HomeMy WebLinkAboutExhibitCUSTODIAL AGREEMENT FOR SECURITY DOCUMENTS
/According to paragraph 15 of the Contract for Loan Guarantee Assistance under Sec. 108
related to Note No. B-02-MC:12-0013J
THIS CUSTODIAL AGREEMENT ("Agreement"), dated as of the 6 day of
2005, by and among the City of Miami, a municipal corporation of the tatef.f
Florida (the "Borrower" and the "City"), and, SunTrust Bank, a Georgia banking corporation
authorized to conduct business in Florida (the "Custodian"), and Wagner Square, LLC, a Florida
limited liability company (the "Obligor"),
RECITALS:
WHEREAS, the Borrows. _las issued a note guaranteed by ihe Secretary of Housing ._id I art
Development ("HUD") pursuant to Section 108 of the Housing and Community Development
Act of 1974; as amended ("Note"); and
WHEREAS, the Custodian has banking and trust powers issued by State of Georgia with
applicable Federal regulation; and
WHEREAS, the parties to this Agreement desire to set forth the terms and conditions for the
deposit and custody of the documents required to be deposited with the Custodian (1). pursuant
. to the Contract for Loan Guarantee Assistance under Section 108 of the Housing and Community
Development Act of 1974, as amended, between the U.S. Department of Housing and Urban
Development ("HUD") and the Borrower, dated as of June 10, 2005 ("Contract"), and (2).
pursuant to the Loan Agreement, between the Borrower and the Obligor dated as of March 10,
2005 ("Loan Agreement"). Capitalized terms not otherwise defined herein shall have the
meanings defined in the Contract.
WHEREAS, the parties to this Agreement additionally desire to set forth the terms and
conditions for the establishment of, deposits to, custody of, and disbursements from a guaranteed
loan funds custodial deposit account for funds to be received by the Borrower under the Note(s)
guaranteed by the HUD under the Section 108 Loan Guarantee Program and disbursed to the
Obligor pursuant to the Loan Agreement.
THEREFORE, in consideration of the mutual undertakings expressed in this Agreement, and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
I. (A) The Borrower shall deposit with the Custodian the following original documents,
pursuant to paragraph 15 of the Contract:
1. The Obligor's. Commercial Component Promissory Note, from Obligor to the City
dated as of March 10, 2005, endorsed in blank and without recourse;
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2. The Loan Agreement and an Assignment thereof to the Secretary;.
3. The Commercial Component Mortgage and Security Agreement (with copy of
UCC 1 attached), dated as of March 10, 2005, signed by the Obligor and an
Assignment thereof to the Secretary;
4 The Commercial Component Collateral Assignment of Leases, Rents, and Profits,
dated as of March 10, 2005, from the Obligor to the City, and Assignment thereof
to the Secretary;
5. The Collateral Assignment of Remediation Contract, Construction Contracts,
Architect's Contract, Permits, Licenses, Etc., dated as of March 10, 2005, from
the Obligor to the City and Assignment thereof to the Secretary;
6. An opinion of Borrower's counsel, on its letterhead, addressed to and satisfactory
to the Secretary, that:
(A) The Obligor is a duly organized and validly existing limited liability
corporation under the laws of the State of Florida and is existing, qualified
to do business, and in good standing in and under th.e 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 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 above are valid and legally binding
obligations enforceable in accordance with their respective terms.
To the extent that the foregoing opinion of the Borrower's counsel deals.with
Matters customarily within the due diligence of counsel to the Obligor,
Borrower's counsel has attached and is expressly relying upon an opinion of the
Obligor's Counsel, on its letterhead, addressed to and satisfactory to the Secretary
and the. Borrower, that:
(A) The Obligor is a duly organized and validly existing limited liability
corporation under the laws of the State of Florida and is existing, qualified,
to do business, and in good standing in and Linder 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 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 above are valid and legally binding
obligations enforceable in accordance with their respective terms.
7. A mortgage title policy issued by a company and in a form acceptable to the
Secretary, naming the Borrower as the insured party with an endorsement of the
policy to the Secretary;
8. A certified survey with legal description conforming to the title policy and
Commercial Component Mortgage;
9. (To be deposited at such time as the Obligor obtains the building permit on the
commercial component of the Project: An appraisal of the fee simple ownership
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interest in the property specifying an estimate of fair. market value "as completed"
of not less than one hundred and twenty-five percent (125%) of the principal
balance of all the Note plus any senior indebtedness secured by a lien on the
Property. The appraisal shall be completed by an appraiser who is certified by the
State of Florida and has a professional designation ("SRA" or "MIA" or other
equivalent) and shall conform to the standards of the Financial Institutions
Reform, Recovery, and Enforcement Act of 1989 ("FIRREA")); and
10. The Collateral Assignment by the City to the Secretary with Consent and
Acknowledgement of the Obligor, dated as of March 10, 2005.
Each document or set of documents deposited with the Custodian shall be accompanied
by a cover letter in the form attached hereto as Exhibit A.
(B) If any Document required to be delivered by the Borrower to the Custodian is
found by HUD to be defective. the Borrower and the Obligor, as applicable, shall replace
the defective document.
(C) Except as provided in Paragraph I (B), the Custodian shall notify the Borrower
immediately of any missing documents, signatures or pages, and the Borrower shall notify
the Obligor immediately upon receipt of such notice regarding any items relating to the
Obligor. The Borrower and the Obligor, as applicable, shall deposit any such missing
documents, or complete with signatures or pages, as applicable, and redeposit any such
defective documents with the Custodian. Otherwise, the Custodian shall use normal
business standards for document custody to determine if the documents are acceptable for
deposit under this Agreement and shall not be responsible to HUD or the Borrower or the
Obligor for errors or omissions in its review of the documents. It is the Borrower's and
the Obligor's primary responsibilities to provide documents for deposit that are
acceptable in accordance with the Contract and the Loan Agreement.
II. (A) Not later than ten (10) business days after the initial disbursement of the Guaranteed
Loan Funds to the Obligor unless an extension is requested of, and approved by, HUD, all of
the documents described in I(A) above shall be delivered to the Custodian by the Borrower. If
any original document will not be available for deposit within the aforementioned period for
reasons beyond the control of the Borrower and/or the Obligor as a third party recipient of
funds from the Borrower (e.g., documents that must be recorded and will not be timely
returned by the recording office), the Borrower shall timely deposit a copy of such document
with the Custodian and shall deposit the original within ten (10) business days after the
Borrower receives the original document. When documents described in Paragraph I(A)
above have been received and accepted, the Custodian shall forward a certification of receipt
to:
U.S. Department of Housing and Urban Development
Director, Financial Management Division
Room 7180
451 7th Street, SW
Washington, D.C. 20410
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With copies to the Borrower:
The City of Miami
Office of the City Manager
444 S.W. 2"d Avenue, 10th Floor
Miami, Florida 33130
The City of Miami
Department of Community Development
Attention: Barbara Gomez -Rodriguez, Director
444 S.W. 2nd Avenue, 3rd Floor
Miami, Florida 33130
The City of Miami
Office of the City Attorney
444 S.W. 2"d Avenue, 9`h Floor
Miami. Florida 33130
With copies to the Obligor:
Wagner Square, LLC
Attn: Debra Kolsky
1175 N.E. 125th Street, Suite 103
North Miami, Florida 33161
Irwin P. Raij
Foley & Lardner LLP
Washington Harbour
3000 K Street, N.W., Suite 500
Washington, D.C. 20007-5134
(B) Except as otherwise p.ovided in paragraphs III and V hereof, the Custodian, Jhall
segregate, and maintain continuous custody and control of, all documents deposited with
it on behalf of HUD until the Note is paid in full, and shall hold the documents in secure
and fireproof facilities, in accordance with customary standards for such storage. The
Custodian may rely on information received from the Borrower pertaining .to the payment
of the Note, unless specifically notified otherwise by HUD.
III. The Custodian, only upon presentation by the Borrower of a written request for release of
documents in the form of Exhibit B attached hereto, shall release to the Borrower the
appropriate documents in custody of the Custodian, unless HUD has exercised its rights
under paragraph V hereof. The Custodian shall retain the request for release as a receipt
from the Borrower. The Borrower shall make such request only when its possession of
the documents is necessary for carrying out the Borrower's responsibilities to service,
collect prepayments, cancel or release a document upon payment in full, or foreclose or
take other collection action. The Borrower shall return to the Custodian all documents of
which it has obtained custody under this paragraph when they are no longer required by
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the Borrower for the purpose requested, unless Borrower gives notice in the form of
Exhibit C attached hereto to the Custodian and HUD with supporting documentation that
the Contract no longer requires the documents to be retained by the Custodian (e.g., if a
loan evidenced by documents has been paid in full).
IV. At any reasonable time, the Custodian shall make available at its place of business for
examination and audit by representatives of the Borrower, HUD, or the Comptroller
General of the United States, all documents in the custody of the Custodian pursuant to
this Agreement, as well as any accounts or records pertaining to such documents.
V. (A) Upon notice to the Custodian by HUD that a default has occurred under the
Contract, the Custodian shall comply with such requests as HUD shall make, such
compliance including, but not necessarily limited to, the delivery to HUD or its designee
of some or all documents in the Custodian's custody under this Agreement or the
recordation (at the.Borrower's expense) of any assignment or other security document in
favor of HUD held by the Custodian. In the case of any conflict between requests from •
the Borrower and from HUD, the requests of HUD shall take priority.
(B) If, following sud a—d a t,-1-1UD elects to assume -the -duties and obligations of
the Borrower hereunder and elects to continue the custodial relationship, the
Custodian agrees to continue its obligations herein for HUD for a reasonable time not to
exceed three (3) months on the same terms and conditions as set forth in the Agreement,
provided that in no event shall HUD be obligated to pay any compensation or fee for the
holding or release of any documents during such reasonable period. If, however, HUD
elects to terminate such agreement, the Custodian shall comply with the provisions of this
election by HUD.
VI. Consideration fordocumentcustodianservicesand the guaranteed loan funds deposit account
services to be performed by the Custodian under this Agreement shall be as agreed in Exhibits D
and E hereto, incorporated herein and made a part hereof.. If in the future pursuant to the
"Contract the parties hereto require the establishment of a "Guaranteed Loan Funds Investment
Account" and/or a "Loan Repayment Account" as such terms are defined in the Contract, the
parties hereto now agree that the consideration for guaranteed loan funds investment account
services to be performed by the Custodian under this Agreement shall be agreed as a supplement
hereto, incorporated herein and made a part hereof. Pursuant to the Loan Agreement between
Borrower and Obligor, dated as of March 10, 2005, Obligor shall pay all costs of the Custodian
under this Agreement.
VII. Any notice or demand which, by provision of this Agreement, is required or permitted to be
given or served by one party to the other shall be deemed to have been sufficiently given and
served for all purposes: if mailed, three (3) calendar days after being deposited, postage prepaid,
in the United States mail or, if delivered by express courier, one business day after being
delivered to such courier, in each case addressed (until another address is given in writing by
Borrower or Custodian, as appropriate) as follows:
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if to Borrower:
With copies to:
The City of Miami
Office of the City Manager
City Hall
3500 Pan American Drive
Miami, Florida 33133
The City of Miami
Department of Community Development
Attention: Barbara Gomez -Rodriguez, Director
444 S.W. 2nd Avenue, 3'd Floor
Miami, Florida 33130
The City of Miami
City Attorney
Office of the City Attorney .
444 S.W. 2"d Avenue, 9 h Floor
Miami, Florida 33130
If to the Obligor: Wagner Square, LLC
Attn: Debra Kolsky
1175 N.E. 125`h Street, Suite 103
North Miami, Florida 33161.
With copy to:
If to Custodian:
Irwin P. Raij
Foley & Lardner LLP
Washington Harbour
3000 K-Street, N.W., Suite 500
Washington, D.C. 20007-5134
Holly Jeske, Vice President
SunTrust Bank Corporate Trust Division
777 Brickell Avenue, 2"d Floor
Miami, Florida, 33131
VIII. Pursuant to the Attachment 1 Letter Agreement to the Contract (copies of the Contract
and Attachments 1 and 2 thereto being attached hereto as Composite Exhibit G and made a part
hereof), the Custodian is hereby authorized and requested to establish a custodial deposit account
to be specifically designated: "City of Miami, Florida Wagner Square Project Guaranteed Loan
Funds Account: SunTrust Bank as Custodian of United States Department of Housing and
Urban Development." (hereinafter referred to as the "Guaranteed Loan Funds Account") All
deposits made in such account shall be subject to withdrawal there from by the Borrower and
shall also be subject to withdrawal there from by HUD. No agent of the Obligor shall be
authorized to withdraw funds from the account. The Custodian is also authorized to pay HUD at
any time, upon its written demand, which need not name a specific amount, the entire amount in
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such account subject only to notice requirements contained in applicable regulations governing
this institution, but in no event to exceed seven (7) business days.
The Custodian is further authorized, upon the request of HUD, to refuse to honor any
instrument drawn upon or withdrawals 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 funds in the custodial deposit account be used to
offset funds which may have been advanced to, or on behalf of, the Borrower by the Custodian.
IX. Pursuant to Part II, Paragraph 1 "Receipt, Deposit and Use of Guaranteed Loan
Funds" of the Contract:
(a) except for funds deducted on the Conversion Date pursuant to paragraph 4(b) of the
Contract and fees and.charges deducted by the Fiscal Agent/Custodian pursuant to
paragraph 4(a) of the Contract, the Guaranteed Loan Funds shall be electronically
transferredin accordance with the Botrowci's instructions for depositTinto the Guaranteed
Loan Funds Account with the Custodian. The Guaranteed Loan Funds Account shall be
continuously maintained for the Guaranteed Loan Funds. The (Attachment 1) Letter
Agreement has been executed at the time of the establishment of the Guaranteed Loan
Funds Account by the Custodian. (A fully executed copy of such (Attachment 1) Letter
Agreement shall be submitted to the Secretary within thirty (30) days of its execution.)
The Borrower shall make withdrawals from the Guaranteed Loan Funds Account (and shall
certify to the Custodian regarding such withdrawals) only for payment of the costs of
approved Section 108 activities, for transfer to the Loan Repayment Account or for the
temporary investment of funds pursuant to Part II; paragraph 1(a). Such temporary
investment of funds into the Guaranteed Loan Funds Investment Account shall be required
within three (3) Business Days after the balance of deposited funds exceeds $100,000. At
that time, any balance of funds in the Guaranteed Loan Funds Account exceeding. such
$100,000 amount shall be fully (100%) and continuously invested in Government
Obligations, as defined in paragraph 10 of the Contract, held in the "uataiiieed Loan Funds
Investment Account.
A11 temporary investments, whether or not required as above, shall be limited to
Government Obligations having maturities that are consistent with the cash requirements
of the approved activities. In no event shall the investments mature on or after September
15, 2008, or have maturities which exceed one (1) year. All such 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), which account shall be
maintained for all 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 is required to invest, or otherwise 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
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executed copy of such Letter Agreement shall be submitted to the Secretary within thirty
(30) 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 or the Guaranteed Loan Funds
Investment Account must be withdrawn and disbursed by the Borrower for approved
activities by September 15, 2008. Any funds remaining in either Account after this date
shall be immediately transferred to the Loan Repayment Account, if such account is
established pursuant to paragraph 6 of the Contract.
(b) The 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 the Secretary giving notice in writing to the Custodian that the Borrower is in
Default under the Contract or the Note, all right, title, and interest of the Borrower in and to
the Guaranteed Loan Funds and Guaranteed Loan Funds 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 of the Contract, or payment of
any other obligations of the Borrower under the Contract or the Fiscal Agency/Trust
Agreements as specified by the Secretary in writing to the Custodian .
X. If the Borrower is required by HUD to establish a Loan Repayment Account pursuant to
the Contract, the parties hereto agree to amend and supplement this Agreement in order to add
such required provisions. At the time of execution of this Agreement, the Borrower and the
Obligor acknowledge to the Custodian and to HUD that no Loan Repayment Account is being
• established at this time because the Borrower will be requesting that HUD make such loan
• repayments directly from Advances under the Note according to Advance Requests from the
Borrower. -
XI. If the Borrower is required by HUD to establish a Guaranteed Loan Funds Investment
Account pursuant to the Contract, the parties hereto agree to amend and supplement this
Agreement in order to add such required provisions. At the time of execution of this Agreement,
the Borrower and the Obligor acknowledge to the Custodian and to HUD that no Guaranteed
Loan Funds Investment Account is being established at this time because under the terms of the
Contract and the Note, the Borrower is only permitted to make a $1,000 initial draw for deposit
into the Guaranteed Loan Funds Account and the Borrower is not permitted to make any
subsequent draws under the terms and the Note until such time as a building permit has been
issued for the commercial component of the Wagner Square Project.
XII.. This Agreement may be executed simultaneously in several counterparts, each of which shall be
an original and all of which shall constitute but one and the same agreement.
8
XIII.. Notwithstanding anything to the contrary set forth herein, the Custodian may rely on any
certificate or other instrument signed by a party hereto as to the accuracy of the information set forth
therein.
THE PARTIES HERETO duly executed this Agreement as of the date reflected above:
Attest:
Borrower: City of Miami, a municipality of the
State of Florida
By:
Joe Arriola, City Manager
Date:
By:
Priscilla A. Thompson, City Clerk
Date:
Approved as to Form and Correctness: Approved as to Insurance Requirements:
By: By:
Jorge L. Fernandez, City Attorney Dania F. Carrillo,Risk Management Administrator
Date: Date:
Obligor: Wagner Square, LLC, a Florida limited
liability company
Attest: By:
By: Name:
Name: Title:
Title: Date:
Date:
Attest:
By: Li�►
N, ggie F. have,.'
Title: ' ssis an '.ice - s!. e
Date: ,g2.,�
Custodian: SunTrust Bank, a Georgia banking
corporation
By:
Name: Holly Lee/eske
Title: Vice President
Date:
XIII.. Notwithstanding anything to the contrary set forth herein, the Custodian may rely on any
certificate or other instrument signed by a party hereto as to the accuracy of the information set forth
therein.
THE PARTIES HERETO duly executed this Agreement as of the date reflected above:
Attest:
Borrower: City of Miami, a municipality of the
State of Florida
By.
Joe Arriola, City Manager
Date:
By:
Priscilla A. Thompson, City Clerk
Date:
Approved as to Form and Correctness: Approved as to Insurance Requirements:
By: By:
Jorge L. Fernandez, City Attorney Dania F. Carrillo,Risk Management Administrator
Date: Date:
Obligor: Wagner Square, LLC, a Florida limited
liability company
Attest: By: ,.16 /
By: -
Name. ..SENtem kt 1s k
Name: ��'►„r C; 'T, &T Title. -e/<--
Title: Date:
Date: / zY/e
Custodian: SunTrust Bank, a Georgia banking
corporation
Attest: By -
By: Name: Holly Lee Jeske
Name: Title: Vice President
Title: Date:
Date:
9
THE PARTIES HERETO duly executed this Agreement as of the date reflected above:
Se.Gaeo.Qw
XIII.. Notwithstanding anything to the contrary set forth herein, the Custodian may rely on any
certificate or other instrument signed by a party hereto as to the accuracy of the information set forth
therein.
Attest:
By:
• P scilla A. Thompson, City Clerk
yiy)
Daft:. c�c�/� // 20 G S
Borrower- City of 1 iami, a iunici..lit of the
State of Fl.ii da
By:
Joe iola, City Manager
Data:
Approved as to Form and Correctness: Approved as to Insurance Requirements:
By: ki(..,64k., F•
Dania F. Carrillo,Risk Management Administrator
Date: ,i ' . b3C, Date: Ili /0,1'
By: —T
,Jorge L. Fernandez, City Attorney
Obligor: Wagner Square, LLC, a Florida limited
liability company
Attest: By:
By: Name:
Name: Title:
Title: Datc:
Date:
Custodian: SunTrust Bank, a Georgia banking
corporation
Attest: By:
By: Name: Holly Lee Jeske
Name: Title: Vice President
Title: Date:
Date:
Holly Jeske, Vice President
SunTrust Bank
Corporate Trust Division
777 Brickell Avenue, 2nd Floor
Miami, Florida 33131
Re:
EXHIBIT A
1'\ )1
August I,8X 2005
Deposit of Documents pursuant to Custodial Agreement for Security Documents
dated as of July 7, 2005 (the "Custodial Agreement") in connection with the HUD
Section 108 Contract for Loan Guarantee Assistance for the Wagner Square
Project (Note No. B-02-MC-12-0013).
Attached are the following documents which are being delivered to SunTrust Bank, as
custodian (the "Custodian"), under Section I.(A) of the Custodial Agreement:
1. The Obligor's Commercial Component Promissory Note, from Obligor to
the City dated as of March 10, 2005, endorsed in blank and without
recourse;
2. The Loan Agreement and an Assignment thereof to the Secretary;
3. The Commercial Component Mortgage and Security Agreement (with copy
of UCC 1 attached), dated as of March 10, 2005, signed by the Obligor
and an Assignment thereof to the Secretary;
4. The Commercial Component Collateral Assignment of Leases, Rents, and
Profits, dated as of March 10, 2005, from the Obligor to the City, and
Assignment thereof to the Secretary;
5. The Collateral Assignment of Remediation Contract, Construction Contracts,
Architect's Contract, Permits, Licenses, Etc., dated as of March 10, 2005,
from the Obligor to the City and Assignment thereof to the Secretary;
6. An opinion of Borrower's counsel, on its letterhead, addressed to and
satisfactory to the Secretary, that:
(A) The Obligor is a duly organized and validly
existing limited liability corporation under the laws of the State of
Florida and is existing, qualified to do business, and in good
standing in and 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 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 above are
valid and legally binding obligations enforceable in accordance
with their respective terms.
To the extent that the foregoing opinion of the Borrower's
counsel deals with
Matters customarily within the due diligence of counsel to
the Obligor,
Borrower's counsel has attached and is expressly relying
upon an opinion of the Obligor's Counsel, on its letterhead,
addressed to and satisfactory to the Secretary
and the Borrower, that:
(A) The Obligor is a duly organized and validly
existing limited liability corporation under the laws of the State of
Florida and is existing, qualified to do business, and in good
standing in and 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 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 above are
valid and legally binding obligations enforceable in accordance
with their respective terms.
7. A mortgage title policy issued by a company and in a form
acceptable to the Secretary, naming the Borrower as the insured party with
an endorsement of the policy to the Secretary (to be bifurcated and
reiussued with endorsement to the Secretary);
8. A certified survey with legal description conforming to the title
policy and Commercial Component Mortgage;
9. (To be deposited at such time as the Obligor obtains the building
permit on the commercial component of the Project: An appraisal of the
fee simple ownership interest in the property specifying an estimate of fair
market value "as completed" of not less than one hundred and twenty-five
percent (125%) of the principal balance of all the Note plus any senior
indebtedness secured by a lien on the Property. The appraisal shall be
completed by an appraiser who is certified by the State of Florida and has
a professional designation ("SRA" or "MIA" or other equivalent) and shall
conform to the standards of the Financial Institutions Reform, Recovery,
and Enforcement Act of 1989 ("FIRREA")); and
10. The Collateral Assignment by the City to the Secretary with
Consent and Acknowledgement of the Obligor, dated as of March 10,
2005.
The Borrower and Obligor hereby certify to the Custodian that each of the attached
documents constitutes a complete, original, and duly executed instrument in a forrn satisfactory
and acceptable to HUD (except for the items indicated by HUD in its August 9, 2005 letter to
Robin J. Jackson, Esq. and except for the title policy to be bifurcated and returned to the
Custodian for only the portion of the property secured by the HUD Section 108 Loan and BEDI
Grant).
Borrower:
City of Miami
a Florida municipal corporation
company
By: .. 9,,P7
Authorized Signatory
Pedro J. Mirones
Date: _ i `" -
Obligor:
Wagner Square, LLC
a Florida limited liability
By:
Authorized S' .natory
Debra Sink e(olsky
Date: Eh? Os
EXHIBIT B
WRITTEN REQUEST FOR RELEASE OF DOCUMENTS
[Date]
Holly Jeske, Vice President
SunTrust Bank
Corporate Trust Division
777 Brickell Avenue, 2"d Floor
Miami, Florida 33131
Re: Request for Release of Documents pursuant to Custodial Agreement for Security
Documents dated _ , 2005 (the "Custodial Agreement") in •.;c,:inection
with the HUD Section 108 Contract for Loan Guarantee Assistance for tilt-. Wagn cr
Square Project (Note No. B-02 MC-12-0013).
Pursuant to Section III of the Custodial Agreement, the City of Miami, Florida (the "Borrower")
hereby requests that the following documents be released by SunTrust Bank, as custodian (the
"Custodian"):
[List documents using descriptions contained in Section I(A) of the Custodial Agreement]
The Borrower acknowledges that the Custodian will be unable to release such documents in the
event that HUD has provided a notice that a default has occurred under the Contract (as defined in the
Custodial Agreement). The Borrower hereby certifies to Custodian that as of the date written above, no
notice of default from HUD has been received by Borrower and that is Borrower does receive a notice of
default from HUD while Borrower is in possession of the documents listed above, Borrower will retU,-r:
:,each documents to the Custodian. The Borrower hereby 'ertif es to the Custodian that Borrower's
possession of the above listed documents is necessary to carry out its responsibilities to service, collect
prepayments, cancel or release a document upon payment in full, or foreclose or take other collection
action and that it shall return such documents to the Custodian when they are no longer required for the
purpose requested unless we provide the Custodian with subsequent notice that such documents are no
longer required to be retained by the Custodian pursuant to the Custodial Agreement.
Borrower: City of Miami, Florida,
a municipal corporation
By:
Authorized Signatory
Name:
Title:
B-1
EXHIBIT C
NOTICE OF RELEASE FROM CUSTODIAL AGREEMENT
[Date]
Holly Jeske, Vice President
SunTrust Bank
Corporate Trust Division
777 Brickell Avenue, 2"d Floor
Miami, Florida 33131
U.S. Department of Housing and Urban Development
Director, Financial Management Division
Room 7180
431 7th St.,ct, SW
Washington, D.C. 20410
Re: Release of Documents pursuant to Custodial Agreement for Security Documents dated
, 2005 (the "Custodial Agreement") in connection with the HUD
Section 108 Contract for Loan Guarantee Assistance for the Wagner Square Project
(Note No. B-02-MC-12-0013 ).
Pursuant to Section III of the Custodial Agreement, the City of Miami, Florida (the "Borrower")
hereby certifies to each of you that the Contract (as defined in the Custodial Agreement) no longer
requires the following documents to be retained by SunTrust Bank, as Custodian, pursuant to the
Custodial Agreement:
[List documents using des ;r r tic •ns con'..::ied in Sccti:;n (.) of the Cusu.dia, Agreement]
Attached is supporting documentation as required pursuant to the Custodial Agreement.
Borrower: City of Miami, a Florida, Acknowledged by Obligor:
municipal corporation Wagner Square LLC, a Florida
limited liability company
By: By:
Authorized Signatory Authorized Signatory
Name: Name:
Title: Title:
Date: Date:
C-1
EXHIBIT D
Copy of SunTrust Bank Proposal of February 18, 2005
As Modified March 11, 2005
Regarding Services as Documents Custodian
C-2