. Terms used in the Contract with initial capital letters and not otherwise defined in the text hereof shall have the respective meanings given thereto in the Notes. The Borrower gives the Secretary full authority to act for the Borrower in negotiating with the underwriters selected by the Secretary (the "Underwriters") the terms of the public offering. 1. (a) All funds received by the Borrower under the Notes (the "Guaranteed moan Funds") shall be deposited immediately on receipt in a separate identifiable custodial account (the "Guaranteed Loan Funds Account") with a financial institution whose deposits or accounts are Federally insured. The balance of deposited funds exceeding such insurance coverage shall be fully (100%) and continuously collateralized by Government Obligations as defined in paragraph 10. Such collateral shall be pledged under a written security agreement, in a form acceptable to the Secretary, and shall be held in a separate custodial account on behalf of the Borrower for the full term of deposit. The Borrower shall promptly deliver to the Secretary an assignment, in a form acceptable to the Secretary, of its interest in such collateral whenever the balance of deposited funds exceeds such insurance coverage. 98542 - The Guaranteed Loan Funds Account shall be established and designated as prescribed in the attached form document entitled "Letter Agreement for Section 108 Loan Guarantee Program Custodial Account" (Attachment 1) and shall be maintained for the Guaranteed Loan Funds. Such Letter Agreement must be executed when the Guaranteed Loan Funds Account is established. (A fully executed copy of such Letter Agreement shall be submitted to the Secretary within thirty days of its execution.) The Borrower is authorized to make withdrawals from said account only for the payment of the costs of approved activities or for the temporary investment of funds. Investments shall be limited to Government Obligations, as defined in paragraph 10, having maturities that are consistent with cash requirements of the approved activities. In no event shall the investments mature on or after June 1, 1998, or have maturities which exceed one year. All investments shall be held in trust for the benefit of the Secretary by the above financial institution in an account (the "Guaranteed Loan Funds Investment Account") established and designated as prescribed in the attached form document entitled "Letter Agreement for Section 108 Loan Guarantee Program Custodial Investment Account" (Attachment 2) and shall be maintained for Government Obligations purchased with funds from the Guaranteed Loan Funds Account. The Guaranteed Loan Funds Investment Account need only be established if and when the Borrower invests the Guaranteed Loan Funds in Government Obligations. Such Letter Agreement must be executed when the Guaranteed Loan Funds Investment Account is established. (A fully executed copy of such Letter Agreement shall be submitted to the Secretary within thirty days of its execution.) All proceeds and income derived from such investments shall be returned to the Guaranteed Loan Funds Account. All funds in the Guaranteed Loan Funds Account must be disbursed by the Borrower for approved activities by June 1, 1998. Any funds remaining in the Guaranteed Loan Funds Account after this date shall be immediately transferred to the Loan Repayment Account. (b) Borrower shall by the fifteenth day of each month provide the Secretary with a written statement showing the balance of funds in the Guaranteed Loan Funds Account and the withdrawals from such account during the preceding calendar month and a statement identifying the obligations and their assignments in the Guaranteed Loan Funds Investment Account. (c) Upon a declaration of Default by right, title, and interest of the Guaranteed Loan Funds Account and K, the Secretary, all Borrower in and to the Guaranteed Loan Funds 98- 542 Investment Account shall immediately vest in the Secretary for use in the making of payment due on the Notes or purchase of Government Obligations in accordance with paragraph 10. 2. Pursuant to a fiscal agency agreement, the Borrower shall pay to the fiscal agent selected by the Underwriters (the "Fiscal Agent"), as collection and paying agent for the Notes, all amounts due pursuant to the terms of the Notes. Payment shall be made by 3:00 P. M. (New York City time) on the fifth Business Day preceding the relevant Payment Date. ("Business Day" shall mean a day on which banks in the city in which the principal office of the Holder of the Notes is located are not required or authorized to remain closed and on which the Federal Reserve Bank of New York and -the New York Stock Exchange are not closed.) Payment may be made by check or wire transfer. 3. The Secretary shall select a new fiscal agent on behalf of the Borrower if the Fiscal Agent resigns or is removed by the Secretary. 4. (a) The Borrower shall pay the customary and usual issuance, underwriting, and other costs of the public offering and the interim financing, including the cost of compensation of the Fiscal Agent. In the case of the interim financing, the Fiscal Agent's fees are payable, and may be deducted by the Fiscal Agent from, Advances under the Notes. In the case of the public offering, such payment'shall either be made by wire transfer to the Fiscal Agent on the day prior to the Public Offering Date or be made from the Guaranteed Loan Funds on the Public Offering Date. (The "Public Offering Date" shall be the date fixed as such in a notice given by the Underwriters to the Secretary not less than five Business Days in advance thereof.) If the Borrower does not make such payment, the Secretary may make such payment with grants pledged pursuant to paragraph 5(a). (b) The Borrower shall reimburse the Underwriters for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) incurred in connection with the proposed public offering if the public offering does not occur because of any refusal, inability, or failure on the part of the Borrower to submit to the Secretary no later than ten days before the estimated Public Offering Date the executed notes for the public offering; the executed fiscal agency agreement; and an opinion of the Borrower's counsel that the notes are valid, binding, and enforceable obligations of the Borrower, the governing body has authorized, in accordance with applicable state and local law, the 3 98- 542 issuance of the notes, the pledge of grants pursuant to 24 C.F.R. §570.705(b)(2) is valid, there is no outstanding litigation that will affect the validity of the notes, and the fiscal agency agreement is a valid, binding, and enforceable obligation of the Borrower. If the Borrower fails to reimburse the Underwriters as provided in this paragraph, the Secretary may pay the amount of the reimbursement from funds pledged pursuant to paragraph 5(a). 5. The Borrower hereby pledges as security for repayment of the Notes the following: (a) All allocations or grants which have been made'or for which the Borrower may become eligible under Section 106 of the Act, as well as any grants which are or may become available to the Borrower pursuant to Section 108 (q) . (b) Program income, as defined at 24 CFR Section 570.500(a), directly generated from the use of the Guaranteed Loan Funds. (c) Other security: (d) All proceeds (including insurance and condemnation proceeds) from any of the foregoing. 6. (a) All amounts pledged pursuant to paragraphs 5(b), 5(c), and 5(d) shal,l be deposited immediately on receipt in a separate identifiable custodial account (the "Loan Repayment Account") with a financial institution whose deposits or accounts are Federally insured. The balance of deposited funds exceeding such insurance coverage shall be fully (100t) and continuously collateralized by Government Obligations as defined in paragraph 10. Such collateral shall be pledged under a written security agreement, in a form acceptable to the Secretary, and shall be held in a separate custodial account on behalf of the Borrower for the full term of deposit. The Borrower shall promptly deliver to the Secretary an assignment, in a form acceptable to the Secretary, of its interest in such collateral whenever the balance of deposited funds exceeds such insurance coverage. The Loan Repayment Account shall be established and designated as prescribed in the attached form document entitled "Letter Agreement for Section 108 Loan Guarantee Program Custodial Account" (Attachment 1) and shall be maintained for such pledged funds. The Loan Repayment Account need only be established if and when the Borrower receives amounts pledged pursuant to 4 98- 542 paragraphs 5(b), 5(c) or 5(d). Such Letter Agreement must be executed when the Loan Repayment Account is established. (A fully executed copy of such Letter Agreement shall be submitted to the Secretary within thirty days of its execution.) Borrower is authorized to make withdrawals from said account only for the purpose of paying interest and principal due on the Notes, including the purchase of Government Obligations in accordance with paragraph 10, or for the temporary investment of funds, until final payment and discharge of the indebtedness evidenced by the Notes, unless otherwise expressly authorized by the Secretary in writing. Investments shall be limited to Government Obligations, as defined in paragraph 10, having maturities that are consistent with cash requirements for payment of principal and interest as required under the Notes. In no event shall the maturities of such investments exceed one year. All investments shall be held in trust for the benefit of the Secretary by the above financial institution in an account (the "Loan Repayment Investment Account") established and designated as prescribed in the attached form document entitled "Letter Agreement for Section 108 Loan Guarantee Program Custodial Investment Account" (Attachment 2) and shall be maintained for Government Obligations purchased with funds from the Loan Repayment Account. The Loan Repayment Investment Account need only be established if and when the Borrower invests funds in the Loan Repayment Account in Government Obligations., Such Letter Agreement must be executed when the Loan Repayment Investment Account is established. (A fully executed copy of such Letter Agreement shall be submitted to the Secretary within thirty days of its execution.) All proceeds and income derived from such investments shall be returned to the Loan Repayment Account. (b) Borrower shall by the fifteenth day of each month, provide the Secretary with a written statement showing the balance of funds in the Loan Repayment Account and the deposits and withdrawals of all funds in such account during the preceding calendar month and a statement identifying the obligations and their assignments in the Loan Repayment Investment Account. (c) Upon a declaration of Default by the Secretary, all right, title, and interest of the Borrower in and to the Loan Repayment Account and Loan Repayment Investment Account shall immediately vest in the Secretary for use in the making of payments due on the Notes or purchase of Government Obligations in accordance with paragraph 10. A 98- 542 7. Any grants available to the Borrower under Section 106 of Title I (including program income derived therefrom) are authorized to be used by the Borrower for payments due on the Notes, or for the purchase of Government Obligations in accordance with paragraph 10. 8. Upon a determination by the Secretary that payments pursuant to the requirements of paragraph 2 and paragraph 4 are unlikely to be made as specified, the Secretary may limit the availability of grants pledged pursuant to paragraph 5(a). Such limitation shall be in an amount estimated by the Secretary to be sufficient to ensure such payments are made when due and may be effected by withholding amounts at the time such grants are approved or by disapproving payment requests submitted with respect to such grants. 9. The Secretary may use grants withheld pursuant to paragraph 8 to make payments required by paragraph 2 and paragraph 4 if such payments have not been made by the Borrower. 10. For purposes of this Contract, the Notes shall be deemed to have been paid if there shall have been deposited with the Fiscal Agent either moneys or Government Obligations, which in the sole determination of the Secretary, mature and bear interest at times and in amounts sufficient, together with the moneys on deposit with the Fiscal Agent for such purpose, to pay when due the principal and interest to become due on the Notes. All of the Notes or all Notes of any maturity may be so defeased, provided that all Notes having the longest maturities are defeased before those with shorter maturities. If any Note defeased is subject to redemption, the due date of all the principal due on the Note on the date of defeasance shall be assumed to be the earliest possible redemption date under the terms of the Note, for purposes of calculating the amount of money on government obligations to be deposited with the Fiscal Agent. If all Notes guaranteed pursuant to this Contract shall be deemed to have been paid, then the Borrower shall be released from all agreements, covenants, and further obligations under this Contract. "Government Obligation" means direct obligation of, or any obligation for which the full and timely payment of principal and interest is guaranteed by, the United States of America, including but not limited to, United States Treasury Certificates of Indebtedness, Notes and Bonds - State and Local Government Series or certificates of ownership of the principal of or interest on direct obligations of, or obligations unconditionally guaranteed by, the United States of America, which obligations are held in trust by a commercial bank which is a member of the Federal Reserve System and has capital and surplus (exclusive of undivided profits) in excess of $100,000,000. This privilege of defeasance shall be limited to Notes in existence after a public offering. n 9$— 542 11. (a) A Default under the Notes shall occur upon failure by the Borrower to: (i) pay when due an installment of principal or interest on the Notes, unless such payment is made when due by the Secretary pursuant to paragraph 9; or (ii) punctually and properly perform, observe, and comply with any covenant, agreement, or condition contained in: (A) this Contract, (B) any security agreement, deed of trust, mortgage, assignment, guaranty, or other contract securing -payment of indebtedness evidenced by the Notes, and (C) any future amendments, modifications, restatements, renewals, or extensions hereof or thereof. (b) The Borrower waives notice of Default and opportunity for hearing with respect to a Default under paragraph 11 (a) . (c) The Secretary may declare the Notes in Default if the Secretary makes a final decision in accordance with the provisions of 24 CFR §570.913, including requirements for reasonable notice and opportunity for hearing, that the Borrower has failed to comply substantially with Title I. Notwithstanding any other provision, following the giving of such reasonable notice, the Secretary may withhold the guarantee of any or all obligations not yet guaranteed under outstanding commitments, suspend approval of further Advances under the Notes, and request the Borrower's financial institution to refuse to honor any instruments drawn upon, or withdrawals from, the Guaranteed Loan Funds Account or to release obligations and assignments from the Guaranteed Loan Funds Investment Account, pending the Secretary's final decision. 12. Upon a declaration of Default, the Secretary may exercise any or all of the following remedies: (a) The Secretary may continue to make payments due on the Notes or purchase Government Obligations in accordance with paragraph 10 with any pledged funds and may use pledged funds to pay any interest due for late payment. (b) The Secretary may withhold the guarantee of any or all obligations not yet guaranteed under outstanding commitments. (c) The Secretary may withhold approval for any or all further Advances under the Notes. 7 98 542 (d) Until the Public Offering Date, the Secretary may accelerate the Notes. (e) The Secretary may exercise any other appropriate remedies or sanctions authorized under laws or regulations applicable to the assistance provided under this Contract, or may institute any other action authorized by law to recover Guaranteed Loan Funds from amounts pledged under this Contract. 13. The Contract and the Notes are hereby incorporated5in and made a part of the Grant Agreement authorized by the Secretary on August 21. 1995 under the Funding Approval for grant number B-95-MC-12-0013-A to the Borrower. 14. The Borrower's liability for amounts due pursuant to the terms of the Notes shall be limited to the security pledged in paragraph 5 of this Contract. 15. Special Conditions and Modifications: [X) Check if continued on extra sheet and attach. [REST OF PAGE LEFT INTENTIONALLY BLANK) n 98— 542 IN WITNESS WHEREOF, the undersigned, as authorized officials of the Borrower and the Secretary, have executed this Contract for Loan Guarantee Assistance. THE ATTEST: CITY By. By: Walter Foeman Ci_y Clerk APPROVED AS TO FORM AND CORRECTNESS: By: Date: SECRETARY OF HOUSING AND URBAN DEVELOPMENT By: Date: �j 98542 15. Special Conditions and Modifications: (a) Paragraph 5(c) of the contract is amended by deleting the paragraph as written in its entirety and substitute therefor the following: "(c) Other security, including, but not limited to, all rights of the Borrower (but none of the obligations of the Borrower) in and to the "Security Documents" (as defined in paragraph 15(c) hereof) and to the collateral described therein. If necessary to provide the Secretary with a valid security interest in such other security, the Borrower shall execute a security agreement (the "City Security Agreement"), which City Security Agreement shall be in a form acceptable to the Secretary." (b) Guaranteed Loan Funds shall be used by the Borrower to assist Dade Foreign Trade Zone, Inc. (the "Obligor") with the development of Phase I of a commercial project located in the Borrower.'s Wynwood Foreign Trade Zone area, as further described in the Tri-Party Agreement among the Obligor, the Borrower and City National Bank of Florida, dated May 3, 1996. Guaranteed Loan Funds, as well as any proceeds from the investment thereof, are collectively referred to herein as "Project Funds." Assistance to the Obligor with Project Funds shall consist of a loan (the "Obligor Loan"), which loan shall be evidenced by promissory notes (the "Obligor Notes") and loan agreements (the "Loan Agreements"), which Obligor Notes and Loan Agreements shall be in a form acceptable to the Secretary and be made pursuant to guidelines approved in writing by the Secretary. As security for loans made with Guaranteed Loan Funds to the Obligor, the Borrower shall obtain the following collateral (collectively, the "Collateral"): (1) A lien on the real property described in Attachment 3 hereof (the "Property"), established through appropriate and properly recorded mortgages (collectively, the "Mortgage"). The Mortgage shall be a first mortgage and shall contain such provisions as the Secretary deems necessary, provided that the Mortgage may be subordinate to a construction loan from a commercial lender and only during the period of construction. (2) An assignment of any and all rights, titles, and interests of the Obligor in and to any leases 10 (�8 542? covering the Property, including rents payable thereunder, existing before or executed after the date of this Contract. Such rights, titles, and interests of the Obligor shall be the subject of a collateral assignment of leases and rents (the "Collateral Assignment of Leases and Rents"). The Collateral Assignment of Leases and Rents shall be in a form acceptable to the Secretary and shall be subordinate only to the first mortgage on the Property and any prior mortgage referenced in Paragraph (A) above. (3) A first priority security interest (collectively, the "Security Interests") in the property and inventory described in Attachment 4 hereof. The Security Interests shall be granted pursuant to an appropriate security agreement (the "Security Agreement"), which Security Agreement shall be referenced in appropriate Uniform Commercial Code Financing Statements filed in accordance with the Uniform Commercial Code. The Security Agreement and such Uniform Commercial Code Financing Statements shall be in a form acceptable to the Secretary and shall be subordinate only to the first security interest in the property and inventory and any prior interest referenced in paragraph (A) above. (c) The Borrower shall select a financial institution acceptable to the Secretary (the "Custodian") to act as custodian for the documents specified in (d) below (hereinafter referred to as the Security Documents"). The Borrower and the Custodian shall enter into a written agreement containing such provisions as the Secretary deems necessary. A fully executed copy of such agreement, with original signatures, shall be forwarded to the Secretary contemporaneously with the delivery of documents pursuant to (d) below. (d) Not later than thirty days after execution of the Mortgage, the Borrower shall deliver to the Custodian the following: (i) The original Obligor Notes, endorsed in blank and without recourse. (ii) The original Loan Agreements and an assignment thereof, which assignment shall be in a form acceptable to the Secretary. 11 98- 542 (iii) The original recorded Mortgage signed by the Obligor and an assignment thereof, in recordable form but unrecorded, which assignment shall be in a form acceptable to the Secretary. (iv) The original Collateral Assignment of Leases and Rents and an assignment thereof, in recordable form but unrecorded, which assignment shall be in a form acceptable to the Secretary. (v) The Security Agreement and an assignment thereof, which assignment shall be in a form acceptable to the Secretary. (vi) An opinion of the Borrower's counsel, addressed to the Secretary and on its letterhead, that: (A) the Obligor is a corporation duly organized, validly existing, and in good standing under the laws of the State of Florida; (B) the Obligor Notes have been duly executed and delivered by a party authorized by the Obligor to take such action and are valid and binding obligations of the Obligor, enforceable in accordance with their terms, except as limited by bankruptcy and similar laws affecting creditors generally; and (C) the security instruments specified in (ii) through (v) above are valid and legally binding obligations, enforceable in accordance with their respective terms. (vii) A mortgagee title policy, issued by a company and in a form acceptable to the Secretary, naming the Borrower as the insured party. The policy must either include in the definition of the "insured" each successor in ownership of the indebtedness secured by the Mortgage or be accompanied by an endorsement of the policy to the Secretary. (viii) A certified survey with a legal description conforming to the title policy and the Mortgage. (ix) An appraisal of the fee simple ownership interest in the Property specifying an estimate of fair market value of not less than 125* of all indebtedness secured by the Property. The appraisal shall be completed by an appraiser who is certified by the state and has a professional 12 9 8- 042 designation (such as "SRA" or "MAI"), and shall conform to the standards of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 ("FIRREA"). (e) Paragraph 12 is amended by adding at the end thereof the following language: "(f) The Secretary may complete the endorsement of the Obligor Notes and record the assignments referred to in paragraphs 15(d), and thereby effectuate the transfer of the documents referenced and underlying indebtedness from the Borrower to the Secretary or the Secretary's assignee. "(g) The Secretary may exercise or enforce any and all other rights or remedies (including any and all rights and remedies available to a secured party under the Uniform Commercial Code) available by law or agreement (including any of the Security Documents, as defined in paragraph 15(c)) against the Collateral, against the Borrower, against the Obligor, or against any other person or property. (f) The Borrower agrees that it shall promptly notify the Secretary in writing upon the occurrence of any event which constitutes a default (an "Event of Default") under (and as defined in) any of the Security Documents, as defined in paragraph 15(c). Notification of an Event,of Default shall be delivered to the Secretary, at 451 Seventh Street, SW, Washington, D.C. 20410, Attention: Director, Financial Management Division, Office of the Assistant Secretary for Community Planning arid Development. Upon the occurrence of an Event of Default, the Secretary may (without prior notice or hearing, which Borrower hereby expressly waives), in addition to (and not in lieu of) exercising any and all remedies that may be available under the Security Documents, declare the Notes in Default and exercise any and all remedies available under paragraph 12. This paragraph 15(f) shall not affect the right of the Secretary to declare the Notes in Default pursuant to paragraph 11 and to exercise in connection therewith any and all remedies available under paragraph 12. (g) At the option of the Secretary, the Notes shall be exchanged for a new note (the "Replacement Note") repayable in principal installments at times and in amounts identical to the maturities and amounts specified in the Notes. The Replacement Note shall be in a form that will enable the Secretary 13 98-- �z to arrange for the issuance of trust certificates or other obligations backed by a pool composed of the Replacement Note (and similar notes issued by other Section 108 borrowers). When notified in writing by the Secretary, the Borrower shall execute and deliver to the Secretary the Replacement Note and a new Contract for Loan Guarantee Assistance containing such modifications as deemed necessary by the Secretary to permit the issuance of such trust certificates or other obligations. 14 98- 542 ATTACFII4ENT 1 U. S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT LETTER AGREEMENT FOR SECTION 108 LOAN GUARANTEE PROGRAM CUSTODIAL ACCOUNT Name of Institution (and Branch) Street city DATE [] This account is established for funds received by the Borrower under note(s) guaranteed by the United States Department of Housing and Urban Development (HUD) under the Section 108 Loan Guarantee Program. (Guaranteed Loan Funds Account.) [] This account is established for repayment of the note guaranteed by HUD under the Section 108 Loan Guarantee Program. (Loan Repayment Account). [] This account is established as a debt service reserve under the Section 108 Loan Guarantee Program. (Debt Service Reserve Account.) You are hereby authorized and requested to establish a custodial account to be specifically designated 11 Trustee of United States Department of Housing and Urban Development." All deposits made in such account shall be subject to withdrawal therefrom by the Borrower named below, and shall also be subject to withdrawal therefrom by HUD. No agent of the Borrower shall be authorized to withdraw funds from the account. You are also authorized to pay HUD at any time upon its written demand, which need not name a specific amount, the entire amount in such account subject only to notice requirements contained in applicable regulations governing this institution, but in no event to exceed seven business days. You are further authorized upon the request of HUD to refuse to honor any instrument drawn upon or withdrawals from such account by 98- 5- parties other than HUD and to change the name of the aforesaid account to the "United States Department of Housing and Urban Development." In no instance shall the funds in the Custodial Account be used to offset funds which may have been advanced to, or on behalf of, the Borrower by the custodian institution. This letter is submitted to you in duplicate. Please execute the duplicate copy of the certificate below, acknowledging the existence of such account, so that we may present the copy signed by you to HUD. CITY OF Name of By (Signature) Title CITY MANAGER The undersigned institution certifies to the United States Department of Housing and Urban Development (HUD) that the account identified is in existence in this institution under account number _ and agrees with the Borrower named above and HUD to honor demands on such account in the manner provided in the above letter, subject only to notice requirements contained in applicable regulations governing this institution, but in no event to exceed seven business days. The undersigned institution further agrees upon the request of HUD to refuse to honor any instruments drawn upon or withdrawals from such account by parties other than HUD and to change the name of the aforesaid account -to "United States Department of Housing and Urban Development." In no instance shall the funds in the Custodial Account be used to offset funds which may have been advanced to, or on behalf of, the Borrower by the custodian institution. Deposits in this institution are insured by the Federal Deposit Insurance Corporation, the Federal Savings and Loan Insurance Corporation, or the National Credit Union Administration. Name of Institution By Title Date 98- 542 ATTACHMENT 2 U. S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT LETTER AGREEMENT FOR SECTION 108 LOAN GUARANTEE PROGRAM CUSTODIAL INVESTMENT ACCOUNT Name of Institution (and Branch) Street City DATE [] This account is established to hold obligations and their assignments, such obligations having been purchased with funds from the Guaranteed Loan Funds Account. (Guaranteed Loan Funds Investment Account.) [] This account is established to hold obligations and their assignments, such obligations having been purchased with funds from the Loan Repayment Account. (Loan Repayment Investment Account.) [] This account is established to hold obligations and their assignments, such obligations having been purchased with funds from the Debt Service Reserve Account. (Debt Service Reserve Investment Account.) You are hereby authorized and requested to hold obligations and assignments of those obligations in trust for the United States Department of Housing and Urban Development (HUD) in an account specifically designated Trustee of United States Department of Housing and Urban Development." All obligations and assignments shall be subject to release to the Borrower named below, and shall also be subject to release to HUD. No agent of the Borrower shall be authorized to release the obligations or assignments. You are also authorized to release the obligations and assignments to HUD at any time upon its written demand, which need not name specific obligations and assignments, all obligations and assignments being held in such account subjer-t, only to any notice requirements contained in applicable regulations governing this institution, but in no event to exceed seven business days. 98 - 542 You are further authorized upon the request of HUD to refuse to honor any request for release of the obligations and assignments from such account by parties other than HUD and to change the name of the aforesaid account to the "United States Department of Housing and Urban Development." In no instance shall the obligations in the account be used to offset funds which may have been advanced to, or on behalf of, the Borrower by the custodian institution. This letter is submitted to you in duplicate. Please execute the duplicate copy of the certificate below, acknowledging the existence of such account, so that we may present the copy signed by you to HUD. CITY OF MIAMI, FLgIDA n Name of Borrow .0 u O44)XI By (Signature) EDWARD MAR UEZ Title The undersigned institution certifies to the United States Department of Housing and Urban Development (HUD) that the account identified is in existence in this institution under account number _ , and agrees with the Borrower named above and HUD to honor demands release on such account in the manner provided in the above letter, subject only to any notice requirements contained in applicable regulations governing this institution, but in no event to exceed seven business days. The undersigned institution further agrees upon the request of HUD to refuse to honor any request for release of the obligations and assignments from such account by parties other than HUD and to change the name of the aforesaid account to "United States Department of Housing and Urban Development." In no instance shall the obligations in the account be used to offset funds which may have been advanced to, or on behalf of, the Borrower by the custodian institution. Deposits in this institution are insured by the Federal Deposit Insurance Corporation, the Federal Savings and Loan Insurance Corporation, or the National Credit Union Administration. Name of Institution By Title Date 98— N42 ATTACHMENT 3 Legal Description of Real Property [Borrower shall insert legal description] 98- 5 d ATTACHMENT 4 Description of Personal Property [Borrower shall insert description] 98-- 54/2 CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM 20k To The Honorable Mayor, Joe Carollo and May 11, 1998 TO : DATE : FILE Members of the City Commission SUBJECT: Resolution on the Wynwood Free Trade Zone U.S. HUD Section 108 FROM: REFERENCES: Jose Garcia -Pedrosa City Commission Meeting City Manager ENCLOSURES: of May 26, 1998 RECOMMENDATION: It is respectfully recommended that the City Commission adopt the attached Resolution authorizing the City Manager to execute the final agreement, notes, and any other such documents as required by the U.S. Department of Housing and Urban Development (HUD), for the approval of the Section 108 Loan in the amount of $5.5 million for the development of the Wynwood Free Trade Zone Project which is nearing completion. BACKGROUND: The Department of Community Development has analyzed the need to execute the agreement, notes and other such documents in order to finalize the legal requirements between the City and U.S. HUD prior to receipt and disbursement of the $5.5 million Section 108 loan. On July 13, 1995 the City Commission authorized submittal of an application for the U.S. HUD Section 108 Loan to assist in the development of the Wynwood Free Trade Zone as per Resolution 95-585. On December 7', 1995 the City Commission adopted Resolutions 95-859 and 95-860 authorizing the City Manager to execute an agreement with U.S. HUD accepting the award and authorizing the City Manager to enter into an agreement with the project developer, Dade Foreign Trade Zone, Inc. Authorization is now required to cover the actual HUD contract, notes and other such documents pertaining to the disbursement of the Section 108 Loan. JGP:CMC:GCW:JC:sjg [Memosjg]<Pedrosa7> 98- 542