HomeMy WebLinkAboutExhibit 5EXHIBIT G
Evidence of Authorized Signatories for City of Miami and of Wagner Square, LLC
Form W-9
(Rev_ January 2002)
Deprhrtt d the Truman,
karma Revenue Sence
Request for Taxpayer
Identification Number and Certification
Give form to the
requester. Do not
send to the IRS.
ante
%I b4 mi Ate-/ F%O-Z-44
Business name, if different from above
Skrne
Individual/
Check appropriate box: ❑ Sole proprietor ❑ Corporation
*el N! Cl/ tyf Exempt from backup
PartnershipOther ► "' withholding
Address (number. street, and apt. or luite no.)
T 'f .S • W. Lteak c e
City, state, and ZIP cone
f#-nf _. F/D 4 j3/34
list account numbelts) here (optional)
Requester's name and address (optional)
Part I
Taxpayer Identification Number (TIN)
Enter your TIN in the appropriate box. For individuals, this is your social security number (SSN).
However, for a resident alien, sole proprietor, or disregarded entity, see the Part I instructions on
page 2. For other entities, it is your employer identification number (EIN). If you do not have a number.
see How to get a TIN on page 2.
Note: if the account is in more than one name, see the chart on page 2 for guidelines on whose number
to enter.
Part II
Certification
Social security number
l 1 471 4 1 I
or
Employer identification number
'16146101_01 1317J--
Under penalties of perjury, I certify that:
1. The number shown on this form is my correct taxpayer identification number (or 1 am waiting for a number to be issued to me), and
2. I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal
Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup withholding. and
3. ) am a U.S. person (including a U.S. resident alien).
Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup
withholding because you have failed to report all interest and dividends 00 your tax return. For real estate transactions. item 2 does not apply.
For mortgage interest paid, acquisition or abandonment of secured property. cancellation of debt, contributions to an individual retirement
arrangement (IRA), and generally, payments other than interest and dividends. you are not requred to sign the Certification, but you must
provide your correct TIN. (See the instructions on page 2.)
Sign
Here
Signature of n
U.S. person P.I
t.%
Purpose of Form
A person who is required to file an information
return with the IRS must get your correct
taxpayer identification number (TIN) to report. (or
example. income paid to you, real estate
transactions, mortgage interest you paid,
acquisition or abandonment of secured property.
cancellation of debt, or contributions you made
to an IRA.
Use Form W-9 only if you are a U.S. person
(including a resident alien). to give your correct
TIN to the person requesting it (the requester)
and, when applicable, to:
1. Certify the TIN you are giving is correct (or
you are waiting for a number to be issued),
2. Certify you are not subject to backup
withholding, or
3. Claim exemption from backup withholding if
you are a U.S. exempt payee.
If you are a foreign person. use the
appropriate Form W.B. See Pub. 515,
Withholdng of Tax on Nonresident Aliens and
Foreign Entities.
Note: 11 a requester gives you a form other then
Form W-9 to request your TfN, you must use the
requester's form if it is substantialy similar to this
Form W-9.
What is backup withholding? Persons making
certain payments to you nwst under certain
conditions withhold and pay to the IRS 30% of
such payments after December 31, 2001 (29%
after December 31. 2003). This is called "backup
withholding.' Payments that may be subject to
backup withholding Include interest, dividends.
broker and barter exchange transactions. rents.
royalties. nonemployee pay, and certain
payments from fishing boat operators. Real
estate transactions are not subject to backup
Withholding.
You will not be subject to backup withholding
on payments you receive if you give the
requester your correct TIN, make the proper
certifications, and report all your taxable interest
and dividends on your tax return.
Payments you receive will be subject to
backup withholding if:
1. You do not furnish your TIN to the
requester. Or
2. You do not certify your TiN when required
(see the Part II instructions on page 2 for
details), or
3. The IRS tells the requester that you
furnished an incorrect TIN, or
4. The IRS tens you that you are subject to
backup withholding because you did not report
all your interest and dividends on yotr tax ream
(fa reportable interest and dividends only). or
Date ► 1— / 7.-:La
Oc
5. You do not certify to the requester that you
are not subject to backup withholding under 4
above (for reportable interest and dividend
accounts opened after 1983 only).
Certain payees and payments are exempt
from backup withholding. See the instructions on
page 2 and the separate Instructions for the
Requester of Form W-11.
Penalties
Faelw to furnish T1N. 1f you fall to furnish your
correct TIN to a requester, you are subject to a
penalty of f50 for each such failure unless your
failure is due to reasonable cause and not to
wiWul neglect.
CW9 penalty for false information with respect
to withholding. If you make a false statement
with no reasonable basis that results in no
backup withholding, you are subject to a 3500
penalty.
Criminal penalty for falsifying information
wdtully falsifying certifications a affirmations
may subject you to criminal penalties including
fines and/or imprisonment,
Misuse of Ties. If the requester discloses or
uses TINs in violation of Federal law. the
requester may be subject to civil and criminal
penalties.
Cat. No. 10231X
Form W-9 (Rev. 1.2002)
INCUMBENCY CERTIFICATE
The undersigned, Manager of Wagner Square, LLC (the "Company"), does hereby certify:
1. That it is the duly elected, qualified and acting Manager of the Company.
2. That the specimen signatures appearing below are those of the persons holding the
offices or positions indicated:
KMT nterprises ,i,LC, a Florida limited liability company, Manager
/
By: Debra S olsky, its :f ager
That it is the duly authorized and proper Manager of the Company to make certificates in its
behalf and that it has caused this Certificate to be executed and the seal of the Company to be
hereunto appended as of the / 5 day ofJG , 2005
KMT En rises, LLCM' Florida limited liability
company, Manager, by Dibra S. Kolsky, its Manager
2002-6(byMJJ/970
For, IN-9
(Rev. January 2005)
Department of the heaeury
enema( Revenue service
Request for Taxpayer
Identification Number and Certification
Give form to the
requester. Do not
send to the IRS.
ry
a
c
0
0
w
a c
0
,
r
Name (as shown on your income tax return)
Wagner Square, LLC
Business name, 4 different horn above
IndmduaU
Check appropriate box: ❑ Sole proprietor ❑ Corporation
❑ Partnership MI Other 0.withholding
❑ Exempt from backup
Address (number, street, and apt. a suite no.)
1175 NE 125th Street, Suite 103
Requesters tame and address (optional)
Y
City, state, end ZIP code
North Miami, FL 33161
_
List account numberts) here (optional)
Part 1 Taxpayer Identification Number (TIN)
Enter your TIN in the appropriate box. The TIN provided must match the name given on Une 1 to avoid
backup wih oidiny. For ii dividua s, this is your social security number (SSN) However, for a rocirld t
akin, sole proprietor, or disregarded entity. see the Part I instructions on page 3. For other entities, it is
your employer identification number (EIN). If you do not have a number, see How to get a TIN on page 3.
Note. rf the account is in more than one name, see the chart on page 4 for guidelines on whose number
to enter.
Part 11
Certification
social security number
or
Employ,► identification number
313+1101111171819
Under penalties of perjury, I certify that:
1. The number shown on this Corm is my correct taxpayer ideritifk.efion number (or I am waiting for a number to be issued to me), and
2. 1 am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal
Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup withholding. and
3. 1 am a U.S. person (including a U.S. resident alien).
Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup
withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply.
For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement
arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the Certification, but you must
provide your correct T1N. (See tJae-instructions on page 4.)
Sign Sigruih+s of
Here U.S. person ►
Purpose of Form
1l2
A person who is required to file an information retum with the
IRS, must obtain your correct taxpayer identification number
(TIN) to report, for example, income paid to you, real estate
transactions, mortgage interest you paid, acquisition or
abandonment of secured property, cancellation of debt, or
contributions you made to an IRA.
U.S. person. Use Form W-9 only if you are a U.S. person
(including a resident alien), to provide your correct T1N to the
person requesting it (the requester) and, when applicable, to:
1. Certify that the TIN you are giving is correct (or you are
waiting for a number to be issued),
2. Certify that you are not subject to backup withholding,
or
3. Claim exemption from backup withholding if you are a
U.S. exempt payee.
Note. If a requester gives you a form other than Form W-9 to
request your 77N, you must use the requester's form if it is
substantially similar to this Form W-9.
For federal tax purposes you are considered a person if you
are:
• An individual who is a citizen or resident of the United
States,
• A partnership, corporation, company, or association
created or organized in the United States or under the laws
of the United States, or
Del• ► ///. /1S
• Any estate (other than a foreign estate) or trust. See
Regulations sections 301.7701-6(a) and 7(a) for additional
information.
Foreign person. If you are a foreign person, do not use
Form W-9. Instead, use the appropriate_ Form W-8 (see
Publication 515, Withholding of Tax on Nonresident Aliens
and Foreign Entities).
Nonresident alien who becomes a resident alien.
Generally, only a nonresident alien individual may use the
terms of a tax treaty to reduce or eliminate U.S. tax on
certain types of income. However, most tax treaties contain a
provision known as a "saving clause." Exceptions specified
in the saving clause may permit an exemption from tax to
continue for certain types of income even after the recipient
has otherwise become a U.S. resident alien for tax purposes.
if you are a U.S. resident alien who is retying on an
exception contained in the saving clause of a tax treaty to
claim an exemption from U.S. tax on certain types of income,
you must attach a statement to Form W-9 that specifies the
following five items:
1. The treaty country. Generally, this must be the same
treaty under which you claimed exemption from tax as a
nonresident alien.
2. The treaty article addressing the income.
3. The article number (or location) in the tax treaty that
contains the saving clause and its exceptions.
Cat. No. 10231X form W-9 (Rev. 1-2005)
ARTICLES OF AMENDMENT
TO
ARTICLES OF ORGANIZATION
OF
WAGNER SQUARE, LLC
(Present Flame)
(A Florida Limited Liability Company)
FIRST: The Articles of Organization were filed on July 3, 2002 and assigned
document number L02000016753
SECOND: The following amcndutent(s) to the Articles of Organization was/were adopted by the limited
liability company:
Dated
The current managers hereby resign. The manager of the Company is KMT Enterprises, LLC,
a Florida limited liability company, !/k/a Seybold Pointe Management, LLC.
June 2
2005
I. Barry Blaxberg, Esq.
Typed or printed name of aignee
Filing Fee: S25.00
07/03/02 WED 00:04 FAX 3053766010 CY&S.P.A.
ARTICLES OF ORGANIZATION
FAX AUDIT NO.:
J4u2. o:i bdg
Q 002
OF
O -c
N icir.
WAGN �'R SQUARE, LLc = The nmd$lsigned, for the purpose of forming a limited liability conopaay ender the laovsg f Florida, hereby adopts the following Articles of Organization: o -
�
191
ngngc..,
cn
The name of the limited liability company is Wagner Square, LLC (the "Company).
Article 11
Duration
This.Company shall exist on the date of filing of these Articles with the Secretary of State
of the State of Florida. The duration of the Company shall be perpctuaL
Article III
Nature of Businejod Mailing Address
This Company is organized for the purpose of transacting any or all lawful business. The
mailing address and the street address of the Company's initial primal office is One Biscayne
Tower, 2 South Biscayne Boulevard, Suite 3400, Miami, Florida 33131.
Article IV
Initial Registered Office and Agent
The name of the initial registered agent of this Company is Valdes-Fauli Corporate Services,
Inc. and the street address of the initial registered office of this Company is at One Biscayne Tower,
2 South Biscayne Boulevard, Suite 3400, Miami, Florida 33131.
Article V
Addition of New Members
New owners who take their interest directly from the Company will be admitted as Members.
New owners who take their interest by assignment, inheritance, or operation oflaw will be admitted
only as provided in the Regulations and Operating Agreement of the Company.
FAX AUDIT NO.: Hot-l too g3�j
07/03/01 WED 09:04 FAX *053788010
GY&S,P.A.
Article VI
Membership Certificates
FAX AUDIT NO.:
Po4cCtArD 154
(a) Each Membex's interest in the Company may be evidenced by .a membership
participation or unit certificate.
(b) No Member of this Cody may transfer, sell or assign its Membership interest
in the Coanpany to any other person except as provided for in the Company's Regulations and
Operating Agreement.
Article VIl
Mpg nen
a) Numizer. This Company shall be initially managed by three (3) managers. The
number of managers may be increased or diminished from time to time by the Members in
accordance with the terns of the Regulations and Operating Agreement of the Company. The
Managers shall be appointed as provided in the Regulations and Operating Agreement_
(b) Initial Managers. The naives and street addresses of the initial managers of the
Company are:
Mum
Debra Sinkle Kolsky
Alberto Milo, Jr.
William A. Cocose
Street Addresses
c/o Redevco Civic Center, LLC
7491 W. Oakland Park Blvd.
3`d Floor, Suite 306
Ft. Lauderdale, FL 33319
c/o The Urban Development Group
Wagner, LLC
301 SW 17* Road
Second Floor
Miami, FL 33129
c/o Atwater Civic Center, LLC
10910 Haydn Drive
Boca Raton, FL 33498
-2- FAX AUDIT NO.: HC12/X.7,t (
11003
07/03/02 WRD 09:04 FAX 3053766010 GY&S.P.A.
FAX AUDIT NO.:
ftozcx:o ire
Article via
bidemnificatio2
This Company shall indemnify to the fullest extent permitted under and is accordance with
the laws of the State of Florida any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, snit or proceeding, whether civil, criminal,
administrative or investigative by reason ofthe fact that he is or was manager, member, director or
officer of tins Company, or is or was serving at the request of this Comps/ryas a manager, member,
director, officer, trustee, employee or agemt of or in any other capacity with another company,
partnership, joint venture, trust or other enterprise, against expenses (including aidomoyaa' fees),
judgments, fines and ahnonnts paid in settlement actually and reasonably incensed by him in
connection with such action, suit or proceeding, unless such person brewed or failed to perform
his duties as an manager, member, officer, director, employee or agent of this Company and such
breach constitutes:
(1) a violation of criminal law, unless the manager, member, director, officer, employee or
agent had reasonable cause to believe his conduct was lawful or had no reasonable cause to believe
his conduct was unlawful;
(2) a transaction from which the manager, member, director, officer, employee or agent
derived an improper personal benefit, either directly or indirectly, or
(3) recklessness or an act or omission; which was co iniitted inbad faith or with malicious
purpose in a manner exhibiting_wanton and willful disregard for human rights, safety, or property.
A judgment or other final adjudication against a manager, member, director, o$5cer,
employee or agent of this Company in any criminal proceeding for violation of criminal law shall
estop such person from contesting the fact that his breach or failure to perform constitutes a violation
of the criminal law, but such judgment or other final adjudication shall not estop such person from
establishing that be had reasonable cause to believe that his conduct was lawful or had no reasonable
cause to believe that his conduct was unlawful.
The indemnification provided by this Article shall continue as to an Indemnified Person
who has ceased to be a manager, member, director or officer or employee and shall inure to the
benefit of the estate, heirs, personal representatives, beneficiaries, executors and administrators of
such a person. All rights to indemnification and advances under this Article shall be deerned to be
a contract between the Company and each Indemnified Person at any time while this Article is in
effect Any repeal or modification ofthis Article or anyrepeal or modification ofreievant provisions
of the Florida Limited Liability Company Act or any other applicable laws shall not in any way
diminish the rights to indeamification of such Indernni fled Person orthe obligations of the Company
arising hereunder for claims relating to matters occurring prior to the repeal or modification.
-3- FAX AUDIT NO.: fi022XZ) lioD
R1004
07/03/02 WED 09:05 FAX 3053708010 G &S .p.A_
Article IX
Ammdmeat
FAX AUDIT NO.:
This Company reserves the right to amend or repeal any provision contained in these
Articles of Organization, and any right conferred upon the Members is subject to this reservation.
IN WITNESS WHEREOF, the undersigned authorized representative of the initial
member has executed these Articles the 3rd day ofJuly, 2002.
STATE OF FLORIDA
) SS.:
COUNTY OF MIAMI-DADE
The foregoing insirament was acknowledged before me_this 3e 1 day of July, 2002, by
Lissette S. Stanciof, rho is personally known to me or who has produced
as identification.
[SEAL]
NotaryPublic, StateofFlorida at Large
Print Name:
My Commission Expuns
-4- FAX AUDIT NO.: }-bLbCU f loi5V6I
la 005
07/03/02 WED 09:05 FAX 3053758010
gY&3,P.A_
ACCEPTANCE BY REGISTERED AGENT
FAX AUDIT NO.:
Having been named to accept service of process for the above stated Limited Liability
Company, at the place designatzd in this Certificate, thereby agree to act in this capacity, and I
further agree to comply with the provisions of all statutes relative to the proper and complete
performance of my duties.
339338.2
Y11LV...,ES T, . Tv" r CORPOB TE FmtV rlm,
S.�I-i i.a t.vav va..���..
INC_
. Scheer, - = idelt
Dated: July 3, 2
-5- FAX AUDIT NO.: H Z CCV i k4O
t�ooe
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE
CITY OF MIAMI
I, PRISCILLA A. THOMPSON, City Clerk of the City of Miami,
Florida, and keeper of the records thereof, do hereby certify that the attached and
foregoing page, constitutes a true and correct copy of Agreement No. 13947, between the
City of Miami, Florida for Wagner Square and U.S. Department of Housing & Urban
Development for authorized signature card for payment vouchers.
IN WITNESS WHEREOF, I hereunto set my hands and impress
the Official Seal of the City of Miami, Florida, this 7`h day of July, 2005.
PRISCILL;'A. THOMPSON
G' City Cler,
Miami, Florida
(OFFICIAL SEAL)
Re:
COLLATERAL ASSIGNMENT
By the City of Miami, Florida
to the Secretary of the U.S. Department of Housing and Urban Development
with Consent and Acknowledgement by Wagner Square LLC
Name of Project: Wagner Square — Mixed Use Development
Sec. 108 Contract/Note No: B-02-MC-12-0013
BEDI Grant: B-02-BD-12-0047
City: City of Miami, Florida
This Collateral Assignment ("Collateral Assignment") is made as of March
D , 2005 by the City of Miami, Florida, a municipal corporation (the "City") in favor of the
Secretary of the U.S. Department of Housing and Urban Development (the "Secretary"), and
consented to by Wagner Square LLC, a Florida limited liability company (the "Obligor").
WHEREAS, the City is selling the development site (approximately 3 acres) in
the Allapattah Neighborhood located on the certain real property described in the Assigned
Documents set forth in Section 1 below and the City is re -lending the Section 108 Guaranteed
Loan proceeds described below to the Obligor to assist in financing the commercial portion ("the
Commercial Portion") of the mixed use development known as the Wagner Square Project
consisting of two towers of for -sale housing and approximately 108,000 square feet of
commercial/retail space which will cause the creation of jobs for low to moderate income
persons and will also eliminate and prevent, on an area basis, conditions that have caused slum
and blight (the "Project") ; and
WHEREAS, the City applied to the United States Department of Housing and
Urban Development ("HUD") for, and HUD has granted One Million Dollars ($1,000,000) in
Brownfields Economic Development Initiative ("BEDI") grant funds for site remediation of the
Project; and
WHEREAS, the City is sub -granting the BEDI funds to the Obligor to assist in
funding the site remediation by the Obligor for the Project ; and
WHEREAS, the City applied to HUD for, and HUD has issued, loan guarantee
assistance pursuant to Section 108 of Title I of the Housing and Community Development Act of
1974, as amended ("Section 108"), which guarantee assistance is for up to Four Million Dollars
($4,000,000) (the "Section 108 Funds") and guarantees payment by the City of the Note
executed by the City (the "108 Note") upon the terms and conditions set forth in that certain
Contract for Loan Guarantee Assistance between HUD and the City dated M rch ; 2005 (the
"108 Contract") and the 108 Note; %o'=
WHEREAS, the City and the Obligor have entered into an agreement (the "Loan
Agreement") providing for, inter alia, (a) the loaning of the Section 108 Funds up to the Obligor
Ij $- t
`f "" c' , `l
c, , /
for site remediation and development of the Commercial Portion of the Project and (b) an
assignment of certain collateral evidenced by the Assigned Documents as set forth in Section 1
below from the Obligor to the City securing Obligor's obligations under the Loan Agreement
(collectively, the "Collateral"); and
WHEREAS, in order to secure the obligations of the City pursuant to the 108
Contract, the Secretary desires an assignment of the City's rights and interests under the Loan
Agreement , Promissory Note, and the Collateral;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree and the Obligor consents and acknowledges as follows:
1. Subject to the provisions hereof, and in accordance with the 108 Contract,
the City hereby collaterally assigns to the Secretary all the City's rights, title and interests in and
to the following documents (collectively, the "Assigned Documents"):
(a) the original Obligor Promissory Note, endorsed in blank and without
recourse; and
(b) the original Obligor Loan Agreement; and
(c) the original Mortgage and Security Agreement (Commercial Component
and Residential Phase II) with copy of UCC 1 attached signed by the
Obligor; and
(d) the original Assignment of Leases, Profits, and Rents (Commercial
Component and Residential Phase II); and
(e) the original Assignment of Remediation Contract, Construction Contracts,
Architects' Contracts, Permits, Licenses, Warranties, Plans, Drawings,
Purchase and Sale Contracts, and Deposits Etc. (Security Agreement).
2. Obligor hereby consents to and acknowledges the foregoing assignments.
3. The Secretary shall not exercise its rights under this Collateral
Assignment until the occurrence of a default by the City under the 108 Note or the 108 Contract.
Immediately upon written notice to the City that a default by the City has occurred and that the
Secretary is exercising his rights hereunder, the Secretary shall obtain all of the City's rights, and
may elect to assume the City's obligations or duties under or in connection with the Assigned
Documents. All of said Assigned Documents shall be held by a financial institution (the
Custodian") pursuant to a custodial agreement as provided in Paragraph 15 of the 108 Contract
(the "Custodial Agreement") until and unless the Secretary shall exercise its rights hereunder.
4. The Secretary agrees that it will not record or direct the Custodian under
the Custodian Agreement to record this Collateral Assignment until such time as it exercises its
rights hereunder pursuant to Section 3.
5. The foregoing assignment and consent and acknowledgement, or any
recordation or other exercise of the Secretary's rights under this Collateral Assignment shall not
be deemed to release or affect in any way the Obligor's obligations to the City under the
Assigned Documents.
6. Notices. All notices and other communications provided for hereunder
shall be in writing and sent by receipted, hand -delivery (including receipted courier service),
telex or by certified mail, return receipt requested, to the following addresses or at such other
address as shall be designated by such party in a written notice to the other party. All such
notices and communications shall, when delivered or telexed or mailed, be effective when
deposited with the courier, telexed or mailed, respectively, addressed as aforesaid.
City: The City of Miami
Office of the City Manager
444 S.W. 2nd Avenue, 10th Floor
Miami, Florida 33130
With copies to: The City of Miami
Director, Department of Community Development
444 S.W. 2nn Avenue, 2nd Floor
Miami, Florida 33130
The City of Miami
City Attorney
444 S.W. 2nd Avenue, 9th Floor
Miami, Florida 33130
Secretary: U.S. Dept. of Housing and Urban Development
Attention: Paul Webster, Director
Financial Management Division
451 7th Street, SW, Room 7180
Washington, DC 20410
Obligor: Wagner Square LLC
Attn: Debra Kolsky
1175 N.E. 125th Street, Suite 103
North Miami, Florida 33161
With copies to: I. Barry Blaxberg, Esq.
Blaxberg, Grayson, Kukoff & Segal, P.A.
25 S,E. 2ND Avenue, Suite 730
Miami, Florida 33131
,
tei
7. Counterparts. This Collateral Assignment may be executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the
same agreement.
IN WITNESS WHEREOF, the City has caused this Collateral Assignment to be
executed and the Obligor has consented to and acknowledged this Collateral Assignment as of
the 10 day of March, 2005.
ATTEST:
BY:
Priscilla ; . Thompson
City Clerk
Date: 44 1 1 Z ooS
Approved as to Insurance
Requirements:
F.
Dania F. Carrillo
Administrator Risk Management
Date: 7//l D,/'
City of Miami, Florj
BORRO
BY:
Joe Arriol
City Mana
Date: ( / , :: 1) .1;
Approved as to Form and Correctness:
7 Jorge L. Fernandez
City Attorpey
Date: 7
Consented to and Acknowledged By Obligor:
Attest:
Name:
Title:
Date:
Wagner Squar LLC
Name:
Title: Jl.(c.,
Date: 3/4o
LOAN AGREEMENT
BETWEEN
THE CITY OF MIAMI
AND
WAGNER SQUARE, LLC
Dated as of March 10, 2005
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
Section 7.
Section 8.
Section 9.
Section 10.
Exhibit A.
Exhibit B.
Exhibit C.
Exhibit D.
Exhibit E.
Exhibit F.
Exhibit G.
INDEX
Borrower Loan
Security for Borrower's Obligations
Use of Loan Proceeds
Job Creation/Retention Activities and Activities Eliminating Slum and Blight
BEDI Grant Compliance
Representations and Warranties
General Requirements
Remedies; Termination; Further Rights.
Miscellaneous Provisions
Entire Agreement, Waivers and Amendments
Legal Description of Real Property
HUD Variable/Fixed Note Number B-02-MC-12-0013
(including Commitment Schedule)
HUD Loan Contract
Borrower Loan Repayment Schedule
Composite Exhibit of HUD Documents
Commercial Pro Forma Budget (as of July 2004; to be supplemented)
Composite Forms for HUD Certifications regarding Jobs Creation & Retention and
Elimination of Slum and Blight
This LOAN AGREEMENT, made and entered into as of the 10th day of March, 2005, by and
between City of Miami, a municipal corporation of the State of Florida (the "City", which includes its
successors and assigns), and Wagner Square, LLC, a Florida limited liability company ("Borrower",
which term includes its successors and assigns).
RECITALS:
A. Pursuant to Section 29B of the City of Miami Charter, which exempts affordable
housing developments from the competitive bidding requirements established therein, the City has sold
to the Borrower the real property described in Exhibit A (the "Property"), attached hereto and by this
reference made a part of this Agreement, on the condition that Borrower remediate the environmental
condition of the Property (the "Remediation"), and develop same to increase the supply of affordable
housing, and for purposes of expanding economic opportunity, job creation, and elimination of slum
and blight in conjunction with development of commercial space; the intended development on the
subject property consists of four phases including a Remediation Phase, two separate residential
condominium buildings each containing 99 residential units (referred to as the "Residential Phases" or
"Residential Phase I" and "Residential Phase II"), and approximately 108,000 square feet of
commercial space (the "Commercial Component"). The Residential Phases and the Commercial
Component are more specifically described herein and are together referred to as the "Project".
B. Community Development Block Grant ("CDBG") programs authorized under Title I of
the Housing and Community Development Act of 1974, as amended ("HCDA"), and as provided in
the regulations thereunder, 24 CFR Part 570 (the "CDBG Regulations"), including the Section 108
Loan Guarantee Program provided under Subpart M, 24 CFR 570.700-570.710, of the CDBG
Regulations (the "Section 108 Program"), have as their primary objectives the development of viable
urban communities by, among other things, providing expanding economic opportunities, principally
for persons of low and moderate income and elimination of slum and blight;
C. The U.S. Department of Housing and Urban Development ("HUD") is authorized
pursuant to the Section 108 Program and the CDBG Regulations to grant guaranteed loans to the City
for the provision of assistance where necessary and appropriate to carry out economic development
projects which meet the national objectives of benefit to persons and families of low or moderate
income, by creating or retaining jobs which are or will be held by or made available to persons of low
or moderate income, and Borrower anticipates that the development of the Commercial Component of
the Project will create and/or retain "full time equivalent" permanent jobs and elimination of slum and
blight;
D. The City and the Borrower have entered into a Purchase and Sale Agreement dated May
30, 2003, as amended, the terms of which are incorporated herein by reference, pursuant to the terms of
which among other things, Borrower has agreed to remediate and develop the Property upon which the
Project will be located;
E. In reliance upon Borrower's agreement to remediate and develop the Property, the City
Commission, by Resolution No. 03-200, adopted on February 27, 2003, authorized the City to accept
from HUD a $1.000,000.00 Brownfields Economic Development Initiative ("BEDI") grant to assist
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with remediation, to apply to HUD for a loan guarantee pursuant to the Section 108 Program to help
facilitate the development of the Commercial Component of the Project, to pledge future City receipts
of CDBG funds as security for such loan, and to undertake matters related thereto. The City's
application has been approved by HUD and the City, based upon HUD's approval, has agreed to loan
to Borrower Four Million Dollars ($4,000,000.00) (the "Loan") of the funds needed to develop the
Commercial Component of the Project. The Loan is pursuant to HUD guidelines with regard to
providing economic development assistance for the location, creation and retention of jobs, and
elimination of slum and blight in relation to the Commercial Component of the Project and in
connection with HUD guidelines with regard to the BEDI grant funding and site remediation for the
Project; and
F. The funding of the Loan to the Borrower is contingent upon the City's receipt of the
HUD Guaranteed Loan pursuant to the Section 108 Program (the "HUD Loan") pursuant to the HUD
Documents (as hereinafter defined in Section 1.2 of this Agreement) and the appropriation of said
funds by the corresponding Ordinance, as provided herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements set
forth herein, the parties hereby covenant and agree:
SECTION 1.
BORROWER LOAN
1.1. LOAN TERMS; Upon the City's receipt and appropriation by Ordinance of the
HUD Guaranteed Loan ("HUD Loan"), the City shall loan to Borrower the sum of Four Million
Dollars ($4,000,000) (the "Loan") upon the following terms and conditions, to wit:
(1) Principal amount of Loan to Borrower: $4,000,000.00.
(2) Interest rate(s): The Loan shall bear interest at the "HUD Rate(s)"
charged to the City prior to the Conversion Date and after the Conversion Date
(as such term is defined in the HUD Variable/Fixed Note Number B-02-MC-
12-0013 attached hereto and incorporated herein as Exhibit B). The HUD
Variable Rate is the variable rate that HUD charges the City on the promissory
note(s) to be issued by the City to evidence the HUD Loan prior to the
Conversion Date (the "HUD Variable Rate Note(s)"). The HUD Fixed Rate is
the fixed rate that HUD charges the City on the promissory note(s) to be issued
by the City to evidence the HUD Loan on and after the Conversion Date. (The
HUD Variable Rate and the HUD Fixed Rate are referred to herein collectively
as the "HUD Interest Rate"). Borrower as may be required by HUD, will
promptly apply for interim financing. The HUD Interest Rate shall be
established upon or prior to the signing by Borrower of the documents
evidencing the Loan by the City to Borrower and the Loan shall thereafter be
either a variable interest rate loan at the HUD Variable Rate before the
Conversion Date or a fixed interest rate loan at the HUD Fixed Rate on and
after the Conversion Date. The City and Borrower acknowledge that HUD
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(3)
has the right to require the HUD Fixed Rate to be applicable five years after the
final draw of funds from the Loan. Borrower may provide notice at any time to
the City of its intention to have the interest rate on the Loan fixed, based upon
the entitlement of the City to notify HUD to have the interest rate fixed for the
HUD Loan. City agrees to have a letter from the City directed to HUD which
exercises the right to fix the interest rate, signed, and held by the Escrow Agent
so that this letter will be available for immediate transmittal to HUD, upon
receipt by the City and the Escrow Agent of the Borrower's notice of the
exercise of its right to have the Loan interest rate fixed. Upon receipt of such
notice from the Borrower, the Escrow Agent shall be authorized and directed to
release the letter from the City to HUD for purposes of fixing the interest rate in
accordance with the HUD Documents.
Maturity: The Loan shall mature 20 years from the date of execution of the
HUD Documents by HUD with the City (the "Effective Date"), which shall
become the corresponding Effective Date of execution of the Loan Documents
by Borrower in favor of the City.
(4) Repayment of the Loan:
(a) Advances from HUD Loan and Maximum Commitment Amount:
(i) All Advances up to the Maximum Commitment Amount (as such
terms are defined in Exhibit B hereto) under the HUD Loan must be
advanced on or before September 15, 2008 (the "HUD Final Advance
Date") If all of the principal amount of the Loan to the Borrower has
not been requested for draw by the Borrower and for Advance by the
City and advanced by HUD to the City by September 15, 2008, then the
remaining outstanding amount of such HUD Loan funds not previously
advanced to the City and the Borrower shall revert to HUD. The City
and Borrower agree that all funds will be drawn from the HUD Loan,
on or before September 15, 2008, whether such funds are held by the
City pending further funding of the Loan to Borrower for the
Commercial Component of the Project, or as a result of being used by
that date, by Borrower for the Commercial Component of the Project.
(ii) The Borrower shall make any and all requests for the City to request
Advances from HUD under the HUD Loan in accordance with the
procedures set forth in 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, by and between HUD and the City
, dated , 2005 (the "HUD Loan Contract") which is attached
hereto as Exhibit C and incorporated herein. The Borrower
acknowledges and agrees that before the City can provide funding to
the Borrower for any draw request from the Borrower, the City must
first have received a corresponding Advance from HUD. City will
timely process funding requests in an effort to assure a reasonable flow
of Loan funds to Borrower, subject to Borrower compliance with all
requirements of this Agreement.
(b) Interest Payments: Commencing with the funding of the first HUD
Advance (as such term in defined in Exhibit B hereto) and until
September 15, 2008 or such other time until the Conversion Date,
payments of interest only will be required on the principal as advanced
and funded to Borrower. For the life of the Loan (20 years) interest
payments shall be made on the same basis as the interest payments are
being made by the City on the HUD loan, except that payments to the
City for interest on the Loan shall be structured so that they are made no
less than thirty (30) days prior to the date that payment are due from the
City to HUD on thellUD Loan. The initial payments shall be made by
Borrower within thirty (30) days prior to the date that the initial
payment is required to be made by the City on the HUD Loan.
(c) Principal Payments: Principal payments under the Loan shall be
payable annually. The first payment of principal shall be due and
payable thirty (30) days before September 15, 2008, which is date of the
City's first principal payment to HUD is due (as provided in the HUD
Commitment Schedule included with Exhibit B hereto) and shall be
payable in accordance with the Borrower Loan Repayment Schedule
attached hereto as Exhibit D.
(d) Borrower Loan Expenses: Borrower shall be required to pay the
following expenses and costs out of the Loan proceeds:
(i)
At the time of the first draw from the HUD Loan the actual and
reasonable HUD eligible costs relating to this Project. The
Documentary Stamps, if any, associated with the closing of the
HUD loan, and other direct costs required by HUD to be paid
by the City in conjunction with the closing of the HUD Loan. If
the City has an estimate of these costs, it will be attached as an
exhibit to this Loan Agreement; and
(ii) At the time of the first draw from the HUD Loan, the costs of
recording any and all documents granting the City a security
interest in the Project including the personal property.
Borrower shall bear the costs of recording any and all leasehold
mortgages, UCC-1 financing statements, and other collateral
security instruments and of all documentary stamp or intangible
taxes thereon.
(iii) S500,000.00 of the HUD Loan and of the Loan respectively,
(the "Debt Service Reserve") will not be funded except for
payments to be made for interest accrued on the HUD Loan and
on the Loan, respectively.
(iv) To the extent applicable, interest earned on funds that are
advanced by HUD and held by the City but are not drawn by
Borrower shall accrue to Borrower's benefit, and shall include
any and all investment earnings on the funds, collectively
referred to herein as "Debt Service Reserve." The City shall,
subject to any limitations set by HUD, and to the extent
applicable, invest the Debt Service Reserve, ifapplicable, in the
highest yielding insured account available used by the City.
The Debt Service Reserve, to the extent applicable, will be used
to make the interest payments due on the Loan for the first two
years of the Loan term and the balance of the Debt Service
Reserve left upon the completion of construction of the Project
by Borrower shall be disbursed to Borrower. The Debt Service
Reserve will not actually be drawn from the HUD Loan in the
amount of $500,000.00 in conjunction with the first draw by the
Borrower and Advance from the HUD Loan. Instead, since the
HUD Loan will only be applicable to the Commercial
Component for which draws will be obtained on a monthly
basis, the Debt Service Reserve will be funded along with the
corresponding advances of funds from the HUD Loan to the
City to cover those amounts of interest accrued from the
previous amounts advanced; and
(v) The remaining balance of the Loan after deducting the
applicable items set forth in (i) and (ii) above shall be disbursed
to Borrower based upon a certification in documentation for
draw requests which will be submitted on a monthly basis in
such form as is reasonably required by the City, for payment of
soft cost items for which invoices are submitted to the City in
such reasonable detail as the City may require. Funding shall be
based upon the Project Budget for the Commercial Component
which will be submitted to the City for approval, prior to the
City funding any draws from the Loan after the initial $1,000.00
draw is funded. Draw requests shall also be for payment of
reimbursement of the remediation Escrow Funds. Draws will
be paid within fourteen (14) business days of the City's receipt
of the draw request from Borrower, subject to City receiving
funds advanced from HUD, provided however that the City
undertakes to timely and promptly submit Advance requests to
HUD after receipt of the draw request from Borrower on no less
than a monthly basis to assure a regular flow of funds which are
drawn upon by the Borrower during the course of the
Commercial Component of the Project based upon the
Commercial Component of the Project Budget. City agrees to
appoint an individual who will be responsible for receiving
draw requests from the Borrower and for submitting Advance
(5)
requests on the HUD Loan on behalf of the City, separate and
apart from the person who will be submitting the request for
funding on the BEDI grant. No draws will be permitted to be
obtained by Borrower from the HUD Loan until the
Environmental Remediation of the Property is completed, at
which time Borrower will be able to draw the funds up to the
amount of the Remediation Expense Cap which have been
incurred for remediation plus the Borrower Loan Expenses.
Borrower will not be entitled to draw funds from the Loan for
construction purposes until the Borrower closes on a
construction loan and provides proof of sufficient equity to fully
construct the Commercial Component, whichever is applicable,
subject to the construction loan having a loan to value ratio of
no more than 65% and, when combined with the HUD Loan
funds, the loan to value ratio shall not exceed 85%. Borrower
shall have provided to the City a full set of construction
drawings for the Commercial Component of the Project,
whichever is applicable, as well as a building permit; and
Other than as set forth in 1.1. (d) above, the parties hereto have agreed that
each of the parties hereto shall bear its own costs and expenses in connection
with the negotiation and preparation of this Agreement and the HUD Loan.
1.2. Attached hereto is the Composite Exhibit E consisting of copies of the HUD Term
Sheet of December 3, 2004, the Section 108 Loan application, and other HUD Loan related
documents, all of which have been approved by HUD (collectively, the "HUD Documents"), and
which embody the terms and conditions that address the National Objectives Criteria pursuant to
which the Project has qualified for Section 108 funding and BEDI Grant funding. Borrower
covenants to comply with the slum and blight elimination obligations, the job creation and/or
retention obligations or its payment or financial assurance obligations as set forth in the application
and this Agreement, which obligations are for the benefit of the City and HUD. If there is any
conflict between the terms of this Agreement and the terms of the HUD Documents, HUD
Documents will control.
1.3. The Loan from the City to Borrower shall be evidenced by a Promissory Note or
Notes and shall be secured by a Purchase Money Mortgage applicable to the Commercial Component
and Residential Phase II and a separate Purchase Money Mortgage for Residential Phase I,
Assignments of Leases and Rents and Security Agreement, UCC-1 Financing Statements and a
Completion Guaranty and other loan documents, as more fully set forth in Section 2 below (the
"Loan Documents").
1.4. The City shall, to the extent required by HUD, pledge to HUD and the Borrower shall
acknowledge as necessary the following: (a) payments by Borrower to the City as required in this
Agreement, (b) the Debt Service Reserve, to the extent applicable, (c) the City's rights under the
Loan Documents, (d) other security, if any, as may be required by HUD pursuant to the HCDA and
the CDBG Regulations and as may be legally available for such purpose and approved by the Board,
(e) program income as defined in Section 570.500(a) of the CDBG Regulations, (f) the City's future
CDBG entitlement funds and other revenues as required by applicable provisions of the HCDA and
CDBG Regulations, (g) all proceeds (including insurance and condemnation proceeds) from any of
the foregoing, (h) all funds or investments in the accounts established pursuant to paragraphs 1 and 6
of the HUD Loan Contract, (i) a lien on the Commercial Component of the Property which lien may
also initially include Residential Phase II, (j) any and all rights, titles, and interests of the Borrower
and the City in and to any leases covering the Commercial Component of the Property, (k) any and
all rights, titles, ad interests of the Borrower and the City in and to any licenses, permits and other
agreements covering the Commercial Component of the Property.
1.5. Borrower shall make timely payment of all principal and interest and other sums
becoming due pursuant to the Loan Documents and this Agreement, when and as the same become
due, so as to avoid the occurrence of any default (or any occurrence or event or circumstance which,
with notice or lapse of time would become a default) or would result in or permit the exercise of
remedies or the imposition or accrual of any default interest, penalties, fees or other charges as a
result of such default. All of the foregoing default provisions within this paragraph shall be subject to
the applicable grace, notice provisions and cure periods set forth in the Loan Documents, HUD
Documents, and this Agreement.
1.6. Acceleration: If Borrower shall fail to make any payment when due, or in the event
of any other non -monetary default in the performance of any of the covenants contained herein, in
the HUD Documents, or in the Loan Documents, then after notice of default and after the expiration
of any applicable grace or cure period, the whole outstanding principal sum of the Loan with interest
accrued thereon shall, at the option of the City, become due and payable without further notice or
demand, time being of the essence. Said principal sum shall bear interest from such time until paid,
at the Post Default Rate. No omission on the part of the City to exercise such option when entitled to
do so shall be considered as a waiver of such right. Failure to exercise this option shall not
constitute a waiver of the right to exercise the same in the event of any subsequent default.
1.7. Defeasance and/or Prepayment of Loan. At any time after closing and funding of the
entire Loan or a portion of the Loan, Borrower shall have the right, at its option if and as permitted
by the HUD Documents to pay an amount to the City sufficient, to allow the City to defease all or a
portion of the Section 108 Notes and/or repay the HUD Loan then outstanding related to this
Agreement, in accordance with the Trust Agreement, any Supplement(s) to the Trust Agreement, the
Master Fiscal Agency Agreement and any Supplemental Fiscal Agency Agreement(s) governing
issues and servicing of said Section 108 Notes and HUD Loan vis-a-vis the capital markets and the
holders of said Section 108 Notes. Upon such prepayment to HUD and the acknowledgement and
release of the defeasance of same by HUD, this Agreement shall terminate, and the City shall
furnish to Borrower, simultaneously with the receipt of the payment, a recordable full satisfaction of
the applicable Purchase Money Mortgage and all Loan Documents, together with the original
executed Promissory Note or Notes marked paid. Thereafter the City and Borrower shall have no
further obligation hereunder to each other or to HUD regarding the Project.
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1.8 Partial Releases. While the Loan and the HUD Loan may only be utilized in
conjunction with the Commercial Component, the City is obtaining the applicable Purchase Money
Mortgages from the Borrower which together encumber the entire Property and the security required
by HUD encumbers the Commercial Component and Residential Phase II Property. Subject to
Borrower completing the Environmental Remediation of the entire Property, and approval by the
City of the legal descriptions for the portions of the Property upon which each of the residential
phases and the Commercial Component will be located, the City will deliver to Borrower partial
releases of the applicable Purchase Money Mortgages and any other applicable Loan Documents
relating to Residential Phase I and Residential Phase II after these conditions are met.
1.9 Subordination. The Purchase Money Mortgages ana related Loan Documents relating
to the Project will be subordinate to any construction loans which Borrower obtains for any portion
of the Project subject to the requirements of the HUD Documents in relation to the Commercial
Component with regards to the applicable Loan to value ratio, but in no event shall the construction
loan and the loan which is the subject of the HUD Documents result in a loan to value ratio in excess
of 85%.
SECTION 2.
SECURITY FOR BORROWER' S OBLIGATIONS
2.1. As security for its obligations under this Agreement, Borrower shall provide the
following collateral satisfactory in form and substance to the City:
(l)
Purchase Money Mortgages which will consist of a Purchase Money
Mortgage on the Commercial Component and Residential Phase II, and a
separate mortgage on Residential Phase I of the Project (the "Purchase Money
Mortgages"). Subject to review and approval by the City, and to such terms
and conditions as are reasonably acceptable to the City, consistent with the
terms of the Purchase Agreement, agrees to execute the necessary
documentation to subordinate the Loan to Borrower's institutional financing
(which shall constitute a first mortgage). No subordination will be required
in relation to the portion of the Property upon which the Residential Phases
are located, if the City has already issued a partial release of the Mortgage
and the Loan Documents.
(2) A security lien (the "UCC Lien") on all Borrower's personal property,
fixtures, equipment and improvements. The UCC lien may be established as
two separate liens to encumber the Property in the same manner as the
applicable Purchase Money Mortgages.
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(3) A Completion Guarantee from the Borrower guarantying full completion of
the construction of the Commercial Component.
(4) Assignments (which shall be collaterally assigned to HUD) of all of
Borrower's rights, titles, and interests in any to any leases, rents, licenses,
permits, and other agreements covering the Property. These Assignments
may be in two separate instruments to relate to the Commercial Component
with Residential Phase II, and to Residential Phase I, respectively.
The foregoing documents are included within the definition of the "Loan Documents" as set
forth in Section 1.1(a) above.
SECTION 3.
USE OF LOAN PROCEEDS
3.1. Application of Loan Proceeds: In relation to the Environmental Remediation
and the Commercial Component, Borrower shall utilize the Loan proceeds pursuant to the amended
pro -forma sources and use statement, attached hereto as Exhibit F (the "Commercial Pro Forma
Budget"). The Commercial Pro Forma Budget may be amended by the Borrower prior to the
commencement of the construction of the Commercial Component, subject to approval by the City
and if applicable, the approval by HUD with regards to the required Loan to value ratio. Such
approvals shall be required prior to the Borrower submitting any draw requests for funding from the
Loan for soft costs associated with the Commercial Component. In relation to the Commercial
Component, the Loan proceeds shall be used for uses which shall include but not be limited to the
support of economic development activities (see 24 CFR 570.203(b)) to achieve the national
objectives, as set forth under CDBG regulations applicable to the HUD Section 108 Loan Guarantee
Program, which are of benefit to persons and families of low or moderate income by eliminating
slum and blight, creating and/or retaining the HUD 108 Jobs, of which at least 51 % percent will be
held by or made available to persons of low or moderate income. Specific applications of Loan shall
be as permitted by applicable HUD regulations and the HUD Documents. Borrower agrees to
furnish to the City reasonable evidence of its compliance with this Section 3.1 in the form of a
certification of information upon approved forms, with information which will be derived from
sources which include, but are not limited to commercial tenants of premises that are being
constructed as part of the Commercial Component of the Project. It is acknowledged by the City that
compliance by the Borrower of the requirements of this Section 3 and Section 4 of this Agreement
shall be through businesses and leaseholds which are established in the premises which are
constructed as part of the Commercial Component, and through area businesses which generate jobs
as a result of the Project. The certifications of this information shall be provided on an annual basis
to the City by means of a certification which is part of the forms attached hereto as Composite
Exhibit G.
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SECTION 4.
JOB CREATION/RETENTION ACTIVITIES AND ACTIVITIES WHICH ELIMINATE
SLUM AND BLIGHT
4.1. Creation/Retention of Jobs. Borrower represents and warrants to the City,
and understands that such representation is a material inducement to the funding of the Loan that
Borrower will create and/or retain approximately 194 full time equivalent permanent jobs, as
contemplated in Composite Exhibit G attached hereto, and that at least 51% of these jobs shall be
held by or made available to persons of low income or moderate income. Borrower's failure to meet
this requirement shall constitute a default under this Agreement. It is understood and agreed that the
application of this Section 4 to the Project and in relation to the Loan, shall occur after the permanent
conversion of the Loan occurs in conjunction with the Commercial Component.
4.2. Permanent Job. For the purposes of the principal national objectives of the CDBG
Regulations and this Agreement, "permanent job" means any full time and/or full-time equivalent
permanent job position (as that term is defined by U.S. HUD), located in the City, reasonably
expected to exist for a period of more than one (1) year from the later of the date of this Agreement
or the date such position is created/retained and first becomes available to a prospective employee (as
distinguished from a job position of a known, short-term duration, such as a construction job,
expected to exist only for one year or less), and "employee" means any person employed by
Borrower, its affiliates, subsidiaries, Borrower's tenants, or area businesses which generate jobs as a
result of the Commercial Component of the Project (in relation to the Project or to any enterprise
related to the Project, whether on -site or off -site). These determinations shall be made in accordance
with applicable HUD regulations.
4.3. Low- and Moderate -Income Jobs. It is acknowledged and agreed that at least 51 %
of the jobs to be created and/or retained after 90% of the premises which are part of the Commercial
Component of the Project have been issued Certificates of Occupancy, will be held by or made
available to "low- or moderate -income persons", within the meaning of the CDBG Regulations
4.4. Actions to Ensure First Consideration. Borrower agrees to provide in its leases of
premises for the Commercial Component that tenants shall take appropriate actions to ensure that
—persons of low or moderate income (including but not limited to participants in State of Florida
WAGES program and residents of City CDBG Eligible Areas) receive "first consideration" (within
the meaning of CDBG Regulations) for filling the low- and moderate -income jobs created and/or
retained, and will seriously consider or cause to be considered a sufficient number of job applicants
of low or moderate income to meet the intent of the CDBG Regulations.
Borrower will require its tenants to maintain or cause to be maintained in the City adequate
documentation available to show the number and type of jobs created and/or retained, the hiring
process used, including the process used for affording first consideration to persons of low or
moderate income, the persons of low or moderate income interviewed and considered for such jobs,
I1
and which of those persons were hired; and will allow access to such documentation for review and
inspection at the place maintained by or on behalf of Borrower at reasonable times and on reasonable
notice during normal business hours by appropriate personnel or representatives of HUD and/or the
City. Borrower will use its best efforts to require it tenants to provide training and to ensure that
employment opportunities will be given to persons of low or moderate income residing in the City.
The City shall have the right, but not the obligation, to retain the services of an Independent
Private Sector Inspector General (hereinafter"IP SIG"), whenever the City deems it appropriate to do
so. Upon at least fourteen (14) days advance written notice from the City, Borrower shall require its
tenants make available to the IPSIG retained by the City, all requested records and documentation
pertaining to this Agreement for inspection and reproduction. The City shall be responsible for the
payment of these IPSIG services. The terms of this provision apply to Borrower, its officers, agents,
employees, subcontractors and assignees. Nothing contained in this provision shall impair any
independent right of the City to conduct an audit or investigate the operations, activities, and
performance of Borrower in connection with this Agreement. The terms of this paragraph shall not
impose any liability on the City by Borrower or any third party.
Borrower will cooperate with City, and will seek its tenants' participation in programs or
facilities provided by the City or sponsored by the City to post notices of job opportunities relating to
the construction and operation of the Commercial Component of the Project.
4.5. Periodic Reports. Borrower shall provide to the City reports with respect to the
facility, regarding all activities affecting the implementation of the Loan, in accordance with this
Agreement, including a narrative summary of progress on compliance with its obligations related to
the Loan, on report forms approved by the City, on an annual basis, until Defeasance or payment in
full of the Loan. The required forms for such reports are attached hereto as Composite Exhibit G.
These reports will be submitted at the required intervals of time which are indicated on the attached
forms. Annual reports are due on or before January 315t of the year following the calendar year that
the report applies to.
4.6. Job Training. The City may cooperate with Borrower in Borrower's efforts to obtain
job or employee training assistance, including without limitation training programs, grants and tax
credits, as may be available from federal, state and local authorities.
4.7. Slum and Blight Elimination. Borrower will comply with applicable HUD
regulations and with the Consolidated Plan of the City of Miami, as amended from time to time, for
purposes of eliminating slum and blight conditions in the vicinity of the Project.
SECTION 5.
BEDI GRANT COMPLIANCE
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5.1 BEDI Grant. Borrower will comply with BEDI Grant compliance requirements as
indicated in the BEDI Grant application and the Brownsville Economic Development (BEDI)
Agreement with HUD, which is attached hereto as Composite Exhibit E.
SECTION 6.
REPRESENTATIONS
6.1. Borrower. Borrower represents to the City that it has duly, validly and lawfully
entered into this Agreement and that this Agreement constitutes the valid, binding and lawful
obligation of Borrower.
6.2. City. The City represents to Borrower and the City that it has duly, validly and
lawfully authorized and entered into this Agreement and that this Agreement constitutes the valid,
binding and lawful obligation of the City.
SECTION 7.
GENERAL REQUIREMENTS.
7.1 Borrower shall comply in all material respects, in the remediation of the Property and
the acquisition, development, construction and operation of the Commercial Component of the
Project, with all applicable federal, state and local laws and regulations, to the extent applicable to
the Commercial Component of the Project, which is not a housing project but is a commercial
project for profit.
7.2 The parties acknowledge and agree that the Commercial Component of the Project is
not designed to generate program income as defined in 24 CFR 570.500(a).
7.3. Borrower shall either:
(1)
Meet one of the national objectives in 24 CFR 570.208, as and to the extent
required by applicable HUD regulations; or
(2) Not meet one of the national objectives, as aforesaid, in which event
Borrower, subject to the applicable grace periods and notices, shall pay,
repay, redeem or defease the remaining principal balance and accrued interest
due and unpaid and comply with any other applicable requirements and
procedures under the documents and agreements evidencing the Loan and the
HUD Loan.
SECTION 8.
REMEDIES; TERMINATION; FURTHER RIGHTS.
13
8.1 Subject to any mutually agreed upon extensions of time, nonperformance or delay in
the performance by any party of any of its obligations under this Agreement, which is continuing
after notice in writing and the expiration of any grace period provided for herein, shall constitute a
default entitling the other party to exercise its rights and remedies for such default.
8.2 Any failure or delay by either party in asserting any of its rights and remedies as to
any non-performance or delay in performance by the other party shall not operate as a waiver of any
such non-performance or delay in performance or of any rights or remedies.
8.3 Except as expressly provided otherwise in this Agreement, each right or remedy
provided herein is cumulative to other rights or remedies, and the exercise by any party to this
Agreement of one or more of such rights or remedies shall not preclude the exercise by it, at the
same or different times, of any other rights or remedies for the same or any other nonperformance or
delay in performance by any other party to this Agreement.
8.4 Each party covenants and agrees that any and all legal actions arising out of or
connected with this Agreement shall be instituted in the Circuit Court of the Eleventh Judicial
Circuit, in and for Miami -Dade County, Florida, or in the United States District Court for the
Southern District of Florida, as the exclusive forums and venues for any such action, and each party
further covenants and agrees that it will not institute any action in any other forum or venue and
hereby consents to immediate dismissal or transfer of any such action instituted in any other forum or
venue. In the event of any dispute, claim or legal action of any kind or nature, each party shall be
responsible for and shall bear its own attomey's fees and costs.
8.5 This Agreement shall be construed and interpreted as nearly as practicable in
accordance with the expressed intent of the parties, so as to uphold the validity of all the provisions
hereof. Nevertheless, the provisions of this Agreement are severable, and if any provision is
determined to be invalid, unlawful or contrary to public policy, such provision shall be disregarded
and the same shall have no effect upon any other provisions hereof, which other provisions shall
continue in full force and effect.
8.6 This Agreement is entered into within, and with reference to the laws of the State of
Florida, and shall be governed, construed and applied in accordance with the laws of the State of
Florida.
8.7 In the event of a sale or transfer of all or any portion of the Commercial Component
of the Project by Borrower, Borrower shall not be released from its obligation under the Loan
Documents except as specifically may be provided in the Loan Documents and in accordance with
applicable HUD regulations with regards to the Commercial Component. In the event of any required
consents by the City, or, with regard to the Commercial Component, by the City and/or HUD,
14
Borrower shall require the transferee to assume its obligations hereunder in writing and in
accordance with any applicable HUD regulations or the HUD Documents.
8.8 In the event Borrower has defaulted in any material provision of this Agreement,
other than a monetary default for which remedies are set forth elsewhere in this Agreement, the City
shall give written notice thereof to Borrower, specifying the nature of the non -monetary default and
the basis on which to cure said default. Thereafter, if any such material default is not cured prior to
expiration of the applicable cure period and the City files an action with a court of competent
jurisdiction and that court determines that Borrower has materially defaulted pursuant to this
Agreement and solely as a consequence of that default the City is required to prepay any part of the
HUD Notes relating to this Project prior to the maturity date thereof, or the City is required to refund
any CDBG funds received which the City would otherwise have been entitled to retain, or any future
CDBG funds shall be withheld which the City would have otherwise been entitled to receive, or the
City is required to pay a fine or penalty to HUD, and all of the above are without any fault of the
City and have not been caused by any action taken by or not taken by the City, then Borrower shall
pay to the City the amount of the Loan so required to be prepaid by the City, which amount may be
equal to the CDBG funds so required to be refunded by the City or the present value of any future
CDBG funds so withheld from the City, or the amount of such fine or penalty assessed plus any
reasonable out-of-pocket costs for outside professional fees imposed or required by HUD.
8.9 Cross -Default. The following event shall constitute a default by the Borrower of the
Loan, in addition to such other defaults which may arise in relation to the Loan: If the City
determines, in its sole and absolute discretion, that there exists an event of default under and
pursuant to the terms of any other agreement or obligation of any kind or nature whatsoever of the
Borrower, to the City, direct or contingent, whether now or hereafter due, existing, created or arising
(the "Cross Default").
The City agrees to give written notice to the Borrower regarding the Cross Default, and
Borrower shall have the period of six (6) months from the date of written notice of such a default, to
cure the Cross Default, before the City exercises remedies that it may have to accelerate and enforce
collection of the Loan. One of the means to cure the Cross Default shall be for the Borrower to
arrange for the posting of a bond in such form and with a surety which is reasonably acceptable to
the City for an amount of a bond equal to 100% of the outstanding obligation due as of the date that
the bond is posted, plus the sum of no less than 20% of that amount. The posting of the bond shall
extend the period during which Borrower may cure the Cross Default, for a period equal to the date
through which the amount of the posted bond would equal any principal balance of the agreement or
obligation in default, plus any accrued interest due thereon. If, at the point the accrued amounts due
under the defaulted agreement or obligation equal the total amount of the bond, and the Cross
Default has not been cured, then the City may exercise all of its remedies which are available in
conjunction with the default of the Loan, including but not limited to exercising its rights to obtain
payment from the bond which has been posted.
15
8.10 Conflict in Default Notices. If HUD declares a default of the HUD Loan, then
notwithstanding any provision of the Loan which may provide for certain notice and cure provisions
for the benefit of the Borrower, the City will be entitled to declare a default of the Loan and may
exercise such remedies as are available under the terms of the Loan Documents or applicable law.
SECTION 9.
MISCELLANEOUS PROVISIONS.
9.1. Recitals. The recitals set forth above shall be incorporated into the terms of this
Agreement.
9.2. Notices, Demands and Communications Between the Parties. Notices, demands
and communications between the parties shall be given by hand -delivery with a signed receipt or by
certified mail, return receipt requested, addressed as follows:
Notices, demands and communications to Borrower:
Wagner Square, LLC
Attn: Debra Kolsky
1175 NE 125th Street, Suite 103
North Miami, Florida 33161
With copies to:
I. Barry Blaxberg, Esq.
Blaxberg, Grayson, Kukoff & Segal, P.A.
25 SE Second Avenue, Suite 730
Miami, Florida 33131
Notices, demands and communications to the City:
The City of Miami
Office of the City Manager
444 SW 2"d Avenue, 10th Floor
Miami, Florida 33130
With copies to:
The City of Miami
Director, Department of Community Development
444 SW 2"d Avenue, 2"d Floor
Miami, Florida 33130
16
The City of Miami
City Attorney
444 SW 2°d Avenue, 9th Floor
Miami, Florida 33130
Notices given as provided above shall be deemed given and shall be effective when delivered
to the addressee at the address set forth above, or when received via certified mail. Either party may
change its address to which notices, demands and communications shall be sent by giving written
notice thereof to the other party.
9.3. No Taxing Power. Nothing in this Agreement shall constitute or require, or be
deemed to constitute or require, a pledge of the full faith and credit or taxing power of the City, the
State of Florida or any of its political subdivisions, within the meaning of any constitutional or
statutory limitation, and no person shall have any right, directly or indirectly, to compel the exercise
of the ad valorem taxing power of the City, the State of Florida or any of its political subdivisions for
any such payments.
9.4. Certain Definitions. The following terms used in this Agreement shall have the
meanings given to them pursuant to applicable HUD regulations and the HUD Documents: "held by
or made available to"; "create/retain" or "retain" jobs.
9.5. No Liability of Officials, Officers or Employees. No official, officer or employee of
the City or Borrower shall be personally liable for any non-performance or delay in performance by
the City or Borrower, respectively, or for any amount which may become due under any provisions
of this Agreement, unless otherwise expressly set forth herein.
9.6. Approvals. Approvals required of the City or Borrower shall not be unreasonably
withheld or delayed. Unless otherwise required by this Agreement and except to the extent in
conflict with general law, all approvals or disapprovals shall be provided within thirty (30) days of
submission of any documents requiring approval. Notwithstanding the preceding sentence, the
submission of draw requests by the Borrower shall be approved or disapproved within a period of
fourteen (14) business days, to assure the flow of funding to the Borrower in conjunction with the
Project. If no approval or disapproval is given within the time required by this Section, and no
extension has been mutually agreed in writing, the approval shall be deemed given and conclusively
establ i shed.
SECTION 10.
ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS
10.1. This Agreement may be executed in two or more counterparts, each of which is
considered and shall be deemed to be an original.
17
10.2. This Agreement, along with the Loan Documents and the Exhibits hereto, constitutes
the entire understanding and agreement of the parties as to the subject matter hereof, and supersedes
all negotiations or previous agreements between the parties with respect to all or any part of the
subject matter. Section and paragraph headings included in this Agreement are for convenience only
and shall have no effect upon the meaning or construction of this Agreement.
10.3. No waiver or consent to any departure from any term, condition or provision of this
Agreement shall be effective or binding upon any party hereto unless such waiver or consent is in
writing, signed by an authorized officer of the party giving the same, and delivered to the other party.
10.4. No amendment or modification of this Agreement shall be effective or binding upon
any party hereto unless such amendment or modification is in writing, signed by an authorized
officer of the party claimed to be bound and delivered to the other party.
10.5. Prohibition Against Contingent Fees. Borrower has employed and retained bona fide
employees working for Borrower and attorneys and consultants, to solicit or secure this Agreement.
Borrower warrants that it has not paid or agreed to pay any person, company, corporation, individual
or firm, other than a bona fide employee working for Borrower, any fee, commission, percentage,
gift, or any other consideration, contingent upon or resulting from the award or making of this
Agreement.
10.6. Independent Developer. In performing this Agreement, planning, developing,
equipping and operating the projects referred to herein, or carrying out any of the activities to be
carried out by Borrower, Borrower will be acting independently, and not as a joint venturer, partner,
associate, employee, agent or representative of the City. Borrower and/or its agents, consultants,
contractors and/or employees, for any such project, as the case may be, shall be solely responsible for
the means, methods, techniques, sequences and procedures utilized.
10.7. Non -Discrimination. Borrower covenants and agrees that it will not discriminate
against or segregate, any person, or group of persons, on account of race, color, religion or creed,
sex, or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of
the facility, and Borrower shall not establish or consent to any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy of
any management or operating company or lessees or sub -lessees, tenants or subtenants of the facility.
10.8. Successors and Assigns. This Agreement is binding upon and inures to the benefit of
the City and Borrower, and their respective successors and assigns. No assignment or other transfer
by Borrower may be made, suffered, or created by Borrower without the express written consent and
approval of the City Commission of the City of Miami, which may be withheld or delayed in the City
Commission's discretion and, as applicable, without the express written consent and approval of
HUD. Borrower shall give or cause to be given to City written notice of any assignment or transfer
18
of which Borrower or its officers shall have knowledge, not less than sixty (60) days prior to any
such proposed assignment or transfer. Any assignment or transfer made in violation of the terms of
this paragraph shall be null and void and of no force and effect.
10.9. Force Majeure. Neither party shall be responsible for delays in performing any of
their respective obligations hereunder (except for the obligation to pay money) when said delay or
failure is due to acts of providence, military authority, insurrection, riots, civil commotions, strikes,
shortages or delays in obtaining materials during the construction period, intentional and malicious
acts of third parties, labor disputes, enemies of the government, explosions, flood„ hurricane,
windstorm, fire, failure of utility company to provide power source or service, or any other cause
beyond the reasonable control of such party.
10.10. Term of Agreement. The term of this Agreement shall commence as of the date first
written above and shall expire upon completion of all payments of the Loan and the related HUD
Loan and other amounts required to by paid hereunder by the Borrower, unless sooner terminated as
provided herein.
19
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement, and caused
their respective seals to be hereunto affixed, as of the date first written above.
Attest:
Name:
Title:
Attest:
).a(' rr4 -s-r
5-Lcv-er
By: / Priscilla A. Thompson
Title: City Clerk
Approved as to form and correctness:
2002-6/IBB/hardy/28533CLEAN
20
Borrower
Wagner Square, LLC
Title: tk,.,14
CIVT.OF MIA I.
\\ \ i
By: i oe Arriola
Title:\\ ity Manager
Approved as to Insurance Requirements:
S-It-sue F. E.i.ty.<:(Q,
By: Dania F. Carrillo
Title: Risk Management Administrator
r 411 r'r; A
Alvarez, Aiguesvives
and Associates
Inc
Surveyors, Mappers and Land Planners
PARCEL 3
A portion of land located in the N.W. 1/4 of Section 35, Township 53 South, Range 41
East, City of Miami, Miami -Dade County, Florida, more particularly described as
follows:
Commence at the Southwest corner of Tract "A" located in the East Right of Way of
N.W. 15th Avenue, WAGNER SQUARE, according to the plat thereof, as recorded in
Plat Book 162, Page 66, of the Public Records of Miami -Dade County, Florida; thence S
89°59'04" E along the South line of said Tract "A" a distance of 250.13 feet to a point;
thence S 00°10'33" E a distance of 12.00 feet to a point; thence S 89°35'50" E a distance
of 18.32 feet to a point; thence N 00°02' 14" E a distance of 175.35 feet to a point on the
North line of said Tract "A"; thence S 89°57'46" E along and on the North line of said
Tract "A" a distance of 72.65 feet to the Point of Beginning; thence continue along and
on said North line a distance of 184.20 feet to the North -Northeast corner of said Tract
"A"; thence S 40°37'38" E along the Northeasterly line of said Tract "A", said line also
being the Southwesterly Right of Way line of Wagner Creek, a distance of 120.99 feet to
a point on the East -Northeast corner of said Tract "A"; thence S 00°03'20" E along and
on the East line of said Tract "A" and the West Right of Way line of N.W. 14`h Avenue a
distance of 194.60 feet to a Point of Curvatureof a curve to the right having a radius of 25
feet and a central angle of 90°04' 18"; thence South -Southwesterly along the arc of said
curve a distance of 39.30 feet to a Point of Tangency ; thence N 89°59'02" W along and
on the South line of said Tract "A" said South line also being the North Right of Way line
of N.W. 17th Street a distance of 257.31 feet to a point; thence N 00° 15' 18" W a distance
—of 148.50 feet to a point; thence S 89°59'02" E a distance of 20.00 feet; thence N
00°02'14" E a distance of 163.00 feet to the Point of Beginning, said lands containing
81,140 sq. ft. more or less.
SKETCH OF DESCRIPTION
IT• near,
8230 COPAL WAY, SUITE B MIAMI, FL 33155 • PHONE 305.220.2424 • FAX 305.552.8181
E-MAIL aaasurvey@aol.com
{ Ilwe".IT re"s
LAW OFFICES
BLAXBERG, GRAYSON, KUKOFF & SEGAL
PROFESSIONAL ASSOCIATION
SUITE 730, INGRAHAM BUILDING
25 SOUTHEAST SECOND AVENUE
MIAMI, FLORIDA 33131-1506
TELEPHONE (305) 381-7979
FACSIMILE (305) 371-6816
I.BARRI"BLAXBERG
WRITER'S DIRECT LINE:
305-381-7979 EXT. 309
E-MAIL: BLAXBERG:iRLAXGRAI'.COM
February 9, 2005
Via Hand Delivery
Olga Ramirez-Seijas, Assistant City Attorney
City of Miami — City Attorney's Office
444 SW 2nd Avenue, Suite 945
Miami, Florida 33130-1910
Re: Wagner Square
Our File No. 2002-6
Dear Ms. Ramirez-Seijas:
I am hand delivering to you two sets of the boundary survey, properly certified to
all parties. Also enclosed is the legal description of the portion of the property which
contains the commercial component and Phase II of the residential component.
Enclosures
IBB/hardy/28292
cc: Wagner Square, LLC (Via E-Mail w/o encls.)
$4,000,000.00
PROMISSORY NOTE
Miami, Florida March 10, 2005
FOR VALUE RECEIVED, WAGNER SQUARE, LLC, a Florida limited liability
company (hereinafter "Maker" or "Borrower"), promises to pay to the order of THE CITY OF
MIAMI, a municipal corporation, its successors and assigns (hereinafter "Holder") at its
office at 3500 Panamerican Drive, Miami, Florida 33133, or at such other place as Holder may
designate in writing, delivered or mailed to Maker, in lawful money of the United States of
America, the principal sum of FOUR MILLION and 00/100 DOLLARS ($4,000,000.00) or for
such amounts as may be advanced to Borrower pursuant to this Note, together with interest
thereon from the date hereof, payable in immediately available funds as follows:
The initial annual interest rate to be charged on the unpaid principal balance will be the
"HUD Rate," which is the interest rate charge to the Holder pursuant to the HUD Loan in the
amount of Four Million Dollars ($4,000,000.00) which was obtained by the Holder to obtain the
funds which are, in turn, being lent to the Borrower pursuant to the terms of that certain Loan
Agreement between the City of Miami and Wagner Square, LLC dated as of March 10, 2005.
Interest shall be calculated on the same basis as interest is calculated under the terms of the
HUD Loan. The interest rate under the terms of this Note will be established at a fixed rate of
interest at such time as the Maker instructs the Holder to issue notice to HUD to fix the rate for
the HUD Loan. Upon the exercise of this right to fix the interest rate, the interest rate will
thereafter be the fixed rate as established in accordance with the HUD Loan documents.
Payment of principal and interest shall be due and payable in accordance with the
terms of the HUD Loan. This Promissory Note shall have a maturity date which is twenty (20)
years from the date of execution and delivery of the Note, and upon maturity, all accrued and
unpaid interest shall be due and payable in full. Interest payments only shall be due during
the term of this Note through the date upon which the interest rate on this Note may become a
fixed rate, upon such amounts as have been advanced to Borrower by the Holder. Payments
to the Holder for interest shall be structured so that such payments are made no less than
thirty (30) days prior to the date that the Holder is required to make payments to HUD for the
HUD Loan. The initial payments shall be made by Borrower within thirty (30) days prior to the
date that the initial payment is required to be made by the Holder on the HUD Loan. Principal
payments shall be payable annually with the first payment of principal being due and payable
from the date of the first advance of Loan proceeds to the Borrower, or thirty (30) days after
the Holder's first principal payment to HUD is due, whichever is later (upon closing, if a specific
payment schedule for interest and principal payments due under the HUD Loan is available,
the payment schedule to match those terms will be incorporated into the terms of this Note by
means of amendment or by substitution of a new note).
All payments made under this Note shall be applied first to late charges, if any, then to
accrued interest and the balance of same towards reduction of the principal due hereunder.
In the event of Maker's failure to pay any installment of principal or interest when due
hereunder, or if an event of default occurs under the Mortgage or any other documents or
instruments securing payment hereof or otherwise related hereto, then all of the unpaid
principal balance of the Note and all accrued and unpaid interest thereon shall, at Holder's
option, become due and payable. If any principal or interest payment is not made within fifteen
(15) days written notice for said payment, with an opportunity for the Borrower to cure any
such default with the notice period, then interest shall be due and payable on the whole of the
unpaid principal balance at the rate of eighteen (18%) per annum. Borrower shall be provided
with at least thirty (30) days written notice and opportunity to cure any other default of
obligations due from Borrower other than the payments due under this Note. Maker, its legal
representatives, successors, and assigns, waive presentment for payment, demand, protest,
notice of dishonor and diligence in collection, and waives any right to be released by reason of
any extension of time or change in terms of payment or any change, alteration or release of
any security given for the payment hereof, and agrees to pay all reasonable attorneys' fees if,
after default hereunder or under any instrument securing this Note, an attorney is retained by
Holder to secure collection hereof, whether or not litigation is required, and if litigation is
required, such attorneys' fees shall include fees for both trial and all appellate proceedings.
Notwithstanding any terms and provisions in this Note which may provide or infer to the
contrary, in the event the Holder is determined to be in default of the HUD Loan, then the
Holder may declare this Note to be in default with the right of the Holder to exercise such rights
and remedies as may be available to the Holder under the terms of this Note or under
applicable law.
This Note is secured by a Mortgage and Security Agreement of even date herewith
(the "Mortgage") from Maker to Holder and encumbering certain real property and
improvements now or hereafter located thereon, which real property is located in Miami -Dade
County, Florida. Any terms used in this Note and not otherwise defined herein shall have the
same meaning as in the Mortgage.
Holder, at its option, may make subsequent advances evidenced by this Note, in which
event this Note shall remain valid and enforceable notwithstanding partial or total payment, re -
borrowing, or repayment of sums advanced hereunder.
The remedies of Holder, as provided herein or in any other instrument securing
payment of this Note, shall be cumulative and concurrent and may be pursued singularly,
successively or together, at the sole discretion of the Holder, and may be exercised as often
as occasion therefor shall arise. No act of omission or commission of the Holder, including
any failure to exercise any right, remedy or recourse, shall be deemed to be a waiver or
release of the same, any waiver or release to be effected only through a written document
executed by the Holder and then only to the extent specifically recited therein. A waiver or
release with reference to any one event shall not be construed as continuing, as a bar to, or as
a waiver or release of any subsequent right, remedy or recourse as to a subsequent event.
Maker may not prepay the principal amount outstanding in part or in full, except to the
extent that the Holder is permitted to pay the HUD Loan in a matter which results in
defeasance, as that term is used in the HUD Loan documents.
Maker agrees, upon Holder's request, to pay all taxes, including without limitation
documentary stamps, additional intangible tax if applicable, interest, duties and other charges
related to this Note and payments hereunder, in addition to principal and interest on the Note.
It is the intention of the parties hereto to comply with all applicable usury laws.
Accordingly, it is agreed that notwithstanding any provisions to the contrary in this Note, the
2
Mortgage, or in any other document securing payment hereof or otherwise relating hereto, in
no event shall this Note or such other documents require the payment or permit the collection
of interest in excess of the maximum amount permitted by such laws. If any such excess of
interest is contracted for, charged or received under this Note, or under the terms of any other
document securing payment hereof or otherwise relating hereto, or in the event the maturity of
the indebtedness evidenced hereby is accelerated in whole or in part, or in the event that all or
part of the principal or interest of the Note shall be prepaid, so that under any of such
circumstances the amount of interest contracted for, charged or received under this Note shall
exceed the maximum amount of interest permitted by the applicable usury laws, then in any
such event, (a) the provisions of this paragraph shall govern or control, (b) neither the Maker
nor any other person or entity now or hereafter liable for the payment of this Note shall be
obligated to pay the amount of such interest to the extent that it is in excess of the maximum
amount of interest permitted by the applicable usury laws, (c) any such excess which may
have been collected shall be either applied as a credit against the then unpaid principal
amount hereof or refunded to Maker, at Holder's option, and (d) the effective rate of interest for
this Note shall be automatically reduced to the maximum lawful rate allowed for this Note
under the applicable usury jurisdiction thereof.
Maker for itself, its legal representatives, successors, and assigns, hereby expressly
consent to any and all extensions and renewals, in whole or in part, and all delays in time of
payment or other performance which Holder may grant or permit at any time and from time to
time without limitation, and without any notice to or further consent of Maker. No action or
inaction by Holder shall discharge any party liable for the payment hereof, and the liability of all
such parties shall continue until actual and full payment is received by Holder. Without limiting
the generality of the foregoing, the release or discharge of any other obligor, if applicable, shall
not discharge any Maker, and the release or impairment of collateral, the taking of a renewal
Note for part or all of the indebtedness hereunder, or a change in the interest rate, shall not
discharge Maker.
This Note shall be construed, enforced and governed under the laws of the State of
Florida.
If this Note is executed by only one (1) person, all plural nouns, pronouns and verbs
herein relating to more than one (1) Maker shall be construed as singular nouns, pronouns,
and verbs, it being the intent and purpose hereof that this form shall conform to the
circumstances as fully as if each change from plural to singular were set forth in writing herein.
This Note may not be changed orally, but only by an agreement in writing and signed
by the party against whom enforcement of any waiver, change, modification or discharge is
sought.
MAKER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
THE RIGHT HE MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE,
THE MORTGAGE, ANY OTHER DOCUMENTS, EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THEREWITH, AND ANY AGREEMENT CONTEMPLATED
TO BE EXECUTED OR DELIVERED IN CONJUNCTION HEREWITH OR THEREWITH, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF MAKER OR HOLDER. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE HOLDER EXTENDING CREDIT TO MAKER. MAKER
3
ACKNOWLEDGES THAT THEY HAVE BEEN REPRESENTED (OR HAVE HAD THE
OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS NOTE AND IN THE
MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL.
THE TERMS AND PROVISIONS OF THIS NOTE SHALL BE SUBJECT TO THE
REQUIREMENTS OF APPLICABLE LAW INCLUDING, BUT NOT LIMITED TO, ALL
FEDERAL, STATE, AND LOCAL LAW CONCERNING THE REQUIREMENTS RELATING
TO USE OF HUD LOAN PROCEEDS. TO THE EXTENT OF ANY CONFLICT BETWEEN
THE TERMS AND PROVISIONS OF THIS NOTE AND THE TERMS AND PROVISIONS OF
THE HUD LOAN DOCUMENTS OR APPLICABLE LAW, THEN THE TERMS OF THIS
NOTE SHALL BE CONFORMED TO THE REQUIREMENTS OF THE HUD LOAN
DOCUMENTS AND APPLICABLE LAW.
Attest:
By:
Titl
2002-6/IBB/hardy/28535CLEAN
WAGNER SQUARE, LLC, a Florida
limited liability company
By: .-01 c,/ `jN ICte., 1<0151
Title: kAC.,,,6 ,/\
-4-
Prepared By and Return To:
I. Barry Blaxberg, Esq.
Blaxberg, Grayson, Kukoff & Segal, P.A.
25 SE Second Avenue, Suite 730
Miami, Florida 33131
11111111111111111111111111111111111111111111
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OR E.k 231,fl. F9s 1514 — 1521; (8p9
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Ih RV'EY F:UV'IN,CLEEK. OF COURT
MIAi'1I - DADE C:iOUJNf'r, FLORIDA
MORTGAGE AND SECURITY AGREEMENT
(Commercial Component and Residential Phase II)
THIS MORTGAGE AND SECURITY AGREEMENT (the "Mortgage") is executed as of the 10th day of
March 2005, at Miami, Florida by WAGNER SQUARE, LLC, a Florida limited liability company (hereinafter
"Mortgagor", which term shall include their successors, heirs, legal representatives and permitted assigns), whose
address is 1175 NE 125th Street, Suite 103, North Miami, Florida 33161 and THE CITY OF MIAMI, a municipal
corporation (hereinafter "Mortgagee", which term shall include its successors, legal representatives and assigns),
whose address is 3500 Pan American Drive, Miami, Florida 33133.
WITNESSETH:
For payment of the sum of Ten and 00/100 ($10.00) Dollars and other good and valuable consideration
and to provide additional collateral to secure the payment of the sums of money due under a certain Promissory
Note dated March 10, 2005 (the "Note") in the principal sum of Four Million and 00/100 ($4,000,000.00) Dollars due
to Mortgagee, together with interest thereon, and all other sums of money secured hereby as hereinafter provided,
Mortgagor does hereby grant, mortgage, transfer and set over to Mortgagee all of Mortgagor's right, title and
interest in and to the following (hereafter collectively referred to as the "Mortgaged Property's):
(A) All of Mortgagor's rights and interests in and to the real property located at and legally described
as follows:
See Exhibit "A" attached hereto.
(the "Real Property"); and
(B) All buildings, structures, and improvements of every nature whatsoever now or hereafter situated
on the said Real Property, and all furniture, furnishings, fixtures, machinery, equipment, inventory, and materials on
site, and personal property of every nature whatsoever now or hereafter owned by the Mortgagor and located in,
on or used or intended to be used in connection with the operation of said Real Property, buildings, structures, or
other improvements, including all extensions, additions, improvements, betterments, renewals and replacements
to any of the foregoing (the "Improvements"), and all casualty insurance proceeds, condemnation awards and
rents to be derived from the Improvements and the real property; and all of the right, title and interest of the
Mortgagor in any such personal property or fixtures subject to a conditional sales contract, chattel mortgage or
similar lien or claim together with the benefit of any deposits or payments now or hereafter made by the Mortgagor
or on its behalf; and
Together with all and singular the tenements, hereditaments, easements, licenses and appurtenances
thereunto belonging, or otherwise appertaining including use rights pertaining to any docks located at the Real
Property and the rents, issues, and profits thereof, and also all the estate, right, title, interest and all claims and
demands whatsoever, as well in law as in equity, of the Mortgagor in and to the same, and every part and parcel
thereof, and also specifically but not by way of limitation all gas and electric fixtures, radiators, heaters, water
pumps, air conditioning equipment, machinery, boilers, ranges, elevators and motors,
closets, water basins, pipes, faucets, and other plumbing and heating fixtures, mantels,
boxes, window screens, screen doors, venetian blinds, cornices, storm shutters and
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sinks, water
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ec now or
may hereafter pertain to or be used with, in or on said premises, even though they be detached or detachable, are
and shall be deemed to be fixtures and accessories to the freehold and a part of the realty; and
(C) All riparian rights, leases, rents, deposits, profits, licenses and permits in any way relating to the
Real Property and the Improvements.
TO HAVE AND TO HOLD the same, together with the tenements, hereditaments and appurtenances
thereunto belonging, and the rents, issues and profits thereof, unto the said Mortgagee.
The conditions of this Mortgage are that if Mortgagor shall well and truly pay to Mortgagee the
indebtedness evidenced by the Note, together with any future advance or note hereafter executed by Mortgagor in
accordance with Paragraph 12 of this Mortgage and secured by the lien of this Mortgage, together with interest as
therein stated, and shall perform, comply with and abide by each and every stipulation, agreement, condition and
covenant contained and set forth in this Mortgage, the Note and all other documents executed or delivered in
connection herewith or therewith (the "Loan Documents"), then this Mortgage and the estate hereby created shall
cease and be null and void, otherwise to remain in full force and effect.
Mortgagor hereby warrants to Mortgagee that it is indefeasibly seized with the absolute and fee simple title
to the Mortgaged Property, that this conveyance constitutes a first mortgage on the Property, and that it will defend
the same against the lawful claims and demands of all persons whomsoever.
Mortgagor and Mortgagee further covenant and agree as follows:
1. Mortgagor will promptly pay when due the amounts due under the Note and perform, comply with
and abide by each and every stipulation, agreement, condition and covenant contained in the Note, this Mortgage
and the Loan Documents.
2. (a) Mortgagor will pay all governmental taxes, encumbrances and other assessments, levies
or liens now or hereafter levied or imposed upon or against the Mortgaged Property prior to such taxes,
assessments and liens becoming delinquent and will furnish Mortgagee with paid receipts therefor. If the same or
any parts thereof are not paid prior to becoming delinquent, Mortgagee may, at its option, pay same without
waiving or affecting Mortgagee's option to foreclose this Mortgage, or any other right of Mortgagee hereunder.
(b) After first giving written notice of its intention to do so to Mortgagee, Mortgagor may, at its
expense, contest in good faith any such levy, tax, assessment or other charge levied or imposed against the
Mortgaged Property and, in such event, may permit the items so contested to remain undischarged and unsatisfied
during the period of such contest and any appeal therefrom unless Mortgagee shall notify Mortgagor in writing that
non-payment of any such items will cause the lien or priority of this Mortgage to be materially endangered or the
Mortgaged Property or any part thereof will be subject to loss or forfeiture, in which event Mortgagor shall promptly
pay or bond and cause to be satisfied or discharged all such unpaid items or furnish, at Mortgagor's expense,
indemnity satisfactory to Mortgagee.
3. In the event Mortgagor fails to timely pay principal or interest in the manner provided for in the
Note on or before the date when due, or faits to fully and promptly perform any other obligation under this
Mortgage, the Note or the Loan Documents, or to otherwise execute, comply with and abide by each and every
one of the covenants, conditions or stipulations of this Mortgage, the Note or the Loan Documents, Mortgagor
shall, after applicable grace or notice periods, if any, be deemed to be in default under this Mortgage and all of the
outstanding principal and interest due under the Note and any and all sums mentioned herein or secured hereby
shall, at Mortgagee's option, become immediately due and payable.
4. In the event of a suit being instituted to foreclose this Mortgage, Mortgagee shall be entitled to
apply at any time after the commencement of such suit to the court having jurisdiction thereof for the appointment
of a receiver of all the Mortgaged Property, and of all rents, income, profits, issues and revenues thereof, from
whatsoever source derived. Mortgagor agrees that the court shall forthwith a. ya: i .,. h receiver with the usual
powers and duties of receivers in like cases and that said appointment sha ; * 4 e court as a matter of
strict right of the Mortgagee, without reference to the adequacy of the v T the1Me ed Property, or the
solvency of Mortgagor or any other party defendant to such suit. Mortgage r l "Ives `, fight to object to the
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2
appointment of a receiver and consents that such appointment shall be made as an admitted equity of the
Mortgagee.
5. Mortgagor will, at its expense, obtain and maintain the following insurance coverage during such
time as there are any sums due by Mortgagor to Mortgagee under the Loan Documents:
(a) broad form public liability insurance for Toss of life and personal injury arising out of any
one occurrence, and for loss of life or personal injury to any one person and for property damage, in amounts
reasonably satisfactory to Mortgagee; and
(b) an all risks form of casualty insurance insuring the Improvements against loss or damage
by fire, storm and all other perils for no less than their full replacement cost; and
(c) in the event the Real Property is designated as being in a Flood Zone, then flood
insurance covering the Improvements for an amount equal to the lesser of (i) the outstanding principal balance
under the Note, or (ii) the maximum coverage available for the Improvements under the National Flood Insurance
Program.
All such policies shall specifically name Mortgagee as an additional insured, shall be with such companies, on
such forms and with such deductibles as Mortgagee may require and shall each contain an endorsement by the
insurer agreeing to not cancel or materially alter any such policy without thirty (30) days prior written notice to
Mortgagee. Copies of the initial and renewal policies and original certificates shall be furnished to Mortgagee and
such policies shall have affixed thereto a Standard New York Mortgagee Clause making all proceeds under such
policies payable to the Mortgagor and Mortgagee, as their interests may.appear. In the event the Improvements
are destroyed or damaged by fire or other casualty, any insurance proceeds shall be paid to the Mortgagee.
Mortgagor shall be permitted to use all or any portion thereof, for the purpose of reconstructing and repairing the
Improvements, without Mortgagee thereby waiving or impairing any equity, lien or right under or by virtue of this
Mortgage. If Mortgagor fails to furnish the insurance required hereunder, Mortgagee may place and pay for such
insurance, or any part thereof, without losing, waiving or affecting Mortgagee's option to foreclose for breach of this
covenant or any right or option under this Mortgage.
6. Mortgagor will not permit or commit any waste to the Mortgaged Property and will at all times
maintain the Mortgaged Property in a state of good repair and condition and will not do or permit anything to be
done to the Mortgaged Property that will alter or change the use and character of said property or impair or
weaken the security of this Mortgage. In case of the refusal, neglect or inability of the Mortgagor to repair and
maintain the Mortgaged Property, Mortgagee may, at its option, make such repairs or cause the -same to be made
and advance funds for such purpose, which sums shall be secured by the lien hereof.
7. No waiver of any covenant contained in the Note, this Mortgage, the Loan Documents or in any
other instrument securing payment of the Note shall at any time be held to be a waiver of any of the other terms of
this Mortgage, the Note or the Loan Documents, or a future waiver of the same covenant.
8. In order to accelerate the maturity of the indebtedness secured hereby because of Mortgagor's
failure to pay any governmental tax, assessment, liability, obligation or encumbrance upon the Mortgaged
Property, or any other payment required to be paid by the Mortgagor pursuant to this Mortgage or the Loan Docu-
ments, it shall not be necessary or required that Mortgagee first pay same.
9. If any judgment, mechanic's, materialman's, laborer's or any other lien or claim is filed against all
or any portion of the Mortgaged Property or if any proceedings are instituted against ail or any portion of the
Mortgaged Property upon any lien or claim of any nature whatsoever, regardless of whether such lien or claim is
junior or superior to the lien of this Mortgage, Mortgagee may declare a default and accelerate and demand im-
mediate payment of all sums due under the Note unless Mortgagor shall remove such lien or satisfy such
judgment or claim by payment or by transferring same to a bond issued by a surety company acceptable to
Mortgagee within thirty (30) days after Mortgagor has knowledge of: -the" film of such lien or judgment or the
institution of such claim.
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10. In the event Mortgagor shall (i) consent to the appointment of a receiver, trustee or liquidator of all
or a substantial part of their assets, or (ii) file a voluntary petition in bankruptcy, or admit in writing their inability to
pay their debts as they become due, or (iii) make a general assignment for the benefit of creditors, or (iv) file a
petition or answer seeking reorganization or arrangement with creditors, or to take advantage of any insolvency
law, or (v) file an answer admitting the material allegations of a petition filed against any of them in any bankruptcy,
reorganization or insolvency proceeding, or (vi) action shall be taken by any of them for the purpose of effecting
any of the foregoing, or (vii) any order, judgment or decree is entered upon the application of a creditor of any of
them by a court of competent jurisdiction approving a petition seeking appointment of a receiver or trustee of all or
a substantial part of the assets of any of them, or declaring any one of them bankrupt or insolvent and such action
by a creditor is not dismissed or discharged within forty five (45) days of the filing of the action, then upon the
occurrence of any of such events, Mortgagee may accelerate and declare the Note secured hereby immediately
due and payable, whereupon all the unpaid principal of and accrued interest on the Note and all other sums
hereby secured shall become immediately due and payable.
11. Mortgagee or any of its agents shall have the right to enter upon and inspect the Mortgaged
Property at all reasonable times, upon reasonable notice.
12. Any sum or sums which may be loaned or advanced by Mortgagee to Mortgagor at any time
within twenty (20) years from the date of this Mortgage, together with interest thereon at the rate agreed upon at
the time of such loan or advance, shall be equally secured with and have the same priority as to original
indebtedness and be subject to all the terms and provisions of this Mortgage. The aggregate amount of principal
outstanding at any time and secured by this Mortgage shall not exceed two hundred percent (200%) of the original
principal amount of the Note secured hereby.
13. Nothing herein contained, nor any instrument or transaction related hereto, shall be construed or
so operate as to require the Mortgagor, or any person liable for the payment of the loan made pursuant to the Note
and Loan Documents secured by this Mortgage, to pay interest in an amount or at a rate greater than the
maximum allowed by law. Should any interest or other charges paid by the Mortgagor, or any parties liable for the
payment of the Note secured by this Mortgage, result in the computation or earning of interest in excess of the
maximum rate of interest which is permitted under taw, then any and all such excess shall be and the same is
hereby waived by the Mortgagee, and all such excess shall be automatically credited against and in reduction of
the principal balance, and any portion of said excess which exceeds the principal balance shall be paid by the
Mortgagee to the Mortgagor and any parties liable for the payment of the Note secured by this Mortgage, it being
the intent of the parties hereto that under no circumstances shall the Mortgagor, or arty parties liable for the
payment of the Note secured hereby, be required to pay interest in excess of the maximum rate allowed by law.
14. If all or any material portion of the Mortgaged Property is damaged or taken through the exercise
of the power of eminent domain (which term when used in this Mortgage shall include any transfer by private safe
in lieu thereof), the entire indebtedness secured hereby shall become immediately due and payable and the entire
proceeds of Mortgagor's award shall be paid to Mortgagee and applied by it towards the payment of the sums
secured hereby with the remaining balance, if any, to be paid over to Mortgagor. Mortgagee is hereby authorized,
at its option, to commence, appear and prosecute, in its own or the Mortgagor's name, any action or proceeding
relating to any condemnation, and to settle or compromise any claim in connection therewith. All such com-
pensation, awards, damages, claims, rights of action and proceeds, and the right thereto are hereby assigned by
the Mortgagor to the Mortgagee, and Mortgagor agrees to execute such further assignments of any compensation,
awards, damages, claims, rights of action and proceeds as Mortgagee may require.
15. This Mortgage shall also be construed and shall operate as a security agreement under the State
of Florida Uniform Commercial Code.
16. To further secure payment of Mortgagor's indebtedness to Mortgagee, Mortgagor does hereby
sell, assign, transfer and set over to Mortgagee all of the rents, issues and profits of the Mortgaged Property.
Although this is a presently effective assignment, it shall become operative only upon any uncured noncompliance
or a material breach by Mortgagor under the terms of this Mortgage, the Note or ,the Loan Documents, and the
Mortgagee shall thereafter have the right to enter upon the Mortgaged Property :and collect the same directly from
the persons in possession.
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17. In the event any legal action is commenced to enforce the provisions of this Mortgage or as a
result of the relationship created hereby, the Mortgagee shall be entitled to recover all attorneys' fees, costs,
charges and expenses incurred or paid by it at both trial and all appellate levels.
18. All rights and remedies granted to Mortgagee herein shall be in addition to and not in lieu of any
rights and remedies provided to mortgagees by law or statute, and the invalidity of any right or remedy herein
provided by reason of its conflicts with applicable law or statute shall not affect any other valid right or remedy
afforded to Mortgagee by any provision hereof or by applicable law.
19. Except for environmental conditions which are in the process of being remediated, Mortgagor
warrants and represents that it has no knowledge of any violations of any type or manner of any law, ordinance,
orders, requirements or regulations imposed on or affecting the Mortgaged Property, that Mortgagor shall not
permit any such violation to be created or to exist and that Mortgagor has not received notice of any such violation
from any municipal, county, federal or state government or agency thereof. In the event that Mortgagor receives
any notice of any such violation from any governmental body or agency thereof, Mortgagor agrees to immediately
give notice thereof to Mortgagee, and to take all necessary or appropriate actions to cure or otherwise resolve
such violation within thirty (30) days after receipt by Mortgagee of the notice of violation, or, in the event it cannot
be cured in thirty (30) days, then to diligently and continuously undertake and complete the cure within a
reasonable time of notice of this violation. In the event any such violation is not cured or otherwise resolved within
said thirty (30) day period or such longer period as may be reasonably necessary, the Mortgagee may declare the
Note hereby secured forthwith due and payable, whereupon the principal of and the interest accrued on the Note
and all other sums hereby secured shall become forthwith due and payable.
20. In case of any material damage to or destruction of all or any part of the Mortgaged Property,
Mortgagor shall give prompt notice thereof to Mortgagee. In case of a taking or proposed taking of all or any part
of the Mortgaged Property or any right therein by eminent domain, the party upon which notice of such taking is
served shall give prompt notice to the other. Each such notice shalt generally describe the nature and extent of
such damage, destruction, taking, loss, proceedings or negotiations.
21, (a) This Mortgage further secures all costs, fees, charges and expenses of every kind,
including the cost of an abstract of title to the Real Property, in connection with any suit for the foreclosure of this
Mortgage, and reasonable attorneys' fees incurred or expended at any time by the Mortgagee because of the
failure of Mortgagor to perform, comply with and abide by the covenants, conditions and stipulations of the Note,
this Mortgage or the Loan Documents.
(b) If Mortgagor fails to comply with any provision of this Mortgage, and Mortgagee expends
any money in obtaining the performance or satisfaction of such requirement, then all such sums shall bear interest
at the rate of eighteen percent (18%) per annum.
22. This Mortgage shall be governed and construed under the laws of the State of Florida.
23. Mortgagor agrees:
(a) To comply with all the terms, covenants, agreements and conditions of any mortgage
encumbering the property herein described, whether superior or junior to the lien of this Mortgage.
(b) That any default, breach or violation of any term, covenant, agreement or condition of any
such mortgage, whether superior or junior to the lien of this Mortgage, shall, subject to applicable notice and grace
periods, if any, be a default hereunder and shall vest in Mortgagee all and every one of the remedies herein
provided for in case of default.
(c) That if any proceedings should be instituted against the property covered by this
Mortgage upon any other lien or claim whether superior or junior to the lien of this Mortgage,"and.:such proceedings
are not discharged within thirty (30) days, of Mortgagor getting notice of them, the Mortgageeirtay at its option
immediately upon institution of such suit or during the pendency thereof *Clare this' MV1ortgage and the
indebtedness secured hereby due and payable forthwith and may at its option pr ed)o.foreclose this Mortgage.
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(d) That Mortgagee shall have the right, at its option, to cure any default under any such
mortgage, whether superior or junior to the lien of this Mortgage.
(e) That any sums advanced by Mortgagee in curing said defaults shall be included as part of
the debt of the Mortgagor and shall be secured by this Mortgage and shall become immediately due and payable
upon advancement.
(f) The Mortgagor covenants and agrees not to enter into any agreement with the holder of
any such mortgage, whether junior or senior to the lien of this Mortgage, modifying or amending any of the
provisions dealing with payment of principal or interest under any such mortgage without the prior written consent
of the Mortgagee.
(g) The Mortgagor covenants and agrees that no further advances shall be made under the
provisions for future advances, if any, under any such mortgage, or, in the alternative, Mortgagors covenant and
agree that any advances made to them under any such mortgage shall be applied to reduce the balance under this
Mortgage.
24. Mortgagor hereby agrees that, in consideration of the recitals and mutual covenants contained
herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, in the event Mortgagor shall (i) file with any bankruptcy court of competent jurisdiction or be the
subject of any petition under Title 11 of the U.S. Code, as amended, (ii) be the subject of any order for relief issued
under such Title 11 of the U.S. Code, as amended, (iii) file or be the subject of any petition seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any present
or future federal or state act or law relating to bankruptcy, insolvency, or other relief for debtors, (iv) have sought or
consented to or acquiesced in the appointment of any trustee, receiver, conservator, or liquidator, (v) be the
subject of any order, judgment, or decree entered by any court of competent jurisdiction approving a petition filed
against such party for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or
similar relief under any present or future federal or state act or law relating to bankruptcy, insolvency, or relief for
debtors, Mortgagee shall thereupon be entitled to relief from any automatic stay imposed by Section 362 of Title 11
of the U.S. Code, as amended, and is entitled to the exercise of the rights and remedies otherwise available to
Mortgagee as provided in the Loan Documents, and as otherwise provided by law. Mortgagor shall have 45 days
to discharge any of the above proceedings which are initiated by third parties, prior to Mortgagee exercising its
rights and remedies upon default by the Mortgagor, to allow Mortgagor an opportunity to terminate such
proceedings and to meet all of the obligations that Mortgagor has to the Mortgagee.
25. Mortgagor has executed and delivered this Mortgage with the understanding that Mortgagee
agrees that upon completion of the environmental remediation work which is required for the Real Property and
certain adjacent property (referred to as the Condominium or Residential Phase II property) in accordance with the
requirements of the Remediation Action Plan as approved by the Department of Environmental Resource
Management, the portion of the Real Property which is referred to as the Condominium or Residential Phase II wilt
be partially released from this Mortgage. The partial release shall be subject to submission and approval of the
Mortgagee of the survey of the legal description of such Condominium or Residential Phase II portion of the Real
Property. This provision shall be binding upon any successors or assigns of the Mortgagee whose joinder and
execution of a partial release of this Mortgage shall not be required since any such assignment or transfer shall be
deemed to be taken subject to this provision relating to partial release by the Mortgagee. The acceptance of a
transfer or assignment of this Mortgage and the recording thereof shall be deemed to be an agreement on the part
of the assignee or transferee that the Mortgagee is an agent for said assignee or transferee for purposes of the
execution and delivery of a partial release of this Mortgage pursuant to the terms of this paragraph being binding
upon the Mortgagee and any such assignee or transferee.
26. The execution and delivery of this Mortgage by the Mortgagor, and its acceptance and recording
by the Mortgagee is conditioned upon the agreement of the Mortgagee that this Mortgage and the rights and
interests of the Mortgagee will be subordinated to construction loan financing which is obtained by the Mortgagor
for the development of the Commercial Component portion of the Real Property,;'pursi,iant to the terms of a
construction loan which must comply with the terms and provisions of the -L_oao Agreement .which has been
((; entered into between Mortgagor and Mortgagee upon even date herewith. tithe parties agree to execute such
documentation as may be reasonably necessary to confirm such subordinatiof`ar'rangements.
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27. MORTGAGOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS MORTGAGE, THE NOTE AND ANY OTHER
LOAN DOCUMENTS, AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
HEREWITH OR THEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE MORTGAGEE EXTENDING CREDIT TO MORTGAGOR.
28. ALL DOCUMENTARY STAMP TAXES AND INTANGIBLE TAXES DUE AND PAYABLE IN
CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS MORTGAGE HAVE BEEN PAID
SIMULTANEOUSLY WITH THE RECORDING OF THE MORTGAGE BASED ON THE PRINCIPAL BALANCE
OF THE OBLIGATIONS AS ESTABLISHED BY THE NOTE (i.e. $4,000,000.00). in any event, however,
Mortgagee and Borrower acknowledge and agree, upon Mortgagee's request, to pay all taxes,
including without limitation, additional documentary stamps and intangible taxes, which are deemed
to be due and payable in connection with this Mortgage, if any.
Signed, Sealeand delivered
in the prese ; of:
Print Name:
rint Name: 2firl L-
WAGNER SQUARE, LLC, a Florida
limited liability company
i
Print Name!
Title:
ti r,. /06; /G_ fs f
u JL1
STATE OF FLORIDA
: SS
COUNTY OF MIAMI-DADE )
BE
FORE
ME, the undersigned authority, appeared 10aip-> 5/11.44-
of Wagner Square, LLC, a Florida limited liability company, who s persona!!y kno to
me or who has produced as identification, edged
that he/she/they executed the foregoing instrument for the purposes expressed therein Viand with full corporate
authority.
WITNESS my hand and seal in the State and County aforesaid thisday of , 2005.
2002-6/I BB/hardy/27275
7
NOTARY PUBLI ,State ofp'•rida
Print Name:
mission Expires:
i Tr,r I. BAJRY BLAXBERG
4
t*yes ,7 MY COMM:SS1ON # DD :;{'4i6?R
4 r F�Oo- EYP!FFs: June 18, 20
03
4-431.1,7-NOTARY FL Notary DisCOUn1 ASSOC. CO. 1
R E' K .3 1 9':R- PG !. .:-r 1
1_.. 6 S-.1_ PAGE
Exhi bit "A"
A portion of land located in the N.W. t/4 of Section 35, Township 53 South, Range 41
East, City of Miami, Miarni-Dade County, Florida, more particularly described as
follows:
Commence at the Southwest comer of Tract "A" located in the East Right of Way of
N.W. 15t Avenue, WAGNER SQUARE, according to the plat thereof, as recorded in
Plat Book 162, Page 66, of the Public Records of Miami -Dade County, Florida; thence S
89°59'04" E along the South line of said Tract "A" a distance of 250.13 feet to a point;
thence S 00°10'33" E a distance of 12.00 feet to a point; thence S 89°35'50" E a distance
of 18.32 feet to a point; thence N 00°02' 14" E a distance of 175.35 feet to a point on the
North line of said Trac- "A"; thence S 89°57'46" E along and on the North line of said
Tract "A" a distance of 72.65 feet to the Point of Beginning; thence continue along and
on said North line a distance of 184.20 feet to the North -Northeast corner of said Tract
"A"; thence S 40°37'38" E along the Northeasterly line of said Tract "A", said line also
being the Southwesterly Right of Way line of Wagner Creek, a distance of 120.99 feet to
a point on the East -Northeast comer of said Tract "A"; thence S 00°03'20" E along and
on the East line of said Tract "A" and the West Right of Way line of N.W. 14`h Avenue a
distance of 194.60 feet to a Point of Curvatureof a curve to the right having a radius of 25
feet and a central angle of 90°04' 18"; thence South -Southwesterly along the arc of said
curve a distance of 39.30 feet to_a Point of Tangency ; thence N 89°59'02" W along and
on the South line of said Tract "A" said South line also being the North -Right -of Way line
of N.W. 17th Street a distance of 257.31 feet to a point; thence N 00° 15' 18" W a distance
of 148.50 feet to a point; thence S 89°59'02" E a distance of 20.00 feet; thence N
00°02'14" E a distance of 163.00 feet to the Point of Beginning, said lands containing
81,140 sq. ft. more or less.
FLORIDA, COUNTY Or nADE
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Seal.
Curt and Courl ry• C: •u•-'S
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STATE OF FLORIDA UNIFORM COMMERCIAL CODE
FINANCING STATEMENT FORM
A NAME & DAYTIME PHONE NUMBER OF CONTACT PERSON
1. Barry Blaxberg, Esq. (305) 381-7979 Ext. 309
B SEND ACKNOWLEDGEMENT TO
Name 1 Barry Blaxberg, Esq.
Address Blaxberg, Grayson, Kukoff& Segal
Address 25 SE 2id Avenue, Suite 730
City/State/Zip Miami, Florida 33131
111111111111111111111! 1111111111111111111111
(_ F- 11 2 1 1 R. 0 12 7 9 4 9 9
NR E3k--231-9f F'9s 4533 - 1535; i; py
RECORDED 0-3/ 22 / 2115 1. - •:`=;1
HARt1EY F:tJ Ih4F CLERK OF COURT
MIAs I--DAI E_ COUNTY? FLORIDA
t ► Me_ _U QiAd, C Oh1YYIQn
THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY
1. DEBTOR'S EXACT FULL LEGAL NAME - INSERT ONLY ONE DEBTOR NAME (1a OR 1 b) - Do Not Abbreviate or Combine Names
la ORGANIZATION'S NAME
WAGNER SQUARE, LLC
1 b. INDIVIDUAL'S LAST NAME
FIRST NAME
MIDDLE NAME
SUFFIX
lc. MAILING ADDRESS
117,5 NE 125ih Street, Suite 103
CITY
NORTH MIAM1
STATE
FLORIDA
POSTAL
33161
COUNTRY
Id. TAX ID#
REQUIRED ADD'L INFO
RE: ORGANIZATION
DEBTOR
1 e. TYPE OF ORGANIZATION
CORPORATION
I f JURISDICTION OF ORGANIZATION
Florida
lg. ORGANIZATIONAL ID#
NONE
2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME - INSERT ONLY ONE DEBTOR NAME (2a OR 2b) - Do Not Abbreviate or Combine Names
2a. ORGANIZATION'S NAME
2b. INDIVIDUAL'S LAST NAME
FIRST NAME
MIDDLE NAME
SUFFIX
2c. MAILING ADDRESS
CITY
STATE
POSTAL CODE
COUNTRY
2d. TAX 1Dfi
REQUIRED ADD'L INFO
RE: ORGANIZATION
DEBTOR
2e. TYPE OF ORGANIZATION
2f JURISDICTION OF ORGANIZATION
2g. ORGANIZATIONAL ID#
❑ NONE
3. SECURED PARTY'S NAME (or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P)- INSERT ONLY ONE SECURED PARTY NAME (3a OR 3b)
3a. ORGANIZATION'S NAME
THE CITY OF MIAMI, a municipal corporation
FIRST NAME
MIDDLE NAME
SUFFIX
3c. MAILING ADDRESS
CITY
STATE
POSTAL CODE
COUNTRY
4. This FINANCING STATEMENT covers the following collateral:
All of the items in Exhibit "A" attached hereto located on the real property described in Exhibit
"B" attached hereto.
5. ALTERNATE DESIGNATION (if applicable)
LESSEE/LESSOR
CONSIGNEE/CONSIGNOR
BAILEE/BAILOR
AG LIEN
NON-UCC FILING
SELLER/BUYER
6. Florida DOCUMENTARY STAMP TAX - YOU ARE REQUIRED TO CHECK EXACTLY ONE BOX
All documentary stamps due and payable or to become due and payable pursuant to s. 201.22 F.S., have been paid.
Florida Documentary Stamp Tax is not required.
ICNISMNO
7. OPTIONAL FILER REFERENCE DATA
STANDARD FORM - FORM UCC-1 (REV.12/2001)
IBB/hardy/28394
Filing I ci Copyisan
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Approved by the Secretary of State, State of Florida
EXHIBIT"A"
(a) all easement and other rights now or hereafter made appurtenant to the real property;
(b) all goods, inventory, intangible personal property, licenses (including without limitation, liquor licenses), apparatus
machinery, equipment, furnishings, fixtures, fittings, appliances, air conditioning and heating equipment, furniture, freezing equipment, and
other property of every kind and nature whatsoever owned by Mortgagor/Debtor, or in which the Mortgagor/Debtor has or shall have an
interest, now or hereafter located upon the Real Property, or appurtenant thereto, and usable in connection with the Real Property, and the
right, title and interest of Mortgagor/Debtor in and to any of the equipment, which may be subject to any security agreements (as defined in
the Uniform Commercial Code);
(c) all awards or payments, including interest thereon, which may be made with respect to the Real Property, whether from the
exercise of the right of the eminent domain (including any transfer made in lieu of the exercise of said right), or from any other injury to or
decrease in the value of the Real Property;
(d) all leases, subleases, licenses and other agreements affecting the use or occupancy of the Real Property now or hereafter
entered and the right to receive and apply rents, issues and profits of the Real Property, and any rents, deposits, and security deposits paid in
connection therewith;
(e) all rights of Mortgagor/Debtor in and to all present and future fire, flood, liability and/or hazard insurance policies
pertaining to all or any portion of the Real Property and/or any items covered by this instrument including without limitation any unearned
premiums and all insurance proceeds or sums payable in lieu of or as compensation for the loss of or damage to all or any portion of the Real
Property and/or any items covered by this instrument;
(f) the right (but not the obligation), in the name and on behalf of Mortgagor/Debtor, to appear in and defend any action or
proceeding brought with respect to the Real Property or with respect to any interest covered by this instrument and to commence any action
or proceeding to protect the interest of the Mortgagee/Secured Party in the Real Property;
(g) all tenements, hereditaments, easements, riparian or other rights and appurtenances thereunto belonging or in any way
appertaining including all right title and interest of Mortgagor/Debtor, in and to the underlying title of any roads or other dedicated area
abutting the (teal Property, and the reversions, remainders, rents, issues and profits thereof, and all after -acquired title of Mortgagor/Debtor in
the Real Property;
(h) all abstracts of title, contract rights, management, franchise and service a reements, accounts, occupancy permits and
licenses, building and other permits, governmental approvals, license agreements with utilities companies, water and sewer capacity
C
reservation agreements, bonds, governmental applications and proceedings, rebates or refunds of any impact fees, assessments or taxes,
feasibility studies, maintenance and service contracts marketing agreements, development agreements, surveys, engineering work,
architectural plans and engineering plans, site plans, landscaping plans, engineering contracts, architectural contracts, and all other contracts
respecting the Real Property or any interests associated therewith and all other consents, approvals and agreements which Mortgagor/Debtor
may now or hereafter own in connection with Real Property and/or any improvements constructed thereon, and all deposits, down payments
and profits paid or deposited thereunder, now existing or hereafter obtained by or on behalf of Mortgagor/Debtor;
(i) all sanitary and storm sewer, water and utility service agreements as to which Mortgagor/Debtor is a party or beneficiary;
all building materials, appliances and fixtures now owned or hereafter to be acquired by, or on behalf of Mortgagor/Debtor
and intended for use in construction of or incorporated, annexed to, or located in, buildings and improvements to be constructed on the Real
)
Property or any part thereof. Said materials and personal property shall include but not be limited to lumber, plaster, cement, shingles,
roofing, plumbing fixtures, pipe, lath, wall board, cabinets, nails, sinks, toilets, furnaces, heaters, brick, tile water heaters, screens, window
frames, glass doors, flooring, paint, lighting fixtures and unattached refrigerating, cooking, heating and ventilating appliances and equipment,
kitchen goods, hotel goods, restaurant goods, bar goods, tools, lawn equipment, floor coverings;
(k) any monies and any escrow accounts established or accrued pursuant to any mortgage encumbering the Real Property
made by Mortgagor/Debtor;
(I) any property or other things of value acquired with or paid for by any future advances pursuant to the said Mortgage;
(m) all contracts of sale and purchase agreements respecting the Real Property, all contracts for deeds and any notes and mortgages
executed and delivered to the Mortgagor/Debtor in connection with any contracts for deed otherwise, and any other contracts entered into by
Mortgagor/Debtor respecting or relating in any manner to the Real Property;
(n) all income and profits due or to become due under any contracts of sale or purchase 'agreements respecting the Real
Property, now existing or hereafter obtained by or on behalf of Mortgagor/Debtor;
(o) all refunds of property taxes relating to the Real Property or any other property covered by this financing statement;
(p) all accounts receivable arising from any business conducted at the Real Property;
(q) all of the water, sanitary and storm sewer system now or hereafter owned by the Mortgagor/Debtor which are now or
hereafter located by over, or upon the Real Property or any part or parcel thereof, and which system includes all water mains, service laterals,
hydrants, valves and appurtenances and sanitary sewer lines, including mains, laterals, manholes and appurtenances;
(r) all of the right, title and interest of the Mortgagor/Debtor in and to any trademarks, trade names, names of businesses, or
fictitious names of any kind used in conjunction with the operation of any business or activity located on the Real Property;
(s) all of the Mortgagor7Debtor's interest in all utility security deposits, bonds, prepayments, assessments or fees associated
with the Real Property or any party or parcel thereof;
(t) any and all balances, credits, deposits, accounts or monies of the Mortgagor/Debtor and all guarantors and all other such
properties and securities then or thereafter established with or in the possession of the Mortgagee/Secured Party; and
(u) all warranties, guaranties, instruments, documents, chattel` papers and general intangibles relating to or arising from the
collateral described in this instrument, now owned or hereafter acquired by Mortgagor/debtor.
Together with all substitutions for alterations repairs artd replacoments'of any of the foregoing and any and all proceeds (whether
cash proceeds or non -cash proceeds), products, renewals, accessions and additions to any of the foregoing.
IBB/hardy/13100
OR P K 2.::...191 Pt"
1..._i' S T_ PAGE:'_
EhbI h
A portion of land located in the N.W. 1/4 of Section 35, Township 53 South, Range 41
East, City of Miami, Miami -Dade County, Florida, more particularly described as
follows:
Commence at the Southwest corner of Tract "A" located in the East Right of Way of
N.W. 15th Avenue, WAGNER SQUARE, according to the plat thereof, as recorded in
Plat Book 162, Page 66, of the Public Records of Miami -Dade County, Florida; thence S
89°59'04" E along the South line of said Tract "A" a distance of 250.13 feet to a point:
thence S 00° 10'33" E a distance of 12.00 feet to a point; thence S 89°3 5' 50" E a distance
of-18.32 feet to a point; thence N 00°02'14" E a distance of 175.35 feet to a point on the
North line of said Tract "A"; thence S 89°57'46" E along and on the North line of said
Tract "A" a distance of 72.65 feet to the Point of Beginning; thence continue along and
on said North line a distance of 184.20 feet to the North -Northeast comer of said Tract
"A"; thence S 40°37'38" E along the Northeasterly line of said Tract "A", said line also
being the Southwesterly Right of Way line of Wagner Creek, a distance of 120.99 feet to
a point on the East -Northeast comer of said Tract "A"; thence S 00°03'20" E along and
on the East line of said Tract "A" and the West Right of Way line of N.W. 14th Avenue a
distance of 194.60 feet to a Point of Cur✓atureof a curve to the right having a radius of 25
feet and a central angle of 90°04' 18"; thence South -Southwesterly along. the arc of said
curve a distance of 39.30 feet to a Point of Tangency ; thence N 89°59'02" W along and
on the South line of said Tract "A" said South line also being the North Right of Way line
of N.W. 17th Street a distance of 257.31 feet to a point; thence N 00° 15' 18" W a distance
of 148.50 feet to a point; thence S 89°59' 02" E a distance of 20.00 feet; thence N
00°02' 14" E a distance of 163.00 feet to the Point of Beginning, said lands containing
81,140 sa. ft. more or less.
By:
.Fn IC'-T02
ALTA F'riW'6
Ke.(Sed 6,'(8,
VARIABLE RATE MORTGAGE ENDORSEMENT
ISSUED BY
First American Title Insurance Company
Attached to Policy No.: FA- 36-9842 3 6
Issuing Office File No. 2002-6
The company insures the owner of the indebtedness secured by the insured mortgage against loss or damage
sustained by reason of:
1) The invalidity or unenforceability of the lien of the insured mortgage resulting from the provisions therein
which provide for changes in the rate of interest.
2) Loss of priority of the lien of the insured mortgage as security for the unpaid principal balance of the loan,
together with interest as changed in accordance with the provisions of the insured mortgage, which loss of
priority is caused by the changes in the rate of interest.
"Changes in the rate of interest", as used in this endorsement, shall mean only those changes in the rate of interest
calculated pursuant to the formula provided in the insured mortgage at Date of Policy.
This endorsement does not insure against loss or damage based upon (a) usury, or (b) any consumer credit
protection or truth in lending law.
This endorsement is made a part of the policy and is subject to all of the terms and provisions thereof and of any
prior endorsements thereto, except that the insurance afforded by this endorsement is not subject to section 3
(d) of the Exclusions From Coverage. Except to the extent expressly stated, it neither modifies any of the terms and
provisions of the policy and any prior endorsements, nor does it extend the effective date of the policy and any
prior endorsements, nor does it increase the face amount thereof.
This Endorsement shall not be valid or binding unless signed by either a duly authorized officer or agent of the Company.
Issue Date: 05/02/05
BLAXBERG, GRAYS I'N,
KUKOFF & SEGP.A.
abLAIIIIII
name of Agent)
Wired Signato V
First American 77t/e insurance Company
sr
President
A# ,27
Seaabry
(08/01 DaplaySoft 68-WIN•I•FL•ALTA6)
FATIC-"I 9
4.
ENVIRONMENTAL PROTECTION LIEN ENDORSEMENT
ISSUED BY
First American Title Insurance Company
Issuing Office File No. 2002-6
Attached to Policy No.: FA -
The insurance afforded by this endorsement is only effective if the land is used or is to be used primarily for
residential purposes.
The Company insures the Insured against loss or damage sustained by reason of lack of priority of the lien of the insured
mortgage over:
(a) any environmental protection lien which, at Date of Policy, is recorded in those records established under
state statutes at Date of Policy for the purpose of imparting constructive notice of matters relating to real
property to purchasers for value and without knowledge, or filed in the records of the Clerk of the United
States District Court for the District in which the land is located, except as set forth in Schedule B; or
(b) any environmental protection lien provided for by any state statute in effect at Date of Policy, except
environmental protection liens provided for by the following state statutes:
This endorsement is made a part of the policy and is subject to all of the terms and provisions thereof and of any
prior endorsements thereto. Except to the extent expressly stated, it neither modifies any of the terms and
provisions of the policy and any prior endorsements, nor does it extend the effective date of the policy and any
prior endorsements, nor does it increase the face amount thereof.
This endorsement shall not be valid or binding unless signed by either a duly authorized officer or agent of the Company.
Issue Date:
BLAXBERG, RAYSON,
KUKOFF & StGAL, P.A.
By:
Insert above line name of Agent)
Authorized Sig
first American Title Insurance Company
Attest'
(7
Secretary
7 Prdithret
,Cron 6e.WfN-I.FL-EYL)
4
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4
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4
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FATIC 443
ISSUED BY
Policy No. FA-36- 9 8 4 2 3 6
, .d
First hin e , Rat . t s_Ce r anj
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE
CONDITIONS AND STIPULATIONS, FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, herein called the Company,
insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule A,
sustained or incurred by the insured by reason of:
1. Title to the estate or interest described in Schedule A being vested other than as stated therein;
2. Any detect in or lien or encumbrance on the title;
3 Unmarkelability of the title;
4 Lack of a right of access to and from the land;
5. The invalidity or unenforceability of the lien of the insured mortgage upon the title;
6. The priority of any lien or encumbrance over the lien of the insured mortgage;
7. Lack of priority of the lien of the insured mortgage over any statutory lien for services, labor or material:
(a) arising from an improvement or work related 10 the land which is contracted for or commenced prior to Date of Policy; or
(b) arising from an improvement or work related 10 the land which is contracted for or commenced subsequent to Date of
Policy and which is financed in whole or in part by proceeds of the indebtedness secured by the insured mortgage which
at Dale of Policy the insured has advanced or is obligated to advance;
8 The invalidity or unenforceability of any assignment of the insured mortgage, provided the assignment is shown in Schedule A,
or the failure of the assignment shown in Schedule A to vest title to the insured mortgage in the named insured assignee free and
clear of all liens.
The Company will also pay the costs, attorneys' fees and expenses incurred in defense of the title or the lien of the insured mortgage, as
insured, but only to the extent provided in the Conditions and Stipulations.
First American' de ThsuraFlea Corrppan r
V?
PPE:_:;DENT
6 E _ SE(.R11, IR1'.
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First American Title Insurance Company
Agent's File No. 2002-6 Policy No. FA-36-984236
SCHEDULE A
Date Issued: May 2, 2005
Date Effective: May 2, 2005, at 7:00 A.M. Amount of Insurance: $4,000,000.00
1. Name of Insured:
The City of Miami, a municipal corporation, its successors and/or assigns as defined in
paragraph 1(a) of the conditions and stipulations of this policy
2. The estate or interest in the land which is encumbered by the insured mortgage is:
Fee Simple
3. Title to the estate or interest in the land is vested in:
Wagner Square, LLC, a Florida limited liability company
4. The insured mortgage(s) are described as follows:
Mortgage and Security Agreement (Residential Phase I) from Wagner Square, LLC to The City
of Miami in the original principal amount of $4,000,000.00 recorded on March 22, 2005 in
Official Records Book 23191, Page 1506; and
Mortgage and Security Agreement (Commercial Component and Residential Phase II) from
Wagner Square, LLC to The City of Miami in the original principal amount of $4,000,000.00
recorded on March 22, 2005 in Official Records Book 23191, Page 1514.
Both Mortgages secure payment of a Note in the original principal amount of $4,000,000.00.
5. The land referred to in this Policy is in the State of Florida, County of Miami -Dade, and
described as follows:
All of WAGNER SQUARE, according to the Plat thereof, as recorded in Plat Book 162, Page
66, of the Public Records of Miami -Dade County, lorida.
BLAXBERG, GR.4 YSON, KUKOFF & SEGAL, P.A.
By:
AutHized Signat
First American Title Insurance Company
Agent's File No 2002-6 Policy No. FA-36-984236
SCHEDULE B PART I
This policy does not insure against loss or damage (and the Company will not pay costs, attorney's fees or
expenses) which arise by reason of:
1. Miami -Dade County property taxes for the Year 2005 and subsequent years in the event of any loss of the
exemption for property taxes which currently exists for the property.
2. Restrictions, dedications, conditions, reservations, easements and other matters shown on the plat
of WAGNER SQUARE, as recorded in Plat Book 162, Page(s) 66.
3. Covenant to Run with the Land recorded in Book 1 1 178, Page 943.
4. Covenant to Run with the Land recorded in Book 12851, Page 495.
5. Declaration of Restrictions and Reverter recorded on March 22, 2005 in Official Records Book 23191, Page
1536.
6. Declaration of Restrictions recorded on March 22, 2005 in Official Records Book 23191, Page 1541.
Note:
Assignment of Leases, Profits and Rents (Residential Phase I) from Wagner Square, LLC to The City of Miami
recorded on March 22, 2005 in Official Records Book 23191, Page 1526.
Assignment of Leases, Profits and Rents (Commercial Component and Residential Phase II) from Wagner
Square, LLC to The City of Miami recorded on March 22, 2005 in Official Records Book 23191, Page 1522.
UCC-1 Financing Statement (Residential Phase I) from Wagner Square, LLC to The City of Miami recorded on
March 22, 2005 in Official Records Book 23191, Page 1530.
UCC-1 Financing Statement (Commercial Component and Residential Phase Il) from Wagner Square, LLC to
The City of Miami recorded on March 22, 2005 in Official Records Book 23191, Page 1533.
ALL IN THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA.
Service Quality and Availability
First American Title Insurance Company cares about its customers and their ability to obtain information
and service on a convenient, timely and accurate basis. A qualified staff of service representatives is dedicated to
serving you.
A toll -free number is available for your convenience in obtaining information about coverage and to provide
assistance in resolving complaints: 1-800-929-7186. Office hours will be from 8:30 a.m. through 5:30 p.m., Monday
through Friday.
IBB/hardy/275 13
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FLORIDA FORM 9 ENDORSEMENT
ISSUED BY
First American Title Insurance Company
Issuing Office File No.: 2002-6
Attached to Policy No.: FA- 36-984236
The Company insures the owner of the indebtedness secured by the insured mortgage against Toss or damage sustained by reason of:
1. Any incorrectness in the assurance that, at Date of Policy:
(a) There are no covenants, conditions or restrictions under which the lien of the mortgage referred to in Schedule
A can be divested, subordinated or extinguished, or its validity, priority or enforceability impaired.
(b) Unless expressly excepted in Schedule B:
(1) There are no present violations on the land of any enforceable covenants, conditions or restrictions nor do
any existing improvements on the land violate building setback lines shown on a plat or subdivision recorded
or filed in the public records.
(2) Any instrument referred to in Schedule B as containing covenants, conditions or restrictions on the land does
not. in addition (i) establish an easement on the land _(ii) provide a hen for liquidated damages; (iii) provide
for a private charge or assessment; (iv) provide for an option to purchase, a right of first refusal or the prior
approval of a future purchaser or occupant.
(3) There is no encroachment of existing improvements located on the land onto adjoining land, nor any
encroachment onto the land of existing improvements located on adjoining land.
(4) There is no encroachment of existing improvements located on the land onto that portion of the land subject
to any easement excepted in Schedule B.
(5) There are no notices of violation of covenants, conditions or restrictions relating to environmental
protection recorded or filed in the public records.
2. Any future violation on the land of an existing covenant, condition or restriction occurring prior to the acquisition
of title to the estate or interest in the land, provided the violation results in:
(a) Invalidity, loss of priority, or unenforceability of the lien of the insured mortgage; or,
(b) Loss of title to the estate or interest in the land if the Insured shall acquire title in satisfaction of the indebtedness
secured by the insured mortgage.
3. Damage to existing improvements (excluding lawns, shrubbery or trees):
(a) Which are located on or encroach upon that portion of the land subject to any easement excepted in Schedule
B, which damage results from the exercise of the right to maintain the easement for the purpose for which it was
granted or reserved.
(b) Which results from the future exercise of any right to use the surface of the land for the extraction or development
of minerals excepted from the description of the land or excepted in Schedule B.
4. Any final court order or judgment requiring the removal from any land adjoining the land of any encroachment
excepted in Schedule B.
5. Any final court order or judgment denying the right to maintain any existing improvement on the land because of
any violation of covenants, conditions or restrictions or building setback lines shown on a plat or subdivision recorded
or filed in the public records.
Wherever in this endorsement the words "covenants, conditions or restrictions" appear, they shall not be deemed to refer
to or include the terms, covenants, conditions or limitations contained in an instrument creating a lease.
As used in paragraphs 1(b)(1) and 5, the phrase "covenants, conditions or restrictions" shall not be deemed to refer to
or include any covenants, conditions or restrictions relating to environmental protection.
This endorsement is made a part of the policy and is subject to all the terms and provisions thereof and any prior
endorsements thereto. Except to the extent expressly stated, it neither modifies any of the terms and provisions of the policy
and any prior endorsements, nor does it extend the effective date of the policy and any prior endorsements, nor does it increase
the face amount thereof.
This endorsement shall not be valid or binding unless signed by either a duly authorized officer or agent of the Company.
Issue Date:
BLAXBERG, GRAYSON,
KUKOFF & SEGAL, P.A.
Bv:
Autho• zed Signatory
first American 77tte Insurance Company
er
47_PriemAlter O�yA GZ- -
Seo et3ry
1111111111111111111111 11111111111111111111111
Return To: I. Barry Blaxberg, Esq.
Blaxberg, Grayson, Kukoff & Segal, P.A.
25 S.E. 2`d Avenue, Suite 730
Miami, Florida 33131
ASSIGNMENT OF LEASES, PROFITS AND RENTS
(Commercial Component and Residential Phase II)
C:F11 200 R027949cS
DR Bk 23191 F9s 1522 -- 1525; (4109`>
RECORDED 03/22,'2005 14:31:51
H RVEY RUVIl4, CLERK. OF COURT
MIAMI-C'AC'E COUNTY? FLORIDA
KNOW ALL MEN by these presents, that whereas WAGNER SQUARE, LLC, a Florida limited liability company
(herein called the "Mortgagor" or the "undersigned"), has caused the execution of a Mortgage (the "Mortgage") in favor of THE
CITY OF MIAMI, a municipal corporation ("Lender"), encumbering the real estate legally described as follows:
See Exhibit "A" attached hereto.
(the "Real Property"); and
which Mortgage was given to secure a note (the "Note") of the undersigned in the principal sum of Four Million and 00/100
Dollars ($4,000,000.00) (the "Loan") and Lender is the legal owner and holder of the Note and the Mortgage; and
WHEREAS, the Lender requires that the Note be further secured by an Assignment of Leases, Profits and Rents
("Assignment") as a condition to Lender's obligation to disburse the loan proceeds.
NOW, THEREFORE, the undersigned, for and in consideration of these presents and the mutual agreements herein
contained and as further and additional security to Lender, and in consideration of the sum of TEN DOLLARS ($10.00) to the
undersigned in hand paid, the receipt whereof is hereby acknowledged, and pursuant to the requirements of the Lender in
connection with the Loan to the Borrower, does hereby sell, assign and transfer unto Lender all the rents, issues and profits
now due and which may hereafter become due under or by virtue of any lease, whether written or verbal, or any letting of, or
of any agreement for the use or occupancy of the premises above described or any part thereof, which may have been
heretofore or may be hereafter made or agreed to or which may be made or agreed to by Lender under the powers herein
granted, it being the intention hereby to establish an absolute transfer and assignment of all said leases and agreements, and
all the avails thereof, to Lender, and the undersigned does hereby irrevocably appoint Lender as its true and lawful attorney in
its name and stead (with or without taking possession of the aforesaid premises), to rent, lease or let all or any portion of said
premises to any party or parties at such rental and upon such terms as Lender may determine, in its reasonable discretion,
and to collect all of said rents, issues and profits arising from or accruing at any time hereafter, and all now due, or that may
hereafter become due under each and all of the teases and agreements, written or verbal, or other tenancy existing or which
may hereafter exist on said premises, with the same rights and powers and subject to the same immunities, exoneration of
liability and rights of recourse and indemnity as Lender would have upon taking possession of the said premises pursuant to
the provisions hereinafter set forth.
The undersigned represents and agrees that no rent has been or will be paid by any person or entity in possession of
any portion of the above described premises for more than two months in advance (excluding security deposits) and that the
payment of the rents to accrue for any portion of said premises has not been or will not be waived, released, reduced, or
discounted, or otherwise discharged or compromised by the undersigned. The undersigned waives any right of setoff against
any person in possession of any portion of the above -described premises. The undersigned agrees that it will not further
assign any of the rents or profits of the premises.
Nothing herein contained shall be construed so as to make Lender a "mortgagee in possession" in the absence of the
taking of actual possession of the said premises by Lender pursuant to the provisions hereinafter contained. In the exercise of
the powers herein granted to Lender, no liability shall be asserted or enforced against Lender, all such liability being expressly
waived and released by the undersigned.
The undersigned further agrees to assign and transfer to Lender all future leases upon all or any part of the above
described premises and to execute and deliver, immediately upon the request of Lender, all such further assurances and
assignments in the premises as Lender shall from time to time require.
Although it is the intention of the parties that this assignment of rents shall b
understood and agreed, anything herein contained to the contrary notwithstanding, t
rights and powers conferred upon it herein until and unless a default shall occur in
under the Note secured by the above described Mortgage or in the performance or
agreements of any documents or instruments executed in connection with the Loan,
securing the Note, as the same may be modified or extended, and said default has not
ent, it is expressly
xercise any of the
t or principal due
the conditions or
ow or at any time
n applicable grace
or cure period, and nothing herein contained shall be deemed to effect or impair any rights which Lender may have under the
Note and Mortgage, or any other instrument securing the Note.
In any case in which under the provisions of the Mortgage Lender has a right to institute foreclosure proceedings,
whether before or after the entire principal sum secured thereby is declared to be immediately due, or whether before of after
institution of legal proceedings to foreclose the lien thereof or before or after sale thereunder!, forthwith, upon demand of
Lender, the undersigned agrees to surrender to Lender and Lender shall be entitled to take actual possession of the premises
or any part thereof personally, or by its agents or attorneys, and Lender in its discretion may, with or without force and with or
without process of law, enter upon and take and maintain possession of all or any part of said premises, together with all the
documents, books, records, papers and accounts of the undersigned or the then owner of the premises relating thereto, and
may exclude the undersigned, its agent or servants wholly therefrom and may as attorney in fact or agent of the undersigned,
or in its own name as mortgagee and under the powers herein granted, hold, operate, manage and control the premises and
conduct the business, if any, thereof either personally or by its agents, contractors or nominees, with full power to use such
measures, legal or equitable, as in its discretion or in the discretion of its successors or assigns may be deemed proper or
necessary to enforce the payment of the rents, issues and profits of the premises, including actions for the recovery of rent,
actions in forcible detainer and actions in distress of rent, hereby granting full power and authority to exercise each and every
of the rights, privileges and powers herein granted at any and all times hereafter, without notice to the undersigned, and with
full power to cancel or terminate any lease or sublease for any cause or on any ground which would entitle undersigned to
cancel the same, to elect to disaffirm any lease or sublease made subsequent to the Mortgage or subordinated to the lien
thereof, to make all necessary or proper repairs, decorations, renewals, replacements, alterations, additions, betterments and
improvements to the above described premises that may seem judicious, in its discretion, to insure and reinsure the same for
all risks incidental to Lender's possession, operation and management thereof and to receive all such rents, issues and profits.
Lender shall not be obligated to perform or discharge, nor does it hereby undertake to perform or discharge, any
obligation, duty or liability under any leases or rental agreements relating to said premises, and the undersigned shall and
does hereby agree to indemnify and hold Lender harmless of and from any and all liability, loss or damage which it may or
might incur under any leases or agreements or under or by reason of the assignment thereof, and of and from any and all
claims and demands whatsoever which may be asserted against it by reason of any alleged obligations or undertakings on its
part to perform or discharge any of the terms, covenants or agreements contained in said leases or agreements.
Lender in the exercise of the rights and powers conferred upon it by this assignment of rents shall have full power to
use and apply the rents, issues and profits of the premises to the payment of or on account of the following, in such order as it
may determine:
(a) To the payment of the operating expenses of said property, including cost of management and leasing
thereof (which shall include reasonable compensation to Lender and its agents or contractors, if management be delegated to
any agent or contractors, and it shall also include lease commissions and other compensation and expenses of seeking and
procuring tenants and entering into leases), established claims for damages, if any, and premiums on insurance hereinabove
authorized;
(b) To the payment of taxes and special assessments now due or which may hereafter become due on said
premises;
(c) To the payment of all repairs, decorating, renewals, replacements, alterations, additions, or betterments and
improvements of said premises, including, without limitation, if applicable, the cost from time to time of installing and/or
replacing refrigeration and gas or electric stoves therein, and of placing said property in such condition as will, in the judgment
of the mortgagee, make it readily rentable; and
(d) To the payment of any indebtedness secured by the Mortgage or any deficiency which may result from any
foreclosure sale.
The undersigned does further specifically authorize and instruct each and every present and future lessee or tenant of
the whole or any part of the above described premises to pay all unpaid rental agreed upon in any tenancy to Lender upon
receipt of demand from Lender to pay the same.
It is understood and agreed that the provisions set forth in this assignment shall be ('�d'as,atspecial remedy
given to Lender and shall not be deemed exclusive of any of the remedies granted in the Note„-lrtgage,-orother collateral
documents executed in connection with the Loan but shall be deemed an additional remedy O shall be cumula,tive with the
remedies therein granted. ,r,, ,,
Whenever the word "undersigned" is mentioned herein, it is hereby understood that the same includes and shall be
binding upon successors and assigns (including successors by consolidation) of the undersigned, and any party or parties
holding title to the above described premises by, through or under the undersigned. All of the rights, powers, privileges and
immunities herein granted and assigned to Lender shall also inure to its successors and assigns, including all holders, from
time to time, of the above described Note.
It is expressly understood that no judgment or decree which may be entered on any debt secured or intended to be
secured by the Mortgage shall operate to abrogate or lessen the effect of this instrument, but that the same shall continue in
full force and effect until the payment and discharge of any and all indebtedness secured by the Mortgage, in whatever form
said indebtedness may be and until the indebtedness secured by the Mortgage shall have been paid in full and all bills
incurred by virtue of the authority herein contained have been fully paid out of rents, issues and profits of the property, or by
the undersigned, or until such time as this instrument may be voluntarily released. This instrument shall also remain in full
force and effect during the pendency of any foreclosure proceedings, and throughout the completion and consummation
thereof, unless the indebtedness secured by the Mortgage is fully satisfied before the expiration of any period redemption.
The execution and delivery of this Assignment by Mortgagor to Lender is conditioned upon the understanding that the
portion of the Real Property which is known as the Condominium or Residential Phase II shall be released from this
Assignment at such time as the environmental remediation work pursuant to the Remediation Action Plan which has been
approved by the Department of Environmental Resource Management is completed as required by the Loan Agreement of
even date herewith. The partial release shall be issued after the Lender is provided with a survey which confirms the legal
description for the portion of the Real Property which is referred to as the Condominium or Residential Phase II. The
execution and delivery of the Assignment is further conditioned upon the agreement of the Lender that this Assignment shall
be subordinate to such construction loan financing as Mortgagor may obtain in relation to the construction of the Commercial
Component of the Real Property, in accordance with the terms and requirements of the Loan Agreement which has been
entered into between Mortgagor and lender on even date herewith. This provision shall also be binding upon all successors
and assigns of the Lender and a partial release issued by the Lender shall be binding upon any successors and/or assigns,
without the necessity of a partial release being executed by such successors and assigns. The acceptance and recording of
any such assignment or transfer of this Assignment, shall be deemed to establish that the Lender is the agent for such
assignee for purposes of authorizing the Lender to execute a partial release of this Assignment which will be binding on the
Lender and any assignee upon the conditions being met which are set forth in this paragraph.
IN WITNESS WHEREOF, the undersigned has executed this Assignment of Leases, Proifits and Rents effective as of
the 10th day of March, 2005.
Signed, sealed and delivered
in the presence of:
Print Name:
Print 'ame: i1B�L
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
: SS
)
WAGNER SQUARE, LLC, a Florida company
limited liability
Print Name:
Title:
BEFORE ME, the undersigned authority, appeared aa-- ^''" d) 5 , as A4Gln4
of Wagner Square, LLC, a Florida limited liability company, ho is personally n• tb me or who h produced
as identification, - - knowledged - •t he/she/they executed the
foregoing instrument for the purposes expressed therein and with full corp• ate authority.
WITNESS my hand and seal in the State and County aforesaid, this 10th day of March, 2005._
DU 308824
Juno 10, 2008
2002-6/I Ekil 127,276 FL arr.un; "a Cc
•
Y PUB
Print Name:
My Commission Expires:
ClR F' F;. 2ti 19 F'C_i _'_,
i.._AST PAGE
Exhi"A"
A portion of land located in the N.W. 1/4 of Section 35, Township 53 South, Range 41
East, City of Miami, Miami -Dade County, Florida, more particularly described as
follows: •S
Commence at the Southwest corner of Tract "A" located in the East Right of Way of
N.W. 15th Avenue, WAGNER SQUARE, according to the plat thereof, as recorded in
Plat Book 162, Page 66, of the Public Records of Miami -Dade County, Florida: thence S
89°59'04" E along the South line of said Tract "A" a distance of 250.13 feet to a point;
thence S 00°10'33" E a distance of 12.00 feet to a point; thence S 89°35'50" E a distance
of 18.32 feet to a point; thence N 00°02'14" E a distance of 175.35 feet to a point on the
North line of said Tract "A"; thence S 89°57'46" E along. and on the North line of said
Tract "A" a distance of 72.65 feet to the Point of Beg -inning.: thence continue along and
on said North line a distance of 184.20 feet to the North -Northeast comer of said Tract
"A"; thence S 40°-3 7'38" E along the Northeasterly line of said Tract "A", said line also
being the Southwesterly Right of Way line of Wagner Creek. a distance of 120.99 feet to
a point on the East -Northeast corner of said Tract "A"; thence S 00°03'20" E along and
on the East line of said Tract "A" and the West Right of Wav line of N. W. 14th Avenue a
distance of 194.60 feet to a Point of Curjatureof a curve to the right having a radius of 25
feet and a central angle of 90°04' 18"; thence South -Southwesterly along :he arc of said
curve a distance of 39.30 feet -to a Point of Tangency ; thence N 89°59'027 W along and
on the South line of said Tract "A" said South line also being the North Right of Way line
of N.W. 17 `h Street a distance of 257.31 feet to a point: thence N 00° 15' 18" W a distance
of 148.50 feet to a point; thence S 89°59'02" E a distance of 20.00 feet: thence N
00°02' 14" E a distance of 163.00 feet to the Point of Beginning, said lands containing.
81,140 sq. ft. more or less.
�, C 04T'f of GA!:tE
4 OM h
r..1; r -= f� tf the
.
4:5 ,tf;ce CI)
COLLATERAL ASSIGNMENT OF CONSTRUCTION CONTRACTS, ARCHITECTS'
CONTRACTS, PERMITS, LICENSES, WARRANTIES, PLANS, DRAWINGS, PURCHASE
AND SALE CONTRACTS, AND DEPOSITS, ETC.
(SECURITY AGREEMENT)
WHEREAS, THE CITY OF MIAMI, a municipal corporation ("Lender") is making a loan
or loans to WAGNER SQUARE, LLC, a Florida limited liability company ("Assignor") in the
aggregate amount of $4,000,000.00 ("Loan") which Loan shall be secured by a first mortgage
("Mortgage") and evidenced by a promissory note ("Note") and loan agreement ("Loan
Agreement") between the parties hereto, of even date herewith, said Mortgage, which may
consist of one or more instruments, to encumber certain property located in Miami -Dade
County, Florida, and more particularly described in Exhibit A attached hereto and made a part
hereof ("Land"), and any improvements thereon. Terms not otherwise defined herein shall have
the meanings given them in the Loan Agreement.
NOW, THEREFORE, for the better securing of the payment of the Loan and other good
and valuable consideration paid to the Assignor, the receipt of which is hereby acknowledged,
the Assignor does hereby assign, grant, bargain and convey to Lender all of Assignor's right,
title and interest in and to the following property of Assignor whether now owned or existing, or
hereafter acquired or arising, whether located in, on, pertaining to, used or intended to be used
in connection with or resulting or created from the ownership, development, management, or
operation of the Land:
1. All of the contracts and subcontracts including, without limitation, any and all
management contracts, construction contracts (together with payment and performance bonds
securing the obligations thereof), architectural contracts, service contracts, engineering
contracts, advertising contracts, contracts for purchase and sale of any of the Mortgaged
Property, environmental remediation contracts, including but not limited to the contract between
Assignor and WRS Infrastructure & Environment, Inc. (the "WRS Contract"), purchase orders,
equipment leases, monies in escrow accounts, reservation agreements, prepaid expenses,
deposits and down payments with respect to the sale or rental of any of the Mortgaged
Property, options and agreements with respect to additional real property for use or
development of the Mortgaged Property, end -loan commitments, surveys, abstracts of title, all
brochures, advertising materials, condominium documents and prospectuses.
2. All building permits, surveys, architectural and engineering plans and
specifications, shop drawings, governmental approval, licenses, agreements with any utility
companies (together with any deposits, prepaid fees and charges paid thereon) and any other
consents, approvals and rights which it may now or hereafter own with respect to or in
connection with the Land.
3. All warranties and guaranties now or hereafter given covering any furniture,
furnishings, equipment, machinery, building supplies and materials, business machines, tools,
appliances, fixtures and other property now or hereafter located on or placed upon the Land,
including without limitation, air conditioning, heating and other appliances and equipment.
4. Any and all, now or hereafter existing, Contracts of Sale, the deposits and down
payments paid or to be paid thereunder.
To protect the security of this Assignment, Assignor agrees to perform and discharge
each and every provision, term and obligation under all of the matters and items hereby
assigned on the part of Assignor to be performed pursuant thereto; and Assignor further agrees
not to terminate or modify any of the terms, provisions or conditions under any of the matters
and items assigned hereunder without obtaining the prior written consent of, Lender in each
instance, which consent shall not be unreasonably denied or delayed.
1
This Assignment is an assignment of benefits only and Lender does not assume any
obligation to perform any of the terms and provisions of the items and matters assigned hereby.
Nothing contained herein shall be construed to impose any liability upon Lender by reason of
the assignment granted hereby.
The terms of this Assignment shall be subject to the provisions set forth in the Mortgage
and in the Loan Agreement concerning the provisions for the partial release of certain portions
of the Land (the "Residential Phases") upon compliance with certain conditions relating to
environmental remediation, and the provisions set forth in the Mortgage and in the Loan
Agreement relating to subordination of the lien of any mortgage in favor of the Lender and any
related loan documents including any collateral assignments of leases, rents, profits, or
contracts, to a construction loan which Assignor may obtain for construction relating to the Land,
subject to compliance with any applicable provisions of the applicable Mortgage or the
applicable provisions of the Loan Agreement. These provisions shall be binding upon the
Lender and any successors and assigns of the Lender, including but not limited to HUD.
This Assignment shall be in full force and effect as of the date hereof but, subject to any
limitations set forth in the Loan Agreement or the Mortgage, until the occurrence of an Event of
Default, Assignor shall have the right to take ail action with respect to the items and matters
assigned hereby.
This Assignment is a security agreement under the Florida Uniform Commercial Code
for the purpose of creating a lien on the personal property described herein.
This Assignment shall be construed, interpreted, enforced and governed by and in
accordance with the laws of the State of Florida, excluding the principles thereof governing
conflicts of law.
This Assignment shall be binding upon the Assignor and other parties, if any, executing
this Assignment and their respective successors and assigns, and shall inure to the benefit of
the Lender, its successors and assigns.
IN WITNESS WHEREOF, Assignor has duly executed this Assignment the 10th day of
March, 2005.
ASSIGNOR:
WAGNER SQUARE, LLC, a Florida limited
liability company
By:
Print Name:'ebrc, c;k,
Title: t (4 #uc:.r .Z
STATE OF FLORIDA )
: SS
COUNTY OF MIAMI-DADE )
BEFORE ME, the undersigned authority, appeared 10-641.4.---44-14 `' , , as _
of Wagner Square, LLC, a Florida limited liability company, who is
pers6nall known to me�rr�vho has produced
as acknowledged that he/she/they executed the foregoing instrument for the
purposes expressed therein and with full corporate authority.
2
2005.
WITNESS my hand and seal in the State and County afoyesaid, tfis 10`h day of March,
NOTARY PUBLIC.
) Print Name:
j:x7•. a. NOTAF; i FL Noizry Gisa�uni Ass,o0. �r i
.. F-��• .-��, My Commission Expires:
THE FOREGOING ASSIGNMENT is hereby ratified, confirmed and consented to and, to
the extent that any item being assigned is now or hereafter owned by the undersigned, joined in
by the undersigned.
Signed, sealed and delivered CONSTRUCTION CONTRACTOR:
In the presence of:
Print Name: By:
Name:
Title:
Print Name:
STATE OF FLORIDA
SS:
COUNTY OF )
The foregoing instrument was sworn to, subscribed and acknowledged before
me this day of , 2005, by i , as
of a Florida , who
❑ is personally known to me or ❑ produced his driver's license as identification.
2002-6/MJJ/dom rnguez/9499
Notary Public, State of Florida at Large
Print, Type or Stamp Name:
Commission No.:
My Commission Expires:
3
EXHIBIT A
Land
All of WAGNER SQUARE, according to the Plat thereof, as
recorded in Plat Book 162, Page 66, of the Public Records of
Miami -Dade County, Florida.
i