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HomeMy WebLinkAboutExhibit 8U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT ASSUMPTION OF LOAN GUARANTEE ASSISTANCE LIABILITY AND PLEDGEE AGREEMENT UNDER SECTION 108 OF THE HOUSING AND COMMUNITY DEVELOPMENT ACT OF 1974, AS AMENDED, 42 U.S.C. 95308 Date of Agreement : This Assumption of Loan Guarantee Assistance Liability and Pledge Agreement ("Agreement") is entered into by Miami -Dade County, Florida, as Borrower (the "Borrower"), the City of Miami, Florida, as assumptor (the "Assumptor"), and the Secretary of Housing and Urban Development ("Secretary"), as guarantor for the Guarantee made pursuant to section 108 ("Section 108") of title I of the Housing and Community Development Act of 1974, as amended (the "Act") and 24 CFR Part 570, Subpart M, of the promissory note issued on June 14, 2000, and numbered B-98-UC-12-0006, in the original Aggregate Principal Amount of $25.000,000, and any amended note or note that may be issued in substitution for such note and having the same note number (the "Note"). Such Aggregate Principal Amount was paid or credited to the account of the Borrower as of June 14, 2000 (the "Public Offering Date"), and all amounts so paid or credited are collectively referred to herein as the "Guaranteed Loan Funds." The Note includes the Fiscal Agency Agreement and the Trust Agreement as defined in the Note. Terms used in this Agreement with initial capital letters and not otherwise defined in the text hereof shall have the respective meanings given thereto in the Note. The Fiscal Agency Agreement and the Trust Agreement are sometimes collectively referred to herein as the "Fiscal Agency/Trust Agreements," and the Fiscal Agent and the Trustee respectively are sometimes collectively referred to as the "Fiscal Agent/Trustee." RECITALS A. The Note. On the Public Offering Date, trust certificates backed by the Note and similar notes issued by other Section 108 borrowers, denominated "Section 108 Government Guaranteed Participation Certificates Series HUD 2000-A" (the "Certificates"), were purchased for a purchase price of the full aggregate principal amounts thereof at interest rates determined by the Secretary and the initial purchasers, which purchasers were underwriters selected by the Secretary (the "Underwriters"). The Note is payable to the Trustee as Registered Holder on behalf of the Beneficial Owners of the Certificates. The interest rate at which the trust certificate of a specified maturity was sold to the Underwriters was the interest rate inserted on the Public Offering Date in Schedule P&I of the Note for the Principal Amount of corresponding maturity. After the Public Offering Date, the Borrower has agreed and the Assumptor hereby acknowledges that the Trustee pursuant to the Trust Agreement will maintain the books and records of all payments on the Note and all Principal Amounts and interest rates on such Principal Amounts. The Note and the Secretary's Note Guarantee as held by the Trustee and the Secretary's Certificate Guarantees are not amended and are not affected by this Agreement. B. The Contract. Effective as of the Public Offering Date, the Borrower and the Secretary entered into a Contract for Loan Guarantee Assistance (the "Contract") with respect to the temporary deposit and the use of the Guaranteed Loan Funds for eligible activities, the terms of ors:Document 81518 the Secretary's Guarantee, the security for the Secretary's Guarantee, the establishment of a Loan Guarantee Repayment Account and any other matter covered by the Contract. C. The Participation Agreement. Contemporaneously herewith, the Borrower and the Assumptor have entered into a Participation Agreement with respect to the "Loan" as defined therein, which is the same loan described in paragraph 15(b) of the Contract. Such loan was made with Guaranteed Loan Funds to the "Obligor," is evidenced by the "Obligor Loan Agreement" and the "Obligor Note," and is secured by the "Collateral", each as also described in paragraph 15 of the Contract. Such loan shall be referred to herein as the "Obligor Loan." Pursuant to the Participation Agreement, the Assumptor purchased eighty percent (80%) of the Borrower's interest in the Obligor Loan and the Collateral therefore, and the Borrower retained a twenty percent (20%) interest in the Obligor Loan and the Collateral therefore. AGREEMENT The Assumptor hereby agrees to assume eighty percent (80%) (the "Assumptor's Pro Rata Share") of the Borrower's liability under the Contract for repayment of the principal and interest of. the Note, the Borrower agrees to remain liable to repay twenty percent (20%) (the "Borrower's Pro Rata Share") of the principal and interest on the Note, and the parties hereby agree to the more specific understandings, undertakings, and amendments to the Contract set forth below. The paragraph numbers in this Agreement correspond to the paragraph numbers in the Contract. This Agreement amends and supersedes the corresponding provisions of the Contract, except as otherwise provided in this Agreement. 1. Receipt, Deposit and Use of Guaranteed Loan Funds. The Borrower has received and disbursed the entire proceeds of the Note to the Obligor for the Obligor Loan and has submitted all reports to HUD as required under paragraph 1 of the Contract. No funds remain in the Guaranteed Loan Funds or the Guaranteed Loan Funds Investment Accounts, and these Accounts have been closed. 2. Payments Due on Note. Using any available funds in the Loan Repayment Account under paragraph 6 of this Agreement, the Borrower shall continue to pay to the Fiscal Agent/Trustee, as collection agent for the Note, all amounts due pursuant to the terms of the Note. In accordance with the Note and the Fiscal Agency/Trust Agreements, payment shall be made by 3:00 P.M. (Near York City time) on the seventh Business Day (the "Note Payment Date") preceding the relevant Interest Due Date or Principal Due Date (each as defined in the Note). If any Note Payment Date falls on a day that is not a Business Day, then the required payment shall be made on the next Business Day. Payments to the Fiscal Agent/Trustee may be made by check or wire transfer. In the event of a shortage in funds available in the Loan Repayment Account when payment is due to the Fiscal Agent/Trustee under the Contract, the Borrower and the Assumptor hereby agree to pay the Borrower's Pro Rata Share and Assumptor's Pro Rata Share, respectively, of the shortage needed to make the payment. In such event, the Borrower will promptly notify the Assumptor of the Assumptor's Pro Rata Share of the payment due, and the Assumptor hereby agrees promptly to pay such amount to the ors:Document 81518 Borrower by wire transfer to the Loan Repayment Account maintained by the Borrower under paragraph 6 of the Contract and this Agreement. 3. Selection of New Fiscal Agent or Trustee. The Secretary shall select a new Fiscal Agent or Trustee if the Fiscal Agent or Trustee resigns or is removed by the Secretary. The Borrower and the Assumptor hereby consent in advance to any such selection and to any changes in the Fiscal Agency/Trust Agreements agreed to by any Fiscal Agent or Trustee and the Secretary, subject to paragraph 4(d) of this Agreement. 4. Payments Due Fiscal Agent or Trustee; Documents to the Secretary. (a) The Borrower agrees to pay the Borrower's Pro Rata Share and the Assumptor agrees to pay the Assumptor's Pro Rata Share of the cost of reimbursement and/or compensation of the Trustee pursuant to the Trust Agreement, including Sections 3.11 and 7.01 thereof, to the extent the Borrower is notified of any such costs after the date of this Agreement. If the Borrower is so notified, the Borrower agrees to promptly notify the Assumptor of the Assumptor's Pro Rata Share. (b) The Assumptor shall submit to the Secretary, concurrently with execution and delivery of this Agreement, an opinion acceptable to the Secretary from the Assumptor's counsel to the effect that: (i) the governing body of the Assumptor has authorized by resolution or ordinance, in accordance with applicable State and Local law, the execution of this Agreement; (ii) this Agreement is a valid, binding, and enforceable obligation of the Borrower; (iii) the pledge of funds pursuant to 24 CFR §570.705(b)(2) and paragraph 5(a) of this Agreement is valid and binding; and (iv) there is no outstanding litigation that will affect the validity of this Agreement. (c) The undertakings in paragraphs 3 and 4 of this Agreement are expressly subject to the requirement that the Fiscal Agency/Trust Agreements shall in no event require payment of fees or charges, reimbursement of expenses, or any indemnification by the Borrower or the Assumptor from any source other than funds pledged pursuant to paragraphs 5 or 15 of this Agreement. 5. Security. The Borrower and the Assurnptor hereby pledge as security for repayment of their respective pro rata share of the Note and such other charges as may be authorized in the Contract or this Agreement, in their respective pro rata shares hereunder, the following: (a) All allocations or grants which have been made or for which the Borrower or the Assumptor, as applicable, may become eligible under Section 106 of the Act. (b) Program income, as defined at 24 CFR 570.500(a)(or any successor regulation), directly generated from the use of the Guaranteed Loan Funds. (c) Other security as described in paragraph 15, et seq., of the Contract or this Agreement. (d) All proceeds (including insurance and condemnation proceeds) from any of the foregoing. ors:Document 81518 (e) All funds or investments in the accounts established pursuant to paragraphs 1 and 6 of this Agreement. 6. Loan Repayment Account. (a) All amounts pledged pursuant to paragraphs 5(b), 5(c), and 5(d) of this Agreement, and all amounts required to be paid by the Borrower and the Assumptor under Section 2 hereof, shall be deposited immediately upon receipt in a separate identifiable custodial account maintained by the Borrower (the "Loan Repayment Account") with a financial institution whose deposits or accounts are Federally insured. The Loan Repayment Account has been established and designated the form document entitled "Letter Agreement for Section 108 Loan Guarantee Program Custodial Account" (Attachment 1 to the Contract), and such account shall be continuously maintained for deposit of all such pledged funds. Borrower shall make withdrawals from said account only for the purpose of paying interest and principal due on the Note (including the purchase of Government Obligations for defeasance in accordance with paragraph 10 hereof), for payment of any other obligation of the Borrower and the Assumptor under this Agreement or the Fiscal Agency/Trust Agreements, in their respective pro rata shares hereunder, or for the temporary investment of funds pursuant to this paragraph, until final payment and discharge of the indebtedness evidenced by the Note, unless otherwise expressly authorized by the Secretary in writing. Such temporary investment of funds shall be required within three Business Days after the balance of deposited funds exceeds the amount of the Federal deposit insurance on the Loan Repayment Account. At that time, any balance of funds in the Loan Repayment Account exceeding such insurance coverage shall be fully (100%) and continuously invested in Government obligations, as defined in paragraph 10 hereof. All temporary investments, whether or not required as above, shall be limited to Government Obligations having maturities that are consistent with cash requirements for payment of principal and interest as required under. the Note. In no event shall the maturities of such investments exceed one year. All such 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") that has been established and designated pursuant the form document entitled "Letter Agreement for Section 108 Loan Guarantee Program Custodial Investment Account" (Attachment 2 to the Contract), which account shall be maintained for all Government Obligations purchased with funds from the Loan Repayment Account. All proceeds and income derived from such investments shall be returned to the Loan Repayment Account. As of the date of this Agreement, the Borrower and the Assumptor shall be deemed to share ownership of the Loan Repayment Account and the Loan Repayment Investment Account, in accordance with their respective pro rata shares hereunder, although the Borrower shall continue to maintain such accounts in accordance with this Agreement and with Borrower's obligations to Assumptor under the Participation Agreement.. (b) Borrower shall by the fifteenth day of each month, provide the Secretary and the Assumptor 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 ors:Document 81518 and a statement identifying the obligations and their assignments in the Loan Repayment Investment Account. (c) Upon the Secretary giving notice that the Borrower or the Assumptor, or bath of them if applicable, is in Default under this Agreement or the Note, all right, title, and interest of the Borrower or the Assumptor, or both of them, as applicable, in and to the Loan Repayment and Loan Repayment Investment Accounts shall immediately vest in the Secretary for use in making payment on the Note, purchase of Government obligations in accordance with paragraph 10, or payment of any other obligation of the Borrower under this Agreement or the Fiscal Agency/Trust Agreements. 7. Use of CDBG Funds for Repayment. Any funds available to the Borrower or the Assumptor under Section 106 of the Act (including program income derived therefrom) are authorized to be used by the Borrower or the Assumptor, in accordance with their respective pro rata shares under this Agreement, for payments due on the Note, Optional Redemption (as defined in the Note), payment of any other obligation of the Borrower under this Agreement or the Fiscal Agency/Trust Agreements, or the purchase of Government obligations in accordance with paragraph 10. Unless otherwise specifically provided herein or unless otherwise expressly authorized by the Secretary in writing, the Borrower shall substantially disburse funds available in the Loan Repayment or the Loan Repayment Investment Accounts before funds from grants under Section 106 of the Act are withdrawn from the U.S. Treasury for such purposes by either the Borrower or the Assumptor. 8. Secretary's Right to Restrict Use of CDBG Funds to Repayment. Upon a determination by the Secretary that payments required by paragraph 2 and/or paragraph 4 of this Agreement are unlikely to be made as required in accordance with their respective pro rata shares hereunder by either the Borrower or the Assumptor, or both, the Secretary may give the Borrower and/or the Assumptor, as applicable, notice that the availability to the Borrower and/or the Assumptor, as specified in such notice, of funds pledged under paragraph 5(a) of this Agreement for purposes other than satisfaction of the pledge is being restricted. This restriction shall be in an amount estimated by the Secretary to be sufficient to ensure that the payments referred to in paragraph 2 and/or paragraph 4 hereof are made when due by the Borrower and/or the Assumptor, as applicable. With respect to the Borrower and/or the Assumptor as applicable, this restriction may be given effect by conditioning the restricted amounts to prohibit disbursement for purposes other than satisfaction of the pledge at the time such restricted funds are approved as grants, by Iimiting the restricted party's ability to draw down or expend the restricted funds for other purposes, and by disapproving payment requests submitted with respect to such grants far purposes other than satisfaction of the pledge. 9. Secretary's Right to Use Pledged Funds for Repayment. The Secretary may use funds pledged under paragraph 5(a) of this Agreement or funds restricted under grants pursuant to paragraph 8 of this Agreement to make any payment required of the Borrower or the Assumptor under paragraph 2 and/or paragraph 4, if such payment has not been timely made by the Borrower or the Assumptor, as applicable. ors:Document 81518 10. Defeasance. For purposes of this Agreement, the Note shall be deemed to have been paid (defeased) to the extent that there shall have been deposited with the Trustee either moneys or Government Obligations (defined below), which in the sole determination of the Secretary, mature and bear interest at times and in amounts sufficient, together with any other moneys on deposit with the Trustee for such purpose, to pay when due the principal and interest to become due on the Note. The Aggregate Principal Amount of the Note or any unpaid Principal Amount may be so defeased, in whole or in part, as of any Interest Due Date, or any other Business Day acceptable to HUD, the Borrower, and the Assumptor. In accordance with the Note and the Trust Agreement, the Borrower shall give timely notice and written. instructions to the Secretary and the Trustee concerning any principal amounts proposed to be defeased, including any Optional Redemptions proposed, which instructions shall be approved by the Secretary. If the unpaid Aggregate Principal Amount of the Note guaranteed pursuant to this Contract shall be defeased and deemed to have been paid in full, then the Borrower and the Assumptor shall be released from all agreements, covenants, and further obligations under the Note. "Government Obligation" means a 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. 11. Defaults. (a) A Default under the Note and this Agreement shall occur upon the Borrower's failure to: (i) pay when due an installment of principal or interest on the Note; or (ii) punctually and properly perform, observe, and comply with any covenant, agreement, or condition of the Borrower contained in: (A) this Agreement, (B) any security agreement, deed of trust, mortgage, assignment, Guarantee, or other Agreement securing payment of indebtedness evidenced by the Note, or (C) any future amendments, modifications, restatements, renewals, or extensions of any such documents. (b) The Borrower and the Assumptor each waive notice of Default and opportunity for hearing with respect to a Default under paragraph 11(a). [Note: I think the Assumptor needs notice of Default since payment is not within Assumptor's controil. (c) In addition to Defaults under paragraph 11(a), the Secretary may declare the Note in Default if the Secretary makes a final decision in accordance with the provisions of section 111 of the Act and 24 CFR §570.913 (or any successor provisions), including requirements for reasonable notice and opportunity for hearing, that either the Borrower or the Assumptor, or both have failed to comply substantially with title I of the Act. Notwithstanding any other provision, following the giving of such reasonable notice to either such party, or both, the Secretary may orsDocument 81518 withhold the making of commitments to guarantee or the guarantee of any or all obligations not yet guaranteed in accordance with outstanding commitments on behalf of the Borrower or the Assumptor, or both, as applicable. In addition, in the event that notice of Default has been given to the Borrower under this paragraph 11(c), the Secretary may, in the Secretary's sole discretion pending the Secretary's final decision, direct the Borrower's financial institution to: refuse to honor any instruments drawn upon, or withdrawals from, the Loan Repayment Account initiated by the Borrower, and/or refuse to release obligations and assignments by the Borrower from the Loan Repayment Investment Account. (d) A Default by the Borrower under paragraph 11(a) shall be deemed a default by the Assumptor only if Assumptor has failed to pay when due any amount owing under paragraph 2 or 4 of this Agreement or to punctually and properly perform, observe, and comply with any covenant, agreement, or condition applicable to the Assumptor in this Agreement. In such event, the Secretary shall be entitled to exercise remedial actions in accordance with the respective pro rata shares of liability of Borrower and Assumptor hereunder against funds respectively pledged by the Borrower and the Assumptor under this Agreement. (e) A Default limited to the Assumptor or to the Borrower under this Agreement shall entitle the Secretary to exercise remedial actions only against funds pledged by the Assumptor or the Borrower, as applicable, under this Agreement. 12. Remedial Actions. Upon a Default or declaration of Default under this Agreement, the Secretary may, in the Secretary's sole discretion, take any or all of the following remedial actions: (a) With any funds or security pledged under this Agreement, the Secretary may (i) continue to make payments due on the Note, (ii) make an acceleration payment with respect to the principal amount of the Note subject to Optional Redemption as provided in Section B of the Note, (iii) purchase Government Obligations in accordance with paragraph 10 of this Agreement, (iv) pay any interest due for late payment as provided in the Note, this Agreement, or the Fiscal Agency/Trust Agreements, (v) pay any other obligation of the Borrower and/or the Assumptor, as applicable, under this Agreement or the Fiscal Agency/Trust Agreements, and/or (vi) pay any reasonable expenses incurred by the Secretary or the Fiscal Agent/Trustee as result of the Default. (b) The Secretary may withhold the guarantee of any or all obligations not yet guaranteed or grants not yet disbursed under outstanding guarantee commitments or grant approvals for the Borrower and/or the Assumptor, under Section 108 and/or Section 106 of the Act. (c) The Secretary may direct the Borrower's financial institution to: refuse to honor any instruments drawn upon, or withdrawals from, the Guaranteed Loan Funds Account or the Loan Repayment Account by the Borrower, and/or refuse to release obligations and assignments by the Borrower from the Guaranteed Loan Funds Investment Account or the Loan Repayment Investment Account; and/or direct the Borrower and/or the Borrower's financial institution to transfer remaining balances from the Guaranteed Loan Funds Account to the Loan Repayment Account. ors:Document 81518 (d) With respect to amounts subject to Optional Redemption, the Secretary may accelerate the Note. (e) The Secretary may exercise any other appropriate remedies or sanctions available by law or regulation applicable to the assistance provided under this Agreement, or may institute any other action available under law to recover Guaranteed Loan Funds or to reimburse the Secretary for any payment under the Secretary's Guarantee or any reasonable expenses incurred by the Secretary as a result of the Default. (9 All notices and submissions provided for hereunder shall be in writing (including by telex, telecopier or any other form of telecommunication) and mailed or sent or delivered, as to each party hereto, at its address set forth below or at such other address as shall be designated by such party in a written notice to the other party hereto. All such notices and other communications shall be effective when received as follows: (i) if sent by hand delivery, upon delivery; (ii) if sent by mail, upon the earlier of the date of receipt or five Business Days after deposit in the mail, postage prepaid; (iii) if sent by telex, upon receipt by the sender of an answer back; and (iv) if sent by telecopier, upon receipt. The Secretary: U.S. Dept. of Housing and Urban Development Attention: Paul Webster Director Financial Management Division 451 7th Street, SW, Room 7180 Washington, D.C. 20410 Borrower: Miami -Dade County 111 NW lst Street, 29'h Floor Miami, Florida 33128 Attention: County Manager With Copies to: Miami -Dade County Office of Community and Economic Development Attention: Director 140 W. Flagler Miami, Florida 33130 Assumptor: City of Miami With Copies to: ors:Documcnt 81518 13. Limited Liability. Notwithstanding any other provision of this Agreement, the Fiscal Agency/Trust Agreements or the Note, any recovery against the Borrower or Assumptor for any liability for amounts due pursuant to this Agreement under the Note, the Fiscal Agency/Trust Agreements and this Agreement shall be Limited to the sources of security pledged in paragraphs C., 5, or any Special conditions of this Agreement. Neither the general credit nor the taxing power of the Borrower, the Assumptor or of the State in which the Borrower and the Assumptor are located, is pledged for any payment due under the Note, the Agreement, or the Fiscal Agency/Trust Agreements. 14. Incorporated Grant Agreement. The Agreement and the Note are hereby incorporated in and made a part of the Grant Agreement authorized by the Secretary on December 31, 1998, under the Funding Approval for grant number B-98-UC-12-0006 to the Borrower. In carrying out activities with the Guaranteed Loan Funds hereunder, the Borrower and the Assumptor agrees to comply with the Act and 24 CPR Part 570, as provided in Subpart M thereof. 15. Special Conditions and Modifications: (a) RESERVED (b) Guaranteed Loan Funds were used by the Borrower to make a loan to Parrot Jungle & Gardens, Inc. (the "Obligor"), which loan was evidenced by a promissory note (the "Obligor Note") and a loan agreement (the "Obligor Loan Agreement"), which Obligor Note and Obligor Loan Agreement were in a form acceptable to the Secretary. The amounts of principal and/or interest payable under the Obligor Note during the twelve month period beginning July 1 of each year and ending on June 30 of the next succeeding year are equal to or greater than the amounts of principal and/or interest payable under the Notes for the corresponding period. 1. In order to secure the payment and performance of the secured obligations of the Obligor to the Borrower, the Borrower obtained the following collateral (collectively, the "Collateral"): (i) A lien on the Obligor's leasehold interest hi the property described in Attachment 3 hereof (the "Property"), established through an appropriate and properly recorded leasehold mortgage (the "Obligor Leasehold Mortgage"). Obligor's leasehold interests that are the subject of that leasehold mortgage are those interests identified in a Lease Agreement entered into between the Obligor and the City of Miami, Florida. The Obligor Leasehold Mortgage contained such provisions as the Secretary deemed necessary. (ii) Any and all rights, titles, and interests of the Obligor in and to any leases covering the Property. Such rights, titles, and interests of the Obligor are the subject of a collateral assignment of leases and rents (the "Collateral Assignment of ors:Document 81518 Leases and Rents"). The Collateral Assignment of Leases and Rents is in a form, acceptable to the Secretary. (iii) Any and all rights, titles, and interests of the Obligor in and to any licenses, permits, and other agreements covering the Property. Such rights, titles, and interests are the subject of a collateral assignment of interest in licenses, permits, and other agreements (the "Collateral Assignment of Interest in Licenses, Permits, and Agreements"). The Collateral Assignment of Interest in Licenses, Permits, and Agreements is in a form acceptable to the Secretary. 2. The Borrower selected a financial institution acceptable to the Secretary (the "Custodian") to act as custodian for the documents specified in 3 below (hereinafter referred to as the "Security Documents"). The Borrower and the Custodian entered into a written agreement containing such provisions as the Secretary deemed necessary. A fully executed copy of such agreement, with original signatures, was forwarded to the Secretary contemporaneously with the delivery of documents pursuant to (2) below. 3. Not later than five business days after the initial disbursement of the Guaranteed Loan Funds to the Obligor, the Borrower delivered to the Custodian the following: (i) The original Obligor Note, endorsed in blank and without recourse. (ii) The original Obligor Loan Agreement and an assignment thereof to the Secretary, which assignment was in a form acceptable to the Secretary. (iii) The original recorded Obligor Leasehold Mortgage signed by the Obligor and an assignment thereof to the Secretary, in a recordable form but unrecorded, which assignment was in a form acceptable to the Secretary. (iv) The original recorded Collateral Assignment of Leases and Rents and an assignment thereof to the Secretary, in a recordable form but unrecorded, which assignment was in a form acceptable to the Secretary. (v) The original Collateral Assignment of Interest in Licenses, Permits, and Agreements and an assignment thereof to the Secretary, which assignment was in a form acceptable to the Secretary. (vi) An opinion of the Borrower's counsel, addressed to the Secretary and on its letterhead, that (as of the date of such opinion): (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 Note has been duly executed and delivered by a party authorized by the Obligor to take such action and is a valid ors:Document 81518 and binding obligation of the Obligor, enforceable in accordance with its terms, except as limited by bankruptcy and similar laws affecting creditors generally; and (c) the security instruments specified in (B) through (E) 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 either included in the definition of the "insured" each successor in ownership of the indebtedness secured by the Obligor Leasehold Mortgage or was 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 Obligor Leasehold Mortgage. (ix) An appraisal of the Obligor's Leasehold interest in the Property specifying an estimate of fair market value of not less than $31,250,000. The appraisal was completed by an appraiser who was certified by the state and has a professional designation (such as "SRA" or "MAP"), and the appraisal conformed to the standards of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 ("FIRREA") when issued. 4. Concurrently with the execution of this Agreement, Borrower and Assumptor executed a Participation Agreement pursuant to which Assumptor assumed eighty percent (80%) of Borrower's interest in the Obligor Loan and the Collateral therefore. (c) Paragraph 12 is amended by adding at the end thereof the following language: "(f) The Secretary may complete the endorsement of the Obligor Note and record the assignments referred to in paragraph 15(b)(iii) and thereby effectuate the transfer of the documents referenced and underlying indebtedness from the Borrower to the Secretary or the Secretary's assignee. The Assumptor hereby grants irrevocable consent to any such action by the Secretary. "(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(b)) against the Collateral, against the Borrower, against the Obligor, or against any other person or property. The Assumptor hereby grants irrevocable consent to any such action by the Secretary." ors:Document 81518 (d) The Borrower agrees that it shall promptly notify the Secretary and the Assumptor 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(b). Notification of an Event of Default shall be delivered to the Secretary, at 451 Seventh Street, SW, Washington, DC 20410, Attention: Director, Financial Management Division, Office of the Assistant Secretary for Community Planning and 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, subject to the provisions of paragraph 11 (e). This paragraph 15(d) 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. (e) As of the effective date of this Agreement, the Secretary shall treat the Borrower's Pro Rata Share and the Assumptor's Pro Rata Share, respectively, of the outstanding principal balance due on the Note as the amounts, respectively, of the Borrower's and the Assumptor's unpaid obligations under the Note for purposes of 24 CFR 570.705(a)(2)(i). IN WITNESS WHEREOF, the undersigned, as authorized officials on behalf of the Borrower, the Assumptor or the Secretary, have executed this Agreement, which shall be effective and shall be dated as of the date of execution by the Secretary, after execution on behalf of the Borrower and the Assumptor. MIAMI-DADE COUNTY FLORIDA BORROWER BY: (Name) (Title) (Signature) (Date) CITY OF MIAMI FLORIDA AS SUMPTOR BY: (Name) (Title) (Signature) ors:Document 81518 (Date) SECRETARY OF HOUSING AND URBAN DEVELOPMENT BY: (Name) (Title) (Signature) (Date) ors:Document 81518